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P. MOHANRAJ & ORS Vs. M/S. SHAH BROTHERS ISPAT PVT. LTD | a debtor. The State is not claiming the prerogative to deprive such offender of ill-gotten assets so as to be perceived to be sharing the loot, not the least so as to levy tax thereupon such as to give it a colour of legitimacy or lawful earning, the idea being to take away what has been illegitimately secured by proscribed criminal activity. This raison dêtre is completely different from what has been advocated by Shri Mehta. The confiscation of the proceeds of crime is by the government acting statutorily and not as a creditor. This judgment, again, does not further his case. WHETHER NATURAL PERSONS ARE COVERED BY SECTION 14 OF THE IBC 77. As far as the Directors/persons in management or control of the corporate debtor are concerned, a Section 138/141 proceeding against them cannot be initiated or continued without the corporate debtor – see Aneeta Hada (supra). This is because Section 141 of the Negotiable Instruments Act speaks of persons in charge of, and responsible to the company for the conduct of the business of the company, as well as the company. The Court, therefore, in Aneeta Hada (supra) held as under: 51. We have already opined that the decision in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620 ] runs counter to the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97 ] which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted. xxx xxx xxx 56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the Section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. xxx xxx xxx 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97 ] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620 ] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632 ] has to be treated to be restricted to its own facts as has been explained by us hereinabove. Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act. CONCLUSION | 1[ds]10. A cursory look at Section 14(1) makes it clear that subject to the exceptions contained in sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall mandatorily, by order, declare a moratorium to prohibit what follows in clauses (a) to (d). Importantly, under sub-section (4), this order of moratorium does not continue indefinitely, but has effect only from the date of the order declaring moratorium till the completion of the corporate insolvency resolution process which is time bound, either culminating in the order of the Adjudicating Authority approving a resolution plan or in liquidation.11. The two exceptions to Section 14(1) are contained in sub-sections (2) and (3) of Section 14. Under sub-section (2), the supply of essential goods or services to the corporate debtor during this period cannot be terminated or suspended or even interrupted, as otherwise the corporate debtor would be brought to its knees and would not able to function as a going concern during this period. The exception created in sub-section (3) (a) is important as it refers to transactions as may be notified by the Central Government in consultation with experts in finance.It is important to note that an award of an arbitration panel or an order of an authority is also included. This being the case, it would be incongruous to hold that the expression the institution of suits or continuation of pending suits must be read disjunctively as otherwise, the institution of arbitral proceedings and proceedings before authorities cannot be subsumed within the expression institution of suits which are proceedings in civil courts instituted by a plaint (see Section 26 of the Code of Civil Procedure, 1908). Therefore, it is clear that the expression institution of suits or continuation of pending suits is to be read as one category, and the disjunctive or before the word proceedings would make it clear that proceedings against the corporate debtor would be a separate category. What throws light on the width of the expression proceedings is the expression any judgment, decree or order and any court of law, tribunal, arbitration panel or other authority. Since criminal proceedings under the Code of Criminal Procedure, 1973 [CrPC] are conducted before the courts mentioned in Section 6, CrPC, it is clear that a Section 138 proceeding being conducted before a Magistrate would certainly be a proceeding in a court of law in respect of a transaction which relates to a debt owed by the corporate debtor.Let us now see as to whether the expression proceedings can be cut down to mean civil proceedings stricto sensu by the use of rules of interpretation such as ejusdem generis and noscitur a sociis.16. In Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., (1964) 8 SCR 50 , a five-Judge Bench of this Court had to decide as to whether the expression or other proceeding occurring in Section 69(3) of the Indian Partnership Act, 1932 would include a proceeding to appoint an arbitrator under Section 8(2) of the Arbitration Act, 1940. This Court held:It remains, however, to consider whether by reason of the fact that the words other proceeding stand opposed to the words a claim of set-off any limitation in their meaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis i.e. limited to the same category or genus comprehended by the particular words but it is not necessary that this rule must always apply. The nature of the special words and the general words must be considered before the rule is applied. In Allen v. Emersons [(1944) IKB 362] Asquith, J., gave interesting examples of particular words followed by general words where the principle of ejusdem generis might or might not apply. We think that the following illustration will clear any difficulty. In the expression books, pamphlets, newspapers and other documents private letters may not be held included if other documents be interpreted ejusdem generis with what goes before. But in a provision which reads newspapers or other document likely to convey secrets to the enemy, the words other document would include document of any kind and would not take their colour from newspapers. It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression claim of set-off does not disclose a category or a genus. Set-offs are of two kinds — legal and equitable — and both are already comprehended and it is difficult to think of any right arising from a contract which is of the same nature as a claim of set-off and can be raised by a defendant in a suit. Mr B.C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set-off other than a claim of set-off which could be raised in a suit such as is described in the second sub-section. In respect of the first sub-section he could give only two examples. They are (i) a claim by a pledger of goods-with an unregistered firm whose good are attached and who has to make an objection under Order 21 Rule 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a claim of set-off. The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the legislature was thinking of such far-fetched things when it spoke of other proceeding ejusdem generis with a claim of set-off.(at pages 56-57)In our judgment, the words other proceeding in sub- section (3) must receive their full meaning untrammelled by the words a claim of set-off. The latter words neither intend nor can be construed to cut down the generality of the words other proceeding. The sub-section provides for the application of the provisions of sub-sections (1) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-section (3) and sub-section (4).(at page 60)18. In CBI v. Braj Bhushan Prasad, (2001) 9 SCC 432 , this Court was asked to construe Section 89 of the Bihar Reorganisation Act with reference to noscitur a sociis. In turning this down, this Court held:26. We pointed out the above different shades of meanings in order to determine as to which among them has to be chosen for interpreting the said word falling in Section 89 of the Act. The doctrine of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision. The said doctrine has been resorted to with advantage by this Court in a number of cases vide Bangalore Water Supply & Sewerage Board v. A. Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S) 215], Rohit Pulp and Paper Mills Ltd. v. CCE [(1990) 3 SCC 447] , Oswal Agro Mills Ltd. v. CCE [1993 Supp (3) SCC 716], K. Bhagirathi G. Shenoy v. K.P. Ballakuraya [(1999) 4 SCC 135] and Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) 6 SCC 275 : 1999 SCC (L&S) 1090].27. If so, we have to gauge the implication of the words proceeding relating exclusively to the territory from the surrounding context. Section 89 of the Act says that proceeding pending prior to the appointed day before a court (other than the High Court), tribunal, authority or officer shall stand transferred to the corresponding court, tribunal, authority or officer of Jharkhand State. A very useful index is provided in the Section by defining the words corresponding court, tribunal, authority or officer in the State of Jharkhand as this: [Section 89(3)(b)(i)]The court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day;28. Look at the words would have laid if it had been instituted after the appointed day. In considering the question as to where the proceeding relating to the 36 cases involved in these appeals would have laid, had they been instituted after the appointed day, we have absolutely no doubt that the meaning of the word exclusively should be understood as substantially all or for the greater part or principally.29. We cannot overlook the main object of Section 89 of the Act. It must not be forgotten that transfer of criminal cases is not the only subject covered by the Section. The provision seeks to allocate the files or records relating to all proceedings, after the bifurcation if they were to be instituted after the appointed day. Any interpretation should be one which achieves that object and not that which might create confusion or perplexity or even bewilderment to the officers of the respective States. In other words, the interpretation should be made with pragmatism, not pedantically or in a stilted manner. For the purpose of criminal cases, we should bear in mind the subject-matter of the case to be transferred. When so considering, we have to take into account further that all the 36 cases are primarily for the offences under the PC Act and hence they are all triable before the Courts of Special Judges. Hence, the present question can be determined by reference to the provisions of the PC Act.19. In Godfrey Phillips India Ltd. v. State of U.P., (2005) 2 SCC 515 , a Constitution Bench of this Court had to construe the meaning of the expression luxury in Entry 62 of List 2 of the Seventh Schedule to the Constitution of India. In this context, the rule of noscitur a sociis was applied by the Court, the Court also pointing out how a court must be careful before blindly applying the principle, as follows:77. In the present context the general meaning of luxury has been explained or clarified and must be understood in a sense analogous to that of the less general words such as entertainments, amusements, gambling and betting, which are clubbed with it. This principle of interpretation known as noscitur a sociis has received approval in Rainbow Steels Ltd. v. CST [(1981) 2 SCC 141 : 1981 SCC (Tax) 90] , SCC at p. 145 although doubted in its indiscriminate application in State of Bombay v. Hospital Mazdoor Sabha [(1960) 2 SCR 866 : AIR 1960 SC 610 ] . In the latter case this Court was required to construe Section 2(j) of the Industrial Disputes Act which read:2(j) industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.78. It was found that the words in the definition were of very wide and definite import. It was suggested that these words should be read in a restricted sense having regard to the included items on the principle of noscitur a sociis. The suggestion was rejected in the following language: (Hospital Mazdoor Sabha case [(1960) 2 SCR 866 : AIR 1960 SC 610 ] , SCR p. 874)It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. (AIR p. 614, para 9)(emphasis in original)79. We do not read this passage as excluding the application of the principle of noscitur a sociis to the present case since it has been amply demonstrated with reference to authority that the meaning of the word luxury in Entry 62 is doubtful and has been defined and construed in different senses.81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the societas to which the socii belong, are known. The risk may be present when there is no other factor except contiguity to suggest the societas. But where there is, as here, a term of wide denotation which is not free from ambiguity, the addition of the words such as including is sufficiently indicative of the societas. As we have said, the word includes in the present context indicates a commonality or shared features or attributes of the including word with the included.83. Hence on an application of general principles of interpretation, we would hold that the word luxuries in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury.21. In Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416 , this Court laid down the limits of the application of the rule of construction that is contained in the expression noscitur a sociis as follows:84. It was then argued, relying on a large number of judgments that Section 5(8)(f) must be construed noscitur a sociis with clauses (a) to (e) and (g) to (i), and so construed would only refer to loans or other financial transactions which would involve money at both ends. This, again, is not correct in view of the fact that Section 5(8)(f) is clearly a residuary catch all provision, taking within it matters which are not subsumed within the other sub-clauses. Even otherwise, in CED v. Kantilal Trikamlal [CED v. Kantilal Trikamlal, (1976) 4 SCC 643 : 1977 SCC (Tax) 90 ] , this Court has held that when an expression is a residuary one, ejusdem generis will not apply. It was thus held: (SCC p. 655, para 21)21. … We have also to stress the expression other right in the explanation which is of the widest import and cannot be constricted by reading it ejusdem generis with debt. Other right, in the context, is expressly meant considerably to widen the concept and therefore suggests a somewhat contrary intention to the application of the ejusdem generis rule. We may derive instruction from Greens construction of the identical expression in the English Act. [Section 45(2)]. The learned author writes:A disclaimer is an extinguishment of a right for this purpose. Although in the event the person disclaiming never has any right in the property, he has the right to obtain it, this inchoate right is a right for the purposes of Section 45(2). The ejusdem generis rule does not apply to the words a debt or other right and the word right is a word of the widest import. Moreover, the expression at the expense of the deceased is used in an ordinary and natural manner; and is apt to cover not only cases where the extinguishment involves a loss to the deceased of a benefit he already enjoyed, but also those where it prevents him from acquiring the benefit.85. Also, in Subramanian Swamy v. Union of India [Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : (2016) 3 SCC (Cri) 1], this Court held: (SCC pp. 291-93, paras 70-74)70. The other aspect that is being highlighted in the context of Article 19(2) is that defamation even if conceived of to include a criminal offence, it must have the potentiality to incite to cause an offence. To elaborate, the submission is the words incite to cause an offence should be read to give attributes and characteristics of criminality to the word defamation. It must have the potentiality to lead to breach of peace and public order. It has been urged that the intention of clause (2) of Article 19 is to include a public law remedy in respect of a grievance that has a collective impact but not as an actionable claim under the common law by an individual and, therefore, the word defamation has to be understood in that context, as the associate words are incitement to an offence would so warrant. Mr Rao, learned Senior Counsel, astutely canvassed that unless the word defamation is understood in this manner applying the principle of noscitur a sociis, the cherished and natural right of freedom of speech and expression which has been recognised under Article 19(1)(a) would be absolutely at peril. Mr Narasimha, learned ASG would contend that the said rule of construction would not be applicable to understand the meaning of the term defamation. Be it noted, while construing the provision of Article 19(2), it is the duty of the Court to keep in view the exalted spirit, essential aspects, the value and philosophy of the Constitution. There is no doubt that the principle of noscitur a sociis can be taken recourse to in order to understand and interpret the Constitution but while applying the principle, one has to keep in mind the contours and scope of applicability of the said principle.71. In State of Bombay v. Hospital Mazdoor Sabha [State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 : (1960) 2 SCR 866 ] , it has been held that it must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the said rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.72. In Bank of India v. Vijay Transport [Bank of India v. Vijay Transport, 1988 Supp SCC 47] , the Court was dealing with the contention that a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used. For the said purpose, reliance was placed on R.L. Arora v. State of U.P. [R.L. Arora v. State of U.P., (1964) 6 SCR 784 : AIR 1964 SC 1230 ] Dealing with the said aspect, the Court has observed thus: (Vijay Transport case [Bank of India v. Vijay Transport, 1988 Supp SCC 47] , SCC p. 51, para 11)11. … It may be that in interpreting the words of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method of interpretation.73. The Constitution Bench, in Godfrey Phillips (India) Ltd. v. State of U.P. [Godfrey Phillips (India) Ltd. v. State of U.P., (2005) 2 SCC 515 ], while expressing its opinion on the aforesaid rule of construction, opined: (SCC pp. 550 & 551, paras 81 & 83)81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the societas to which the socii belong, are known. The risk may be present when there is no other factor except contiguity to suggest the societas. But where there is, as here, a term of wide denotation which is not free from ambiguity, the addition of the words such as including is sufficiently indicative of the societas. As we have said, the word includes in the present context indicates a commonality or shared features or attributes of the including word with the included.83. Hence on an application of general principles of interpretation, we would hold that the word luxuries in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury.74. At this juncture, we may note that in Ahmedabad Private Primary Teachers Assn. v. Administrative Officer [Ahmedabad Private Primary Teachers Assn. v. Administrative Officer, (2004) 1 SCC 755 : 2004 SCC (L&S) 306], it has been stated that noscitur a sociis is a legitimate rule of construction to construe the words in an Act of Parliament with reference to the words found in immediate connection with them. In this regard, we may refer to a passage from Justice G.P. Singh, Principles of Statutory Interpretation [(13th Edn., 2012) 509.] where the learned author has referred to the lucid explanation given by Gajendragadkar, J. We think it appropriate to reproduce the passage:It is a rule wider than the rule of ejusdem generis; rather the latter rule is only an application of the former. The rule has been lucidly explained by Gajendragadkar, J. in the following words:This rule, according to Maxwell [Maxwell, Interpretation of Statutes (11th Edn., 1962) 321.] , means that when two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general.The learned author on further discussion has expressed the view that meaning of a word is to be judged from the company it keeps i.e. reference to words found in immediate connection with them. It applies when two or more words are susceptible of analogous meanings are coupled together, to be read and understood in their cognate sense. [G.P. Singh, Principles of Statutory Interpretation (8th Edn.) 379.] Noscitur a sociis is merely a rule of construction and cannot prevail where it is clear that wider and diverse etymology is intentionally and deliberately used in the provision. It is only when and where the intention of the legislature in associating wider words with words of narrowest significance is doubtful or otherwise not clear, that the rule of noscitur a sociis is useful.86. It is clear from a reading of these judgments that noscitur a sociis being a mere rule of construction cannot be applied in the present case as it is clear that wider words have been deliberately used in a residuary provision, to make the scope of the definition of financial debt subsume matters which are not found in the other sub-clauses of Section 5(8). This contention must also, therefore, be rejected.22. A reading of these judgments would show that ejusdem generis and noscitur a sociis, being rules as to the construction of statutes, cannot be exalted to nullify the plain meaning of words used in a statute if they are designedly used in a wide sense. Importantly, where a residuary phrase is used as a catch-all expression to take within its scope what may reasonably be comprehended by a provision, regard being had to its object and setting, noscitur a sociis cannot be used to colour an otherwise wide expression so as to whittle it down and stultify the object of a statutory provision.It can be seen that paragraph 8.11 refers to the very judgment under appeal before us, and cannot therefore be said to throw any light on the correct position in law which has only to be finally settled by this Court. However, paragraph 8.2 is important in that the object of a moratorium provision such as Section 14 is to see that there is no depletion of a corporate debtors assets during the insolvency resolution process so that it can be kept running as a going concern during this time, thus maximising value for all stakeholders. The idea is that it facilitates the continued operation of the business of the corporate debtor to allow it breathing space to organise its affairs so that a new management may ultimately take over and bring the corporate debtor out of financial sickness, thus benefitting all stakeholders, which would include workmen of the corporate debtor. Also, the judgment of this Court in Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 states the raison dêtre for Section 14 in paragraph 28 as follows:28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtors assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.24. It can thus be seen that regard being had to the object sought to be achieved by the IBC in imposing this moratorium, a quasi-criminal proceeding which would result in the assets of the corporate debtor being depleted as a result of having to pay compensation which can amount to twice the amount of the cheque that has bounced would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation, or execution of a decree in such suit in a civil court for the amount of debt or other liability. Judged from the point of view of this objective, it is impossible to discern any difference between the impact of a suit and a Section 138 proceeding, insofar as the corporate debtor is concerned, on its getting the necessary breathing space to get back on its feet during the corporate insolvency resolution process. Given this fact, it is difficult to accept that noscitur a sociis or ejusdem generis should be used to cut down the width of the expression proceedings so as to make such proceedings analogous to civil suits.25. Viewed from another point of view, clause (b) of Section 14(1) also makes it clear that during the moratorium period, any transfer, encumbrance, alienation, or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein being also interdicted, yet a liability in the form of compensation payable under Section 138 would somehow escape the dragnet of Section 14(1). While Section 14(1)(a) refers to monetary liabilities of the corporate debtor, Section 14(1)(b) refers to the corporate debtors assets, and together, these two clauses form a scheme which shields the corporate debtor from pecuniary attacks against it in the moratorium period so that the corporate debtor gets breathing space to continue as a going concern in order to ultimately rehabilitate itself. Any crack in this shield is bound to have adverse consequences, given the object of Section 14, and cannot, by any process of interpretation, be allowed to occur.26. Even otherwise, when some of the other provisions as to moratorium are seen in the context of individuals and firms, the provisions of Section 14 become even clearer.27. When the language of Section 14 and Section 85 are contrasted, it becomes clear that though the language of Section 85 is only in respect of debts, the moratorium contained in Section 14 is not subject specific. The only light thrown on the subject is by the exception provision contained in Section 14(3)(a) which is that transactions are the subject matter of Section 14(1). Transaction is, as we have seen, a much wider expression than debt, and subsumes it. Also, the expression proceedings used by the legislature in Section 14(1)(a) is not trammelled by the word legal as a prefix that is contained in the moratorium provisions qua individuals and firms. Likewise, the provisions of Section 96 and Section 101 are moratorium provisions in Chapter III of Part III dealing with the insolvency resolution process of individuals and firms, the same expression, namely, debts is used as is used in Section 85.A legal action or proceeding in respect of any debt would, on its plain language, include a Section 138 proceeding. This is for the reason that a Section 138 proceeding would be a legal proceeding in respect of a debt. In respect of is a phrase which is wide and includes anything done directly or indirectly – see Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674 ( at page 709) and Giriraj Garg v. Coal India Ltd., (2019) 5 SCC 192 ( at pages 202-203). This, coupled with the fact that the Section is not limited to recovery of any debt, would indicate that any legal proceeding even indirectly relatable to recovery of any debt would be covered.28. When the language of these Sections is juxtaposed against the language of Section 14, it is clear that the width of Section 14 is even greater, given that Section 14 declares a moratorium prohibiting what is mentioned in clauses (a) to (d) thereof in respect of transactions entered into by the corporate debtor, inclusive of transactions relating to debts, as is contained in Sections 81, 85, 96, and 101. Also, Section 14(1)(d) is conspicuous by its absence in any of these Sections. Thus, where individuals or firms are concerned, the recovery of any property by an owner or lessor, where such property is occupied by or in possession of the individual or firm can be recovered during the moratorium period, unlike the property of a corporate debtor. For all these reasons, therefore, given the object and context of Section 14, the expression proceedings cannot be cut down by any rule of construction and must be given a fair meaning consonant with the object and context. It is conceded before us that criminal proceedings which are not directly related to transactions evidencing debt or liability of the corporate debtor would be outside the scope of this expression.29. V. Ramakrishnan (supra) looked at and contrasted Section 14 with Sections 96 and 101 from the point of view of a guarantor to a debt, and in this context, held:26. We are also of the opinion that Sections 96 and 101, when contrasted with Section 14, would show that Section 14 cannot possibly apply to a personal guarantor. When an application is filed under Part III, an interim-moratorium or a moratorium is applicable in respect of any debt due. First and foremost, this is a separate moratorium, applicable separately in the case of personal guarantors against whom insolvency resolution processes may be initiated under Part III. Secondly, the protection of the moratorium under these Sections is far greater than that of Section 14 in that pending legal proceedings in respect of the debt and not the debtor are stayed. The difference in language between Sections 14 and 101 is for a reason.26.1. Section 14 refers only to debts due by corporate debtors, who are limited liability companies, and it is clear that in the vast majority of cases, personal guarantees are given by Directors who are in management of the companies. The object of the Code is not to allow such guarantors to escape from an independent and co-extensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them. However, insofar as firms and individuals are concerned, guarantees are given in respect of individual debts by persons who have unlimited liability to pay them. And such guarantors may be complete strangers to the debtor — often it could be a personal friend. It is for this reason that the moratorium mentioned in Section 101 would cover such persons, as such moratorium is in relation to the debt and not the debtor.These observations, when viewed in context, are correct. However, this case is distinguishable in that the difference between these provisions and Section 14 was not examined qua moratorium provisions as a whole in relation to corporate debtors vis-à-vis individuals/firms.33. Section 32A cannot possibly be said to throw any light on the true interpretation of Section 14(1)(a) as the reason for introducing Section 32A had nothing whatsoever to do with any moratorium provision. At the heart of the Section is the extinguishment of criminal liability of the corporate debtor, from the date the resolution plan has been approved by the Adjudicating Authority, so that the new management may make a clean break with the past and start on a clean slate. A moratorium provision, on the other hand, does not extinguish any liability, civil or criminal, but only casts a shadow on proceedings already initiated and on proceedings to be initiated, which shadow is lifted when the moratorium period comes to an end. Also, Section 32A(1) operates only after the moratorium comes to an end. At the heart of Section 32A is the IBCs goal of value maximisation and the need to obviate lower recoveries to creditors as a result of the corporate debtor continuing to be exposed to criminal liability. Unfortunately, the Section is inelegantly drafted. The second proviso to Section 32A(1) speaks of persons who are in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor and who are, directly or indirectly, involved in the commission of such offence, i.e., the offence referred to in sub-section (1), as per the report submitted or complaint filed by the investigating authority …. The report submitted here refers to a police report under Section 173 of the CrPC, and complaints filed by investigating authorities under special Acts, as opposed to private complaints. If the language of the second proviso is taken to interpret the language of Section 32A(1) in that the offence committed under Section 32A(1) would not include offences based upon complaints under Section 2(d) of the CrPC, the width of the language would be cut down and the object of Section 32A(1) would not be achieved as all prosecutions emanating from private complaints would be excluded. Obviously, Section 32A(1) cannot be read in this fashion and clearly incudes the liability of the corporate debtor for all offences committed prior to the commencement of the corporate insolvency resolution process. Doubtless, a Section 138 proceeding would be included, and would, after the moratorium period comes to an end with a resolution plan by a new management being approved by the Adjudicating Authority, cease to be an offence qua the corporate debtor.34. A section which has been introduced by an amendment into an Act with its focus on cesser of liability for offences committed by the corporate debtor prior to the commencement of the corporate insolvency resolution process cannot be so construed so as to limit, by a sidewind as it were, the moratorium provision contained in Section 14, with which it is not at all concerned. If the first proviso to Section 32A(1) is read in the manner suggested by Shri Mehta, it will impact Section 14 by taking out of its ken Section 138/141 proceedings, which is not the object of Section 32A(1) at all. Assuming, therefore, that there is a clash between Section 14 of the IBC and the first proviso of Section 32A(1), this clash is best resolved by applying the doctrine of harmonious construction so that the objects of both the provisions get subserved in the process, without damaging or limiting one provision at the expense of the other. If, therefore, the expression prosecution in the first proviso of Section 32A(1) refers to criminal proceedings properly so-called either through the medium of a First Information Report or complaint filed by an investigating authority or complaint and not to quasi-criminal proceedings that are instituted under Sections 138/141 of the Negotiable Instruments Act against the corporate debtor, the object of Section 14(1) of the IBC gets subserved, as does the object of Section 32A, which does away with criminal prosecutions in all cases against the corporate debtor, thus absolving the corporate debtor from the same after a new management comes in.36. Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part of Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim.37. Likewise, under Section 139, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced which, on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. Section 140 is also important, in that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that Section, thus making it clear that strict liability will attach, mens rea being no ingredient of the offence. Section 141 then makes Directors and other persons statutorily liable, provided the ingredients of the section are met. Interestingly, for the purposes of this Section, explanation (a) defines company as meaning any body corporate and includes a firm or other association of individuals.38. We have already seen how the language of Sections 96 and 101 would include a Section 138/141 proceeding against a firm so that the moratorium stated therein would apply to such proceedings. If Shri Mehtas arguments were to be accepted, under the same Section, namely, Section 141, two different results would ensue – so far as bodies corporate, which include limited liability partnerships, are concerned, the moratorium provision contained in Section 14 of the IBC would not apply, but so far as a partnership firm is concerned, being covered by Sections 96 and 101 of the IBC, a Section 138/141 proceeding would be stopped in its tracks by virtue of the moratorium imposed by these Sections. Thus, under Section 141(1), whereas a Section 138 proceeding against a corporate body would continue after initiation of the corporate insolvency resolution process, yet, the same proceeding against a firm, being interdicted by Sections 96 and 101, would not so continue. This startling result is one of the consequences of accepting the argument of Shri Mehta, which again leads to the position that inelegant drafting alone cannot lead to such startling results, the object of Sections 14 and 96 and 101 being the same, namely, to see that during the insolvency resolution process for corporate persons/individuals and firms, the corporate body/firm/individual should be given breathing space to recuperate for a successful resolution of its debts – in the case of a corporate debtor, through a new management coming in; and in the case of individuals and firms, through resolution plans which are accepted by a committee of creditors, by which the debtor is given breathing space in which to pay back his/its debts, which would result in creditors getting more than they would in a bankruptcy proceeding against an individual or a firm.40. A cursory reading of Section 142 will again make it clear that the procedure under the CrPC has been departed from. First and foremost, no court is to take cognizance of an offence punishable under Section 138 except on a complaint made in writing by the payee or the holder in due course of the cheque – the victim. Further, the language of Section 142(1) (b) would again show the hybrid nature of these provisions inasmuch as a complaint must be made within one month of the date on which the cause of action under clause (c) of the proviso to Section 138 arises. The expression cause of action is a foreigner to criminal jurisprudence, and would apply only in civil cases to recover money. Chapter XIII of the CrPC, consisting of Sections 177 to 189, is a chapter dealing with the jurisdiction of the criminal courts in inquiries and trials. When the jurisdiction of a criminal court is spoken of by these Sections, the expression cause of action is conspicuous by its absence.41. By an Amendment Act of 2002, various other sections were added to this Chapter. Thus, under Section 143, it is lawful for a Magistrate to pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding INR 5,000/- summarily. This provision is again an important pointer to the fact that the payment of compensation is at the heart of the provision in that a fine exceeding INR 5000/-, the sky being the limit, can be imposed by way of a summary trial which, after application of Section 357 of the CrPC, results in compensating the victim up to twice the amount of the bounced cheque. Under Section 144, the mode of service of summons is done as in civil cases, eschewing the mode contained in Sections 62 to 64 of the CrPC. Likewise, under Section 145, evidence is to be given by the complainant on affidavit, as it is given in civil proceedings, notwithstanding anything contained in the CrPC. Most importantly, by Section 147, offences under this Act are compoundable without any intervention of the court, as is required by Section 320(2) of the CrPC.In CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 , this Court distinguished between civil proceedings and criminal proceedings in the context of Article 132 of the Constitution thus:… The expression civil proceeding is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceeding for contempt of court, and for exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State. The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specific services and such laws directly affect the civil rights of the tax-payer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the tax-payer are infringed in a manner not warranted by the statute, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil court would be regarded as a civil proceeding. The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.(at pages 196-197)A large number of cases have arisen before the High Courts in India in which conflicting views about the meaning of the expression civil proceeding were pressed. In some cases it was held that the expression civil proceeding excludes a proceeding instituted in the High Court for the issue of a writ whatever may be the nature of the right infringed and the relief claimed in other cases it has been held that a proceeding resulting from an application for a writ under Article 226 of the Constitution may in certain cases be deemed to be a civil proceeding, if the claim made, the right infringed and the relief sought warrant that inference: in still another set of cases it has been held that even if a proceeding commenced by a petition for a writ be generally categorised as a civil proceeding, where the jurisdiction which the High Court exercises relates to revenue, the proceeding is not civil. A perusal of the reasons given in the cases prompt the following observations. There are two preliminary conditions to the exercise of the power to grant certificate: (a) there must be a judgment, decree or final order, and that judgment, decree or final order must be made in a civil proceeding. An advisory opinion in a tax reference may not be appealed from with certificate under Article 133 because the opinion is not a judgment, decree or final order, and (b) a proceeding does not cease to be civil, when relief is claimed for enforcement of civil rights merely because the proceeding is not tried as a civil suit. In a large majority of the cases in which the jurisdiction of the High Court to certify a case under Article 133(1) was negatived it appears to have been assumed that the expression other proceeding used in Article 132 of the Constitution is or includes a proceeding of the nature of a revenue proceeding, and therefore the expression civil proceeding in Article 133(1) does not include a revenue proceeding. This assumption for reasons already set out is erroneous.(at page 199)A perusal of this judgment would show that a civil proceeding is not necessarily a proceeding which begins with the filing of a suit and culminates in execution of a decree. It would include a revenue proceeding as well as a writ petition filed under Article 226 of the Constitution, if the reliefs therein are to enforce rights of a civil nature. Interestingly, criminal proceedings are stated to be proceedings in which the larger interest of the State is concerned. Given these tests, it is clear that a Section 138 proceeding can be said to be a civil sheep in a criminal wolfs clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases, as has been seen by us in the analysis made hereinabove of Chapter XVII of the Negotiable Instruments Act.46. Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 is an important judgment of three Honble Judges of this Court. This judgment dealt, in particular, with the compounding provision contained in Section 147 of the Negotiable Instruments Act. Setting out the provision, the Court held:10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:147. Offences to be compoundable.— Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.At this point, it would be apt to clarify that in view of the non obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter CrPC) will not be applicable in the strict sense since the latter is meant for the specified offences under the Penal Code, 1860.11. So far as CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the court, while sub-section (2) of the said Section specifies the offences which are compoundable with the leave of the court.12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 CrPC which states that No offence shall be compounded except as provided by this Section. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) CrPC, especially keeping in mind that Section 147 carries a non obstante clause.15. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this Court, reported as K.M. Ibrahim v. K.P. Mohammed [(2010) 1 SCC 798 : (2010) 1 SCC (Cri) 921 : (2009) 14 Scale 262 ] wherein Kabir, J. has noted (at SCC p. 802, paras 13-14):13. As far as the non obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of offences. …14. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the appellate forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution.16. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: K.N.C. Pillai, R.V. Kelkars Criminal Procedure, Fifth Edn. (Lucknow: Eastern Book Company, 2008) at p. 444]:17.2. Compounding of offences.—A crime is essentially a wrong against the society and the State. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it expedient to recognise some of them as compoundable offences and some others as compoundable only with the permission of the court.17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act—Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]:… Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainants interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.If we were to examine the number of complaints filed which were compromised or settled before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued.18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. …This judgment was followed by a Division Bench of this Court in JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255 , stating:68. It is clear from a perusal of the aforesaid Statement of Objects and Reasons that offence under the NI Act, which was previously non-compoundable in view of Section 320 sub- section (9) of the Code has now become compoundable. That does not mean that the effect of Section 147 is to obliterate all statutory provisions of Section 320 of the Code relating to the mode and manner of compounding of an offence. Section 147 will only override Section 320(9) of the Code insofar as offence under Section 147 of the NI Act is concerned. This is also the ratio in Damodar [(2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328 ] (see para 12). Therefore, the submission of the learned counsel for the appellant to the contrary cannot be accepted.The Court then went into the history of compounding in criminal law as follows:78. Compounding as codified in Section 320 of the Code has a historical background. In common law compounding was considered a misdemeanour. In Kennys Outlines of Criminal Law (19th Edn., 1966) the concept of compounding has been traced as follows: (p. 407, para 422)422. Mercy should be shown, not sold.—It is a misdemeanour at common law to compound a felony (and perhaps also to compound a misdemeanour); i.e. to bargain, for value, to abstain from prosecuting the offender who has committed a crime. You commit this offence if you promise a thief not to prosecute him if only he will return the goods he stole from you; but you may lawfully take them back if you make no such promise. You may show mercy, but must not sell mercy. This offence of compounding is committed by the bare act of agreement; even though the compounder afterwards breaks his agreement and prosecutes the criminal. And inasmuch as the law permits not merely the person injured by a crime, but also all other members of the community, to prosecute, it is criminal for anyone to make such a composition; even though he suffered no injury and indeed has no concern with the crime.(emphasis in original)79. Russell on Crime (12th Edn.) also describes:Agreements not to prosecute or to stifle a prosecution for a criminal offence are in certain cases criminal.(Ch. 22 — Compounding Offences, p. 339.)80. Later on compounding was permitted in certain categories of cases where the rights of the public in general are not affected but in all cases such compounding is permissible with the consent of the injured party.81. In our country also when the Criminal Procedure Code, 1861 was enacted it was silent about the compounding of offence. Subsequently, when the next Code of 1872 was introduced it mentioned about compounding in Section 188 by providing the mode of compounding. However, it did not contain any provision declaring what offences were compoundable. The decision as to what offences were compoundable was governed by reference to the exception to Section 214 of the Penal Code. The subsequent Code of 1898 provided Section 345 indicating the offences which were compoundable but the said section was only made applicable to compounding of offences defined and permissible under the Penal code. The present Code, which repealed the 1898 Code, contains Section 320 containing comprehensive provisions for compounding.82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the NI Act, in that case the compounding of offence under the NI Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under the NI Act. Therefore, Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act.49. In Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 , a three-Judge Bench of this Court answered the question as to whether the territorial jurisdiction for filing of cheque dishonour complaints is restricted to the court within whose territorial jurisdiction the offence is committed, which is the location where the cheque is dishonoured, i.e., returned unpaid by the bank on which it is drawn. This judgment has been legislatively overruled by Section 142(2) of the Negotiable Instruments Act set out hereinabove. However, Shri Mehta relied upon paragraphs 15.2 and 17 of the judgment of Vikramjit Sen, J., which states as follows:15.2. We have undertaken this succinct study mindful of the fact that Parliamentary debates have a limited part to play in interpretation of statutes, the presumption being that legislators have the experience, expertise and language skills to draft laws which unambiguously convey their intentions and expectations for the enactments. What is palpably clear is that Parliament was aware that they were converting civil liability into criminal content inter alia by the deeming fiction of culpability in terms of the pandect comprising Section 138 and the succeeding sections, which severely curtail defences to prosecution. Parliament was also aware that the offence of cheating, etc. already envisaged in IPC, continued to be available.17. The marginal note of Section 138 of the NI Act explicitly defines the offence as being the dishonour of cheques for insufficiency, etc. of funds in the account. Of course, the headings, captions or opening words of a piece of legislation are normally not strictly or comprehensively determinative of the sweep of the actual Section itself, but it does presage its intendment. See Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185] and Forage & Co. v. Municipal Corpn. of Greater Bombay [(1999) 8 SCC 577] . Accordingly, unless the provisions of the section clearly point to the contrary, the offence is concerned with the dishonour of a cheque; and in the conundrum before us the body of this provision speaks in the same timbre since it refers to a cheque being returned by the bank unpaid. None of the provisions of IPC have been rendered nugatory by Section 138 of the NI Act and both operate on their own. It is trite that mens rea is the quintessential of every crime. The objective of Parliament was to strengthen the use of cheques, distinct from other negotiable instruments, as mercantile tender and therefore it became essential for Section 138 of the NI Act offence to be freed from the requirement of proving mens rea. This has been achieved by deeming the commission of an offence dehors mens rea not only under Section 138 but also by virtue of the succeeding two sections. Section 139 carves out the presumption that the holder of a cheque has received it for the discharge of any liability. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured. Section 138 unequivocally states that the offence is committed no sooner the drawee bank returns the cheque unpaid.The focus in this case was on the court within whose jurisdiction the offence under Section 138 can be said to have taken place. This case, therefore, has no direct relevance to the point that has been urged before us.53. A conspectus of these judgments would show that the gravamen of a proceeding under Section 138, though couched in language making the act complained of an offence, is really in order to get back through a summary proceeding, the amount contained in the dishonoured cheque together with interest and costs, expeditiously and cheaply. We have already seen how it is the victim alone who can file the complaint which ordinarily culminates in the payment of fine as compensation which may extend to twice the amount of the cheque which would include the amount of the cheque and the interest and costs thereupon. Given our analysis of Chapter XVII of the Negotiable Instruments Act together with the amendments made thereto and the case law cited hereinabove, it is clear that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 of the IBC, amount to a proceeding within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding. | 1 | 39,017 | 12,230 | ### Instruction:
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a debtor. The State is not claiming the prerogative to deprive such offender of ill-gotten assets so as to be perceived to be sharing the loot, not the least so as to levy tax thereupon such as to give it a colour of legitimacy or lawful earning, the idea being to take away what has been illegitimately secured by proscribed criminal activity. This raison dêtre is completely different from what has been advocated by Shri Mehta. The confiscation of the proceeds of crime is by the government acting statutorily and not as a creditor. This judgment, again, does not further his case. WHETHER NATURAL PERSONS ARE COVERED BY SECTION 14 OF THE IBC 77. As far as the Directors/persons in management or control of the corporate debtor are concerned, a Section 138/141 proceeding against them cannot be initiated or continued without the corporate debtor – see Aneeta Hada (supra). This is because Section 141 of the Negotiable Instruments Act speaks of persons in charge of, and responsible to the company for the conduct of the business of the company, as well as the company. The Court, therefore, in Aneeta Hada (supra) held as under: 51. We have already opined that the decision in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620 ] runs counter to the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97 ] which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted. xxx xxx xxx 56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term as well as in the Section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words as well as have to be understood in the context. xxx xxx xxx 58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words as well as the company appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97 ] which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620 ] does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632 ] has to be treated to be restricted to its own facts as has been explained by us hereinabove. Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act. CONCLUSION
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### Explanation:
the said section was only made applicable to compounding of offences defined and permissible under the Penal code. The present Code, which repealed the 1898 Code, contains Section 320 containing comprehensive provisions for compounding.82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the NI Act, in that case the compounding of offence under the NI Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under the NI Act. Therefore, Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act.49. In Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 , a three-Judge Bench of this Court answered the question as to whether the territorial jurisdiction for filing of cheque dishonour complaints is restricted to the court within whose territorial jurisdiction the offence is committed, which is the location where the cheque is dishonoured, i.e., returned unpaid by the bank on which it is drawn. This judgment has been legislatively overruled by Section 142(2) of the Negotiable Instruments Act set out hereinabove. However, Shri Mehta relied upon paragraphs 15.2 and 17 of the judgment of Vikramjit Sen, J., which states as follows:15.2. We have undertaken this succinct study mindful of the fact that Parliamentary debates have a limited part to play in interpretation of statutes, the presumption being that legislators have the experience, expertise and language skills to draft laws which unambiguously convey their intentions and expectations for the enactments. What is palpably clear is that Parliament was aware that they were converting civil liability into criminal content inter alia by the deeming fiction of culpability in terms of the pandect comprising Section 138 and the succeeding sections, which severely curtail defences to prosecution. Parliament was also aware that the offence of cheating, etc. already envisaged in IPC, continued to be available.17. The marginal note of Section 138 of the NI Act explicitly defines the offence as being the dishonour of cheques for insufficiency, etc. of funds in the account. Of course, the headings, captions or opening words of a piece of legislation are normally not strictly or comprehensively determinative of the sweep of the actual Section itself, but it does presage its intendment. See Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185] and Forage & Co. v. Municipal Corpn. of Greater Bombay [(1999) 8 SCC 577] . Accordingly, unless the provisions of the section clearly point to the contrary, the offence is concerned with the dishonour of a cheque; and in the conundrum before us the body of this provision speaks in the same timbre since it refers to a cheque being returned by the bank unpaid. None of the provisions of IPC have been rendered nugatory by Section 138 of the NI Act and both operate on their own. It is trite that mens rea is the quintessential of every crime. The objective of Parliament was to strengthen the use of cheques, distinct from other negotiable instruments, as mercantile tender and therefore it became essential for Section 138 of the NI Act offence to be freed from the requirement of proving mens rea. This has been achieved by deeming the commission of an offence dehors mens rea not only under Section 138 but also by virtue of the succeeding two sections. Section 139 carves out the presumption that the holder of a cheque has received it for the discharge of any liability. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured. Section 138 unequivocally states that the offence is committed no sooner the drawee bank returns the cheque unpaid.The focus in this case was on the court within whose jurisdiction the offence under Section 138 can be said to have taken place. This case, therefore, has no direct relevance to the point that has been urged before us.53. A conspectus of these judgments would show that the gravamen of a proceeding under Section 138, though couched in language making the act complained of an offence, is really in order to get back through a summary proceeding, the amount contained in the dishonoured cheque together with interest and costs, expeditiously and cheaply. We have already seen how it is the victim alone who can file the complaint which ordinarily culminates in the payment of fine as compensation which may extend to twice the amount of the cheque which would include the amount of the cheque and the interest and costs thereupon. Given our analysis of Chapter XVII of the Negotiable Instruments Act together with the amendments made thereto and the case law cited hereinabove, it is clear that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 of the IBC, amount to a proceeding within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding.
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Aluru Kondayya And Ors Vs. Singaraju Rama Rao And Ors | proceeding it becomes necessary to determine whether an inam village or a separated part of an inam village was or was not an estate within the meaning of this Act as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, it shall be presumed, until the contrary is shown, that such village or part was an estate. The presumption under S. 23 in terms applies only to cases in which the question (arises?) whether an inam village was an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936. Under the Act, before it was amended in 1936, a grant of a village could be deemed a grant of an estate where only melvaram was granted to the inamdar and not where both the melvaram and the kudivaram were granted. By enacting S. 23 the Legislature intended to declare that in determining whether under a grant of an inam village both varams were granted or only the melvaram was granted, it shall be presumed, until the contrary was shown, that such village or part thereof was an estate that is, only the melvaram was granted. 34. Under the Act before its amendment, one of the conditions of the applicability of S. 3 (2) (d) was that the grant in favour of the inamdar was only of the melvaram, and that it did not include the kudivaram, and the Legislature by S. 23 as amended provided that in a dispute arising between the landlord and tenant whether an inam village was or was not an estate, it was to be presumed that it was only of the melvaram. Enactment of this section was apparently found desirable because of certain decisions of the Judicial Committee. In Suryanarayana v. Patanna, (1918) 45 Ind App 209: (AIR 1918 PC 169), and Upadrashta Venkata Sastrulu v. Divi Seetharamudu, (1919) 46 Ind App 123: (AIR 1919 PC 111), the Judicial Committee expressed the view that where there was no evidence of the terms of an ancient grant, there was no presumption that it was of melvaram alone. The Madras High Court in Muthu Goudan v. Perumal Iyen, (1921) ILR 44 Mad 588: (AIR 1921 Mad 145 (FB), held that the ground on which the decisions of the Judicial Committee proceeded, though it was not necessary for the purpose of those cases to so decide, a presumption that the grant was of both the varams was deducible. The Judicial Committee overruled this decision in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerma Reddi, (1922) 49 Ind App 286: (AIR 1922 PC 292), and held that in each case the question was one of fact to be determined on the evidence. The legislature then intervened and enacted the presumption applicable only to cases arising under the unamended Act. Undoubtedly in cases arising under amended Act, the conditions on which the presumption will arise are prescribed in the explanation (1). The language used by the Legislature in the amended S. 23 clearly shows that the section was not intended to deal with cases arising under the Madras Estates Land Act as amended by Act 18 of 1936. Any reference in S. 23 to a presumption in respect of cases arising after Cl. (d) was recast by Act 18 of 1936 would have been wholly out of place. There were two presumptions which applied to different situation. In cases which arose before the Amending Act of 1936 the presumption under S. 23 applied: in cases which arose since the amendment of 1936 the presumption prescribed by the Explanation (1) applied. This is so, because the Explanation though enacted by Act 2 of 1945 has been brought into force since the date on which the amending Act of 1936 became operative. 35. In our view the following passage from the decision of the Madras High Court in Mantravadi Bhavanaryana v. Merugu Venkatadu, ILR (19540 Mad 116. (AIR 1954 Mad 415 (FB)), correctly interprets S. 3 (2) (d): It is now settled law that by reason of the amendment made in 1945, which added an explanation to Section 3 (2) (d) of the Madras Estates Land Act and numbered it as explanation1, a grant constitutes an estate if it is expressed to be a named village irrespective of the fact that some of the lands in the village had already been granted on inam or service grants, or were reserved for communal purposes. 36. We do not deem it necessary to decide whether the suit for a mere declaration that the tenants were not occupancy tenants at the instance of the shrotriemdars, after determining the tenancy of some of the tenants was maintainable. The High Court has dismissed the suit against defendants 1 to 10 who were served with notices to quit, but against whom the shortriemdars did not claim a decree for possession. There is no appeal by the shortriemdars before us against defendants 1 to 10, and in any event on the view taken by us, the suit of the shrotriemdars must fail in its entirety. 37. In Appeal No. 342 of 1961 the decision recorded by us on the principal question does not put an end to the litigation. The dispute arose between two rival claimants to the rights of occupancy in a piece of land. The respondent in this appeal claims that he is a transferee of the original tenant, and the appellant claims to have acquired the rights of occupancy from the shrotriemdar. In suit No. 93 of 1947, four substantive issues were raised, and the issues are discussed in paragraphs 106 to 120 of the judgment of the Trial Judge. The High Court did not separately deal with those issues, but decided Appeal No.789 of 1950 on the review of the law which it declared in the principal appeal. We have disagreed with the High Court for reasons already set out and the other issues which have not been tried by the High Court have now to be tried. 38. | 1[ds]18. But long possession fixity of rent, assertion of title in formal deeds may not necessarily justify an inference of permanent occupancy rights. Again the mere fact that the village was treated as one unit for the purpose of revenue administration does not justify any positive inference and the fact that five separate sanads were issued in respect of the minor inams without any evidence to prove the date and the terms of the grant leaves the matter on doubt. Some of these circumstances may prima facie support the inamdars and the other the tenants but on a careful review of all those circumstances, we are unable to disagree with the opinion of the High Court that the grant was not proved to be of a whole villageA large majority of the inams are ancient and the records bearing on the commencement, extent and nature of the grant would invariably be in the possession of the inamdars. To expect that tenants who are generally illiterate, and who came to occupy the lands not infrequently many years after the original grant, would be able to lead evidence on matters principally within the knowledge of the inamdars, and information whereof the inamdars would be interested in withholding, would be to attribute to the legislature gross ignorance of local conditions. In terms the presumption arises on proof that the grant is an inam expressed to be of a named village, and it arises even if it appears that there have been other minor inams granted for service or other tenure or have been reserved for communal purposes. The non-obstante clause in the Explanation, in our judgment, does not prescribe a condition for the raising of the presumption. The presumption arises only when it is proved that the grant is expressed to be of a named village, and the burden of proving that the grant is so expressed must lie upon the party who claims to bring the grant within the exception, but once it is proved that the grant is expressed to be of a named village, raising of the presumption will not depend upon proof that certain lands in the village were granted on service or other tenure, or were reserved for communal purposes before the grant of the villageWe do not deem it necessary to decide whether the suit for a mere declaration that the tenants were not occupancy tenants at the instance of the shrotriemdars, after determining the tenancy of some of the tenants was maintainable. The High Court has dismissed the suit against defendants 1 to 10 who were served with notices to quit, but against whom the shortriemdars did not claim a decree for possession. There is no appeal by the shortriemdars before us against defendants 1 to 10, and in any event on the view taken by us, the suit of the shrotriemdars must fail in its entiretyIn Appeal No. 342 of 1961 the decision recorded by us on the principal question does not put an end to the litigation. The dispute arose between two rival claimants to the rights of occupancy in a piece of land. The respondent in this appeal claims that he is a transferee of the original tenant, and the appellant claims to have acquired the rights of occupancy from the shrotriemdar. In suit No. 93 of 1947, four substantive issues were raised, and the issues are discussed in paragraphs 106 to 120 of the judgment of the Trial Judge. The High Court did not separately deal with those issues, but decided Appeal No.789 of 1950 on the review of the law which it declared in the principal appeal. We have disagreed with the High Court for reasons already set out and the other issues which have not been tried by the High Court have now to be tried. | 1 | 10,078 | 679 | ### 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:
proceeding it becomes necessary to determine whether an inam village or a separated part of an inam village was or was not an estate within the meaning of this Act as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, it shall be presumed, until the contrary is shown, that such village or part was an estate. The presumption under S. 23 in terms applies only to cases in which the question (arises?) whether an inam village was an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936. Under the Act, before it was amended in 1936, a grant of a village could be deemed a grant of an estate where only melvaram was granted to the inamdar and not where both the melvaram and the kudivaram were granted. By enacting S. 23 the Legislature intended to declare that in determining whether under a grant of an inam village both varams were granted or only the melvaram was granted, it shall be presumed, until the contrary was shown, that such village or part thereof was an estate that is, only the melvaram was granted. 34. Under the Act before its amendment, one of the conditions of the applicability of S. 3 (2) (d) was that the grant in favour of the inamdar was only of the melvaram, and that it did not include the kudivaram, and the Legislature by S. 23 as amended provided that in a dispute arising between the landlord and tenant whether an inam village was or was not an estate, it was to be presumed that it was only of the melvaram. Enactment of this section was apparently found desirable because of certain decisions of the Judicial Committee. In Suryanarayana v. Patanna, (1918) 45 Ind App 209: (AIR 1918 PC 169), and Upadrashta Venkata Sastrulu v. Divi Seetharamudu, (1919) 46 Ind App 123: (AIR 1919 PC 111), the Judicial Committee expressed the view that where there was no evidence of the terms of an ancient grant, there was no presumption that it was of melvaram alone. The Madras High Court in Muthu Goudan v. Perumal Iyen, (1921) ILR 44 Mad 588: (AIR 1921 Mad 145 (FB), held that the ground on which the decisions of the Judicial Committee proceeded, though it was not necessary for the purpose of those cases to so decide, a presumption that the grant was of both the varams was deducible. The Judicial Committee overruled this decision in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerma Reddi, (1922) 49 Ind App 286: (AIR 1922 PC 292), and held that in each case the question was one of fact to be determined on the evidence. The legislature then intervened and enacted the presumption applicable only to cases arising under the unamended Act. Undoubtedly in cases arising under amended Act, the conditions on which the presumption will arise are prescribed in the explanation (1). The language used by the Legislature in the amended S. 23 clearly shows that the section was not intended to deal with cases arising under the Madras Estates Land Act as amended by Act 18 of 1936. Any reference in S. 23 to a presumption in respect of cases arising after Cl. (d) was recast by Act 18 of 1936 would have been wholly out of place. There were two presumptions which applied to different situation. In cases which arose before the Amending Act of 1936 the presumption under S. 23 applied: in cases which arose since the amendment of 1936 the presumption prescribed by the Explanation (1) applied. This is so, because the Explanation though enacted by Act 2 of 1945 has been brought into force since the date on which the amending Act of 1936 became operative. 35. In our view the following passage from the decision of the Madras High Court in Mantravadi Bhavanaryana v. Merugu Venkatadu, ILR (19540 Mad 116. (AIR 1954 Mad 415 (FB)), correctly interprets S. 3 (2) (d): It is now settled law that by reason of the amendment made in 1945, which added an explanation to Section 3 (2) (d) of the Madras Estates Land Act and numbered it as explanation1, a grant constitutes an estate if it is expressed to be a named village irrespective of the fact that some of the lands in the village had already been granted on inam or service grants, or were reserved for communal purposes. 36. We do not deem it necessary to decide whether the suit for a mere declaration that the tenants were not occupancy tenants at the instance of the shrotriemdars, after determining the tenancy of some of the tenants was maintainable. The High Court has dismissed the suit against defendants 1 to 10 who were served with notices to quit, but against whom the shortriemdars did not claim a decree for possession. There is no appeal by the shortriemdars before us against defendants 1 to 10, and in any event on the view taken by us, the suit of the shrotriemdars must fail in its entirety. 37. In Appeal No. 342 of 1961 the decision recorded by us on the principal question does not put an end to the litigation. The dispute arose between two rival claimants to the rights of occupancy in a piece of land. The respondent in this appeal claims that he is a transferee of the original tenant, and the appellant claims to have acquired the rights of occupancy from the shrotriemdar. In suit No. 93 of 1947, four substantive issues were raised, and the issues are discussed in paragraphs 106 to 120 of the judgment of the Trial Judge. The High Court did not separately deal with those issues, but decided Appeal No.789 of 1950 on the review of the law which it declared in the principal appeal. We have disagreed with the High Court for reasons already set out and the other issues which have not been tried by the High Court have now to be tried. 38.
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### Explanation:
18. But long possession fixity of rent, assertion of title in formal deeds may not necessarily justify an inference of permanent occupancy rights. Again the mere fact that the village was treated as one unit for the purpose of revenue administration does not justify any positive inference and the fact that five separate sanads were issued in respect of the minor inams without any evidence to prove the date and the terms of the grant leaves the matter on doubt. Some of these circumstances may prima facie support the inamdars and the other the tenants but on a careful review of all those circumstances, we are unable to disagree with the opinion of the High Court that the grant was not proved to be of a whole villageA large majority of the inams are ancient and the records bearing on the commencement, extent and nature of the grant would invariably be in the possession of the inamdars. To expect that tenants who are generally illiterate, and who came to occupy the lands not infrequently many years after the original grant, would be able to lead evidence on matters principally within the knowledge of the inamdars, and information whereof the inamdars would be interested in withholding, would be to attribute to the legislature gross ignorance of local conditions. In terms the presumption arises on proof that the grant is an inam expressed to be of a named village, and it arises even if it appears that there have been other minor inams granted for service or other tenure or have been reserved for communal purposes. The non-obstante clause in the Explanation, in our judgment, does not prescribe a condition for the raising of the presumption. The presumption arises only when it is proved that the grant is expressed to be of a named village, and the burden of proving that the grant is so expressed must lie upon the party who claims to bring the grant within the exception, but once it is proved that the grant is expressed to be of a named village, raising of the presumption will not depend upon proof that certain lands in the village were granted on service or other tenure, or were reserved for communal purposes before the grant of the villageWe do not deem it necessary to decide whether the suit for a mere declaration that the tenants were not occupancy tenants at the instance of the shrotriemdars, after determining the tenancy of some of the tenants was maintainable. The High Court has dismissed the suit against defendants 1 to 10 who were served with notices to quit, but against whom the shortriemdars did not claim a decree for possession. There is no appeal by the shortriemdars before us against defendants 1 to 10, and in any event on the view taken by us, the suit of the shrotriemdars must fail in its entiretyIn Appeal No. 342 of 1961 the decision recorded by us on the principal question does not put an end to the litigation. The dispute arose between two rival claimants to the rights of occupancy in a piece of land. The respondent in this appeal claims that he is a transferee of the original tenant, and the appellant claims to have acquired the rights of occupancy from the shrotriemdar. In suit No. 93 of 1947, four substantive issues were raised, and the issues are discussed in paragraphs 106 to 120 of the judgment of the Trial Judge. The High Court did not separately deal with those issues, but decided Appeal No.789 of 1950 on the review of the law which it declared in the principal appeal. We have disagreed with the High Court for reasons already set out and the other issues which have not been tried by the High Court have now to be tried.
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G.L. Didwania and Another Vs. Income Tax Officer and Another | The matter arises under the Income-tax Act. The appellant was an assessee and for the assessment year 1960-61, he filed his return of income showing his income as Rs. 26, 224 in the prescribed form and the verification was signed by him on August 25, 1961, and the return was filed on September 8, 1961. The appellant showed his business income from firms in Delhi and Bombay. The assessment was made on October 31, 1961, by the officer concerned taking the income to be of Rs. 35, 699. There is another firm, Young India and Transport Company in which the minor children of the appellant and his two employees were partners. During the course of the assessment proceeding, the assessing authority reached the conclusion that it was not a genuine firm and the instrument of partnership was invalid and inoperative. Thereafter, proceedings under sections 147 and 148 of the Act were initiated against the appellant and his assessment was reopened. In pursuance of the notice under section 148 of the Act, the appellant filed hAfter the Appellate Tribunal passed the order, allowing the appeal in favour of the appellant, he filed a petition before the magistrate to drop the criminal proceedings. The magistrate by his order dated September 2, 1979, dismissed the said application and held that the prosecution has got a right to lead evidence in support of his complaint and the court can come to the conclusion whether or not any criminal offence is made out. The learned magistrate also observed that the order of the Tribunal can be taken only as evidence. Aggrieved by the same, the appellant-assessee filed an application under section 482, Criminal Procedure Code, before the High Court and the High Court dismissed it in limine. Hence, the present appeal Mr. R.K. Jain, learned senior counsel, submits that the averments in the complaint would clearly show that the prosecution was sought to be launched on the basis that the appellant wrongly and falsely declared that the income of Young India and Transport Company does not belong to him and that he made a false verification to that effect and the income of Young India and Transport Company does belong to him and failing to include the said income of Young India and Transport Company in his income amounted to suppression and thus he was liable under section 277 of the Income-tax Act and that in view of the fact that in the order of the Appellate Tribunal those conclusions reached by the assessing authority have been set aside; consequently, the very basis of the complaint is knocked out and, therefore, in the interest of justice the proceedings ought to have been quashed by the High Court. In support of his submission, he also relied on a judgment of this court in Uttam Chand v. ITO, whereinIn the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained Mr. A. Raghuvir, learned senior counsel appearing for the Department, submitted that the fact whether the firm is a genuine firm, still remains as a question to be resolved and, therefore, the proceedings cannot be quashed at this stage. We do not agree. The whole question is whether the appellant-assessee made a false statement regarding the income which according to the assessing authority has escaped assessment. So far as this issue is concerned, the finding of the Appellate Tribunal is conclusive. Therefore, as held in Uttam Chands case, the prosecution cannot be sustained. | 1[ds]We do not agree. The whole question is whether themade a false statement regarding the income which according to the assessing authority has escaped assessment. So far as this issue is concerned, the finding of the Appellate Tribunal is conclusive. Therefore, as held in Uttam Chands case, the prosecution cannot be sustained. | 1 | 707 | 64 | ### 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:
The matter arises under the Income-tax Act. The appellant was an assessee and for the assessment year 1960-61, he filed his return of income showing his income as Rs. 26, 224 in the prescribed form and the verification was signed by him on August 25, 1961, and the return was filed on September 8, 1961. The appellant showed his business income from firms in Delhi and Bombay. The assessment was made on October 31, 1961, by the officer concerned taking the income to be of Rs. 35, 699. There is another firm, Young India and Transport Company in which the minor children of the appellant and his two employees were partners. During the course of the assessment proceeding, the assessing authority reached the conclusion that it was not a genuine firm and the instrument of partnership was invalid and inoperative. Thereafter, proceedings under sections 147 and 148 of the Act were initiated against the appellant and his assessment was reopened. In pursuance of the notice under section 148 of the Act, the appellant filed hAfter the Appellate Tribunal passed the order, allowing the appeal in favour of the appellant, he filed a petition before the magistrate to drop the criminal proceedings. The magistrate by his order dated September 2, 1979, dismissed the said application and held that the prosecution has got a right to lead evidence in support of his complaint and the court can come to the conclusion whether or not any criminal offence is made out. The learned magistrate also observed that the order of the Tribunal can be taken only as evidence. Aggrieved by the same, the appellant-assessee filed an application under section 482, Criminal Procedure Code, before the High Court and the High Court dismissed it in limine. Hence, the present appeal Mr. R.K. Jain, learned senior counsel, submits that the averments in the complaint would clearly show that the prosecution was sought to be launched on the basis that the appellant wrongly and falsely declared that the income of Young India and Transport Company does not belong to him and that he made a false verification to that effect and the income of Young India and Transport Company does belong to him and failing to include the said income of Young India and Transport Company in his income amounted to suppression and thus he was liable under section 277 of the Income-tax Act and that in view of the fact that in the order of the Appellate Tribunal those conclusions reached by the assessing authority have been set aside; consequently, the very basis of the complaint is knocked out and, therefore, in the interest of justice the proceedings ought to have been quashed by the High Court. In support of his submission, he also relied on a judgment of this court in Uttam Chand v. ITO, whereinIn the instant case, the crux of the matter is attracted and whether the prosecution can be sustained in view of the order passed by the Tribunal. As noted above, the assessing authority held that the appellant-assessee made a false statement in respect of income of Young India and Transport Company and that finding has been set aside by the Income-tax Appellate Tribunal. If that is the position then we are unable to see as to how criminal proceedings can be sustained Mr. A. Raghuvir, learned senior counsel appearing for the Department, submitted that the fact whether the firm is a genuine firm, still remains as a question to be resolved and, therefore, the proceedings cannot be quashed at this stage. We do not agree. The whole question is whether the appellant-assessee made a false statement regarding the income which according to the assessing authority has escaped assessment. So far as this issue is concerned, the finding of the Appellate Tribunal is conclusive. Therefore, as held in Uttam Chands case, the prosecution cannot be sustained.
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1
### Explanation:
We do not agree. The whole question is whether themade a false statement regarding the income which according to the assessing authority has escaped assessment. So far as this issue is concerned, the finding of the Appellate Tribunal is conclusive. Therefore, as held in Uttam Chands case, the prosecution cannot be sustained.
|
M/S. Shri Gopal Paper Mills Co. Ltd Vs. Commissioner Of Income Tax, Central Calcutta | has not been put completely in possession of his share, and this may be so, although some formal act may not have been completed. Thus, shares may have been issued which have been allotted, but for which no certificates have ever been issued, and on the other hand, shares as to which a resolution to allot has been made may not have been issued.Shares for which the memorandum of association has been subscribed are "issued" when the company is registered."9. In re Heatons Steel and Iron Co., (1876) 4 Ch D 140, the Court of Appeal held that the issue of certificates is not necessary to the issue of shares within Section 25 of the English Companies Act, 1867. In that case, Brett, J. observed :"that in Bushs case, (1874) 9 Ch A 554 (supra), the issue of certificates was merely taken as evidence of the time when the shares were issued, but this must not be taken to mean that shares are not issued until the certificates are issued."James, L. J. observed :"I think it is desirable to say, as the appellant appears to have been misled by the marginal note to Bushs case, (1874) 9 CH A 554, that the notion that shares are only issued when the certificates are issued is a blunder which could hardly be attributed to us."10. In Dalton Time Lock Co. v. Dalton (1892) 66 LT 704, the Appeal Court-observed that the share for which the defendant had subscribed in the memorandum of association, must be held to have been issued to him upon the registration of the company and hence he must be held liable to pay the share money.We are unable to agree with the contention of the Revenue that merely because in clause (b) of the resolution of the general meeting, the directors of the company were directed to issue bonus shares, the property in the bonus shares had not passed to the ordinary share-holders on December 30, 1954. The words allot and distribute found in cl. (b) of the resolution do not carry the matter further. Their meaning should be gathered from the context in which they were used. Clauses (b) and (c) of the resolution must be read harmoniously with cl. (a). The word "allotment" has not been defined in the Companies Act. The meaning of the word "allot" or "allotment" will have to be gathered from the context in which those words are used.This Court considered the meaning of the word "allotment" in Sri Gopal Jalan and Co. v. Calcutta Stock Exchange Association Ltd., 1964-3 SCR 698 = (AIR 1964 SC 250 ). Therein it referred to a large number of English decisions which have considered the meaning of that word. In that decision this Court referred to the observations of Chitty J. in In re Florence Land and Public Works Co., (1885) 29 Ch D 421 :"To my mind there is no magic whatever in the term "allotment" as used in these circumstances. It is said that the allotment is an appropriation of a specific number of shares. It is an appropriation, not of specific shares, but of a certain number of shares."In Gopal Jalans case, 1964-3 SCR 698 = (AIR 1964 SC 250 ) (supra), Sarkar J. (as he then was) quoted with approval the following passage from Farwell L. J. in Mosely v. Koffyfontain Mines Ltd., (1911) 1 Ch 73 at p. 84 :"As regards the construction of these particular articles, it is plain that the words "creation", "issue" and "allotment" are used with the three different meanings familiar to business people as well as to lawyers. There are three steps with regard to new capital; first, it is created; till it is created the capital does not exist at all. When it is created, it may remain unissued for years, as indeed it was here; the market did not allow of a favourable opportunity of placing it. When it is issued it may be issued on such terms as appear for the moment expedient. Next comes allotment. To take the words of Stirling J. in Spitzel v. Chinese Corpn., (1899) 80 LT 347, 351, he says ; "What is an allotment of shares? Broadly speaking it is an appropriation by the directors or the managing body of the company ofshares to a particular person."After examining the various decisions, Sarkar J. observed :"It is beyond doubt from the authorities to which we have earlier referred, and there are many more which could be cited to show the same position that in Company Law "allotment" means the appropriation out of the previously unappropriated capital of a company of a certain number of shares to a person. Till such allotment the share do not exist as such. It is on allotment in this sense that the shares come into existence."11. The word "distribute" found in cl. (b) of the resolution in the context means to record the distribution of the shares in the books of the company. If the resolution passed at the general meeting of the company on December 30, 1954, is read as a whole, there is no doubt that on that day a portion of the accumulated undivided profits were converted into capital;that capital was divided into bonus shares and allotted to the ordinary shareholders on the basis of their share holdings. The shares so allotted became the property of the shareholders as from that date subject to the qualification that they are entitled to get dividends on those shares only as from 1st January 1955. Under cls. (b) and (c) of the resolution, certain directions were given to the Directors in the matter of implementation of that resolution. Hence, there was no justification in reducing the rebate firstly under sub-clause (a) of clause (1) of the second proviso to Section D of Part II of the Finance Act, 1956, and secondly under sub-clause (b) of cl. (1) of the second proviso to Section D of Part II of the Finance Act, 1956. | 1[ds]7. From this part of the resolution it is clear that the ordinary shareholders became owners of the bonus shares to which they were entitled to under the resolution as from the date of the resolution. The expression "be capitalised and distributed" in the resolution means "is hereby capitalised and distributed" In fact, the whole tenor of the resolution shows that the distribution of the bonus shares became effective as from 30th December, 1954. If the ordinary shareholders became the owners of the bonus shares on and after January 1, 1955 or on some later date, the statement in the resolution "save and except that the holders thereof will not participate in any dividend in respect of any period ending on or before 31st December, 1954" becomes meaningless.The authorities under the Act and the High Court have placed undue emphasis on cls. (b) and (c) of the resolution. Those clauses lay down the procedure to be adopted in the matter of carrying into effect the decision of the general meeting embodie in cl. (a). They do not in any manner cut down the ambit of that resolution.8. The High Court as well as the Tribunal were under the erroneous impression that a share cannot be held to have been issued to a persons until a share certificate is given to him.The word "distribute" found in cl. (b) of the resolution in the context means to record the distribution of the shares in the books of the company. If the resolution passed at the general meeting of the company on December 30, 1954, is read as a whole, there is no doubt that on that day a portion of the accumulated undivided profits were converted into capital;that capital was divided into bonus shares and allotted to the ordinary shareholders on the basis of their share holdings. The shares so allotted became the property of the shareholders as from that date subject to the qualification that they are entitled to get dividends on those shares only as from 1st January 1955. Under cls. (b) and (c) of the resolution, certain directions were given to the Directors in the matter of implementation of that resolution. Hence, there was no justification in reducing the rebate firstly under sub-clause (a) of clause (1) of the second proviso to Section D of Part II of the Finance Act, 1956, and secondly under sub-clause (b) of cl. (1) of the second proviso to Section D of Part II of the Finance Act, 1956. | 1 | 4,239 | 480 | ### 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:
has not been put completely in possession of his share, and this may be so, although some formal act may not have been completed. Thus, shares may have been issued which have been allotted, but for which no certificates have ever been issued, and on the other hand, shares as to which a resolution to allot has been made may not have been issued.Shares for which the memorandum of association has been subscribed are "issued" when the company is registered."9. In re Heatons Steel and Iron Co., (1876) 4 Ch D 140, the Court of Appeal held that the issue of certificates is not necessary to the issue of shares within Section 25 of the English Companies Act, 1867. In that case, Brett, J. observed :"that in Bushs case, (1874) 9 Ch A 554 (supra), the issue of certificates was merely taken as evidence of the time when the shares were issued, but this must not be taken to mean that shares are not issued until the certificates are issued."James, L. J. observed :"I think it is desirable to say, as the appellant appears to have been misled by the marginal note to Bushs case, (1874) 9 CH A 554, that the notion that shares are only issued when the certificates are issued is a blunder which could hardly be attributed to us."10. In Dalton Time Lock Co. v. Dalton (1892) 66 LT 704, the Appeal Court-observed that the share for which the defendant had subscribed in the memorandum of association, must be held to have been issued to him upon the registration of the company and hence he must be held liable to pay the share money.We are unable to agree with the contention of the Revenue that merely because in clause (b) of the resolution of the general meeting, the directors of the company were directed to issue bonus shares, the property in the bonus shares had not passed to the ordinary share-holders on December 30, 1954. The words allot and distribute found in cl. (b) of the resolution do not carry the matter further. Their meaning should be gathered from the context in which they were used. Clauses (b) and (c) of the resolution must be read harmoniously with cl. (a). The word "allotment" has not been defined in the Companies Act. The meaning of the word "allot" or "allotment" will have to be gathered from the context in which those words are used.This Court considered the meaning of the word "allotment" in Sri Gopal Jalan and Co. v. Calcutta Stock Exchange Association Ltd., 1964-3 SCR 698 = (AIR 1964 SC 250 ). Therein it referred to a large number of English decisions which have considered the meaning of that word. In that decision this Court referred to the observations of Chitty J. in In re Florence Land and Public Works Co., (1885) 29 Ch D 421 :"To my mind there is no magic whatever in the term "allotment" as used in these circumstances. It is said that the allotment is an appropriation of a specific number of shares. It is an appropriation, not of specific shares, but of a certain number of shares."In Gopal Jalans case, 1964-3 SCR 698 = (AIR 1964 SC 250 ) (supra), Sarkar J. (as he then was) quoted with approval the following passage from Farwell L. J. in Mosely v. Koffyfontain Mines Ltd., (1911) 1 Ch 73 at p. 84 :"As regards the construction of these particular articles, it is plain that the words "creation", "issue" and "allotment" are used with the three different meanings familiar to business people as well as to lawyers. There are three steps with regard to new capital; first, it is created; till it is created the capital does not exist at all. When it is created, it may remain unissued for years, as indeed it was here; the market did not allow of a favourable opportunity of placing it. When it is issued it may be issued on such terms as appear for the moment expedient. Next comes allotment. To take the words of Stirling J. in Spitzel v. Chinese Corpn., (1899) 80 LT 347, 351, he says ; "What is an allotment of shares? Broadly speaking it is an appropriation by the directors or the managing body of the company ofshares to a particular person."After examining the various decisions, Sarkar J. observed :"It is beyond doubt from the authorities to which we have earlier referred, and there are many more which could be cited to show the same position that in Company Law "allotment" means the appropriation out of the previously unappropriated capital of a company of a certain number of shares to a person. Till such allotment the share do not exist as such. It is on allotment in this sense that the shares come into existence."11. The word "distribute" found in cl. (b) of the resolution in the context means to record the distribution of the shares in the books of the company. If the resolution passed at the general meeting of the company on December 30, 1954, is read as a whole, there is no doubt that on that day a portion of the accumulated undivided profits were converted into capital;that capital was divided into bonus shares and allotted to the ordinary shareholders on the basis of their share holdings. The shares so allotted became the property of the shareholders as from that date subject to the qualification that they are entitled to get dividends on those shares only as from 1st January 1955. Under cls. (b) and (c) of the resolution, certain directions were given to the Directors in the matter of implementation of that resolution. Hence, there was no justification in reducing the rebate firstly under sub-clause (a) of clause (1) of the second proviso to Section D of Part II of the Finance Act, 1956, and secondly under sub-clause (b) of cl. (1) of the second proviso to Section D of Part II of the Finance Act, 1956.
### Response:
1
### Explanation:
7. From this part of the resolution it is clear that the ordinary shareholders became owners of the bonus shares to which they were entitled to under the resolution as from the date of the resolution. The expression "be capitalised and distributed" in the resolution means "is hereby capitalised and distributed" In fact, the whole tenor of the resolution shows that the distribution of the bonus shares became effective as from 30th December, 1954. If the ordinary shareholders became the owners of the bonus shares on and after January 1, 1955 or on some later date, the statement in the resolution "save and except that the holders thereof will not participate in any dividend in respect of any period ending on or before 31st December, 1954" becomes meaningless.The authorities under the Act and the High Court have placed undue emphasis on cls. (b) and (c) of the resolution. Those clauses lay down the procedure to be adopted in the matter of carrying into effect the decision of the general meeting embodie in cl. (a). They do not in any manner cut down the ambit of that resolution.8. The High Court as well as the Tribunal were under the erroneous impression that a share cannot be held to have been issued to a persons until a share certificate is given to him.The word "distribute" found in cl. (b) of the resolution in the context means to record the distribution of the shares in the books of the company. If the resolution passed at the general meeting of the company on December 30, 1954, is read as a whole, there is no doubt that on that day a portion of the accumulated undivided profits were converted into capital;that capital was divided into bonus shares and allotted to the ordinary shareholders on the basis of their share holdings. The shares so allotted became the property of the shareholders as from that date subject to the qualification that they are entitled to get dividends on those shares only as from 1st January 1955. Under cls. (b) and (c) of the resolution, certain directions were given to the Directors in the matter of implementation of that resolution. Hence, there was no justification in reducing the rebate firstly under sub-clause (a) of clause (1) of the second proviso to Section D of Part II of the Finance Act, 1956, and secondly under sub-clause (b) of cl. (1) of the second proviso to Section D of Part II of the Finance Act, 1956.
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M. Ramakrishnan Vs. State Of Madras | would be defeated. If really the legislature intended that lands acquired by way of inheritance or bequest by a female on or after the commencement of the Act should also be dealt with in accordance with Section 5(4), it would have defined the expression "stridhana land" without the words "on the date of the commencement of this Act". It has also to be borne in mind that the expression stridhana is not used in the Act in the sense in which it is used in Hindu law. The Act is applicable to Hindus as well as others governed by other personal laws. It is, therefore, reasonable to construe the expression stridhana land as referring only to the land held by a female on the date of the commencement of the Act and not to lands inherited by her or acquired by her as a bequest at any subsequent point of time.15. The learned Counsel for the appellant relied on the decision of the High Court of Madras in Valliammal v. Authorised Officer, Land Reforms, Coimbatore (AIR 1973 Mad 321 : (1973) 1 MLJ 377 ) in which a contention similar to the one urged before us on behalf of the appellant in this case had been accepted. The facts of that case were more or less similar to the facts in the case before us. The petitioner in that case was the wife of one Palanisami Gounder who was in possession of an extent of 44.061 standard acres, after excluding the exempted lands, on the commencement of the Act. She inherited 11.075 standard acres on the death of her son on March 25, 1962. In the return filed by him, the husband of the petitioner claimed that he was entitled to retain 30 standard acres as holding of the family and that his wife, the petitioner in that case, was entitled to hold 10 standard acres as stridhana property. The Land Tribunal, Coimbatore held that since the Act defined "stridhana land" as meaning any land held on the date of the commencement of the Act by any female member of the family in her own name and since the petitioner therein had inherited the land on the death of her son only on March 25, 1962, i.e. subsequent to the commencement of the Act, she was not entitled to retain any land as stridhana property in addition to the extent of land which the family could retain under Section 5(1). The petitioner questioned the correctness of the order of the Tribunal before the High Court of Madras in C.R.P. No. 916 of 1971. That petition was dismissed by Ganesan, J., on the ground that in view of the definition of stridhana land in Section 3(42) of the Act, the petitioner therein was not entitled to hold 10 standard acres as stridhana property, in addition to the 30 standard acres allowed to the family consisting of herself and her husband. Thereafter a petition was filed before the High Court by the petitioner therein to review the order passed by Ganesan, J. The review petition came up for decision before another learned Judge who allowed the same by his order dated November 2, 1972. It is on the decision rendered on the review petition that reliance is placed by the appellant before us. In paragraph 6 of that decision, it is observed as follows :"The learned Judge, who heard the civil revision petition, mainly relied on the definition of stridhana property for holding that no woman is entitled to hold any stridhana property if the same was acquired or inherited subsequent to the commencement of the Act. Of course, Section 3(42) defines stridhana land as meaning any land held on the date of commencement of the Act by any female member of a family in her own name. But that meaning is to be adopted unless the context otherwise requires. It has been repeatedly held that the word in the section will have to be interpreted and understood in the context in which it is used in the section and the definition given for that word in the definition section of the Act could not always govern the interpretation without reference to the context. In the context of Sections 5, 7 and 21 and with reference to the scope and object of the Act, I am of opinion that the properties inherited by females as stridhana property subsequent to the commencement of the Act are also entitled to the benefit of sub-section (4) of Section 5 of the Act."16. It is true that the above passage supports the case of the appellant but we are of the view that in the context of Section 21 of the Act it is not necessary to give a meaning to the expression stridhana land different from what is stated in Section 3(42) of the Act. For the reasons already stated by us we hold that the aforesaid decision does not lay down the law correctly. It is also to be observed that the earlier decision of the High Court of Madras which is now under appeal does not appear to have been brought to the notice of the learned Judge who decided the above case.17. We, therefore, hold that the High Court was right in this case in holding that Section 5(4) of the Act was not applicable to the land in question.18. It was lastly urged by Mr. K. Jayaram that in view of certain amendments made to the Act, the case has to be examined afresh by us in the light of the amended law. We do not think that it is advisable to do so at this stage. It is open to the appellant if he is so advised to resort to appropriate proceedings in order to claim the benefit that he may be entitled to under the amended law. Liberty is also reserved to the State Government to take whatever action it may take under the subsequent amendments to the Act. | 0[ds]Admittedly on the date of the commencement of the Act, i.e. April 6, 1960, Devika was not the owner of the land in question. She acquired title to it only on April 20, 1962 on the death of testatrix. The appellant cannot, therefore, claim any benefit under Section 5(4)(a) of the Act. Section 21 of the Act under which the land in question becomes liable to be included in the holding of the appellant for purposes of determination of the surplus land does not make any difference between stridhana property of a female acquired after the commencement of the Act by inheritance or bequest from any person and any other property held by her family. From a reading of the definition of the expression "stridhana land" in Section 3(42) of the Act and the provisions of Section 5(4) of the Act, we are of opinion that the State legislature intended to extend the concession available under Section 5(4) of the Act only to the stridhana property held by a female on the date of the commencement of the Act and not to property acquired by herdo not thing that there is any room for construing the said provision in that way. The object of the legislation as mentioned earlier was to acquire agricultural land in excess of the ceiling area from the holders thereof and to distribute the same amongst the landless among the rural population. If the construction urged by the appellant is placed on Section 21 of the Act, the very object of the statute would be defeated. If really the legislature intended that lands acquired by way of inheritance or bequest by a female on or after the commencement of the Act should also be dealt with in accordance with Section 5(4), it would have defined the expression "stridhana land" without the words "on the date of the commencement of this Act". It has also to be borne in mind that the expression stridhana is not used in the Act in the sense in which it is used in Hindu law. The Act is applicable to Hindus as well as others governed by other personal laws. It is, therefore, reasonable to construe the expression stridhana land as referring only to the land held by a female on the date of the commencement of the Act and not to lands inherited by her or acquired by her as a bequest at any subsequent point of time.It is true that the above passage supports the case of the appellant but we are of the view that in the context of Section 21 of the Act it is not necessary to give a meaning to the expression stridhana land different from what is stated in Section 3(42) of the Act. For the reasons already stated by us we hold that the aforesaid decision does not lay down the law correctly. It is also to be observed that the earlier decision of the High Court of Madras which is now under appeal does not appear to have been brought to the notice of the learned Judge who decided the above case.17. We, therefore, hold that the High Court was right in this case in holding that Section 5(4) of the Act was not applicable to the land indo not think that it is advisable to do so at this stage. It is open to the appellant if he is so advised to resort to appropriate proceedings in order to claim the benefit that he may be entitled to under the amended law. Liberty is also reserved to the State Government to take whatever action it may take under the subsequent amendments to the Act. | 0 | 3,151 | 678 | ### 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:
would be defeated. If really the legislature intended that lands acquired by way of inheritance or bequest by a female on or after the commencement of the Act should also be dealt with in accordance with Section 5(4), it would have defined the expression "stridhana land" without the words "on the date of the commencement of this Act". It has also to be borne in mind that the expression stridhana is not used in the Act in the sense in which it is used in Hindu law. The Act is applicable to Hindus as well as others governed by other personal laws. It is, therefore, reasonable to construe the expression stridhana land as referring only to the land held by a female on the date of the commencement of the Act and not to lands inherited by her or acquired by her as a bequest at any subsequent point of time.15. The learned Counsel for the appellant relied on the decision of the High Court of Madras in Valliammal v. Authorised Officer, Land Reforms, Coimbatore (AIR 1973 Mad 321 : (1973) 1 MLJ 377 ) in which a contention similar to the one urged before us on behalf of the appellant in this case had been accepted. The facts of that case were more or less similar to the facts in the case before us. The petitioner in that case was the wife of one Palanisami Gounder who was in possession of an extent of 44.061 standard acres, after excluding the exempted lands, on the commencement of the Act. She inherited 11.075 standard acres on the death of her son on March 25, 1962. In the return filed by him, the husband of the petitioner claimed that he was entitled to retain 30 standard acres as holding of the family and that his wife, the petitioner in that case, was entitled to hold 10 standard acres as stridhana property. The Land Tribunal, Coimbatore held that since the Act defined "stridhana land" as meaning any land held on the date of the commencement of the Act by any female member of the family in her own name and since the petitioner therein had inherited the land on the death of her son only on March 25, 1962, i.e. subsequent to the commencement of the Act, she was not entitled to retain any land as stridhana property in addition to the extent of land which the family could retain under Section 5(1). The petitioner questioned the correctness of the order of the Tribunal before the High Court of Madras in C.R.P. No. 916 of 1971. That petition was dismissed by Ganesan, J., on the ground that in view of the definition of stridhana land in Section 3(42) of the Act, the petitioner therein was not entitled to hold 10 standard acres as stridhana property, in addition to the 30 standard acres allowed to the family consisting of herself and her husband. Thereafter a petition was filed before the High Court by the petitioner therein to review the order passed by Ganesan, J. The review petition came up for decision before another learned Judge who allowed the same by his order dated November 2, 1972. It is on the decision rendered on the review petition that reliance is placed by the appellant before us. In paragraph 6 of that decision, it is observed as follows :"The learned Judge, who heard the civil revision petition, mainly relied on the definition of stridhana property for holding that no woman is entitled to hold any stridhana property if the same was acquired or inherited subsequent to the commencement of the Act. Of course, Section 3(42) defines stridhana land as meaning any land held on the date of commencement of the Act by any female member of a family in her own name. But that meaning is to be adopted unless the context otherwise requires. It has been repeatedly held that the word in the section will have to be interpreted and understood in the context in which it is used in the section and the definition given for that word in the definition section of the Act could not always govern the interpretation without reference to the context. In the context of Sections 5, 7 and 21 and with reference to the scope and object of the Act, I am of opinion that the properties inherited by females as stridhana property subsequent to the commencement of the Act are also entitled to the benefit of sub-section (4) of Section 5 of the Act."16. It is true that the above passage supports the case of the appellant but we are of the view that in the context of Section 21 of the Act it is not necessary to give a meaning to the expression stridhana land different from what is stated in Section 3(42) of the Act. For the reasons already stated by us we hold that the aforesaid decision does not lay down the law correctly. It is also to be observed that the earlier decision of the High Court of Madras which is now under appeal does not appear to have been brought to the notice of the learned Judge who decided the above case.17. We, therefore, hold that the High Court was right in this case in holding that Section 5(4) of the Act was not applicable to the land in question.18. It was lastly urged by Mr. K. Jayaram that in view of certain amendments made to the Act, the case has to be examined afresh by us in the light of the amended law. We do not think that it is advisable to do so at this stage. It is open to the appellant if he is so advised to resort to appropriate proceedings in order to claim the benefit that he may be entitled to under the amended law. Liberty is also reserved to the State Government to take whatever action it may take under the subsequent amendments to the Act.
### Response:
0
### Explanation:
Admittedly on the date of the commencement of the Act, i.e. April 6, 1960, Devika was not the owner of the land in question. She acquired title to it only on April 20, 1962 on the death of testatrix. The appellant cannot, therefore, claim any benefit under Section 5(4)(a) of the Act. Section 21 of the Act under which the land in question becomes liable to be included in the holding of the appellant for purposes of determination of the surplus land does not make any difference between stridhana property of a female acquired after the commencement of the Act by inheritance or bequest from any person and any other property held by her family. From a reading of the definition of the expression "stridhana land" in Section 3(42) of the Act and the provisions of Section 5(4) of the Act, we are of opinion that the State legislature intended to extend the concession available under Section 5(4) of the Act only to the stridhana property held by a female on the date of the commencement of the Act and not to property acquired by herdo not thing that there is any room for construing the said provision in that way. The object of the legislation as mentioned earlier was to acquire agricultural land in excess of the ceiling area from the holders thereof and to distribute the same amongst the landless among the rural population. If the construction urged by the appellant is placed on Section 21 of the Act, the very object of the statute would be defeated. If really the legislature intended that lands acquired by way of inheritance or bequest by a female on or after the commencement of the Act should also be dealt with in accordance with Section 5(4), it would have defined the expression "stridhana land" without the words "on the date of the commencement of this Act". It has also to be borne in mind that the expression stridhana is not used in the Act in the sense in which it is used in Hindu law. The Act is applicable to Hindus as well as others governed by other personal laws. It is, therefore, reasonable to construe the expression stridhana land as referring only to the land held by a female on the date of the commencement of the Act and not to lands inherited by her or acquired by her as a bequest at any subsequent point of time.It is true that the above passage supports the case of the appellant but we are of the view that in the context of Section 21 of the Act it is not necessary to give a meaning to the expression stridhana land different from what is stated in Section 3(42) of the Act. For the reasons already stated by us we hold that the aforesaid decision does not lay down the law correctly. It is also to be observed that the earlier decision of the High Court of Madras which is now under appeal does not appear to have been brought to the notice of the learned Judge who decided the above case.17. We, therefore, hold that the High Court was right in this case in holding that Section 5(4) of the Act was not applicable to the land indo not think that it is advisable to do so at this stage. It is open to the appellant if he is so advised to resort to appropriate proceedings in order to claim the benefit that he may be entitled to under the amended law. Liberty is also reserved to the State Government to take whatever action it may take under the subsequent amendments to the Act.
|
M/S KOHINOOR TRANSPORTERS Vs. THE STATE OF UTTAR PRADESH | Dr D Y CHANDRACHUD, J1. An arbitral proceeding took place between the appellant and the respondent under the Arbitration Act 1940. The disputes originated in a contract of 1980 for certain civil works and eventually resulted in an arbitral award dated 20 July 1984. The award was made a Rule of the Court on 30 August 1986 by the Civil Judge, Dehradun. The award has attained finality after the High Court of Uttaranchal dismissed an appeal filed by the State on 15 December 2006. The Civil Judge, it may be noted, reduced the rate of interest from 12 per cent to 6 per cent.2. The appellant filed an application for execution before the Additional Civil Judge, Dehradun, being Execution Application 27/2010. During the course of the execution proceedings, the respondent-state deposited an amount of Rs 75,65,945 towards the decretal debt. In the course of the execution proceedings the appellant and the state filed their respective statements of calculation in regard to the amount due under the decree of the Court. On 6 April 2015, the Executing Court directed the respondent to deposit an amount of Rs 1,25,16,969.56 stating that it is ‘admitted?. Notice was issued to the respondent under Order XXI Rule 41 CPC to which it filed its objections. On 16 August 2016, the Executing Court rejected the objections on the ground that the amount of Rs 1.25 crores was admitted, as evident from the earlier order dated 6 April 2015. A Civil Revision Application was filed by the respondent against the order of the Executing court. During the course of the execution proceedings an order was passed on 3 August 2017 directing the judgment debtor to comply with the earlier order of 6 April 2015, failing which, it was observed ?they shall be deemed to be pen held?. After this order of the Executing Court, a stay application was moved in the revisional proceedings before the High Court by the State. The High Court by its impugned order directed the appointment of a Chartered Accountant in the following terms:?..So, I think that notwithstanding the absence of any prayer regarding the appointment of competent persons in this regard, the only recourse which may be helpful to the Court is to appoint a Chartered Accountant in this matter who shall consider the details of the arrears, as have been claimed by the decree holder, and the details of accounts depicted in the departmental narrative submitted by the judgment debtor. Each party is directed to submit the names at least two chartered accountants within two weeks.?3. It is this order of the High Court which is challenged in the present proceedings.4. Notice was issued on 5 January 2018 and the interim order of the High Court was stayed.5. On behalf of the appellant it has been submitted that the High Court was manifestly in error in directing the appointment of a Chartered Accountant for three reasons: Firstly, the High Court acted in excess of jurisdiction by directing the appointment of a Chartered Accountant in a civil revision when under Section 47 of the CPC all questions in regard to the execution discharge or satisfaction of a decree have to be determined by the Executing Court; Secondly, there was no challenge to either the order dated 6 April 2015 or the order dated 3 August 2017 of the Executing Court requiring the respondent to deposit the ‘admitted? dues of Rs 1.25 crores; and Thirdly, the interim order of the High Court virtually amounts to the grant of final relief while considering the stay application.6. On the other hand, it has been submitted on behalf of the State that the appellant is seeking to aggrandize itself by revising its decretal claim. Whatever was due has been deposited and an amount of Rs.75,65,945 was deposited before the Executing Court as far back as on 7 December 2012. It was urged that it is not open to the Executing Court to go behind the decree.7. Having heard the learned counsel, we are of the view that the High Court has acted in manifest excess of its jurisdiction while directing the appointment of a Chartered Accountant for the purpose of determining as to whether the decretal debt is to be marked as satisfied. The execution proceeding is pending before the Additional Civil Judge, Dehradun and, as we have noticed, various orders have been passed thereon from time to time. The issue as to whether the decree has been discharged or satisfied has to be determined by the Executing Court under Section 47 of the CPC. The Executing Court must execute the decree as it stands without adding anything to it. In the counter affidavit which has been filed on behalf of the respondent, the contention of the appellant that there was an admission in regard to the balance of Rs 1.25 crores is sought to be controverted. But that is a matter which need not detain this Court. All these are matters which must properly be addressed in the course of the execution proceedings. The High Court, in our view, has acted in excess of jurisdiction by directing the appointment of a Chartered Accountant, particularly at this stage. | 1[ds]7. Having heard the learned counsel, we are of the view that the High Court has acted in manifest excess of its jurisdiction while directing the appointment of a Chartered Accountant for the purpose of determining as to whether the decretal debt is to be marked as satisfied. The execution proceeding is pending before the Additional Civil Judge, Dehradun and, as we have noticed, various orders have been passed thereon from time to time. The issue as to whether the decree has been discharged or satisfied has to be determined by the Executing Court under Section 47 of the CPC. The Executing Court must execute the decree as it stands without adding anything to it. In the counter affidavit which has been filed on behalf of the respondent, the contention of the appellant that there was an admission in regard to the balance of Rs 1.25 crores is sought to be controverted. But that is a matter which need not detain this Court. All these are matters which must properly be addressed in the course of the execution proceedings. The High Court, in our view, has acted in excess of jurisdiction by directing the appointment of a Chartered Accountant, particularly at this stage. | 1 | 937 | 224 | ### Instruction:
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Dr D Y CHANDRACHUD, J1. An arbitral proceeding took place between the appellant and the respondent under the Arbitration Act 1940. The disputes originated in a contract of 1980 for certain civil works and eventually resulted in an arbitral award dated 20 July 1984. The award was made a Rule of the Court on 30 August 1986 by the Civil Judge, Dehradun. The award has attained finality after the High Court of Uttaranchal dismissed an appeal filed by the State on 15 December 2006. The Civil Judge, it may be noted, reduced the rate of interest from 12 per cent to 6 per cent.2. The appellant filed an application for execution before the Additional Civil Judge, Dehradun, being Execution Application 27/2010. During the course of the execution proceedings, the respondent-state deposited an amount of Rs 75,65,945 towards the decretal debt. In the course of the execution proceedings the appellant and the state filed their respective statements of calculation in regard to the amount due under the decree of the Court. On 6 April 2015, the Executing Court directed the respondent to deposit an amount of Rs 1,25,16,969.56 stating that it is ‘admitted?. Notice was issued to the respondent under Order XXI Rule 41 CPC to which it filed its objections. On 16 August 2016, the Executing Court rejected the objections on the ground that the amount of Rs 1.25 crores was admitted, as evident from the earlier order dated 6 April 2015. A Civil Revision Application was filed by the respondent against the order of the Executing court. During the course of the execution proceedings an order was passed on 3 August 2017 directing the judgment debtor to comply with the earlier order of 6 April 2015, failing which, it was observed ?they shall be deemed to be pen held?. After this order of the Executing Court, a stay application was moved in the revisional proceedings before the High Court by the State. The High Court by its impugned order directed the appointment of a Chartered Accountant in the following terms:?..So, I think that notwithstanding the absence of any prayer regarding the appointment of competent persons in this regard, the only recourse which may be helpful to the Court is to appoint a Chartered Accountant in this matter who shall consider the details of the arrears, as have been claimed by the decree holder, and the details of accounts depicted in the departmental narrative submitted by the judgment debtor. Each party is directed to submit the names at least two chartered accountants within two weeks.?3. It is this order of the High Court which is challenged in the present proceedings.4. Notice was issued on 5 January 2018 and the interim order of the High Court was stayed.5. On behalf of the appellant it has been submitted that the High Court was manifestly in error in directing the appointment of a Chartered Accountant for three reasons: Firstly, the High Court acted in excess of jurisdiction by directing the appointment of a Chartered Accountant in a civil revision when under Section 47 of the CPC all questions in regard to the execution discharge or satisfaction of a decree have to be determined by the Executing Court; Secondly, there was no challenge to either the order dated 6 April 2015 or the order dated 3 August 2017 of the Executing Court requiring the respondent to deposit the ‘admitted? dues of Rs 1.25 crores; and Thirdly, the interim order of the High Court virtually amounts to the grant of final relief while considering the stay application.6. On the other hand, it has been submitted on behalf of the State that the appellant is seeking to aggrandize itself by revising its decretal claim. Whatever was due has been deposited and an amount of Rs.75,65,945 was deposited before the Executing Court as far back as on 7 December 2012. It was urged that it is not open to the Executing Court to go behind the decree.7. Having heard the learned counsel, we are of the view that the High Court has acted in manifest excess of its jurisdiction while directing the appointment of a Chartered Accountant for the purpose of determining as to whether the decretal debt is to be marked as satisfied. The execution proceeding is pending before the Additional Civil Judge, Dehradun and, as we have noticed, various orders have been passed thereon from time to time. The issue as to whether the decree has been discharged or satisfied has to be determined by the Executing Court under Section 47 of the CPC. The Executing Court must execute the decree as it stands without adding anything to it. In the counter affidavit which has been filed on behalf of the respondent, the contention of the appellant that there was an admission in regard to the balance of Rs 1.25 crores is sought to be controverted. But that is a matter which need not detain this Court. All these are matters which must properly be addressed in the course of the execution proceedings. The High Court, in our view, has acted in excess of jurisdiction by directing the appointment of a Chartered Accountant, particularly at this stage.
### Response:
1
### Explanation:
7. Having heard the learned counsel, we are of the view that the High Court has acted in manifest excess of its jurisdiction while directing the appointment of a Chartered Accountant for the purpose of determining as to whether the decretal debt is to be marked as satisfied. The execution proceeding is pending before the Additional Civil Judge, Dehradun and, as we have noticed, various orders have been passed thereon from time to time. The issue as to whether the decree has been discharged or satisfied has to be determined by the Executing Court under Section 47 of the CPC. The Executing Court must execute the decree as it stands without adding anything to it. In the counter affidavit which has been filed on behalf of the respondent, the contention of the appellant that there was an admission in regard to the balance of Rs 1.25 crores is sought to be controverted. But that is a matter which need not detain this Court. All these are matters which must properly be addressed in the course of the execution proceedings. The High Court, in our view, has acted in excess of jurisdiction by directing the appointment of a Chartered Accountant, particularly at this stage.
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BOARD OF GOVERNORS IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA Vs. NATIONAL INSTITUTE OF MEDICAL SCIENCES AND RESEARCH | years 2011-2012, 2012-2013 and 2013-2014 only. He further submitted that any ambiguity in the interpretation of the note attached to the notification dated 07.06.2017 was also cleared by the non-applicability of the note to the aforementioned courses. He submitted that the First Respondent had indulged in forum shopping by approaching the Rajasthan High Court as the earlier Writ Petitions were filed by the First Respondent in the Delhi High Court. He submitted that the High Court was not right in holding that the recommendations made by the Appellant were not accepted by the Second Respondent. He stated that the decision taken by the Committee constituted under Section 20 of the Act had become final as it was accepted by the Appellant Council. He further urged that there would be no surprise element in the inspection which was directed to be conducted by the High Court within a period of one week. 7. It was submitted by the learned Senior Counsel appearing for the First Respondent that there is no complaint of lack of infrastructure and other facilities in respect of the College which has been running Under Graduate courses from the year 2004. Permission was granted to start Post Graduate courses and seats were enhanced for M.S. (Ophthalmology) and M.D. (General Medicine). It was submitted that from 2014 onwards, the First Respondent-Institute was being harassed by the Appellant by not accepting the compliance reports submitted by the First Respondent regarding the deficiencies pointed out. Mr. Kaul submitted that admissions made to the PG courses after the year 2014 were being regularly intimated to the Appellant. He submitted that the recommendation made by the Appellant Council to restrain the First Respondent from making admissions for five years by the proceedings dated 14.04.2017 was not accepted by the Second Respondent. The notification dated 07.06.2017 dealt with recognition of the qualifications in respect of the students who were admitted for the academic years 2011-2012, 2012-2013 and 2013-2014 and trained in the First Respondent- Institute on or after 2014. He submitted that the words on or after 2014 are significant and such of those students who were trained after the year 2014 were also entitled for a recognized medical qualification. He relied upon a note to the notification dated 07.06.2017 to argue that the recognition granted to the Post Graduate courses shall be for a maximum period of five years after which it shall have to be renewed. In response to the allegation of forum shopping, he submitted that the First Respondent is situated in Jaipur and there was no bar on filing a Writ Petition in the Rajasthan High Court. Mr. Kaul urged that the First Respondent cannot be accused of forum shopping for approaching Rajasthan High Court merely because the earlier two Writ Petitions were filed at the Delhi High Court. 8. Mr. Ranjit Kumar submitted that there is no shortage of the requisite facilities and the First Respondent-Institute fulfils the minimum requirements which is evident from the fact that the Appellant conducted inspections for the other P .G. courses. He stated that the application filed for enhancement of seats on 06.04.2018 has not been considered by the Appellant and having no other alternative, the First Respondent approached the High Court as the last date for grant of permission was 28.02.2019. The learned Senior Counsel urged that the interim order passed by the High Court does not warrant interference. 9. The interim order passed by the High Court on 21.02.2019 is on the basis that the recommendation made on 14.04.2017 by the Appellant to bar admissions for five years to M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses has not been accepted by the Second Respondent. Consequently, the High Court was of the opinion that the Appellant was obliged to conduct an inspection. The High Court failed to examine the notification dated 07.06.2017 and the corrigendum dated 09.04.2018 before passing the impugned order. No notice was issued to the Appellant before the interim order was passed by the High Court. The direction to conduct an inspection within a period of one week ought not to have been passed by the High Court as the surprise element of the inspection would not be there. In Manohar Lal Sharma v. Medical Council of India (2013) 10 SCC 60 , Para 23 , this Court observed: Surprise inspection naturally contemplates no notice, if the notice is given in advance, it would not be a surprise inspection and will give room for the College to hoodwink the assessors by springing a surprise, by making perfect what was imperfect. The Three Judge Bench in Royal Medical Trust v. Union of India (2015) 10 SCC 19 , Para 31 while laying down guidelines regarding medical college admissions emphasized that there must be a surprise element in the inspection conducted by the MCI. 10. Having challenged the corrigendum dated 09.04.2018 before the Delhi High Court, any further direction in connection with the enhancement of seats to the PG courses should have been sought by the First Respondent only in the Delhi High Court. We are refraining ourselves from entering into the merits of the matter pertaining to the interpretation of the proceedings dated 14.04.2017, (B) the notification dated 07.06.2017, and the corrigendum dated 09.04.2018 as it is the subject matter of a Writ Petition pending in the Delhi High Court. The High Court ought to have given an opportunity of hearing to the Appellant before passing the impugned order. Prima facie satisfaction of the High Court in favour of the First Respondent is without appreciation of the entire material pertaining to the dispute. Moreover, no useful purpose will be served by an inspection before the adjudication of the dispute relating to the bar imposed on the First Respondent from making admissions to the M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses. In any event, the inspection which was directed to be conducted within a period of one week will not show the correct picture pertaining to the infrastructure and other facilities. | 1[ds]9. The interim order passed by the High Court on 21.02.2019 is on the basis that the recommendation made on 14.04.2017 by the Appellant to bar admissions for five years to M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses has not been accepted by the Second Respondent. Consequently, the High Court was of the opinion that the Appellant was obliged to conduct an inspection. The High Court failed to examine the notification dated 07.06.2017 and the corrigendum dated 09.04.2018 before passing the impugned order. No notice was issued to the Appellant before the interim order was passed by the High Court. The direction to conduct an inspection within a period of one week ought not to have been passed by the High Court as the surprise element of the inspection would not be there10. Having challenged the corrigendum dated 09.04.2018 before the Delhi High Court, any further direction in connection with the enhancement of seats to the PG courses should have been sought by the First Respondent only in the Delhi High Court. We are refraining ourselves from entering into the merits of the matter pertaining to the interpretation of the proceedings dated 14.04.2017,(B) the notification dated 07.06.2017, and the corrigendum dated 09.04.2018 as it is the subject matter of a Writ Petition pending in the Delhi High Court. The High Court ought to have given an opportunity of hearing to the Appellant before passing the impugned order. Prima facie satisfaction of the High Court in favour of the First Respondent is without appreciation of the entire material pertaining to the dispute. Moreover, no useful purpose will be served by an inspection before the adjudication of the dispute relating to the bar imposed on the First Respondent from making admissions to the M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses. In any event, the inspection which was directed to be conducted within a period of one week will not show the correct picture pertaining to the infrastructure and other facilities. | 1 | 2,445 | 365 | ### Instruction:
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years 2011-2012, 2012-2013 and 2013-2014 only. He further submitted that any ambiguity in the interpretation of the note attached to the notification dated 07.06.2017 was also cleared by the non-applicability of the note to the aforementioned courses. He submitted that the First Respondent had indulged in forum shopping by approaching the Rajasthan High Court as the earlier Writ Petitions were filed by the First Respondent in the Delhi High Court. He submitted that the High Court was not right in holding that the recommendations made by the Appellant were not accepted by the Second Respondent. He stated that the decision taken by the Committee constituted under Section 20 of the Act had become final as it was accepted by the Appellant Council. He further urged that there would be no surprise element in the inspection which was directed to be conducted by the High Court within a period of one week. 7. It was submitted by the learned Senior Counsel appearing for the First Respondent that there is no complaint of lack of infrastructure and other facilities in respect of the College which has been running Under Graduate courses from the year 2004. Permission was granted to start Post Graduate courses and seats were enhanced for M.S. (Ophthalmology) and M.D. (General Medicine). It was submitted that from 2014 onwards, the First Respondent-Institute was being harassed by the Appellant by not accepting the compliance reports submitted by the First Respondent regarding the deficiencies pointed out. Mr. Kaul submitted that admissions made to the PG courses after the year 2014 were being regularly intimated to the Appellant. He submitted that the recommendation made by the Appellant Council to restrain the First Respondent from making admissions for five years by the proceedings dated 14.04.2017 was not accepted by the Second Respondent. The notification dated 07.06.2017 dealt with recognition of the qualifications in respect of the students who were admitted for the academic years 2011-2012, 2012-2013 and 2013-2014 and trained in the First Respondent- Institute on or after 2014. He submitted that the words on or after 2014 are significant and such of those students who were trained after the year 2014 were also entitled for a recognized medical qualification. He relied upon a note to the notification dated 07.06.2017 to argue that the recognition granted to the Post Graduate courses shall be for a maximum period of five years after which it shall have to be renewed. In response to the allegation of forum shopping, he submitted that the First Respondent is situated in Jaipur and there was no bar on filing a Writ Petition in the Rajasthan High Court. Mr. Kaul urged that the First Respondent cannot be accused of forum shopping for approaching Rajasthan High Court merely because the earlier two Writ Petitions were filed at the Delhi High Court. 8. Mr. Ranjit Kumar submitted that there is no shortage of the requisite facilities and the First Respondent-Institute fulfils the minimum requirements which is evident from the fact that the Appellant conducted inspections for the other P .G. courses. He stated that the application filed for enhancement of seats on 06.04.2018 has not been considered by the Appellant and having no other alternative, the First Respondent approached the High Court as the last date for grant of permission was 28.02.2019. The learned Senior Counsel urged that the interim order passed by the High Court does not warrant interference. 9. The interim order passed by the High Court on 21.02.2019 is on the basis that the recommendation made on 14.04.2017 by the Appellant to bar admissions for five years to M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses has not been accepted by the Second Respondent. Consequently, the High Court was of the opinion that the Appellant was obliged to conduct an inspection. The High Court failed to examine the notification dated 07.06.2017 and the corrigendum dated 09.04.2018 before passing the impugned order. No notice was issued to the Appellant before the interim order was passed by the High Court. The direction to conduct an inspection within a period of one week ought not to have been passed by the High Court as the surprise element of the inspection would not be there. In Manohar Lal Sharma v. Medical Council of India (2013) 10 SCC 60 , Para 23 , this Court observed: Surprise inspection naturally contemplates no notice, if the notice is given in advance, it would not be a surprise inspection and will give room for the College to hoodwink the assessors by springing a surprise, by making perfect what was imperfect. The Three Judge Bench in Royal Medical Trust v. Union of India (2015) 10 SCC 19 , Para 31 while laying down guidelines regarding medical college admissions emphasized that there must be a surprise element in the inspection conducted by the MCI. 10. Having challenged the corrigendum dated 09.04.2018 before the Delhi High Court, any further direction in connection with the enhancement of seats to the PG courses should have been sought by the First Respondent only in the Delhi High Court. We are refraining ourselves from entering into the merits of the matter pertaining to the interpretation of the proceedings dated 14.04.2017, (B) the notification dated 07.06.2017, and the corrigendum dated 09.04.2018 as it is the subject matter of a Writ Petition pending in the Delhi High Court. The High Court ought to have given an opportunity of hearing to the Appellant before passing the impugned order. Prima facie satisfaction of the High Court in favour of the First Respondent is without appreciation of the entire material pertaining to the dispute. Moreover, no useful purpose will be served by an inspection before the adjudication of the dispute relating to the bar imposed on the First Respondent from making admissions to the M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses. In any event, the inspection which was directed to be conducted within a period of one week will not show the correct picture pertaining to the infrastructure and other facilities.
### Response:
1
### Explanation:
9. The interim order passed by the High Court on 21.02.2019 is on the basis that the recommendation made on 14.04.2017 by the Appellant to bar admissions for five years to M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses has not been accepted by the Second Respondent. Consequently, the High Court was of the opinion that the Appellant was obliged to conduct an inspection. The High Court failed to examine the notification dated 07.06.2017 and the corrigendum dated 09.04.2018 before passing the impugned order. No notice was issued to the Appellant before the interim order was passed by the High Court. The direction to conduct an inspection within a period of one week ought not to have been passed by the High Court as the surprise element of the inspection would not be there10. Having challenged the corrigendum dated 09.04.2018 before the Delhi High Court, any further direction in connection with the enhancement of seats to the PG courses should have been sought by the First Respondent only in the Delhi High Court. We are refraining ourselves from entering into the merits of the matter pertaining to the interpretation of the proceedings dated 14.04.2017,(B) the notification dated 07.06.2017, and the corrigendum dated 09.04.2018 as it is the subject matter of a Writ Petition pending in the Delhi High Court. The High Court ought to have given an opportunity of hearing to the Appellant before passing the impugned order. Prima facie satisfaction of the High Court in favour of the First Respondent is without appreciation of the entire material pertaining to the dispute. Moreover, no useful purpose will be served by an inspection before the adjudication of the dispute relating to the bar imposed on the First Respondent from making admissions to the M.S. (Orthopedics) and M.D. (Radio Diagnosis) courses. In any event, the inspection which was directed to be conducted within a period of one week will not show the correct picture pertaining to the infrastructure and other facilities.
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Purshottam Lal Dhawan Vs. Dewan Chaman Lal And Another | is overruled.6. The second contention of learned counsel for the appellant is that the Custodian-General had no power to cancel an allotment made on or before July 22, 1952. Let us recapitulate the relevant facts. The original order of allotment was made in favour of the appellants group and of the first respondent on September 1, 1949. There was re-allotment on December 2, 1949. The reallotment was cancelled by the Deputy Custodian-General by his order dated September 29, 1954. The question is whether the Deputy Custodian-General can set aside the allotment made on December 2, 1949. The question raised falls to be decided on the relevant provisions of the Act and the rules made thereunder. Section 12 of the Act confers on the Custodian the power to cancel any allotment made by him whether such allotment was made or entered into before or after the commencement of the Act. Rule 14 of the Rules narrates the grounds on which an allotment can be cancelled and also the procedure to be followed for cancelling such an allotment. If a Custodian makes an order either cancelling or refusing to cancel an allotment, the Custodian-General can, under S. 27 of the Act set aside that order, if he is satisfied that it is not legal or proper, and he may pass such order in relation thereto as he thinks fit. But it is said that R. 14(6) limits the power of the Custodian-General in respect of allotments made under the Act. As the argument turns upon that rule, it would be convenient to read the material parts of it.Rule 14. (6) "Notwithstanding anything contained in this rule, the Custodian of Evacuee Property in the State of Punjab shall not exercise the power of cancelling any allotment of rural evacuee property on a quasi-permanent basis, or varying the terms of any such allotment, except in the following circumstances:.........."After narrating the circumstances, with which we are not now concerned, the sub-rule contains a proviso which reads,"Provided further nothing in this sub-rule shall apply to any application for revision, made under S. 26 or S. 27 of the Act, within the prescribed time, against an order passed by the lower authority on or before 22nd July, 1952."Under this sub-rule there is a ban on the exercise of the power of the Custodian to cancel an allotment of a rural evacuee property on a quasi-permanent basis except under certain circumstances. This sub-rule was substituted for the old sub-rule by S. R. O. 1290 of July 22, 1952. A Custodian under the Act cannot set aside an allotment except under the circumstances mentioned in the sub-rule. But the second proviso to that sub-rule lifts the ban in the case of an application made for revision under S. 26 or S. 27 of the Act. It may be mentioned that the words "or S. 27" after the words "S. 26" were added in the sub-rule on August 26, 1953, i.e., before the order of the Custodian-General in the present case. Section 26of the Act, as it then stood, conferred revisional jurisdiction on the Custodian, Additional Custodian or Authorized Deputy Custodian against the orders of subordinate officers. Section 27, as we have already noticed, confers a similar power of revision on the Custodian-General. By reason of the proviso, the Custodian-General can, in exercise of his powers under S. 27 of the Act, cancel an allotment made by a lower authority on or before July 1952. The only limitation on that power is that he must do so in a revision filed within the prescribed time. What is the prescribed time for a revision under S. 27 of the Act? "Prescribed" has been defined in the Act to mean "prescribed by rules made under this Act."Rule 31 (5) prescribes that a revision of the Custodian-General shall ordinarily be made within sixty days of the order sought to be revised. In considering the first point, we have explained the scope of the rule and we have held that the said rule is only a rule of guidance and that in law a revision can be entertained at any time even after sixty days if the Custodian-General in his discretion thinks fit to entertain it. The prescribed time in the context of a revision to the Custodian-General can only mean sixty days or such other time within which the Custodian-General in his discretion thinks fit to entertain the revision. As the allotment in the present case was made before July 22, 1952 the Custodian-General was within his rights in cancelling the same.7. Before we-close, it is necessary to notice another contention raised by learned counsel for the respondents. The argument was that there was no allotment made in favour of the appellant and, therefore, there was no scope for invoking the provisions of R. 14 of the Rules. The basis of the argument is the following observations of the Deputy Custodian-General in his order dated September 29, 1954:"The petitioner has rightly contended that the Dhawan Group had no verified claim for the allotment of this excess area and in spite of an opportunity afforded by me to them to produce the copies of their Parcha Claim, they have failed to do so. The reports of the Land Claims Officer dated 7th August, 1952, and 11th August, 1952, on pages 147 and 151 of the record, show that although the allotment had been made to Dhawan Group but a search had been made for their claims which were not traceable. On page 129 of the record, a report by the Department dated 21st August, 1952, shows that no order of allotment to Dhawan Group was forthcoming."These observations do not record a clear finding that there was no allotment in favour of the appellant. Indeed the factum of allotment to the appellant was never questioned throughout the proceedings. In the circumstances, we must dispose of this appeal on the basis that there was an allotment in favour of the appellant. This contention is, therefore, rejected. | 0[ds]Section 27 of the Act confers a plenary power of revision on the Custodian-General and it empowers him to exercise his revisional powers either suo motu or on application made in that behalf at any time. The phrase "at any time" indicates that the power of the Custodian-General is uncontrolled by any time factor, but only by the scope of the Act within which he functions. The Central Government cannot obviously make a rule unless S. 56 of the Act confers on it an express power to impose a time fetter on the Custodian-Generals power. We do not find any such power conferred on the Central Government under S. 56 of the Act. So the rule can only be read Custodian-General under S. 27 of the Act. That must have been the reason why R. 31(5) does not prescribe any limitation on the Custodian-General to exercise suo motu his revisional power.construction suggested by learned counsel for the appellant may lend scope to the argument that the rule is ultra vires the statute, for when a section says that there is no time limit for entertaining a revision, a rule cannot say that it shall be filed within a particular time. The argument that the principle underlying S. 5 of the Limitation Act applies to a petition for revision under S. 27 of the Act has no force. Section 5 of the Limitation Act applies to an appeal for which a period of limitation is prescribed and it empowers the court to admit the appeal after the period of limitation, if the applicant satisfied it that he has sufficient reason for not preferring the appeal within the prescribed time. The principle thereunder cannot be made applicable to a revision petition under S. 27 of the Act in respect of which no period of limitation is prescribed. At the same time we must make it clear that the powers of the Custodian-General under S. 27, read with R. 31(5), are not intended to be exercised arbitrarily. Being a judicial power, he shall exercise his discretion reasonably and it is for him to consider whether in a particular case has should entertain a revision beyond the period of sixty days stated in R. 31 (5).In this case we cannot say that the Custodian-General had acted perversely or unreasonably in entertaining the revision. The revision was filed in time. The Dhawan Group was made party at the subsequent stage as the Custodian-General rightly thought that any order he would make in favour of the appellant might prejudice the Dhawan Group. After giving them a reasonable opportunity of being heard within the meaning of the proviso to S. 27(1) of the Act, he made the order. The Custodian-General therefore, acted reasonably within his powers. This objection isquestion raised falls to be decided on the relevant provisions of the Act and the rules made thereunder.considering the first point, we have explained the scope of the rule and we have held that the said rule is only a rule of guidance and that in law a revision can be entertained at any time even after sixty days if the Custodian-General in his discretion thinks fit to entertain it. The prescribed time in the context of a revision to the Custodian-General can only mean sixty days or such other time within which the Custodian-General in his discretion thinks fit to entertain the revision. As the allotment in the present case was made before July 22, 1952 the Custodian-General was within his rights in cancelling theobservations do not record a clear finding that there was no allotment in favour of the appellant. Indeed the factum of allotment to the appellant was never questioned throughout the proceedings. In the circumstances, we must dispose of this appeal on the basis that there was an allotment in favour of the appellant. This contention is, therefore, rejected. | 0 | 2,887 | 701 | ### Instruction:
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is overruled.6. The second contention of learned counsel for the appellant is that the Custodian-General had no power to cancel an allotment made on or before July 22, 1952. Let us recapitulate the relevant facts. The original order of allotment was made in favour of the appellants group and of the first respondent on September 1, 1949. There was re-allotment on December 2, 1949. The reallotment was cancelled by the Deputy Custodian-General by his order dated September 29, 1954. The question is whether the Deputy Custodian-General can set aside the allotment made on December 2, 1949. The question raised falls to be decided on the relevant provisions of the Act and the rules made thereunder. Section 12 of the Act confers on the Custodian the power to cancel any allotment made by him whether such allotment was made or entered into before or after the commencement of the Act. Rule 14 of the Rules narrates the grounds on which an allotment can be cancelled and also the procedure to be followed for cancelling such an allotment. If a Custodian makes an order either cancelling or refusing to cancel an allotment, the Custodian-General can, under S. 27 of the Act set aside that order, if he is satisfied that it is not legal or proper, and he may pass such order in relation thereto as he thinks fit. But it is said that R. 14(6) limits the power of the Custodian-General in respect of allotments made under the Act. As the argument turns upon that rule, it would be convenient to read the material parts of it.Rule 14. (6) "Notwithstanding anything contained in this rule, the Custodian of Evacuee Property in the State of Punjab shall not exercise the power of cancelling any allotment of rural evacuee property on a quasi-permanent basis, or varying the terms of any such allotment, except in the following circumstances:.........."After narrating the circumstances, with which we are not now concerned, the sub-rule contains a proviso which reads,"Provided further nothing in this sub-rule shall apply to any application for revision, made under S. 26 or S. 27 of the Act, within the prescribed time, against an order passed by the lower authority on or before 22nd July, 1952."Under this sub-rule there is a ban on the exercise of the power of the Custodian to cancel an allotment of a rural evacuee property on a quasi-permanent basis except under certain circumstances. This sub-rule was substituted for the old sub-rule by S. R. O. 1290 of July 22, 1952. A Custodian under the Act cannot set aside an allotment except under the circumstances mentioned in the sub-rule. But the second proviso to that sub-rule lifts the ban in the case of an application made for revision under S. 26 or S. 27 of the Act. It may be mentioned that the words "or S. 27" after the words "S. 26" were added in the sub-rule on August 26, 1953, i.e., before the order of the Custodian-General in the present case. Section 26of the Act, as it then stood, conferred revisional jurisdiction on the Custodian, Additional Custodian or Authorized Deputy Custodian against the orders of subordinate officers. Section 27, as we have already noticed, confers a similar power of revision on the Custodian-General. By reason of the proviso, the Custodian-General can, in exercise of his powers under S. 27 of the Act, cancel an allotment made by a lower authority on or before July 1952. The only limitation on that power is that he must do so in a revision filed within the prescribed time. What is the prescribed time for a revision under S. 27 of the Act? "Prescribed" has been defined in the Act to mean "prescribed by rules made under this Act."Rule 31 (5) prescribes that a revision of the Custodian-General shall ordinarily be made within sixty days of the order sought to be revised. In considering the first point, we have explained the scope of the rule and we have held that the said rule is only a rule of guidance and that in law a revision can be entertained at any time even after sixty days if the Custodian-General in his discretion thinks fit to entertain it. The prescribed time in the context of a revision to the Custodian-General can only mean sixty days or such other time within which the Custodian-General in his discretion thinks fit to entertain the revision. As the allotment in the present case was made before July 22, 1952 the Custodian-General was within his rights in cancelling the same.7. Before we-close, it is necessary to notice another contention raised by learned counsel for the respondents. The argument was that there was no allotment made in favour of the appellant and, therefore, there was no scope for invoking the provisions of R. 14 of the Rules. The basis of the argument is the following observations of the Deputy Custodian-General in his order dated September 29, 1954:"The petitioner has rightly contended that the Dhawan Group had no verified claim for the allotment of this excess area and in spite of an opportunity afforded by me to them to produce the copies of their Parcha Claim, they have failed to do so. The reports of the Land Claims Officer dated 7th August, 1952, and 11th August, 1952, on pages 147 and 151 of the record, show that although the allotment had been made to Dhawan Group but a search had been made for their claims which were not traceable. On page 129 of the record, a report by the Department dated 21st August, 1952, shows that no order of allotment to Dhawan Group was forthcoming."These observations do not record a clear finding that there was no allotment in favour of the appellant. Indeed the factum of allotment to the appellant was never questioned throughout the proceedings. In the circumstances, we must dispose of this appeal on the basis that there was an allotment in favour of the appellant. This contention is, therefore, rejected.
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Section 27 of the Act confers a plenary power of revision on the Custodian-General and it empowers him to exercise his revisional powers either suo motu or on application made in that behalf at any time. The phrase "at any time" indicates that the power of the Custodian-General is uncontrolled by any time factor, but only by the scope of the Act within which he functions. The Central Government cannot obviously make a rule unless S. 56 of the Act confers on it an express power to impose a time fetter on the Custodian-Generals power. We do not find any such power conferred on the Central Government under S. 56 of the Act. So the rule can only be read Custodian-General under S. 27 of the Act. That must have been the reason why R. 31(5) does not prescribe any limitation on the Custodian-General to exercise suo motu his revisional power.construction suggested by learned counsel for the appellant may lend scope to the argument that the rule is ultra vires the statute, for when a section says that there is no time limit for entertaining a revision, a rule cannot say that it shall be filed within a particular time. The argument that the principle underlying S. 5 of the Limitation Act applies to a petition for revision under S. 27 of the Act has no force. Section 5 of the Limitation Act applies to an appeal for which a period of limitation is prescribed and it empowers the court to admit the appeal after the period of limitation, if the applicant satisfied it that he has sufficient reason for not preferring the appeal within the prescribed time. The principle thereunder cannot be made applicable to a revision petition under S. 27 of the Act in respect of which no period of limitation is prescribed. At the same time we must make it clear that the powers of the Custodian-General under S. 27, read with R. 31(5), are not intended to be exercised arbitrarily. Being a judicial power, he shall exercise his discretion reasonably and it is for him to consider whether in a particular case has should entertain a revision beyond the period of sixty days stated in R. 31 (5).In this case we cannot say that the Custodian-General had acted perversely or unreasonably in entertaining the revision. The revision was filed in time. The Dhawan Group was made party at the subsequent stage as the Custodian-General rightly thought that any order he would make in favour of the appellant might prejudice the Dhawan Group. After giving them a reasonable opportunity of being heard within the meaning of the proviso to S. 27(1) of the Act, he made the order. The Custodian-General therefore, acted reasonably within his powers. This objection isquestion raised falls to be decided on the relevant provisions of the Act and the rules made thereunder.considering the first point, we have explained the scope of the rule and we have held that the said rule is only a rule of guidance and that in law a revision can be entertained at any time even after sixty days if the Custodian-General in his discretion thinks fit to entertain it. The prescribed time in the context of a revision to the Custodian-General can only mean sixty days or such other time within which the Custodian-General in his discretion thinks fit to entertain the revision. As the allotment in the present case was made before July 22, 1952 the Custodian-General was within his rights in cancelling theobservations do not record a clear finding that there was no allotment in favour of the appellant. Indeed the factum of allotment to the appellant was never questioned throughout the proceedings. In the circumstances, we must dispose of this appeal on the basis that there was an allotment in favour of the appellant. This contention is, therefore, rejected.
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Commissioner Of Income-Tax(Central) Vs. M/S. Gwalior Rayon Silk Mfg.(Wvg.)Co.Ltd | of carrying raw materials, finished products and workers. Therefore, they must be regarded as building or buildings within the meaning of sub-clause (vi) of Section 10(2) of the 1922 Act. It was also held that dictionary meaning of the word building cannot be confined to its to a structure or superstructure having walls and a roof over it. The roads and roadways are adjuncts of the buildings lying within the factory area linking them together and are being used for carrying on its business by the assessee. Therefore, they must be regarded as forming part of the factory building. The expenditure incurred, therefore, will have to be regarded as expenditure on buildings and depreciation must be allowed. In the appeal filed against the judgment in Colour Chem Ltd. case (CIT v. Colour Chem Ltd., 1977 (106) ITR 323 (Bom) the leave was refused on the ground of delay. More or less, though for different reasons, on "common sense principle" the same is the ratio in CIT v. Lucas-T.V.S. Ltd. ( 1977 (110) ITR 346 (Mad) When the appeal was filed, this Court dismissed the special leave petition on the ground of delay. Same is the view in Panyam Cements and Mineral Industries Ltd. v. Addl. CIT ( 1979 (117) ITR 770 : 1977 CTR(AP) 225), CIT v. Kalyani Spinning Mills Ltd. ( 1981 (128) ITR 279 : 1981 TaxLR 358 : (1981) 85 CWN 308); CIT v. McGaw Ravindra Laboratories (India) Ltd. ( 1981 (132) ITR 401 (Guj) In CIT v. Bangalore Turf Club Ltd. ( 1984 (150) ITR 23 : 1984 TaxLR 74 (Kant) when the appeal was filed this Court dismissed the same in Special Leave Petitions Nos. 5198-99 of 1985 dated December 16, 1987 12. In Words and Phrases, (Permanent) Vol. 5A, building, was defined that everything is necessary to perfect a manufacturing establishment and fit for use designed as a part of it is a building. The roads would serve as necessary links between the raw material and finished products in the business activity. The roads are liable to wear and tear and need constant repairs or relaying the road afresh. 13. While enacting the Income Tax (Fourth Amendment) Rules, 1983, the rule-making authority accepted this interpretation consistently laid down by various High Courts that building includes roads and also elongated bridges, culverts, wells and tubewells as building but prescribed fixed rates of depreciation setting at rest the variable rates claimed by the assessee. Rules validly made have the same force as the sections in the Act. The contention of the respondents that unless the Act itself is amended, the rules would not cut down the meaning of the word building is without substance. The inclusive definition of building to include roads, etc. enlarges the scope of Section 32 and does not whittle down its effect. It is true that in CIT v. Coromandel Fertilisers Ltd. ( 1985 (156) ITR 283 : 1984 TaxLR 340 (AP)) the High Court of Andhra Pradesh interpreted that roads fell within the meaning of plant and granted depreciation at the rates admissible to the plant. CIT v. Sandvik Asia Ltd. ( 1983 (144) ITR 585 : 1983 TaxLR 758 (Bom)) took the opposite view and held them to be building. In view of the consistent view of the other High Courts and which, in our view, is the correct one, the view of the High Court of Andhra Pradesh is not correct in law. 14. It is true, as contended for the Revenue, that the Income Tax (Fourth Amendment) Rules, 1983, were given effect from April 2, 1983 thereby manifesting that the rates enumerated in the Rules would be applicable prospectively from the later assessment years. It could by no means be construed that the Legislature expressed its intention that for the earlier period building does not include roads. If it were to be so, it was open to Parliament to have expressly bring out an amendment to the Act to that effect. On the other hand we are of the view that the subordinate legislature accepted the interpretation given by the High Courts and included roads as an integral part of the building. In Bangalore Turf Club Ltd. case ( 1984 (150) ITR 23 : 1984 TaxLR 74 (Kant) the Karnataka High Court held that the amendment was by way of a clarification in conformity with the law laid down by High Courts. It is also equally settled law that an interpretation consistently given over years and accepted and acted upon by the department may not normally be upset even though a different view of law may reasonably be possible unless the new perceptions and circumstances warrant a fresh look. The ratio in Saharanpur Electric Supply Co. Ltd. v. CIT ((1992) 2 SSC 736 : 1992 (194) ITR 294 ) is not in conflict with the above view. It is also settled law that, unless it is expressly stated or by necessary implication arises, a statute should always be read as prospective. The ratio therein is also in consonance with the view we are taking. 15. Accordingly, we have no hesitation to hold that the roads laid within the factory premises as links or providing approach to the buildings are necessary adjuncts to the factory buildings to carry on the business activity of the Assessee and would be building within the meaning of Section 32 of the Act. The capital expenditure incurred thereon is admissible to depreciation on written down value. It has to be worked out for the purpose of depreciation as per the provisions of the Act read with the Rules in the Appendix. Equally, the drains also would be an integral part of the building for the convenient enjoyment of the factory. The expenditure incurred in laying the drains or written down value of the cost of its construction would equally be entitled to depreciation. It is to be worked out in terms of Section 32 of the Act read with the Rules in the Appendix. | 0[ds]14. It is true, as contended for the Revenue, that the Income Tax (Fourth Amendment) Rules, 1983, were given effect from April 2, 1983 thereby manifesting that the rates enumerated in the Rules would be applicable prospectively from the later assessment years. It could by no means be construed that the Legislature expressed its intention that for the earlier period building does not include roads. If it were to be so, it was open to Parliament to have expressly bring out an amendment to the Act to that effect. On the other hand we are of the view that the subordinate legislature accepted the interpretation given by the High Courts and included roads as an integral part of the building. In Bangalore Turf Club Ltd. case ( 1984 (150) ITR 23 : 1984 TaxLR 74 (Kant) the Karnataka High Court held that the amendment was by way of a clarification in conformity with the law laid down by High Courts. It is also equally settled law that an interpretation consistently given over years and accepted and acted upon by the department may not normally be upset even though a different view of law may reasonably be possible unless the new perceptions and circumstances warrant a fresh look. The ratio in Saharanpur Electric Supply Co. Ltd. v. CIT ((1992) 2 SSC 736 : 1992 (194) ITR 294 ) is not in conflict with the above view. It is also settled law that, unless it is expressly stated or by necessary implication arises, a statute should always be read as prospective. The ratio therein is also in consonance with the view we areAccordingly, we have no hesitation to hold that the roads laid within the factory premises as links or providing approach to the buildings are necessary adjuncts to the factory buildings to carry on the business activity of the Assessee and would be building within the meaning of Section 32 of the Act. The capital expenditure incurred thereon is admissible to depreciation on written down value. It has to be worked out for the purpose of depreciation as per the provisions of the Act read with the Rules in the Appendix. Equally, the drains also would be an integral part of the building for the convenient enjoyment of the factory. The expenditure incurred in laying the drains or written down value of the cost of its construction would equally be entitled to depreciation. It is to be worked out in terms of Section 32 of the Act read with the Rules in the Appendix. | 0 | 4,353 | 463 | ### Instruction:
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of carrying raw materials, finished products and workers. Therefore, they must be regarded as building or buildings within the meaning of sub-clause (vi) of Section 10(2) of the 1922 Act. It was also held that dictionary meaning of the word building cannot be confined to its to a structure or superstructure having walls and a roof over it. The roads and roadways are adjuncts of the buildings lying within the factory area linking them together and are being used for carrying on its business by the assessee. Therefore, they must be regarded as forming part of the factory building. The expenditure incurred, therefore, will have to be regarded as expenditure on buildings and depreciation must be allowed. In the appeal filed against the judgment in Colour Chem Ltd. case (CIT v. Colour Chem Ltd., 1977 (106) ITR 323 (Bom) the leave was refused on the ground of delay. More or less, though for different reasons, on "common sense principle" the same is the ratio in CIT v. Lucas-T.V.S. Ltd. ( 1977 (110) ITR 346 (Mad) When the appeal was filed, this Court dismissed the special leave petition on the ground of delay. Same is the view in Panyam Cements and Mineral Industries Ltd. v. Addl. CIT ( 1979 (117) ITR 770 : 1977 CTR(AP) 225), CIT v. Kalyani Spinning Mills Ltd. ( 1981 (128) ITR 279 : 1981 TaxLR 358 : (1981) 85 CWN 308); CIT v. McGaw Ravindra Laboratories (India) Ltd. ( 1981 (132) ITR 401 (Guj) In CIT v. Bangalore Turf Club Ltd. ( 1984 (150) ITR 23 : 1984 TaxLR 74 (Kant) when the appeal was filed this Court dismissed the same in Special Leave Petitions Nos. 5198-99 of 1985 dated December 16, 1987 12. In Words and Phrases, (Permanent) Vol. 5A, building, was defined that everything is necessary to perfect a manufacturing establishment and fit for use designed as a part of it is a building. The roads would serve as necessary links between the raw material and finished products in the business activity. The roads are liable to wear and tear and need constant repairs or relaying the road afresh. 13. While enacting the Income Tax (Fourth Amendment) Rules, 1983, the rule-making authority accepted this interpretation consistently laid down by various High Courts that building includes roads and also elongated bridges, culverts, wells and tubewells as building but prescribed fixed rates of depreciation setting at rest the variable rates claimed by the assessee. Rules validly made have the same force as the sections in the Act. The contention of the respondents that unless the Act itself is amended, the rules would not cut down the meaning of the word building is without substance. The inclusive definition of building to include roads, etc. enlarges the scope of Section 32 and does not whittle down its effect. It is true that in CIT v. Coromandel Fertilisers Ltd. ( 1985 (156) ITR 283 : 1984 TaxLR 340 (AP)) the High Court of Andhra Pradesh interpreted that roads fell within the meaning of plant and granted depreciation at the rates admissible to the plant. CIT v. Sandvik Asia Ltd. ( 1983 (144) ITR 585 : 1983 TaxLR 758 (Bom)) took the opposite view and held them to be building. In view of the consistent view of the other High Courts and which, in our view, is the correct one, the view of the High Court of Andhra Pradesh is not correct in law. 14. It is true, as contended for the Revenue, that the Income Tax (Fourth Amendment) Rules, 1983, were given effect from April 2, 1983 thereby manifesting that the rates enumerated in the Rules would be applicable prospectively from the later assessment years. It could by no means be construed that the Legislature expressed its intention that for the earlier period building does not include roads. If it were to be so, it was open to Parliament to have expressly bring out an amendment to the Act to that effect. On the other hand we are of the view that the subordinate legislature accepted the interpretation given by the High Courts and included roads as an integral part of the building. In Bangalore Turf Club Ltd. case ( 1984 (150) ITR 23 : 1984 TaxLR 74 (Kant) the Karnataka High Court held that the amendment was by way of a clarification in conformity with the law laid down by High Courts. It is also equally settled law that an interpretation consistently given over years and accepted and acted upon by the department may not normally be upset even though a different view of law may reasonably be possible unless the new perceptions and circumstances warrant a fresh look. The ratio in Saharanpur Electric Supply Co. Ltd. v. CIT ((1992) 2 SSC 736 : 1992 (194) ITR 294 ) is not in conflict with the above view. It is also settled law that, unless it is expressly stated or by necessary implication arises, a statute should always be read as prospective. The ratio therein is also in consonance with the view we are taking. 15. Accordingly, we have no hesitation to hold that the roads laid within the factory premises as links or providing approach to the buildings are necessary adjuncts to the factory buildings to carry on the business activity of the Assessee and would be building within the meaning of Section 32 of the Act. The capital expenditure incurred thereon is admissible to depreciation on written down value. It has to be worked out for the purpose of depreciation as per the provisions of the Act read with the Rules in the Appendix. Equally, the drains also would be an integral part of the building for the convenient enjoyment of the factory. The expenditure incurred in laying the drains or written down value of the cost of its construction would equally be entitled to depreciation. It is to be worked out in terms of Section 32 of the Act read with the Rules in the Appendix.
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14. It is true, as contended for the Revenue, that the Income Tax (Fourth Amendment) Rules, 1983, were given effect from April 2, 1983 thereby manifesting that the rates enumerated in the Rules would be applicable prospectively from the later assessment years. It could by no means be construed that the Legislature expressed its intention that for the earlier period building does not include roads. If it were to be so, it was open to Parliament to have expressly bring out an amendment to the Act to that effect. On the other hand we are of the view that the subordinate legislature accepted the interpretation given by the High Courts and included roads as an integral part of the building. In Bangalore Turf Club Ltd. case ( 1984 (150) ITR 23 : 1984 TaxLR 74 (Kant) the Karnataka High Court held that the amendment was by way of a clarification in conformity with the law laid down by High Courts. It is also equally settled law that an interpretation consistently given over years and accepted and acted upon by the department may not normally be upset even though a different view of law may reasonably be possible unless the new perceptions and circumstances warrant a fresh look. The ratio in Saharanpur Electric Supply Co. Ltd. v. CIT ((1992) 2 SSC 736 : 1992 (194) ITR 294 ) is not in conflict with the above view. It is also settled law that, unless it is expressly stated or by necessary implication arises, a statute should always be read as prospective. The ratio therein is also in consonance with the view we areAccordingly, we have no hesitation to hold that the roads laid within the factory premises as links or providing approach to the buildings are necessary adjuncts to the factory buildings to carry on the business activity of the Assessee and would be building within the meaning of Section 32 of the Act. The capital expenditure incurred thereon is admissible to depreciation on written down value. It has to be worked out for the purpose of depreciation as per the provisions of the Act read with the Rules in the Appendix. Equally, the drains also would be an integral part of the building for the convenient enjoyment of the factory. The expenditure incurred in laying the drains or written down value of the cost of its construction would equally be entitled to depreciation. It is to be worked out in terms of Section 32 of the Act read with the Rules in the Appendix.
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State of Andhra Pradesh & Others Vs. Obulapuram Mining Company Private Limited & Others | 1. In continuation of our order dated 13-4-2012 (State of A.P. V. Obulapuram Mining Co. (P) Ltd., (2013) 8 SCC 213 ), as far as Category ‘A’ is concerned, the recommendations made by the Central Empowered Committee. In Para 14 of its Report dated 18-4-2012, is accepted with a specific clarification that individual reclamation and rehabilitation report for each mining lease(s) would specify unbroken forest area. Mining which is to be resumed in appropriate cases falling in Category ‘A’, however, shall not extend to unbroken forest areas. Further, we direct the Ministry of Environment and Forests to revisit the statutory clearances earlier granted by it in the light of reclamation and rehabilitation plan.2.. Sale of iron ore lying at various cancelled stockyards is permitted through e-auction by the Monitoring Committee with the condition that the sale proceeds (sic from sale of iron ore from mines/stockyards) not found to be involved in any illegality will be reimbursed to the respective stockyards.3. | 1[ds]Sale of iron ore lying at various cancelled stockyards is permitted through e-auction by the Monitoring Committee with the condition that the sale proceeds (sic from sale of iron ore from mines/stockyards) not found to be involved in any illegality will be reimbursed to the respective stockyards. | 1 | 188 | 54 | ### Instruction:
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1. In continuation of our order dated 13-4-2012 (State of A.P. V. Obulapuram Mining Co. (P) Ltd., (2013) 8 SCC 213 ), as far as Category ‘A’ is concerned, the recommendations made by the Central Empowered Committee. In Para 14 of its Report dated 18-4-2012, is accepted with a specific clarification that individual reclamation and rehabilitation report for each mining lease(s) would specify unbroken forest area. Mining which is to be resumed in appropriate cases falling in Category ‘A’, however, shall not extend to unbroken forest areas. Further, we direct the Ministry of Environment and Forests to revisit the statutory clearances earlier granted by it in the light of reclamation and rehabilitation plan.2.. Sale of iron ore lying at various cancelled stockyards is permitted through e-auction by the Monitoring Committee with the condition that the sale proceeds (sic from sale of iron ore from mines/stockyards) not found to be involved in any illegality will be reimbursed to the respective stockyards.3.
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Sale of iron ore lying at various cancelled stockyards is permitted through e-auction by the Monitoring Committee with the condition that the sale proceeds (sic from sale of iron ore from mines/stockyards) not found to be involved in any illegality will be reimbursed to the respective stockyards.
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Duli Chand Vs. Maman Chand (Dead) By Lrs | 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ). It is pointed out that decisions of the Punjab High Court in Mamchand v. Chhotu Ram ((1964) 66 Punj LR 93) and Khushi Ram v. Shanti Rani ((1964) 66 Punj L R 93), wherein it was held that such a deposit made by a tenant under Section 31 of the Relief Act is a sufficient compliance with the terms of the proviso to Section 13 of the Rent Act, were expressly overruled by this Court in Shri Vidya Prachar Trust case ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ), and are no longer good law.(3) Once it is found that the tenant had not paid or tendered the rent as contemplated by the proviso to sub-section (2) of Section 13 of the Rent Act, the Court is bound to order eviction of the tenant.(4) In the alternative, the case be remanded to the Rent Controller to enable the tenant-respondent to prove his allegation that he had regularly tendered the rent for the months of February, March and April 1964, as it fell due, to the landlord but the latter had unjustifiably refused to receive the same.8. As against this, Mr. Bhandare submits that Shri Vidya Prachar Trust case ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ) was not correctly decided and needs reconsideration. In the alternative it is submitted that the ratio of Shri Vidya Prachar Trust case ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ), is not applicable to the facts of the instant case because, here, the deposit was made in the court of the same Rent Controller in which the eviction petition was filed, and consequently the rent deposited was in the custody of that court and could be made available to the landlord at the first hearing. Mr. Bhandare further disputes the correctness of proposition (3) propounded by the learned counsel for the appellant. It is submitted that the proviso gives the defaulting tenant only an additional facility to stave off eviction. But if the tenant had regularly paid or tendered the rent due in accordance with the substantive part of clause (i) of sub-section (2) of Section 13, the Rent Controller will not be justified in ordering eviction, for the simple reason that in such a case, the tenant cannot be said to be in arrears of rent. Mr. Bhandare further submits that in his written statement, the tenant had clearly alleged that he had been tendering the rent month by month, as it fell due, to the landlord but the latter had been persistently refusing to receive the same and that was why he had deposited the rent in the Court. This plea in the written statement, it is argued, has not been specifically denied by the landlord in his replication and therefore, under Order VIII, Rule 5 of the Code of Civil Procedure, it will be deemed to have been admitted. On these premises, it is maintained that the question of remanding the case, in any event, to the Court of the Rent Controller does not arise.9. We need not deal with all the contentions that have been canvassed on both sides. Nor do we feel the necessity of reconsidering the decision in Shri Vidya Prachar Trust v. Basant Ram ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ), because on facts, the instant case is clearly distinguishable from that case. Here, before us, the rent for the months of February, March and April, 1964 was deposited by the tenant to the credit of the landlord in the very court of the Rent Controller in which the landlord subsequently filed the eviction petition. The deposit lying in the treasury was in the legal custody and control of the court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitled to withdraw that deposit. Thus, even if the tenant had obtained the order of the Rent Controller for making the deposit, by referring to Section 31 of the Relief Act, the fact remained that the money was in custodia legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. It might have been different if the deposit had been made in some other court.10. Mr. Andley drew our attention to the order made by the Rent Controller on the application of the tenant, whereby he had sought permission to deposit the rent for the months of February and March 1964. In this order on that application, the Rent Controller has said that the tenant could make the deposit at his own responsibility. Even so, it does not alter the fact that the money was in the custody and control of the Rent Controller and was available for payment to the landlord, at the first hearing. The whole object of the proviso to Section 13(2)(i) is to give the defaulting tenant a final opportunity to stave off his eviction on the ground of non-payment of rent, by paying or tendering on the first date of hearing of the eviction petition the arrears of rent together with interest and costs. The tenant by making the deposit of the arrears of rent and interest and costs, and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said proviso.11. In the view we take, it is not necessary to send the case back to the Rent Controller for trying the issue as to whether the tenant had, according to the allegation in the written statement, regularly tendered the rent month by month for February, March and April 1964, to the landlord and the latter had unjustifiably refused to receive the same. | 0[ds]10. Mr. Andley drew our attention to the order made by the Rent Controller on the application of the tenant, whereby he had sought permission to deposit the rent for the months of February and March 1964. In this order on that application, the Rent Controller has said that the tenant could make the deposit at his own responsibility. Even so, it does not alter the fact that the money was in the custody and control of the Rent Controller and was available for payment to the landlord, at the first hearing. The whole object of the proviso to Section 13(2)(i) is to give the defaulting tenant a final opportunity to stave off his eviction on the ground ofof rent, by paying or tendering on the first date of hearing of the eviction petition the arrears of rent together with interest and costs. The tenant by making the deposit of the arrears of rent and interest and costs, and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said proviso.11. In the view we take, it is not necessary to send the case back to the Rent Controller for trying the issue as to whether the tenant had, according to the allegation in the written statement, regularly tendered the rent month by month for February, March and April 1964, to the landlord and the latter had unjustifiably refused to receive the same. | 0 | 1,916 | 276 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ). It is pointed out that decisions of the Punjab High Court in Mamchand v. Chhotu Ram ((1964) 66 Punj LR 93) and Khushi Ram v. Shanti Rani ((1964) 66 Punj L R 93), wherein it was held that such a deposit made by a tenant under Section 31 of the Relief Act is a sufficient compliance with the terms of the proviso to Section 13 of the Rent Act, were expressly overruled by this Court in Shri Vidya Prachar Trust case ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ), and are no longer good law.(3) Once it is found that the tenant had not paid or tendered the rent as contemplated by the proviso to sub-section (2) of Section 13 of the Rent Act, the Court is bound to order eviction of the tenant.(4) In the alternative, the case be remanded to the Rent Controller to enable the tenant-respondent to prove his allegation that he had regularly tendered the rent for the months of February, March and April 1964, as it fell due, to the landlord but the latter had unjustifiably refused to receive the same.8. As against this, Mr. Bhandare submits that Shri Vidya Prachar Trust case ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ) was not correctly decided and needs reconsideration. In the alternative it is submitted that the ratio of Shri Vidya Prachar Trust case ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ), is not applicable to the facts of the instant case because, here, the deposit was made in the court of the same Rent Controller in which the eviction petition was filed, and consequently the rent deposited was in the custody of that court and could be made available to the landlord at the first hearing. Mr. Bhandare further disputes the correctness of proposition (3) propounded by the learned counsel for the appellant. It is submitted that the proviso gives the defaulting tenant only an additional facility to stave off eviction. But if the tenant had regularly paid or tendered the rent due in accordance with the substantive part of clause (i) of sub-section (2) of Section 13, the Rent Controller will not be justified in ordering eviction, for the simple reason that in such a case, the tenant cannot be said to be in arrears of rent. Mr. Bhandare further submits that in his written statement, the tenant had clearly alleged that he had been tendering the rent month by month, as it fell due, to the landlord but the latter had been persistently refusing to receive the same and that was why he had deposited the rent in the Court. This plea in the written statement, it is argued, has not been specifically denied by the landlord in his replication and therefore, under Order VIII, Rule 5 of the Code of Civil Procedure, it will be deemed to have been admitted. On these premises, it is maintained that the question of remanding the case, in any event, to the Court of the Rent Controller does not arise.9. We need not deal with all the contentions that have been canvassed on both sides. Nor do we feel the necessity of reconsidering the decision in Shri Vidya Prachar Trust v. Basant Ram ((1970) 1 SCR 66 : (1969) 1 SCC 835 : AIR 1969 SC 1273 ), because on facts, the instant case is clearly distinguishable from that case. Here, before us, the rent for the months of February, March and April, 1964 was deposited by the tenant to the credit of the landlord in the very court of the Rent Controller in which the landlord subsequently filed the eviction petition. The deposit lying in the treasury was in the legal custody and control of the court of the Rent Controller, and at the first hearing, if not earlier, the landlord was informed that he was entitled to withdraw that deposit. Thus, even if the tenant had obtained the order of the Rent Controller for making the deposit, by referring to Section 31 of the Relief Act, the fact remained that the money was in custodia legis and could be ordered to be paid to the landlord there and then by the Court at the first hearing. It might have been different if the deposit had been made in some other court.10. Mr. Andley drew our attention to the order made by the Rent Controller on the application of the tenant, whereby he had sought permission to deposit the rent for the months of February and March 1964. In this order on that application, the Rent Controller has said that the tenant could make the deposit at his own responsibility. Even so, it does not alter the fact that the money was in the custody and control of the Rent Controller and was available for payment to the landlord, at the first hearing. The whole object of the proviso to Section 13(2)(i) is to give the defaulting tenant a final opportunity to stave off his eviction on the ground of non-payment of rent, by paying or tendering on the first date of hearing of the eviction petition the arrears of rent together with interest and costs. The tenant by making the deposit of the arrears of rent and interest and costs, and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said proviso.11. In the view we take, it is not necessary to send the case back to the Rent Controller for trying the issue as to whether the tenant had, according to the allegation in the written statement, regularly tendered the rent month by month for February, March and April 1964, to the landlord and the latter had unjustifiably refused to receive the same.
### Response:
0
### Explanation:
10. Mr. Andley drew our attention to the order made by the Rent Controller on the application of the tenant, whereby he had sought permission to deposit the rent for the months of February and March 1964. In this order on that application, the Rent Controller has said that the tenant could make the deposit at his own responsibility. Even so, it does not alter the fact that the money was in the custody and control of the Rent Controller and was available for payment to the landlord, at the first hearing. The whole object of the proviso to Section 13(2)(i) is to give the defaulting tenant a final opportunity to stave off his eviction on the ground ofof rent, by paying or tendering on the first date of hearing of the eviction petition the arrears of rent together with interest and costs. The tenant by making the deposit of the arrears of rent and interest and costs, and informing the landlord at the first hearing that he could receive the same from the Court, had substantially complied with the requirement of the said proviso.11. In the view we take, it is not necessary to send the case back to the Rent Controller for trying the issue as to whether the tenant had, according to the allegation in the written statement, regularly tendered the rent month by month for February, March and April 1964, to the landlord and the latter had unjustifiably refused to receive the same.
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State Of W.Bengal Vs. Pronab K. Sur | latest financial position or the report on the accounts of the Company was placed before the Court as required by the proviso to Section 391(2). Though the Court was exercising special jurisdiction under the Companies Act, the relevant provisions were completely disregarded and the Court was only guided by its own notions of justice. The pre-requisites laid down under the Companies Act for passing the order under Section 391 or 394 cannot be treated as empty formalities which can be thrown to winds at the whim of the Judge. The most objectionable part of the impugned order is to consider one or two offers placed before the Court by the Company without giving due publicity. If the peculiar circumstances of the case required that the normal procedure of calling for bids through advertisement or other means of publicity was to be dispensed with the Court should have at least recorded reasons for the same. But, nothing of that sort was done. The Division Bench should have acted with the awareness that there could be no arbitrary selection of the prospective purchaser, even assuming that an order for sale could be lawfully made. Above all, if the purpose was to rehabilitate or revive the Company, definite proposals for revival should have been insisted upon and the High Court should have passed appropriate orders to ensure that the industry was put back on its wheels and started the production within a time frame, but the only direction given in the order was to pay the amount of one crore or so to the 2nd Respondent-Company ostensibly for the purpose of restarting the industry. How to ensure proper utilization of that money - nothing is mentioned in the order. No provision for monitoring the revival has been made. At the same time all the pending proceedings were terminated. There can be no doubt that the Division Bench out-stepped the limits of its jurisdiction and passed orders of the extra-ordinary nature. 14. The other important reason why the impugned order of the Division Bench cannot be sustained is the subsequent developments that have taken place. It appears that CMS Ltd. (6th Respondent) is no longer interested in the deal. They have not entered appearance before this Court though notice was served. The learned counsel for the 2nd Respondent-Company is not in a position to say that CMS Ltd. is still interested to purchase the land. Secondly, the learned counsel for United Bank of India has made it clear that the bank is no longer agreeable to abide by the terms agreed to earlier under which the bank had to receive Rs. 1.80 crore in full settlement of their claim. The learned counsel appearing for the Bank has contended with justification that it would be imprudent on the part of the Bank to now accept the sum which was offered about 7 years back. The accumulated interest since then would be almost double the amount offered to the Bank in the year 1996. The learned counsel further made it clear that the Bank would like to remain outside the winding up proceedings and pursue the suit filed as long as back in 1992. In view of these two developments, we are of the view that the substratum and underlying basis of the order under appeal has disappeared and it is no longer possible to give effect to the directions given by the Division Bench in the Company Appeal. For all these reasons, the order passed in the Company Appeal is liable to be set aside. 15. The Company Petition No. 90 of 1992 will be restored to the file of High Court and the learned Company Judge will be free to deal with the Petition and the applications, if any, filed therein in accordance with law. 16. As already observed, the order of the High Court in regard to grant of exemption under Section 20 of the U.L.C. Act being in a way inter-related to the approval of the sale of vacant land, should also fall along with the order passed in purported exercise of jurisdiction under The Companies Act. That apart, there is an additional reason why we are inclined to set aside the order of the High Court on this aspect. The High Court did not consider the relevance and effect of the guidelines issued by the State Government in regard to the exercise of power under Section 20 vis-a-vis excess land held by sick industrial units. The High Court was not justified in describing them as unknown guidelines because the orders containing the guidelines were very much on the record and they were adverted to in the pleadings etc. We are not expressing any view on the question whether the application under Section 20 of ULC Act should be dealt with solely from the point of view of the guidelines. We are also refraining from expressing any view on the question of validity of those guidelines in the light of Section 20. These are all questions to be decided by the High Court to the extent they are considered necessary and relevant for adjudication of the writ petition. Whether or not it is a fit case for grant of exemption at least in respect of part of the land so as to facilitate the discharge of workers salaries and statutory dues is also a matter which the High Court may consider, if necessary. It is, however, made clear that the pendency of proceedings under the Companies Act shall not be construed to be a bar to give effect to the provisions of ULC Act in view of the over-riding effect conferred by Section 42 of the Act.17. Accordingly, we set aside the impugned order of the High Court in regard to its finding and declaration on the point of exemption under Section 20 of ULC Act. Writ Petition 383 of 1997 shall be restored to the file of the High Court and the same be dealt with by a Division Bench expeditiously. | 1[ds]order of the High Court in regard to grant of exemption under Section 20 of the U.L.C. Act being in a way inter-related to the approval of the sale of vacant land, should also fall along with the order passed in purported exercise of jurisdiction under The Companies Act. That apart, there is an additional reason why we are inclined to set aside the order of the High Court on this aspect. The High Court did not consider the relevance and effect of the guidelines issued by the State Government in regard to the exercise of power under Section 20 vis-a-vis excess land held by sick industrial units. The High Court was not justified in describing them as unknown guidelines because the orders containing the guidelines were very much on the record and they were adverted to in the pleadings etc. We are not expressing any view on the question whether the application under Section 20 of ULC Act should be dealt with solely from the point of view of the guidelines. We are also refraining from expressing any view on the question of validity of those guidelines in the light of Section 20. These are all questions to be decided by the High Court to the extent they are considered necessary and relevant for adjudication of the writ petition. Whether or not it is a fit case for grant of exemption at least in respect of part of the land so as to facilitate the discharge of workers salaries and statutory dues is also a matter which the High Court may consider, if necessary. It is, however, made clear that the pendency of proceedings under the Companies Act shall not be construed to be a bar to give effect to the provisions of ULC Act in view of the over-riding effect conferred by Section 42 of the Act.17. Accordingly, we set aside the impugned order of the High Court in regard to its finding and declaration on the point of exemption under Section 20 of ULC Act. Writ Petition 383 of 1997 shall be restored to the file of the High Court and the same be dealt with by a Division Bench | 1 | 5,441 | 384 | ### 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:
latest financial position or the report on the accounts of the Company was placed before the Court as required by the proviso to Section 391(2). Though the Court was exercising special jurisdiction under the Companies Act, the relevant provisions were completely disregarded and the Court was only guided by its own notions of justice. The pre-requisites laid down under the Companies Act for passing the order under Section 391 or 394 cannot be treated as empty formalities which can be thrown to winds at the whim of the Judge. The most objectionable part of the impugned order is to consider one or two offers placed before the Court by the Company without giving due publicity. If the peculiar circumstances of the case required that the normal procedure of calling for bids through advertisement or other means of publicity was to be dispensed with the Court should have at least recorded reasons for the same. But, nothing of that sort was done. The Division Bench should have acted with the awareness that there could be no arbitrary selection of the prospective purchaser, even assuming that an order for sale could be lawfully made. Above all, if the purpose was to rehabilitate or revive the Company, definite proposals for revival should have been insisted upon and the High Court should have passed appropriate orders to ensure that the industry was put back on its wheels and started the production within a time frame, but the only direction given in the order was to pay the amount of one crore or so to the 2nd Respondent-Company ostensibly for the purpose of restarting the industry. How to ensure proper utilization of that money - nothing is mentioned in the order. No provision for monitoring the revival has been made. At the same time all the pending proceedings were terminated. There can be no doubt that the Division Bench out-stepped the limits of its jurisdiction and passed orders of the extra-ordinary nature. 14. The other important reason why the impugned order of the Division Bench cannot be sustained is the subsequent developments that have taken place. It appears that CMS Ltd. (6th Respondent) is no longer interested in the deal. They have not entered appearance before this Court though notice was served. The learned counsel for the 2nd Respondent-Company is not in a position to say that CMS Ltd. is still interested to purchase the land. Secondly, the learned counsel for United Bank of India has made it clear that the bank is no longer agreeable to abide by the terms agreed to earlier under which the bank had to receive Rs. 1.80 crore in full settlement of their claim. The learned counsel appearing for the Bank has contended with justification that it would be imprudent on the part of the Bank to now accept the sum which was offered about 7 years back. The accumulated interest since then would be almost double the amount offered to the Bank in the year 1996. The learned counsel further made it clear that the Bank would like to remain outside the winding up proceedings and pursue the suit filed as long as back in 1992. In view of these two developments, we are of the view that the substratum and underlying basis of the order under appeal has disappeared and it is no longer possible to give effect to the directions given by the Division Bench in the Company Appeal. For all these reasons, the order passed in the Company Appeal is liable to be set aside. 15. The Company Petition No. 90 of 1992 will be restored to the file of High Court and the learned Company Judge will be free to deal with the Petition and the applications, if any, filed therein in accordance with law. 16. As already observed, the order of the High Court in regard to grant of exemption under Section 20 of the U.L.C. Act being in a way inter-related to the approval of the sale of vacant land, should also fall along with the order passed in purported exercise of jurisdiction under The Companies Act. That apart, there is an additional reason why we are inclined to set aside the order of the High Court on this aspect. The High Court did not consider the relevance and effect of the guidelines issued by the State Government in regard to the exercise of power under Section 20 vis-a-vis excess land held by sick industrial units. The High Court was not justified in describing them as unknown guidelines because the orders containing the guidelines were very much on the record and they were adverted to in the pleadings etc. We are not expressing any view on the question whether the application under Section 20 of ULC Act should be dealt with solely from the point of view of the guidelines. We are also refraining from expressing any view on the question of validity of those guidelines in the light of Section 20. These are all questions to be decided by the High Court to the extent they are considered necessary and relevant for adjudication of the writ petition. Whether or not it is a fit case for grant of exemption at least in respect of part of the land so as to facilitate the discharge of workers salaries and statutory dues is also a matter which the High Court may consider, if necessary. It is, however, made clear that the pendency of proceedings under the Companies Act shall not be construed to be a bar to give effect to the provisions of ULC Act in view of the over-riding effect conferred by Section 42 of the Act.17. Accordingly, we set aside the impugned order of the High Court in regard to its finding and declaration on the point of exemption under Section 20 of ULC Act. Writ Petition 383 of 1997 shall be restored to the file of the High Court and the same be dealt with by a Division Bench expeditiously.
### Response:
1
### Explanation:
order of the High Court in regard to grant of exemption under Section 20 of the U.L.C. Act being in a way inter-related to the approval of the sale of vacant land, should also fall along with the order passed in purported exercise of jurisdiction under The Companies Act. That apart, there is an additional reason why we are inclined to set aside the order of the High Court on this aspect. The High Court did not consider the relevance and effect of the guidelines issued by the State Government in regard to the exercise of power under Section 20 vis-a-vis excess land held by sick industrial units. The High Court was not justified in describing them as unknown guidelines because the orders containing the guidelines were very much on the record and they were adverted to in the pleadings etc. We are not expressing any view on the question whether the application under Section 20 of ULC Act should be dealt with solely from the point of view of the guidelines. We are also refraining from expressing any view on the question of validity of those guidelines in the light of Section 20. These are all questions to be decided by the High Court to the extent they are considered necessary and relevant for adjudication of the writ petition. Whether or not it is a fit case for grant of exemption at least in respect of part of the land so as to facilitate the discharge of workers salaries and statutory dues is also a matter which the High Court may consider, if necessary. It is, however, made clear that the pendency of proceedings under the Companies Act shall not be construed to be a bar to give effect to the provisions of ULC Act in view of the over-riding effect conferred by Section 42 of the Act.17. Accordingly, we set aside the impugned order of the High Court in regard to its finding and declaration on the point of exemption under Section 20 of ULC Act. Writ Petition 383 of 1997 shall be restored to the file of the High Court and the same be dealt with by a Division Bench
|
Satish Chand Makhan and Others Vs. Govardhan Das Byas and Others | years as stipulated by the registered lease deed dated January 8, 1965, Ex. A-3, being in possession under the unregistered draft lease agreement Ex. B-2, were nothing but tenants holding over from month to month under Section 116 of the Transfer of Property Act and therefore the plaintiffs suit was not maintainable for want of a notice under Section 106 of the act determining the lease. It is also urged that there was no question of the court granting the plaintiffs relief on the altered circumstances since the institution of the suit under Order VII, Rule 7 of the Code of Civil Procedure, 1908, based upon the plea taken by the defendants in their written statement that there was a renewal of the initial lease for a further term of nine years. In our opinion, these contentions must prevail.5. There can be no doubt that the High Court and the courts below have wrongly assumed that the plaintiffs were entitled to the reliefs claimed for by reason of the subsequent change of circumstances under Order VII, Rule 7 of the Code, on the alleged admission of the defendants in their written statement that the renewed term under the unregistered draft lease agreement Ex. B-2 was for a period of nine years. Upon that wrongful assumption they have held that the lease was determined by efflux of time under section 111(a) of the Transfer of Property act and no notice of termination of the tenancy under Section 106 was required. The rule laid down by this Court in Pasupuleti Venkateswarlu case ((1975) 3 SCR 958 : (1975) 1 SCC 770 : AIR 1975 SC 1409 ), that it is incumbent on the Court under Order VII, Rule 7 of the Code to take notice of the altered circumstances since the institution of the suit and mould the relief accordingly in order to shorten litigation and to do complete justice between the parties, was not attracted in the instant case. The High Court obviously fell into an error in thinking that the lease for the renewed term of nine years was determined by efflux of time under Section 111(a) and accordingly the defendants became tenants at sufferance and no quit notice was necessary, as laid down in Kai Khushroo Bezonjee Kapadia v. Bai Jerbai Hirjibhoy Wardon (1949 FCR 262 : AIR 1949 FC 124) and Badri Lal v. Municipal Corporation of Indore ((1973) 3 SCR 15 : (1973) 2 SCC 388 : AIR 1973 SC 508 ).6. Ordinarily a suit is tried in all its stages on the cause of action as it existed on the date of the institution, but the court can look to subsequent events when the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances to shorten litigation, or (3) to do complete justice between the parties. None of these requirements to attract the power of the Court under Order VII, Rule 7 of the Code is present. There is nothing to show that the original relief claimed for had, by reason of subsequent change of circumstances, become inappropriate, or that it was necessary to have the decision of the Court on the altered circumstances in order to shorten litigation, or to do complete justice between the parties. The defendants have nowhere admitted that the lease was for a specific term of nine years. On the contrary, they have pleaded that they were tenants holding over under Section 116 of the Transfer of Property Act. The unregistered draft lease agreement Ex. B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendants. The documents Ex. B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Ex. B-2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under section 17(1)(d) of the Registration Act.7. We have no doubt in our mind that the defendants were tenants holding over under section 116 of the Transfer of Property act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mullas Transfer of Property Act, 5th Edn., p. 762. It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property act, and that the defendants were tenants at sufferance and no quit notice was required. It is no doubt true that where the lease is for a definite term, it stands determined by efflux of time under Section 111(a) of the Transfer of Property Act, and the erstwhile tenants becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of Property Act as tenants from month to month, and further that no notice as required by Section 106 was served on them. That being so, the plaintiffs suit for ejectment as framed was not maintainable. The decree for mesne profits shall be treated as a decree for arrears of rent, if any. | 1[ds]5. There can be no doubt that the High Court and the courts below have wrongly assumed that the plaintiffs were entitled to the reliefs claimed for by reason of the subsequent change of circumstances under Order VII, Rule 7 of the Code, on the alleged admission of the defendants in their written statement that the renewed term under the unregistered draft lease agreement Ex.was for a period of nine years. Upon that wrongful assumption they have held that the lease was determined by efflux of time under section 111(a) of the Transfer of Property act and no notice of termination of the tenancy under Section 106 was required.We have no doubt in our mind that the defendants were tenants holding over under section 116 of the Transfer of Property act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mullas Transfer of Property Act, 5th Edn., p. 762. It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property act, and that the defendants were tenants at sufferance and no quit notice was required. It is no doubt true that where the lease is for a definite term, it stands determined by efflux of time under Section 111(a) of the Transfer of Property Act, and the erstwhile tenants becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of Property Act as tenants from month to month, and further that no notice as required by Section 106 was served on them. That being so, the plaintiffs suit for ejectment as framed was not maintainable. The decree for mesne profits shall be treated as a decree for arrears of rent, if any. | 1 | 1,960 | 407 | ### 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:
years as stipulated by the registered lease deed dated January 8, 1965, Ex. A-3, being in possession under the unregistered draft lease agreement Ex. B-2, were nothing but tenants holding over from month to month under Section 116 of the Transfer of Property Act and therefore the plaintiffs suit was not maintainable for want of a notice under Section 106 of the act determining the lease. It is also urged that there was no question of the court granting the plaintiffs relief on the altered circumstances since the institution of the suit under Order VII, Rule 7 of the Code of Civil Procedure, 1908, based upon the plea taken by the defendants in their written statement that there was a renewal of the initial lease for a further term of nine years. In our opinion, these contentions must prevail.5. There can be no doubt that the High Court and the courts below have wrongly assumed that the plaintiffs were entitled to the reliefs claimed for by reason of the subsequent change of circumstances under Order VII, Rule 7 of the Code, on the alleged admission of the defendants in their written statement that the renewed term under the unregistered draft lease agreement Ex. B-2 was for a period of nine years. Upon that wrongful assumption they have held that the lease was determined by efflux of time under section 111(a) of the Transfer of Property act and no notice of termination of the tenancy under Section 106 was required. The rule laid down by this Court in Pasupuleti Venkateswarlu case ((1975) 3 SCR 958 : (1975) 1 SCC 770 : AIR 1975 SC 1409 ), that it is incumbent on the Court under Order VII, Rule 7 of the Code to take notice of the altered circumstances since the institution of the suit and mould the relief accordingly in order to shorten litigation and to do complete justice between the parties, was not attracted in the instant case. The High Court obviously fell into an error in thinking that the lease for the renewed term of nine years was determined by efflux of time under Section 111(a) and accordingly the defendants became tenants at sufferance and no quit notice was necessary, as laid down in Kai Khushroo Bezonjee Kapadia v. Bai Jerbai Hirjibhoy Wardon (1949 FCR 262 : AIR 1949 FC 124) and Badri Lal v. Municipal Corporation of Indore ((1973) 3 SCR 15 : (1973) 2 SCC 388 : AIR 1973 SC 508 ).6. Ordinarily a suit is tried in all its stages on the cause of action as it existed on the date of the institution, but the court can look to subsequent events when the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances to shorten litigation, or (3) to do complete justice between the parties. None of these requirements to attract the power of the Court under Order VII, Rule 7 of the Code is present. There is nothing to show that the original relief claimed for had, by reason of subsequent change of circumstances, become inappropriate, or that it was necessary to have the decision of the Court on the altered circumstances in order to shorten litigation, or to do complete justice between the parties. The defendants have nowhere admitted that the lease was for a specific term of nine years. On the contrary, they have pleaded that they were tenants holding over under Section 116 of the Transfer of Property Act. The unregistered draft lease agreement Ex. B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendants. The documents Ex. B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Ex. B-2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under section 17(1)(d) of the Registration Act.7. We have no doubt in our mind that the defendants were tenants holding over under section 116 of the Transfer of Property act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mullas Transfer of Property Act, 5th Edn., p. 762. It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property act, and that the defendants were tenants at sufferance and no quit notice was required. It is no doubt true that where the lease is for a definite term, it stands determined by efflux of time under Section 111(a) of the Transfer of Property Act, and the erstwhile tenants becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of Property Act as tenants from month to month, and further that no notice as required by Section 106 was served on them. That being so, the plaintiffs suit for ejectment as framed was not maintainable. The decree for mesne profits shall be treated as a decree for arrears of rent, if any.
### Response:
1
### Explanation:
5. There can be no doubt that the High Court and the courts below have wrongly assumed that the plaintiffs were entitled to the reliefs claimed for by reason of the subsequent change of circumstances under Order VII, Rule 7 of the Code, on the alleged admission of the defendants in their written statement that the renewed term under the unregistered draft lease agreement Ex.was for a period of nine years. Upon that wrongful assumption they have held that the lease was determined by efflux of time under section 111(a) of the Transfer of Property act and no notice of termination of the tenancy under Section 106 was required.We have no doubt in our mind that the defendants were tenants holding over under section 116 of the Transfer of Property act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mullas Transfer of Property Act, 5th Edn., p. 762. It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property act, and that the defendants were tenants at sufferance and no quit notice was required. It is no doubt true that where the lease is for a definite term, it stands determined by efflux of time under Section 111(a) of the Transfer of Property Act, and the erstwhile tenants becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of Property Act as tenants from month to month, and further that no notice as required by Section 106 was served on them. That being so, the plaintiffs suit for ejectment as framed was not maintainable. The decree for mesne profits shall be treated as a decree for arrears of rent, if any.
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UNION OF INDIA & ANR Vs. ONKAR NATH DHAR | in their possession. Such direction was in terms of Article 142 of the Constitution. This Court in a judgment reported as Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 held that the High Courts repeatedly followed a direction issued under Article 142, by treating it as the law declared by this Court. It was held that the Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts. This Court held as under: 26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may. 17. In another judgment reported as Ram Pravesh Singh & Ors. v. State of Bihar & Ors. (2006) 8 SCC 381 , it was held that any direction given on special facts, in the exercise of jurisdiction under Article 142, is not a binding precedent. This Court held as under: 23. The appellant next submitted that this Court, in some cases, has directed absorption in similar circumstances. Reliance is placed on the decision in G. Govinda Rajulu v. A.P. State Construction Corpn. Ltd. [1986 Supp SCC 651 : 1987 SCC (L&S) 71] We extract below the entire judgment: (SCC p. 651, paras 1- 2) 1. We have carefully considered the matter and after hearing learned counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Limited whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the government departments or in the government corporations. 2. The writ petition is disposed of accordingly. There is no order as to costs. The tenor of the said order, which is not preceded by any reasons or consideration of any principle, demonstrates that it was an order made under Article 142 of the Constitution on the peculiar facts of that case. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. Therefore, the decision in Govinda Rajulu [1986 Supp SCC 651 : 1987 SCC (L&S) 71] cannot be the basis for claiming relief similar to what was granted in that case. A similar contention was negatived by the Constitution Bench in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] : (SCC p. 39, para 46) The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. 18. Therefore, the direction issued in J.L. Kaul that the retirees shall continue to possess the accommodation in their possession is a direction under Article 142 of the Constitution. This Court had accepted the rehabilitation scheme finalized by the State Government. 19. Dhar was an officer of the Intelligence Bureau. He has drawn his salary and availed of alternative accommodation for 15 years after his retirement along with pensionary benefits. There is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee. The government accommodation is meant for the serving government employees to facilitate the discharge of their duties. The government accommodation is not meant for the retirees. The accommodation to the retirees is at the cost of serving officers. In terms of the policy which was considered in J.L. Koul, the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses. Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory. No one is sure that at what point of time the condition will be conducive to the satisfaction of the migrants. Such benevolence and preferential right to section of the citizens is unfair to the serving officers. Dhar like persons should have compassion for their fellow employees who may be without any government accommodation. The right to shelter does not mean right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse. 20. Thus, we find that the orders passed by the High Court are absolutely without any basis and in the absence of any policy of allotment of government accommodation to a retired government servant, who may be victim of terrorism. The orders passed are wholly arbitrary and irrational. We are unable to agree with the reasoning recorded by Delhi and Punjab & Haryana High Courts. | 1[ds]9. We have heard learned counsel for the parties and find that the orders of the High Court are unsustainable. In Shiv Sagar Tiwari, the large scale allotment of Government houses made out of turn in eleven categories was examined under the Allotment of Government Residences (General Pool in Delhi) Rules, 1963. All such categories were of serving employees who were given out-of-turn allotments. The then Minister of Urban Development in the Central Government was asked to pay a sum of Rs.60 lakhs as exemplary damages by order dated 8.11.1996. The Court examining the argument of right to shelter, held as under:3. …May we also observe that life, livelihood and shelter are so mixed, mingled and fused that it is difficult to separate them. To take away life, it would be enough to take away livelihood; and to earn livelihood, which in urban areas is ordinarily at places away from ones own home and hearth, shelter would be necessary — be it a house or even a pavement. This Court has dealt with cases of pavement-dwellers. The locus classicus in Olga Tellis [Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545] and the latest rendering is in Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan [JT (1996) 10 SC 485 ]. In the case at hand, we are, however, not concerned with those who per force occupy pavements near the places of their work. The primary subject-matter of the present petition is providing of residential accommodation in quarters built by the Government for its employees — highly or lowly paid. (Emphasis Supplied)40. The star question as to who should face eviction is, therefore, answered by stating that it would be all those whose names find place in Categories IV, VI, IX, X, XI and such of Category VII who had not become actually entitled to in-turn allotment by the date(s) the respective reports were submitted. Those IAS, IPS and IFS and other officers who are occupying General Pool quarters, despite being eligible for quarters in the Tenure Pool, would also be evicted.46. The arbitrary exercise of power by the authorities in a big way had led almost to the collapse of the whole system of allotment. There was a crisis-like situation and this Court had to deal with an extraordinary situation and a special procedure had to be devised to do justice to all concerned. Natural justice being a flexible principle and we being concerned with the issue of outof-turn allotment in thousands, it was felt by us that a collective hearing would meet the requirement of natural justice as the Committee had given individual hearing to those who appeared before it. This view was taken because the basic question to be determined was whether the allotment given to an employee was on out-of-turn basis or not. In case it were to be so, it is apparent that unless an exception is made, the allottee has no right to stay, no right to occupy the premises. The hearing given by us on two occasions brought home eloquently to us that the out-of-turn allottees, who were notified and had appeared, had two principal contentions to advance — the same being the plea not to evict either on the ground of serious illness of one or the other close relatives, or to include them in the functional category. Nothing else could have really been pleaded not to evict them. These two aspects have been adequately borne in mind by us as would appear from the aforesaid discussion.95. Finally, we hope that coming years would not see any scam or misuse of power in making allotments of government quarters. The trust which is reposed in this context on high public functionaries would be discharged, we are sure, only to advance the object of providing of suitable conditions of work to government employees so that the Government is run on even keel; and shelter, which is a very pressing necessity of any human being, would not come to be denied if the same is otherwise due to the incumbent. A satisfied bureaucracy is as much necessary, as good political leadership, to deliver the goods. The Government of free India have many promises to keep after its tryst with destiny on the midnight of 14-8-1947. We have no doubt that all the public functionaries would so act that the meeting with destiny really sees the dawn of an era of hope for all.10. In S.D. Bandi, the occupation of a government accommodation by the members of three branches of the State i.e., legislature, executive and the judiciary beyond the period for which the same was allotted came up for consideration. This Court, inter-alia, held as under: -33.18 Since allotment of Government accommodation is a privilege given to the Ministers and Members of Parliament, the matter of unauthorized retention should be intimated to the Speaker/Chairman of the House and action should be initiated by the House Committee for the breach of the privileges which a Member/Minister enjoys and the appropriate Committee should recommend to the Speaker/Chairman for taking appropriate action/eviction within a time bound period.33.19 Judges of any forum shall vacate the official residence within a period of one month from the date of superannuation/retirement. However, after recording sufficient reason(s), the time may be extended by another one month.33.20 Henceforth, no memorials should be allowed in future in any Government houses earmarked for residential accommodation.34. It is unfortunate that the employees, officers, representatives of people and other high dignitaries continue to stay in the residential accommodation provided by the Government of India though they are no longer entitled to such accommodation. Many of such persons continue to occupy residential accommodation commensurate with the office(s) held by them earlier and which are beyond their present entitlement. The unauthorized occupants must recollect that rights and duties are correlative as the rights of one person entail the duties of another person similarly the duty of one person entails the rights of another person. Observing this, the unauthorized occupants must appreciate that their act of overstaying in the premise directly infringes the right of another. No law or directions can entirely control this act of disobedience but for the self realisation among the unauthorized occupants. The matter is disposed of with the above terms and no order is required in I.As for impleadment and intervention.13. In view of the judgments referred above, the Government accommodation could not have been allotted to a person who had demitted office. No exception was carved out even in respect of the persons who held Constitutional posts at one point of time. It was held that the Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office. Therefore, the view of the learned Delhi High Court and that of the Punjab & Haryana High Court is erroneous on the basis of compassion showed to displaced persons on account of terrorist activities in the State. The compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal licence fee defeats the very purpose of the Government accommodation which is meant for serving officers. The compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation.14. According to a policy framed by the government, a displaced person is to be lodged in a transit accommodation and if it is not available then cash compensation is to be provided. But the displaced persons cannot occupy government accommodation. If a retired government employee had no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation. The right of shelter is taken care of when alternative Transit accommodation is made available to the migrants to meet out the emergent situation. There is no policy of the Central Government or the State Government to provide accommodation to displaced persons on account of terrorism in the State of Jammu & Kashmir. Such directions of the Delhi High Court and of the Punjab & Haryana High Court is de hors any policy of allotting accommodation to the migrants under the guise of the right to shelter which is clearly in excess of jurisdiction vested with the Courts. The hardship faced by them does not lead to a corresponding duty of the State to provide them alternative government accommodation.16. J.L. Koul is a case, accepting the rehabilitation scheme framed by the State authorities based on which appropriate accommodation was provided to 31 appellants and was given accommodation which was in their possession. Such direction was in terms of Article 142 of the Constitution. This Court in a judgment reported as Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 held that the High Courts repeatedly followed a direction issued under Article 142, by treating it as the law declared by this Court. It was held that the Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts. This Court held as under:26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may.18. Therefore, the direction issued in J.L. Kaul that the retirees shall continue to possess the accommodation in their possession is a direction under Article 142 of the Constitution. This Court had accepted the rehabilitation scheme finalized by the State Government.19. Dhar was an officer of the Intelligence Bureau. He has drawn his salary and availed of alternative accommodation for 15 years after his retirement along with pensionary benefits. There is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee. The government accommodation is meant for the serving government employees to facilitate the discharge of their duties. The government accommodation is not meant for the retirees. The accommodation to the retirees is at the cost of serving officers. In terms of the policy which was considered in J.L. Koul, the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses. Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory. No one is sure that at what point of time the condition will be conducive to the satisfaction of the migrants. Such benevolence and preferential right to section of the citizens is unfair to the serving officers. Dhar like persons should have compassion for their fellow employees who may be without any government accommodation. The right to shelter does not mean right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse.20. Thus, we find that the orders passed by the High Court are absolutely without any basis and in the absence of any policy of allotment of government accommodation to a retired government servant, who may be victim of terrorism. The orders passed are wholly arbitrary and irrational. We are unable to agree with the reasoning recorded by Delhi and Punjab & Haryana High Courts. | 1 | 5,353 | 2,296 | ### 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:
in their possession. Such direction was in terms of Article 142 of the Constitution. This Court in a judgment reported as Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 held that the High Courts repeatedly followed a direction issued under Article 142, by treating it as the law declared by this Court. It was held that the Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts. This Court held as under: 26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may. 17. In another judgment reported as Ram Pravesh Singh & Ors. v. State of Bihar & Ors. (2006) 8 SCC 381 , it was held that any direction given on special facts, in the exercise of jurisdiction under Article 142, is not a binding precedent. This Court held as under: 23. The appellant next submitted that this Court, in some cases, has directed absorption in similar circumstances. Reliance is placed on the decision in G. Govinda Rajulu v. A.P. State Construction Corpn. Ltd. [1986 Supp SCC 651 : 1987 SCC (L&S) 71] We extract below the entire judgment: (SCC p. 651, paras 1- 2) 1. We have carefully considered the matter and after hearing learned counsel for the parties, we direct that the employees of the Andhra Pradesh State Construction Corporation Limited whose services were sought to be terminated on account of the closure of the Corporation shall be continued in service on the same terms and conditions either in the government departments or in the government corporations. 2. The writ petition is disposed of accordingly. There is no order as to costs. The tenor of the said order, which is not preceded by any reasons or consideration of any principle, demonstrates that it was an order made under Article 142 of the Constitution on the peculiar facts of that case. Law declared by this Court is binding under Article 141. Any direction given on special facts, in exercise of jurisdiction under Article 142, is not a binding precedent. Therefore, the decision in Govinda Rajulu [1986 Supp SCC 651 : 1987 SCC (L&S) 71] cannot be the basis for claiming relief similar to what was granted in that case. A similar contention was negatived by the Constitution Bench in Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] : (SCC p. 39, para 46) The fact that in certain cases the court had directed regularisation of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. 18. Therefore, the direction issued in J.L. Kaul that the retirees shall continue to possess the accommodation in their possession is a direction under Article 142 of the Constitution. This Court had accepted the rehabilitation scheme finalized by the State Government. 19. Dhar was an officer of the Intelligence Bureau. He has drawn his salary and availed of alternative accommodation for 15 years after his retirement along with pensionary benefits. There is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee. The government accommodation is meant for the serving government employees to facilitate the discharge of their duties. The government accommodation is not meant for the retirees. The accommodation to the retirees is at the cost of serving officers. In terms of the policy which was considered in J.L. Koul, the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses. Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory. No one is sure that at what point of time the condition will be conducive to the satisfaction of the migrants. Such benevolence and preferential right to section of the citizens is unfair to the serving officers. Dhar like persons should have compassion for their fellow employees who may be without any government accommodation. The right to shelter does not mean right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse. 20. Thus, we find that the orders passed by the High Court are absolutely without any basis and in the absence of any policy of allotment of government accommodation to a retired government servant, who may be victim of terrorism. The orders passed are wholly arbitrary and irrational. We are unable to agree with the reasoning recorded by Delhi and Punjab & Haryana High Courts.
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### Explanation:
for in-service officers and not for the retirees or those who have demitted office. Therefore, the view of the learned Delhi High Court and that of the Punjab & Haryana High Court is erroneous on the basis of compassion showed to displaced persons on account of terrorist activities in the State. The compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal licence fee defeats the very purpose of the Government accommodation which is meant for serving officers. The compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation.14. According to a policy framed by the government, a displaced person is to be lodged in a transit accommodation and if it is not available then cash compensation is to be provided. But the displaced persons cannot occupy government accommodation. If a retired government employee had no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation. The right of shelter is taken care of when alternative Transit accommodation is made available to the migrants to meet out the emergent situation. There is no policy of the Central Government or the State Government to provide accommodation to displaced persons on account of terrorism in the State of Jammu & Kashmir. Such directions of the Delhi High Court and of the Punjab & Haryana High Court is de hors any policy of allotting accommodation to the migrants under the guise of the right to shelter which is clearly in excess of jurisdiction vested with the Courts. The hardship faced by them does not lead to a corresponding duty of the State to provide them alternative government accommodation.16. J.L. Koul is a case, accepting the rehabilitation scheme framed by the State authorities based on which appropriate accommodation was provided to 31 appellants and was given accommodation which was in their possession. Such direction was in terms of Article 142 of the Constitution. This Court in a judgment reported as Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72 held that the High Courts repeatedly followed a direction issued under Article 142, by treating it as the law declared by this Court. It was held that the Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts. This Court held as under:26. One word before parting. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may.18. Therefore, the direction issued in J.L. Kaul that the retirees shall continue to possess the accommodation in their possession is a direction under Article 142 of the Constitution. This Court had accepted the rehabilitation scheme finalized by the State Government.19. Dhar was an officer of the Intelligence Bureau. He has drawn his salary and availed of alternative accommodation for 15 years after his retirement along with pensionary benefits. There is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee. The government accommodation is meant for the serving government employees to facilitate the discharge of their duties. The government accommodation is not meant for the retirees. The accommodation to the retirees is at the cost of serving officers. In terms of the policy which was considered in J.L. Koul, the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses. Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory. No one is sure that at what point of time the condition will be conducive to the satisfaction of the migrants. Such benevolence and preferential right to section of the citizens is unfair to the serving officers. Dhar like persons should have compassion for their fellow employees who may be without any government accommodation. The right to shelter does not mean right to government accommodation. The government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse.20. Thus, we find that the orders passed by the High Court are absolutely without any basis and in the absence of any policy of allotment of government accommodation to a retired government servant, who may be victim of terrorism. The orders passed are wholly arbitrary and irrational. We are unable to agree with the reasoning recorded by Delhi and Punjab & Haryana High Courts.
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M/S Tvc Skyshop Ltd Vs. M/S Reliance Communciation & Infra.Ltd | or that the defence is frivolous or vexatious. Second proviso to sub-rule (5) lays down that if the defendant admits part of the amount claimed by the plaintiff then he shall not be granted leave to defend unless the admitted amount is deposited in the Court. Sub-rule (6) provides for the consequences of the defendant?s failure to apply for leave to defend or refusal of prayer for leave to defend. In such an eventuality, the plaintiff is entitled to judgment forthwith. Sub- rule (7) lays down that if the defendant is able to show sufficient cause, the Court can excuse the delay in entering of appearance or in making an application for leave to defend. Rule 4 gives power to the Court to set aside the decree provided special circumstances exist for doing so. The Court can also stay or set aside execution and grant leave to the defendant to defend the suit. 9. The expression ?special circumstances? appearing in Order XXXVII Rule 4 was considered by this Court in Rajni Kumar v. Suresh Kumar Malhotra (2003) 5 SCC 315 and it was observed: ?The expression ?special circumstances? is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37 Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit.? In the same judgment, the Court considered the scope of order XXXVII Rule 4 and observed: ?It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.? 10. In the present case, we find that the application filed by the appellant for setting aside decree dated 7.11.2006 did not disclose any special circumstance which could justify an order under Order XXXVII Rule 4. In his affidavit, Shri Mahesh Katudia had merely stated that sum of Rs.11,00,000/- had been paid in terms of order dated 13.4.2006 passed by the learned Company Judge and proper instructions could not be given to the Advocate engaged for defending the suit. Therefore, it is not possible to find any fault with the view taken by the Division Bench of the High Court on the tenability of the appellant?s prayer for setting aside decree dated 7.11.2006.11. The argument of Shri Rohan Thawani, learned counsel for the appellant that even though the appellant had not applied for leave to defend, the learned Single Judge was duty bound to scrutinise the claim of the respondent and the suit could have been decreed only if the Court felt satisfied that the claim was bonafide and not vexatious which finds some support from the judgment in Neebha Kapoor v. Jayantilal Khandwala (2008) 3 SCC 770 sounds attractive in the first flash but we do not find any valid ground to overturn the impugned judgment because, as mentioned above, the affidavit filed by Shri Mahesh Katudia did not disclose any special circumstances which could warrant exercise of power under Order XXXVII Rule 4. He did not even contest the liability of the appellant to pay the amount claimed in the plaint. The mere fact that one of the officials of the appellant had resigned would not constitute a valid ground for negating the policy underlying Order XXXVII in general and Rule 3(5) in particular.12. Equally meritless is the argument of Shri Thawani that the rate at which the respondent claimed interest is highly excessive. According to Shri Jaideep Gupta with whom we agree, the interest was charged as per the terms of the agreement and the appellant had always paid the bills in which interest was claimed at the rate of 30% per annum. | 0[ds]10. In the present case, we find that the application filed by the appellant for setting aside decree dated 7.11.2006 did not disclose any special circumstance which could justify an order under Order XXXVII Rule 4. In his affidavit, Shri Mahesh Katudia had merely stated that sum of Rs.11,00,000/had been paid in terms of order dated 13.4.2006 passed by the learned Company Judge and proper instructions could not be given to the Advocate engaged for defending the suit. Therefore, it is not possible to find any fault with the view taken by the Division Bench of the High Court on the tenability of the appellant?s prayer for setting aside decree dated 7.11.2006.11. The argument of Shri Rohan Thawani, learned counsel for the appellant that even though the appellant had not applied for leave to defend, the learned Single Judge was duty bound to scrutinise the claim of the respondent and the suit could have been decreed only if the Court felt satisfied that the claim was bonafide and not vexatious which finds some support from the judgment in Neebha Kapoor v. Jayantilal Khandwala (2008) 3 SCC 770 sounds attractive in the first flash but we do not find any valid ground to overturn the impugned judgment because, as mentioned above, the affidavit filed by Shri Mahesh Katudia did not disclose any special circumstances which could warrant exercise of power under Order XXXVII Rule 4. He did not even contest the liability of the appellant to pay the amount claimed in the plaint. The mere fact that one of the officials of the appellant had resigned would not constitute a valid ground for negating the policy underlying Order XXXVII in general and Rule 3(5) in particular.12. Equally meritless is the argument of Shri Thawani that the rate at which the respondent claimed interest is highly excessive. According to Shri Jaideep Gupta with whom we agree, the interest was charged as per the terms of the agreement and the appellant had always paid the bills in which interest was claimed at the rate of 30% per annum. | 0 | 3,397 | 374 | ### 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:
or that the defence is frivolous or vexatious. Second proviso to sub-rule (5) lays down that if the defendant admits part of the amount claimed by the plaintiff then he shall not be granted leave to defend unless the admitted amount is deposited in the Court. Sub-rule (6) provides for the consequences of the defendant?s failure to apply for leave to defend or refusal of prayer for leave to defend. In such an eventuality, the plaintiff is entitled to judgment forthwith. Sub- rule (7) lays down that if the defendant is able to show sufficient cause, the Court can excuse the delay in entering of appearance or in making an application for leave to defend. Rule 4 gives power to the Court to set aside the decree provided special circumstances exist for doing so. The Court can also stay or set aside execution and grant leave to the defendant to defend the suit. 9. The expression ?special circumstances? appearing in Order XXXVII Rule 4 was considered by this Court in Rajni Kumar v. Suresh Kumar Malhotra (2003) 5 SCC 315 and it was observed: ?The expression ?special circumstances? is not defined in the Civil Procedure Code nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37 Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to defend the suit.? In the same judgment, the Court considered the scope of order XXXVII Rule 4 and observed: ?It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the court considers it reasonable so to do, on such terms as the court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the court, all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.? 10. In the present case, we find that the application filed by the appellant for setting aside decree dated 7.11.2006 did not disclose any special circumstance which could justify an order under Order XXXVII Rule 4. In his affidavit, Shri Mahesh Katudia had merely stated that sum of Rs.11,00,000/- had been paid in terms of order dated 13.4.2006 passed by the learned Company Judge and proper instructions could not be given to the Advocate engaged for defending the suit. Therefore, it is not possible to find any fault with the view taken by the Division Bench of the High Court on the tenability of the appellant?s prayer for setting aside decree dated 7.11.2006.11. The argument of Shri Rohan Thawani, learned counsel for the appellant that even though the appellant had not applied for leave to defend, the learned Single Judge was duty bound to scrutinise the claim of the respondent and the suit could have been decreed only if the Court felt satisfied that the claim was bonafide and not vexatious which finds some support from the judgment in Neebha Kapoor v. Jayantilal Khandwala (2008) 3 SCC 770 sounds attractive in the first flash but we do not find any valid ground to overturn the impugned judgment because, as mentioned above, the affidavit filed by Shri Mahesh Katudia did not disclose any special circumstances which could warrant exercise of power under Order XXXVII Rule 4. He did not even contest the liability of the appellant to pay the amount claimed in the plaint. The mere fact that one of the officials of the appellant had resigned would not constitute a valid ground for negating the policy underlying Order XXXVII in general and Rule 3(5) in particular.12. Equally meritless is the argument of Shri Thawani that the rate at which the respondent claimed interest is highly excessive. According to Shri Jaideep Gupta with whom we agree, the interest was charged as per the terms of the agreement and the appellant had always paid the bills in which interest was claimed at the rate of 30% per annum.
### Response:
0
### Explanation:
10. In the present case, we find that the application filed by the appellant for setting aside decree dated 7.11.2006 did not disclose any special circumstance which could justify an order under Order XXXVII Rule 4. In his affidavit, Shri Mahesh Katudia had merely stated that sum of Rs.11,00,000/had been paid in terms of order dated 13.4.2006 passed by the learned Company Judge and proper instructions could not be given to the Advocate engaged for defending the suit. Therefore, it is not possible to find any fault with the view taken by the Division Bench of the High Court on the tenability of the appellant?s prayer for setting aside decree dated 7.11.2006.11. The argument of Shri Rohan Thawani, learned counsel for the appellant that even though the appellant had not applied for leave to defend, the learned Single Judge was duty bound to scrutinise the claim of the respondent and the suit could have been decreed only if the Court felt satisfied that the claim was bonafide and not vexatious which finds some support from the judgment in Neebha Kapoor v. Jayantilal Khandwala (2008) 3 SCC 770 sounds attractive in the first flash but we do not find any valid ground to overturn the impugned judgment because, as mentioned above, the affidavit filed by Shri Mahesh Katudia did not disclose any special circumstances which could warrant exercise of power under Order XXXVII Rule 4. He did not even contest the liability of the appellant to pay the amount claimed in the plaint. The mere fact that one of the officials of the appellant had resigned would not constitute a valid ground for negating the policy underlying Order XXXVII in general and Rule 3(5) in particular.12. Equally meritless is the argument of Shri Thawani that the rate at which the respondent claimed interest is highly excessive. According to Shri Jaideep Gupta with whom we agree, the interest was charged as per the terms of the agreement and the appellant had always paid the bills in which interest was claimed at the rate of 30% per annum.
|
POWARI PANCHSHEEL CO-OP.HNG.STY Vs. MAHARASHTRA HOUSING AREA DEVELOPMENT AUTHORITY (MHADA)) | then was the Judge of Kerala High Court and later became a Judge of this Court) which the learned Judge made in V. Punnan Thomas vs. State of Kerala (AIR 1969 Ker 81). In Para 12 at page 505 of R.D. Shetty?s case (supra) Justice Bhagwati said in the following words:-?We agree with the observations of Mathew, J, in V. Punnan Thomas vs State of Kerala that: The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherein in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.? 22. Since then the Courts have been consistently following the aforesaid dictum of law, which is later explained by this Court in several cases whenever the question relating to disposal of State largesse amongst the citizens arose for consideration for deciding the rights of the parties qua each other and the State. It is, however, not necessary to mention these cases which have reiterated this principle as it will only burden our order. 23. Keeping in view the aforementioned principle of law, when we examine the facts of this case, we are of the considered opinion that the Board was not justified in considering only the offers made by the three societies without considering appellant No.1?s offer dated 03.03.2003 on its merit. 24. In our view, the Board was under a legal obligation to consider also appellant No.1?s offer which appellant No.1 had made to the Board through M/s. Kamath Constructions vide its letter dated 03.03.2003 for purchase of the flats of Powai Project along with the other offers made by the three societies in their meetings held on 10/14.05.2003. 25. This we say for the reasons that firstly, M/s. Kamath Constructions was the authorized agent appointed by the Board itself for sale and disposal of the flats of Powai Project: Secondly, M/s. Kamath Constructions on receipt of appellant No.1?s offer on 03.03.2003 rightly forwarded it to the Board on 03.03.2003 for its consideration; Thirdly, the appellants offer dated 3.3.2003 was, therefore, very much available to the Board for its consideration prior to the meetings held on 10/14.05.2003. In other words, the date on which the Board was considering the offers of the three societies in its meeting on 10/14.05.2003, the offer of appellant No.1 dated 03.03.2003 was with the Board for its consideration. 26. Fourthly, the very fact that M/s Kamath Constructions entertained appellant No.1?s offer on 03.03.2003 and forwarded it to the Board was indicative of the fact that offer to purchase the flats of Powai Project could be made by any party either to the Board or to M/s. Kamath Constructions and had to be considered as being a valid offer made to the Board only. 27. Fifthly, reading of appellant No.1?s letter dated 03.03.2003 to M/s. Kamath Constructions would clearly indicate that it was essentially an offer made by appellant No.1 to the Board for purchase of 110 flats for Rs.17 crores. In other words, it could not be treated as letter for soliciting some information from the Board as contended by the Board for its consideration. 28. In our view, keeping in view these five factors which were admittedly present in the case, the Board was under a legal obligation to consider all the four offers (appellant No.1 and the three societies) in their meetings held on 10/14.05.2003 with a view to decide as to which one out of the four offers was the best one for its acceptance. 29. Indeed, exclusion of appellant No.1?s offer dated 03.03.2003 and keeping appellant no.1 out from the zone of consideration by the Board in its meetings held on 10/14.05.2003 and only confining the consideration of the offers made by the three societies vitiates the entire decision of the Board taken on 10/14.05.2003. 30. In our view, appellant No.1 had a legitimate right and so the expectation that it would get equal treatment from the Board like the other three societies because all four were similarly situated while considering the issue of sale of flats of Powai Project. Indeed, there was no valid reason for the Board to exclude appellant No.1?s case/offer from the zone of consideration. 31. The reason given by the Board for non-consideration of appellant No.1?s case/offer namely that appellant No.1?s letter dated 03.03.2003 was not an offer and, therefore, it was not considered, had no basis for three reasons. 32. First, the so-called reason ought to have been deliberated and reduced in writing by the Board in its Minutes of Meetings held on 10/14.05.2003. It was, however, not done; Second, the Board had no right to disclose the reason for the first time in the return in the High Court. It was not legally permissible; Third, the reason given for its non- consideration also had no basis because as held above, the appellant No.1?s letter dated 03.03.2003 was in fact an offer to purchase the flats quoting therein the price for purchase and, therefore, it was capable of being considered on its merits treating it as an offer to purchase the flats along with the offers of the three societies in the meetings held by the Board on 10/14.05.2003. 33. In the light of the foregoing discussion, we are of the considered view that the decision to sale/dispose of the flats of Powai Project taken by the Board in its meetings held on 10/14.05.2003 (Resolution No.192) is vitiated as being unreasonable, arbitrary and violative of principles enshrined in Article 14 of the Constitution of India. It is not legally sustainable and has to be, therefore, set aside. 34. Since we have set aside the impugned Resolution on legal grounds, we need not go into the challenge made by the appellants against the officials on the ground of mala fides. It is not necessary. | 1[ds]19. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order, allow the appellants? writ petition, out of which this appeal arises, and issue writ of certiorari to quash the decision of meetings dated 10/14.5.2003 and further issue a writ of mandamus against the respondents-Board and the three societies to ensure its compliance as directed hereinbelow in detail.Since then the Courts have been consistently following the aforesaid dictum of law, which is later explained by this Court in several cases whenever the question relating to disposal of State largesse amongst the citizens arose for consideration for deciding the rights of the parties qua each other and the State. It is, however, not necessary to mention these cases which have reiterated this principle as it will only burden our order.Keeping in view the aforementioned principle of law, when we examine the facts of this case, we are of the considered opinion that the Board was not justified in considering only the offers made by the three societies without considering appellant No.1?s offer dated 03.03.2003 on its merit.In our view, the Board was under a legal obligation to consider also appellant No.1?s offer which appellant No.1 had made to the Board through M/s. Kamath Constructions vide its letter dated 03.03.2003 for purchase of the flats of Powai Project along with the other offers made by the three societies in their meetings held on 10/14.05.2003.This we say for the reasons that firstly, M/s. Kamath Constructions was the authorized agent appointed by the Board itself for sale and disposal of the flats of Powai Project: Secondly, M/s. Kamath Constructions on receipt of appellant No.1?s offer on 03.03.2003 rightly forwarded it to the Board on 03.03.2003 for its consideration; Thirdly, the appellants offer dated 3.3.2003 was, therefore, very much available to the Board for its consideration prior to the meetings held on 10/14.05.2003. In other words, the date on which the Board was considering the offers of the three societies in its meeting on 10/14.05.2003, the offer of appellant No.1 dated 03.03.2003 was with the Board for its consideration.26. Fourthly, the very fact that M/s Kamath Constructions entertained appellant No.1?s offer on 03.03.2003 and forwarded it to the Board was indicative of the fact that offer to purchase the flats of Powai Project could be made by any party either to the Board or to M/s. Kamath Constructions and had to be considered as being a valid offer made to the Board only.Fifthly, reading of appellant No.1?s letter dated 03.03.2003 to M/s. Kamath Constructions would clearly indicate that it was essentially an offer made by appellant No.1 to the Board for purchase of 110 flats for Rs.17 crores. In other words, it could not be treated as letter for soliciting some information from the Board as contended by the Board for its consideration.In our view, keeping in view these five factors which were admittedly present in the case, the Board was under a legal obligation to consider all the four offers (appellant No.1 and the three societies) in their meetings held on 10/14.05.2003 with a view to decide as to which one out of the four offers was the best one for its acceptance.Indeed, exclusion of appellant No.1?s offer dated 03.03.2003 and keeping appellant no.1 out from the zone of consideration by the Board in its meetings held on 10/14.05.2003 and only confining the consideration of the offers made by the three societies vitiates the entire decision of the Board taken on 10/14.05.2003.In our view, appellant No.1 had a legitimate right and so the expectation that it would get equal treatment from the Board like the other three societies because all four were similarly situated while considering the issue of sale of flats of Powai Project. Indeed, there was no valid reason for the Board to exclude appellant No.1?s case/offer from the zone of consideration.The reason given by the Board for non-consideration of appellant No.1?s case/offer namely that appellant No.1?s letter dated 03.03.2003 was not an offer and, therefore, it was not considered, had no basis for three reasons.First, the so-called reason ought to have been deliberated and reduced in writing by the Board in its Minutes of Meetings held on 10/14.05.2003. It was, however, not done; Second, the Board had no right to disclose the reason for the first time in the return in the High Court. It was not legally permissible; Third, the reason given for its non- consideration also had no basis because as held above, the appellant No.1?s letter dated 03.03.2003 was in fact an offer to purchase the flats quoting therein the price for purchase and, therefore, it was capable of being considered on its merits treating it as an offer to purchase the flats along with the offers of the three societies in the meetings held by the Board on 10/14.05.2003.In the light of the foregoing discussion, we are of the considered view that the decision to sale/dispose of the flats of Powai Project taken by the Board in its meetings held on 10/14.05.2003 (Resolution No.192) is vitiated as being unreasonable, arbitrary and violative of principles enshrined in Article 14 of the Constitution of India. It is not legally sustainable and has to be, therefore, set aside.Since we have set aside the impugned Resolution on legal grounds, we need not go into the challenge made by the appellants against the officials on the ground of mala fides. It is not necessary. | 1 | 3,664 | 1,012 | ### 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:
then was the Judge of Kerala High Court and later became a Judge of this Court) which the learned Judge made in V. Punnan Thomas vs. State of Kerala (AIR 1969 Ker 81). In Para 12 at page 505 of R.D. Shetty?s case (supra) Justice Bhagwati said in the following words:-?We agree with the observations of Mathew, J, in V. Punnan Thomas vs State of Kerala that: The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherein in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.? 22. Since then the Courts have been consistently following the aforesaid dictum of law, which is later explained by this Court in several cases whenever the question relating to disposal of State largesse amongst the citizens arose for consideration for deciding the rights of the parties qua each other and the State. It is, however, not necessary to mention these cases which have reiterated this principle as it will only burden our order. 23. Keeping in view the aforementioned principle of law, when we examine the facts of this case, we are of the considered opinion that the Board was not justified in considering only the offers made by the three societies without considering appellant No.1?s offer dated 03.03.2003 on its merit. 24. In our view, the Board was under a legal obligation to consider also appellant No.1?s offer which appellant No.1 had made to the Board through M/s. Kamath Constructions vide its letter dated 03.03.2003 for purchase of the flats of Powai Project along with the other offers made by the three societies in their meetings held on 10/14.05.2003. 25. This we say for the reasons that firstly, M/s. Kamath Constructions was the authorized agent appointed by the Board itself for sale and disposal of the flats of Powai Project: Secondly, M/s. Kamath Constructions on receipt of appellant No.1?s offer on 03.03.2003 rightly forwarded it to the Board on 03.03.2003 for its consideration; Thirdly, the appellants offer dated 3.3.2003 was, therefore, very much available to the Board for its consideration prior to the meetings held on 10/14.05.2003. In other words, the date on which the Board was considering the offers of the three societies in its meeting on 10/14.05.2003, the offer of appellant No.1 dated 03.03.2003 was with the Board for its consideration. 26. Fourthly, the very fact that M/s Kamath Constructions entertained appellant No.1?s offer on 03.03.2003 and forwarded it to the Board was indicative of the fact that offer to purchase the flats of Powai Project could be made by any party either to the Board or to M/s. Kamath Constructions and had to be considered as being a valid offer made to the Board only. 27. Fifthly, reading of appellant No.1?s letter dated 03.03.2003 to M/s. Kamath Constructions would clearly indicate that it was essentially an offer made by appellant No.1 to the Board for purchase of 110 flats for Rs.17 crores. In other words, it could not be treated as letter for soliciting some information from the Board as contended by the Board for its consideration. 28. In our view, keeping in view these five factors which were admittedly present in the case, the Board was under a legal obligation to consider all the four offers (appellant No.1 and the three societies) in their meetings held on 10/14.05.2003 with a view to decide as to which one out of the four offers was the best one for its acceptance. 29. Indeed, exclusion of appellant No.1?s offer dated 03.03.2003 and keeping appellant no.1 out from the zone of consideration by the Board in its meetings held on 10/14.05.2003 and only confining the consideration of the offers made by the three societies vitiates the entire decision of the Board taken on 10/14.05.2003. 30. In our view, appellant No.1 had a legitimate right and so the expectation that it would get equal treatment from the Board like the other three societies because all four were similarly situated while considering the issue of sale of flats of Powai Project. Indeed, there was no valid reason for the Board to exclude appellant No.1?s case/offer from the zone of consideration. 31. The reason given by the Board for non-consideration of appellant No.1?s case/offer namely that appellant No.1?s letter dated 03.03.2003 was not an offer and, therefore, it was not considered, had no basis for three reasons. 32. First, the so-called reason ought to have been deliberated and reduced in writing by the Board in its Minutes of Meetings held on 10/14.05.2003. It was, however, not done; Second, the Board had no right to disclose the reason for the first time in the return in the High Court. It was not legally permissible; Third, the reason given for its non- consideration also had no basis because as held above, the appellant No.1?s letter dated 03.03.2003 was in fact an offer to purchase the flats quoting therein the price for purchase and, therefore, it was capable of being considered on its merits treating it as an offer to purchase the flats along with the offers of the three societies in the meetings held by the Board on 10/14.05.2003. 33. In the light of the foregoing discussion, we are of the considered view that the decision to sale/dispose of the flats of Powai Project taken by the Board in its meetings held on 10/14.05.2003 (Resolution No.192) is vitiated as being unreasonable, arbitrary and violative of principles enshrined in Article 14 of the Constitution of India. It is not legally sustainable and has to be, therefore, set aside. 34. Since we have set aside the impugned Resolution on legal grounds, we need not go into the challenge made by the appellants against the officials on the ground of mala fides. It is not necessary.
### Response:
1
### Explanation:
19. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned order, allow the appellants? writ petition, out of which this appeal arises, and issue writ of certiorari to quash the decision of meetings dated 10/14.5.2003 and further issue a writ of mandamus against the respondents-Board and the three societies to ensure its compliance as directed hereinbelow in detail.Since then the Courts have been consistently following the aforesaid dictum of law, which is later explained by this Court in several cases whenever the question relating to disposal of State largesse amongst the citizens arose for consideration for deciding the rights of the parties qua each other and the State. It is, however, not necessary to mention these cases which have reiterated this principle as it will only burden our order.Keeping in view the aforementioned principle of law, when we examine the facts of this case, we are of the considered opinion that the Board was not justified in considering only the offers made by the three societies without considering appellant No.1?s offer dated 03.03.2003 on its merit.In our view, the Board was under a legal obligation to consider also appellant No.1?s offer which appellant No.1 had made to the Board through M/s. Kamath Constructions vide its letter dated 03.03.2003 for purchase of the flats of Powai Project along with the other offers made by the three societies in their meetings held on 10/14.05.2003.This we say for the reasons that firstly, M/s. Kamath Constructions was the authorized agent appointed by the Board itself for sale and disposal of the flats of Powai Project: Secondly, M/s. Kamath Constructions on receipt of appellant No.1?s offer on 03.03.2003 rightly forwarded it to the Board on 03.03.2003 for its consideration; Thirdly, the appellants offer dated 3.3.2003 was, therefore, very much available to the Board for its consideration prior to the meetings held on 10/14.05.2003. In other words, the date on which the Board was considering the offers of the three societies in its meeting on 10/14.05.2003, the offer of appellant No.1 dated 03.03.2003 was with the Board for its consideration.26. Fourthly, the very fact that M/s Kamath Constructions entertained appellant No.1?s offer on 03.03.2003 and forwarded it to the Board was indicative of the fact that offer to purchase the flats of Powai Project could be made by any party either to the Board or to M/s. Kamath Constructions and had to be considered as being a valid offer made to the Board only.Fifthly, reading of appellant No.1?s letter dated 03.03.2003 to M/s. Kamath Constructions would clearly indicate that it was essentially an offer made by appellant No.1 to the Board for purchase of 110 flats for Rs.17 crores. In other words, it could not be treated as letter for soliciting some information from the Board as contended by the Board for its consideration.In our view, keeping in view these five factors which were admittedly present in the case, the Board was under a legal obligation to consider all the four offers (appellant No.1 and the three societies) in their meetings held on 10/14.05.2003 with a view to decide as to which one out of the four offers was the best one for its acceptance.Indeed, exclusion of appellant No.1?s offer dated 03.03.2003 and keeping appellant no.1 out from the zone of consideration by the Board in its meetings held on 10/14.05.2003 and only confining the consideration of the offers made by the three societies vitiates the entire decision of the Board taken on 10/14.05.2003.In our view, appellant No.1 had a legitimate right and so the expectation that it would get equal treatment from the Board like the other three societies because all four were similarly situated while considering the issue of sale of flats of Powai Project. Indeed, there was no valid reason for the Board to exclude appellant No.1?s case/offer from the zone of consideration.The reason given by the Board for non-consideration of appellant No.1?s case/offer namely that appellant No.1?s letter dated 03.03.2003 was not an offer and, therefore, it was not considered, had no basis for three reasons.First, the so-called reason ought to have been deliberated and reduced in writing by the Board in its Minutes of Meetings held on 10/14.05.2003. It was, however, not done; Second, the Board had no right to disclose the reason for the first time in the return in the High Court. It was not legally permissible; Third, the reason given for its non- consideration also had no basis because as held above, the appellant No.1?s letter dated 03.03.2003 was in fact an offer to purchase the flats quoting therein the price for purchase and, therefore, it was capable of being considered on its merits treating it as an offer to purchase the flats along with the offers of the three societies in the meetings held by the Board on 10/14.05.2003.In the light of the foregoing discussion, we are of the considered view that the decision to sale/dispose of the flats of Powai Project taken by the Board in its meetings held on 10/14.05.2003 (Resolution No.192) is vitiated as being unreasonable, arbitrary and violative of principles enshrined in Article 14 of the Constitution of India. It is not legally sustainable and has to be, therefore, set aside.Since we have set aside the impugned Resolution on legal grounds, we need not go into the challenge made by the appellants against the officials on the ground of mala fides. It is not necessary.
|
Satyanarayan Laxminarayan Hegde & Others Vs. Millikarjun Bhavanappa Tirumale | no determination of the tenancy under the provisions of S. 3 of the Bombay Tenancy Act. It has to be noticed, however, that the requirement of a notice in writing being given by the lessor to the lessee of the lessors intention to determine the lease became a part of cl. (g) only on the amendment of the Transfer of Property Act by Act 20 of 1929. By S. 57 of this Amending Act the words "gives notice in writing to the lessee of" was substituted for the words "does some act showing". S. 63 of the Amending Act provided inter alia that nothing in S. 57 of the Amending Act shall be deemed in any way to affect the terms and incidents of any transfer of property made or effected before the first day of April 1930. A question has been raised that S. 57 of the Amending Act does not affect the present tenancy the lease having been given long before 1930 and the provisions of S. 111 (g) of the Transfer of Property Act which will apply to the tenancy in the present litigation are of cl. (g) as it stood before the Amending Act was passed. This argument however is repelled by pointing out that S. 3 of the Bombay Tenancy Act makes no distinction whatsoever as between tenancies and leases made before 1-4-1930, and those made after but instead it says generally that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies. It has been suggested that the proper way of approaching this question is to read as a proviso to S. 111 (g) as well as the other Sections mentioned in S. 63 of the Amending Act, the words "the terms or incidents of any transfer of property made effective before 1-4-1929, will not be affected hereby." Is this a correct approach to the problem? When the Bombay Legislature spoke of the provisions of Chapter V of the Transfer of Property Act, 1882, did they have in their mind the Transfer of Property Act as it stood actually in the Statute Book and not as it would have stood with such a proviso added? Is it not proper to bear in mind in this connection that the Bombay Tenancy Act was intended to benefit the peasants and to improve the cultivation of lands?17. In interpreting provisions of such beneficial Legislation the Courts always lean in favour of that interpretation which will further that beneficial purpose of that legislation. Is this not an additional ground for thinking that in adopting S. 3 the provisions of Chapter V of the Transfer of Property Act, 1882, the Legislature had the intention of applying these provisions to all tenancies to which the Bombay Tenancy Act itself apply irrespective of the fact whether these tenancies were created before 1-4-1930, or not? It was contended therefore that even in so far as the claim for possession was based on the ground of forfeiture under the terms of the lease it was necessary for the landlord to prove that he had given notice in writing to the lessee of his intention to determine the lease. The Bombay Revenue Tribunal took the view that the plaintiff-respondent must fail in his application for possession because he had failed to terminate the tenancy by notice before taking proceedings for ejectment. Is the conclusion wrong and if so, is such error apparent on the face of the record? If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of the Bombay High Court on the question of notice is correct or not.An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari.18. We have noticed that in the application to the High Court the respondent asked that Court to exercise its power of superintendence under Art. 227 of the Constitution by the method of issuing a writ of certiorari or any other suitable writ. Art. 227 corresponds to S. 107 of the Government of India Act, 1915.The scope of that Section has been discussed in many decisions of Indian High Courts. However wide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that Section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227. | 1[ds]10. It has to be noticed that this Section does not in express terms provide for the act of termination of tenancy to be effected by notice given by the landlord. S. 29,(2) which provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, also does not provide that any notice has to be given before an application for possession is to befind that with full knowledge of the use of the word "determines" in S. 111 of the Transfer of Property Act the Bombay Legislature instead of saying that the tenancy "determines" or "shall not terminate" said that the tenancy "shall not be terminated". It is suggested that this different language was used deliberately and not by accident. Again, in(2) of S. 14 when the question of termination of tenancy by efflux of time in certain cases is provided for, the legislature, it is pointed out, says that the tenancy shall terminate at the expiration of such period.Of course as the present case is one of failure by the tenant for three years to pay rent within the period specified in S. 14 the provision in the operative portion of S. 25 will not, it is conceded, apply to this case but the argument is that that circumstance is no reason why we should not consider the language in S. 25 to see whether the Legislatures intention was that the termination should take place prior to and independent of, filing of the proceedings. The use of the word "and" in "where any tenancy of any land held by any tenant is terminated forof rent and the landlord files any proceedings to eject the tenant...... ...... ...... ...... ......" is, it is said, a justification for the conclusion that the Legislature contemplated and intended that in all cases of termination onof rent the termination should take place first and after the termination was completed the landlord was at liberty to file proceedings to eject the tenant. If this contention be correct there would be no justification for thinking that the Legislatures intention was different in this matter where thewas for threethe above discussion of the rival contentions show the alleged error in the present case is far fromand if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ ofwide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that Section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227. | 1 | 4,554 | 659 | ### 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:
no determination of the tenancy under the provisions of S. 3 of the Bombay Tenancy Act. It has to be noticed, however, that the requirement of a notice in writing being given by the lessor to the lessee of the lessors intention to determine the lease became a part of cl. (g) only on the amendment of the Transfer of Property Act by Act 20 of 1929. By S. 57 of this Amending Act the words "gives notice in writing to the lessee of" was substituted for the words "does some act showing". S. 63 of the Amending Act provided inter alia that nothing in S. 57 of the Amending Act shall be deemed in any way to affect the terms and incidents of any transfer of property made or effected before the first day of April 1930. A question has been raised that S. 57 of the Amending Act does not affect the present tenancy the lease having been given long before 1930 and the provisions of S. 111 (g) of the Transfer of Property Act which will apply to the tenancy in the present litigation are of cl. (g) as it stood before the Amending Act was passed. This argument however is repelled by pointing out that S. 3 of the Bombay Tenancy Act makes no distinction whatsoever as between tenancies and leases made before 1-4-1930, and those made after but instead it says generally that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies. It has been suggested that the proper way of approaching this question is to read as a proviso to S. 111 (g) as well as the other Sections mentioned in S. 63 of the Amending Act, the words "the terms or incidents of any transfer of property made effective before 1-4-1929, will not be affected hereby." Is this a correct approach to the problem? When the Bombay Legislature spoke of the provisions of Chapter V of the Transfer of Property Act, 1882, did they have in their mind the Transfer of Property Act as it stood actually in the Statute Book and not as it would have stood with such a proviso added? Is it not proper to bear in mind in this connection that the Bombay Tenancy Act was intended to benefit the peasants and to improve the cultivation of lands?17. In interpreting provisions of such beneficial Legislation the Courts always lean in favour of that interpretation which will further that beneficial purpose of that legislation. Is this not an additional ground for thinking that in adopting S. 3 the provisions of Chapter V of the Transfer of Property Act, 1882, the Legislature had the intention of applying these provisions to all tenancies to which the Bombay Tenancy Act itself apply irrespective of the fact whether these tenancies were created before 1-4-1930, or not? It was contended therefore that even in so far as the claim for possession was based on the ground of forfeiture under the terms of the lease it was necessary for the landlord to prove that he had given notice in writing to the lessee of his intention to determine the lease. The Bombay Revenue Tribunal took the view that the plaintiff-respondent must fail in his application for possession because he had failed to terminate the tenancy by notice before taking proceedings for ejectment. Is the conclusion wrong and if so, is such error apparent on the face of the record? If it is clear that the error if any is not apparent on the face of the record, it is not necessary for us to decide whether the conclusion of the Bombay High Court on the question of notice is correct or not.An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari.18. We have noticed that in the application to the High Court the respondent asked that Court to exercise its power of superintendence under Art. 227 of the Constitution by the method of issuing a writ of certiorari or any other suitable writ. Art. 227 corresponds to S. 107 of the Government of India Act, 1915.The scope of that Section has been discussed in many decisions of Indian High Courts. However wide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that Section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227.
### Response:
1
### Explanation:
10. It has to be noticed that this Section does not in express terms provide for the act of termination of tenancy to be effected by notice given by the landlord. S. 29,(2) which provides that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, also does not provide that any notice has to be given before an application for possession is to befind that with full knowledge of the use of the word "determines" in S. 111 of the Transfer of Property Act the Bombay Legislature instead of saying that the tenancy "determines" or "shall not terminate" said that the tenancy "shall not be terminated". It is suggested that this different language was used deliberately and not by accident. Again, in(2) of S. 14 when the question of termination of tenancy by efflux of time in certain cases is provided for, the legislature, it is pointed out, says that the tenancy shall terminate at the expiration of such period.Of course as the present case is one of failure by the tenant for three years to pay rent within the period specified in S. 14 the provision in the operative portion of S. 25 will not, it is conceded, apply to this case but the argument is that that circumstance is no reason why we should not consider the language in S. 25 to see whether the Legislatures intention was that the termination should take place prior to and independent of, filing of the proceedings. The use of the word "and" in "where any tenancy of any land held by any tenant is terminated forof rent and the landlord files any proceedings to eject the tenant...... ...... ...... ...... ......" is, it is said, a justification for the conclusion that the Legislature contemplated and intended that in all cases of termination onof rent the termination should take place first and after the termination was completed the landlord was at liberty to file proceedings to eject the tenant. If this contention be correct there would be no justification for thinking that the Legislatures intention was different in this matter where thewas for threethe above discussion of the rival contentions show the alleged error in the present case is far fromand if it can be established, it has to be established, by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. In our opinion the High Court was wrong in thinking that the alleged error in the judgment of the Bombay Revenue Tribunal viz., that an order for possession should not be made unless a previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by a writ ofwide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that Section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227.
|
The Surat Parsi Panchayat Board and Another Vs. Union of India and Others | AGREED PROTOCOL & STANDARD OPERATING PROCEDURE FOR HANDLING DEAD BODIES OF PARSI ZOROASTRIAN COVID-19 VICTIMS - AS AGREED BETWEEN THE PETITIONERS ON THE ONE HAND AND THE UNION OF INDIA – REPRESENTED BY THE LEARNED SOLICITOR GENERAL OF INDIA ON THE OTHER HAND. Under normal circumstances in the Zoroastrian religion, the management of dead bodies strictly adheres to specific rules that aim in separating the corpse from living persons while ensuring the dignity and respect of the dead as well as for their living relatives. Even during normal times, Zoroastrian ritual tradition already conforms to the basic rule required to be implemented during times of COVID of separating the dead from the living, the family have no physical contact with the dead member. Since for Parsi Zoroastrians, the disposal of the dead in the Tower of Silence (wherever located) is a religiously mandated obligation and duty. The nature and scale of the corona virus (COVID-19) pandemic, has created challenges, and the Parsi community and their High Priests have in consultation, worked out a standard Procedure which they are willing to undertake to continue keeping in mind the restrictions and regulations imposed by the Government of India on all communities pertaining to those who have died due to a COVID-19 infection during the pandemic. 1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19 will be brought to the funeral parlour in the Tower of Silence complex and will only be handled by the Nassasalars- (professional Corpse bearers who have been professionally employed by the Panchayats). The corpse bearers are and will continue to be fully vaccinated and their temperatures duly recorded before every funeral and carrying out procedures of handling dead bodies as per existing COVID guidelines. 1B. Neither relatives nor friends are permitted nor will be permitted to touch the dead body and it will be ensured that they will always remain beyond 10 feet from the dead body. 2. The Nassasalars, at all times, while handling the dead body of the Parsi Zoroastrian COVID-19 victim will wear the PPE kit, gloves, face shield and N – 95 mask and the Govt of India regulations pertaining to dead bodies of COVID – 19 victims having been read and explained to them and they will be cautioned to follow the directives of the Govt. of India. 3. The body of the COVID-19 Parsi victim will be brought by the Nassasalars to the Tower of Silence Complex from mortuary or home in a body bag which will not be opened, but as per existing Guidelines, the face of the deceased will be allowed to be seen from a distance of at least 10 feet by the family only by unzipping the face – covering of the body bag. 4. The final funeral prayers i.e. the GehSarna (or Paidast) ceremony (which is the recitation of the first Gatha handed down by the Prophet Zarathushtra) over the dead body, is and will be by two Parsi Zoroastrian Priests wearing N-95 masks and gloves, who will stand at a distance of 10 feet from the dead body. The final prayers (which last about 1 hour) will be completed and upon its completion, the Nassasalars will carry the body to the Dokhma (Tower of Silence) where no one except the professionally employed corpse bearers can enter. As per Parsi religious traditions, no relative can touch, or much less kiss the body and every person at the funeral will perform hand hygiene after the funeral ceremony – a distance of at least 10 feet from the body will always be maintained. The individuals who will transport the dead body are the Parsi Nassasalars (the professional pallbearers) and no one else. Normally two Nassasalars will carry the body (in the body bag) to the Tower of Silence (Dokhma No.3) in a bier. 5. Relatives attending the Gehsarna (Paidast) ceremony will wear face masks and follow other guidelines as prescribed by the Government of India and will sit 10 feet away from the dead body and only such number of family members will be permitted to attend the funeral as per the applicable guidelines. 6. One Dokhma No.3 has been set aside for Covid victims alone and used for performing religious ceremonies for dead bodies of Parsis COVID-19 victims. This Dokhma No. 3 will not be used for non-Covid-19 dead bodies. 7. Only Dokhma No.3 (in the Tower of Silence) will be used for dead bodies of Parsi Covid victims. And non-Covid victims bodies will be placed in other Dokhmas i.e Dokhma No.1 and Dokhma No.2. Since the principal mode of disposal at the Tower of Silence is through strong and powerful rays of the Sun, and hence to deal with the problem of birds of prey, the Petitioner undertakes to install as soon as possible, a metallic bird net over Dokhma-No 3 – which is exclusively reserved for the dead Parsi COVID-19 victims; this will eliminate contact with birds and animals and will avoid any intrusion by vultures. Hence, there will be no exposure of the body to birds etc. once the metallic net gets installed over Dokhma-No 3. 8. Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body are allowed. 9. After each ceremony, the entire funeral area/parlour will be washed, sprayed and disinfected. All PPE suits, masks and face shields will be disposed off and a new set will be used for each COVID-19 victims funeral ceremony. It is requested that a final Order in invitum be passed in the above SLP No: 17130/2021 and in Writ Petition No:7585 of 2021 before the High Court of Gujarat in the above terms. 7. A request has been jointly made on behalf of the appellants as well as the respondents that a final order in invitum be passed both in the appeal and consequently, in the writ proceedings which became the subject matter of the judgment of the High Court. | 1[ds]6. An agreed protocol has been placed before the Court which meets both the concerns reflected above. The protocol reads thus:AGREED PROTOCOL & STANDARD OPERATING PROCEDURE FOR HANDLING DEAD BODIES OF PARSI ZOROASTRIAN COVID-19 VICTIMS - AS AGREED BETWEEN THE PETITIONERS ON THE ONE HAND AND THE UNION OF INDIA – REPRESENTED BY THE LEARNED SOLICITOR GENERAL OF INDIA ON THE OTHER HAND.Under normal circumstances in the Zoroastrian religion, the management of dead bodies strictly adheres to specific rules that aim in separating the corpse from living persons while ensuring the dignity and respect of the dead as well as for their living relatives. Even during normal times, Zoroastrian ritual tradition already conforms to the basic rule required to be implemented during times of COVID of separating the dead from the living, the family have no physical contact with the dead member. Since for Parsi Zoroastrians, the disposal of the dead in the Tower of Silence (wherever located) is a religiously mandated obligation and duty.The nature and scale of the corona virus (COVID-19) pandemic, has created challenges, and the Parsi community and their High Priests have in consultation, worked out a standard Procedure which they are willing to undertake to continue keeping in mind the restrictions and regulations imposed by the Government of India on all communities pertaining to those who have died due to a COVID-19 infection during the pandemic.1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19 will be brought to the funeral parlour in the Tower of Silence complex and will only be handled by the Nassasalars- (professional Corpse bearers who have been professionally employed by the Panchayats). The corpse bearers are and will continue to be fully vaccinated and their temperatures duly recorded before every funeral and carrying out procedures of handling dead bodies as per existing COVID guidelines.1B. Neither relatives nor friends are permitted nor will be permitted to touch the dead body and it will be ensured that they will always remain beyond 10 feet from the dead body.2. The Nassasalars, at all times, while handling the dead body of the Parsi Zoroastrian COVID-19 victim will wear the PPE kit, gloves, face shield and N – 95 mask and the Govt of India regulations pertaining to dead bodies of COVID – 19 victims having been read and explained to them and they will be cautioned to follow the directives of the Govt. of India.3. The body of the COVID-19 Parsi victim will be brought by the Nassasalars to the Tower of Silence Complex from mortuary or home in a body bag which will not be opened, but as per existing Guidelines, the face of the deceased will be allowed to be seen from a distance of at least 10 feet by the family only by unzipping the face – covering of the body bag.4. The final funeral prayers i.e. the GehSarna (or Paidast) ceremony (which is the recitation of the first Gatha handed down by the Prophet Zarathushtra) over the dead body, is and will be by two Parsi Zoroastrian Priests wearing N-95 masks and gloves, who will stand at a distance of 10 feet from the dead body.The final prayers (which last about 1 hour) will be completed and upon its completion, the Nassasalars will carry the body to the Dokhma (Tower of Silence) where no one except the professionally employed corpse bearers can enter.As per Parsi religious traditions, no relative can touch, or much less kiss the body and every person at the funeral will perform hand hygiene after the funeral ceremony – a distance of at least 10 feet from the body will always be maintained. The individuals who will transport the dead body are the Parsi Nassasalars (the professional pallbearers) and no one else. Normally two Nassasalars will carry the body (in the body bag) to the Tower of Silence (Dokhma No.3) in a bier.5. Relatives attending the Gehsarna (Paidast) ceremony will wear face masks and follow other guidelines as prescribed by the Government of India and will sit 10 feet away from the dead body and only such number of family members will be permitted to attend the funeral as per the applicable guidelines.6. One Dokhma No.3 has been set aside for Covid victims alone and used for performing religious ceremonies for dead bodies of Parsis COVID-19 victims. This Dokhma No. 3 will not be used for non-Covid-19 dead bodies.7. Only Dokhma No.3 (in the Tower of Silence) will be used for dead bodies of Parsi Covid victims. And non-Covid victims bodies will be placed in other Dokhmas i.e Dokhma No.1 and Dokhma No.2. Since the principal mode of disposal at the Tower of Silence is through strong and powerful rays of the Sun, and hence to deal with the problem of birds of prey, the Petitioner undertakes to install as soon as possible, a metallic bird net over Dokhma-No 3 – which is exclusively reserved for the dead Parsi COVID-19 victims; this will eliminate contact with birds and animals and will avoid any intrusion by vultures. Hence, there will be no exposure of the body to birds etc. once the metallic net gets installed over Dokhma-No 3.8. Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body are allowed.9. After each ceremony, the entire funeral area/parlour will be washed, sprayed and disinfected. All PPE suits, masks and face shields will be disposed off and a new set will be used for each COVID-19 victims funeral ceremony.It is requested that a final Order in invitum be passed in the above SLP No: 17130/2021 and in Writ Petition No:7585 of 2021 before the High Court of Gujarat in the above terms.7. A request has been jointly made on behalf of the appellants as well as the respondents that a final order in invitum be passed both in the appeal and consequently, in the writ proceedings which became the subject matter of the judgment of the High Court. | 1 | 1,535 | 1,091 | ### 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:
AGREED PROTOCOL & STANDARD OPERATING PROCEDURE FOR HANDLING DEAD BODIES OF PARSI ZOROASTRIAN COVID-19 VICTIMS - AS AGREED BETWEEN THE PETITIONERS ON THE ONE HAND AND THE UNION OF INDIA – REPRESENTED BY THE LEARNED SOLICITOR GENERAL OF INDIA ON THE OTHER HAND. Under normal circumstances in the Zoroastrian religion, the management of dead bodies strictly adheres to specific rules that aim in separating the corpse from living persons while ensuring the dignity and respect of the dead as well as for their living relatives. Even during normal times, Zoroastrian ritual tradition already conforms to the basic rule required to be implemented during times of COVID of separating the dead from the living, the family have no physical contact with the dead member. Since for Parsi Zoroastrians, the disposal of the dead in the Tower of Silence (wherever located) is a religiously mandated obligation and duty. The nature and scale of the corona virus (COVID-19) pandemic, has created challenges, and the Parsi community and their High Priests have in consultation, worked out a standard Procedure which they are willing to undertake to continue keeping in mind the restrictions and regulations imposed by the Government of India on all communities pertaining to those who have died due to a COVID-19 infection during the pandemic. 1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19 will be brought to the funeral parlour in the Tower of Silence complex and will only be handled by the Nassasalars- (professional Corpse bearers who have been professionally employed by the Panchayats). The corpse bearers are and will continue to be fully vaccinated and their temperatures duly recorded before every funeral and carrying out procedures of handling dead bodies as per existing COVID guidelines. 1B. Neither relatives nor friends are permitted nor will be permitted to touch the dead body and it will be ensured that they will always remain beyond 10 feet from the dead body. 2. The Nassasalars, at all times, while handling the dead body of the Parsi Zoroastrian COVID-19 victim will wear the PPE kit, gloves, face shield and N – 95 mask and the Govt of India regulations pertaining to dead bodies of COVID – 19 victims having been read and explained to them and they will be cautioned to follow the directives of the Govt. of India. 3. The body of the COVID-19 Parsi victim will be brought by the Nassasalars to the Tower of Silence Complex from mortuary or home in a body bag which will not be opened, but as per existing Guidelines, the face of the deceased will be allowed to be seen from a distance of at least 10 feet by the family only by unzipping the face – covering of the body bag. 4. The final funeral prayers i.e. the GehSarna (or Paidast) ceremony (which is the recitation of the first Gatha handed down by the Prophet Zarathushtra) over the dead body, is and will be by two Parsi Zoroastrian Priests wearing N-95 masks and gloves, who will stand at a distance of 10 feet from the dead body. The final prayers (which last about 1 hour) will be completed and upon its completion, the Nassasalars will carry the body to the Dokhma (Tower of Silence) where no one except the professionally employed corpse bearers can enter. As per Parsi religious traditions, no relative can touch, or much less kiss the body and every person at the funeral will perform hand hygiene after the funeral ceremony – a distance of at least 10 feet from the body will always be maintained. The individuals who will transport the dead body are the Parsi Nassasalars (the professional pallbearers) and no one else. Normally two Nassasalars will carry the body (in the body bag) to the Tower of Silence (Dokhma No.3) in a bier. 5. Relatives attending the Gehsarna (Paidast) ceremony will wear face masks and follow other guidelines as prescribed by the Government of India and will sit 10 feet away from the dead body and only such number of family members will be permitted to attend the funeral as per the applicable guidelines. 6. One Dokhma No.3 has been set aside for Covid victims alone and used for performing religious ceremonies for dead bodies of Parsis COVID-19 victims. This Dokhma No. 3 will not be used for non-Covid-19 dead bodies. 7. Only Dokhma No.3 (in the Tower of Silence) will be used for dead bodies of Parsi Covid victims. And non-Covid victims bodies will be placed in other Dokhmas i.e Dokhma No.1 and Dokhma No.2. Since the principal mode of disposal at the Tower of Silence is through strong and powerful rays of the Sun, and hence to deal with the problem of birds of prey, the Petitioner undertakes to install as soon as possible, a metallic bird net over Dokhma-No 3 – which is exclusively reserved for the dead Parsi COVID-19 victims; this will eliminate contact with birds and animals and will avoid any intrusion by vultures. Hence, there will be no exposure of the body to birds etc. once the metallic net gets installed over Dokhma-No 3. 8. Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body are allowed. 9. After each ceremony, the entire funeral area/parlour will be washed, sprayed and disinfected. All PPE suits, masks and face shields will be disposed off and a new set will be used for each COVID-19 victims funeral ceremony. It is requested that a final Order in invitum be passed in the above SLP No: 17130/2021 and in Writ Petition No:7585 of 2021 before the High Court of Gujarat in the above terms. 7. A request has been jointly made on behalf of the appellants as well as the respondents that a final order in invitum be passed both in the appeal and consequently, in the writ proceedings which became the subject matter of the judgment of the High Court.
### Response:
1
### Explanation:
has been placed before the Court which meets both the concerns reflected above. The protocol reads thus:AGREED PROTOCOL & STANDARD OPERATING PROCEDURE FOR HANDLING DEAD BODIES OF PARSI ZOROASTRIAN COVID-19 VICTIMS - AS AGREED BETWEEN THE PETITIONERS ON THE ONE HAND AND THE UNION OF INDIA – REPRESENTED BY THE LEARNED SOLICITOR GENERAL OF INDIA ON THE OTHER HAND.Under normal circumstances in the Zoroastrian religion, the management of dead bodies strictly adheres to specific rules that aim in separating the corpse from living persons while ensuring the dignity and respect of the dead as well as for their living relatives. Even during normal times, Zoroastrian ritual tradition already conforms to the basic rule required to be implemented during times of COVID of separating the dead from the living, the family have no physical contact with the dead member. Since for Parsi Zoroastrians, the disposal of the dead in the Tower of Silence (wherever located) is a religiously mandated obligation and duty.The nature and scale of the corona virus (COVID-19) pandemic, has created challenges, and the Parsi community and their High Priests have in consultation, worked out a standard Procedure which they are willing to undertake to continue keeping in mind the restrictions and regulations imposed by the Government of India on all communities pertaining to those who have died due to a COVID-19 infection during the pandemic.1A. Dead bodies of the Parsi Zoroastrians who die of Covid 19 will be brought to the funeral parlour in the Tower of Silence complex and will only be handled by the Nassasalars- (professional Corpse bearers who have been professionally employed by the Panchayats). The corpse bearers are and will continue to be fully vaccinated and their temperatures duly recorded before every funeral and carrying out procedures of handling dead bodies as per existing COVID guidelines.1B. Neither relatives nor friends are permitted nor will be permitted to touch the dead body and it will be ensured that they will always remain beyond 10 feet from the dead body.2. The Nassasalars, at all times, while handling the dead body of the Parsi Zoroastrian COVID-19 victim will wear the PPE kit, gloves, face shield and N – 95 mask and the Govt of India regulations pertaining to dead bodies of COVID – 19 victims having been read and explained to them and they will be cautioned to follow the directives of the Govt. of India.3. The body of the COVID-19 Parsi victim will be brought by the Nassasalars to the Tower of Silence Complex from mortuary or home in a body bag which will not be opened, but as per existing Guidelines, the face of the deceased will be allowed to be seen from a distance of at least 10 feet by the family only by unzipping the face – covering of the body bag.4. The final funeral prayers i.e. the GehSarna (or Paidast) ceremony (which is the recitation of the first Gatha handed down by the Prophet Zarathushtra) over the dead body, is and will be by two Parsi Zoroastrian Priests wearing N-95 masks and gloves, who will stand at a distance of 10 feet from the dead body.The final prayers (which last about 1 hour) will be completed and upon its completion, the Nassasalars will carry the body to the Dokhma (Tower of Silence) where no one except the professionally employed corpse bearers can enter.As per Parsi religious traditions, no relative can touch, or much less kiss the body and every person at the funeral will perform hand hygiene after the funeral ceremony – a distance of at least 10 feet from the body will always be maintained. The individuals who will transport the dead body are the Parsi Nassasalars (the professional pallbearers) and no one else. Normally two Nassasalars will carry the body (in the body bag) to the Tower of Silence (Dokhma No.3) in a bier.5. Relatives attending the Gehsarna (Paidast) ceremony will wear face masks and follow other guidelines as prescribed by the Government of India and will sit 10 feet away from the dead body and only such number of family members will be permitted to attend the funeral as per the applicable guidelines.6. One Dokhma No.3 has been set aside for Covid victims alone and used for performing religious ceremonies for dead bodies of Parsis COVID-19 victims. This Dokhma No. 3 will not be used for non-Covid-19 dead bodies.7. Only Dokhma No.3 (in the Tower of Silence) will be used for dead bodies of Parsi Covid victims. And non-Covid victims bodies will be placed in other Dokhmas i.e Dokhma No.1 and Dokhma No.2. Since the principal mode of disposal at the Tower of Silence is through strong and powerful rays of the Sun, and hence to deal with the problem of birds of prey, the Petitioner undertakes to install as soon as possible, a metallic bird net over Dokhma-No 3 – which is exclusively reserved for the dead Parsi COVID-19 victims; this will eliminate contact with birds and animals and will avoid any intrusion by vultures. Hence, there will be no exposure of the body to birds etc. once the metallic net gets installed over Dokhma-No 3.8. Religious rituals such as reading from religious scripts, sprinkling holy water and any other last rites that does not require touching of the body are allowed.9. After each ceremony, the entire funeral area/parlour will be washed, sprayed and disinfected. All PPE suits, masks and face shields will be disposed off and a new set will be used for each COVID-19 victims funeral ceremony.It is requested that a final Order in invitum be passed in the above SLP No: 17130/2021 and in Writ Petition No:7585 of 2021 before the High Court of Gujarat in the above terms.7. A request has been jointly made on behalf of the appellants as well as the respondents that a final order in invitum be passed both in the appeal and consequently, in the writ proceedings which became the subject matter of the judgment of the High Court.
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Chenniappan Vs. Urukkayi & Others | 1. This appeal by special leave petition arises out of impugned judgment and order dated 24th June, 2005 passed by the High Court of Judicature at Madras in Second Appeal No. 140 of 1994 whereby the Division Bench of the High Court set aside the judgment and decree passed by the First Appellate Court and restored the judgment passed by the trial Court.2. The brief facts of the case are that the appellants father Palaniswami Gounder and his brother Kasianna Gounder were commonly enjoying an extent of 1.50 acres of land till 5-6-1951 when they got a registered partition deed dividing the schedule plot into two parts after drawing roads on the North-South and East-West sides with understanding to use roads commonly. "A" part of the land was allotted to Kasianna Gounder consisting of 63 cents in three places i.e. two pieces of 18 cents each on the North side and one piece of 27 cents on the South side and the "B" part of the land was allotted to the father of appellant. It is the case of appellant that the deceased Kasianna Gounder during his life time had sold away the two Northern side pieces of 18 cents each and a part of Southern side piece of 27 cents and the remaining part in Southern side piece has been sold by the respondents by themselves that the entire "A" part has become alienated, and thereafter the appellant and the alienates have been using the roads commonly.3. A Suit for grant of permanent injunction was initiated by the appellant and his father (Stakeholders of "B" part) against the respondents-defendants as they claimed right on the common pathway and tried to construct a shed over the pathway. Learned trial Court dismissed the Suit on the ground of non joining of necessary parties by the plaintiffs. However, the first appellate Court set aside the view taken by the trial Court and decreed the matter in favour of appellant and granted injunction restraining the defendants-respondents from taking up any construction work on the suit property. Aggrieved thereby, the respondents-defendants filed second appeal before the High Court which has been allowed and the judgment of learned trial Court has been restored. Dissatisfied with the reversal of judgment by the High Court, the original plaintiff is in appeal before us.4. We have heard learned counsel for the parties and carefully gone through the material on record. Admittedly, one Chinnappa Gounder was the original owner of the disputed property (pathway) which has been divided between Kasianna Gounder (Schedule "A") and Palanisamy Gounder (Schedule "B"), father of present appellant by a partition deed dated 5.6.1951. Undisputedly there were passages earmarked for the common use of both "A" and "B" group parties and hence roads were continued be in existence at the time of partition and thereafter as well. It is also on record that after the partition, first plaintiff (father of appellant herein) sold a plot of 28 cents and the father of defendants (Kasianna Gounder) sold three plots of different dimensions and later on, the remaining area out of "A" schedule was disposed of by the defendants. Thus, in addition to the plaintiffs and defendants, there are certain other parties who are concerned with the result of the Suit.5. At the outset, the material on record transpires that the Suit filed by the appellant was not based on true state of affairs and the plan appended to the plaint was incorrect as the markings on the plan showing as `roads have not been properly described in respect of the right, title and interest of the parties concerned. The trial Court as well as the High Court have clearly come to the conclusion that the area in which the defendants were allegedly carrying on construction does not in fact fall within the area of plaintiffs. Apart from that, it is clear that the disputed passage has also been used by the parties who purchased the plots from plaintiff-defendant groups and therefore they are necessary parties to the Suit and it is obligatory on the part of plaintiffs to make them parties to the Suit. Non-joinder of necessary parties to the Suit is fatal. Merely for this reason alone, the Suit could have been dismissed and the trial Court has done no wrong in doing so.6. For the reasons stated above, particularly in view of non-joining of other affected parties to the cause, we find no infirmity in the impugned order passed by the High Court. | 0[ds]Admittedly, one Chinnappa Gounder was the original owner of the disputed property (pathway) which has been divided between Kasianna Gounder (Schedule "A") and Palanisamy Gounder (Schedule "B"), father of present appellant by a partition deed dated 5.6.1951. Undisputedly there were passages earmarked for the common use of both "A" and "B" group parties and hence roads were continued be in existence at the time of partition and thereafter as well. It is also on record that after the partition, first plaintiff (father of appellant herein) sold a plot of 28 cents and the father of defendants (Kasianna Gounder) sold three plots of different dimensions and later on, the remaining area out of "A" schedule was disposed of by the defendants. Thus, in addition to the plaintiffs and defendants, there are certain other parties who are concerned with the result of thefrom that, it is clear that the disputed passage has also been used by the parties who purchased the plots fromgroups and therefore they are necessary parties to the Suit and it is obligatory on the part of plaintiffs to make them parties to the Suit.of necessary parties to the Suit is fatal. Merely for this reason alone, the Suit could have been dismissed and the trial Court has done no wrong in doing so.6. For the reasons stated above, particularly in view ofof other affected parties to the cause, we find no infirmity in the impugned order passed by the High Court. | 0 | 820 | 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:
1. This appeal by special leave petition arises out of impugned judgment and order dated 24th June, 2005 passed by the High Court of Judicature at Madras in Second Appeal No. 140 of 1994 whereby the Division Bench of the High Court set aside the judgment and decree passed by the First Appellate Court and restored the judgment passed by the trial Court.2. The brief facts of the case are that the appellants father Palaniswami Gounder and his brother Kasianna Gounder were commonly enjoying an extent of 1.50 acres of land till 5-6-1951 when they got a registered partition deed dividing the schedule plot into two parts after drawing roads on the North-South and East-West sides with understanding to use roads commonly. "A" part of the land was allotted to Kasianna Gounder consisting of 63 cents in three places i.e. two pieces of 18 cents each on the North side and one piece of 27 cents on the South side and the "B" part of the land was allotted to the father of appellant. It is the case of appellant that the deceased Kasianna Gounder during his life time had sold away the two Northern side pieces of 18 cents each and a part of Southern side piece of 27 cents and the remaining part in Southern side piece has been sold by the respondents by themselves that the entire "A" part has become alienated, and thereafter the appellant and the alienates have been using the roads commonly.3. A Suit for grant of permanent injunction was initiated by the appellant and his father (Stakeholders of "B" part) against the respondents-defendants as they claimed right on the common pathway and tried to construct a shed over the pathway. Learned trial Court dismissed the Suit on the ground of non joining of necessary parties by the plaintiffs. However, the first appellate Court set aside the view taken by the trial Court and decreed the matter in favour of appellant and granted injunction restraining the defendants-respondents from taking up any construction work on the suit property. Aggrieved thereby, the respondents-defendants filed second appeal before the High Court which has been allowed and the judgment of learned trial Court has been restored. Dissatisfied with the reversal of judgment by the High Court, the original plaintiff is in appeal before us.4. We have heard learned counsel for the parties and carefully gone through the material on record. Admittedly, one Chinnappa Gounder was the original owner of the disputed property (pathway) which has been divided between Kasianna Gounder (Schedule "A") and Palanisamy Gounder (Schedule "B"), father of present appellant by a partition deed dated 5.6.1951. Undisputedly there were passages earmarked for the common use of both "A" and "B" group parties and hence roads were continued be in existence at the time of partition and thereafter as well. It is also on record that after the partition, first plaintiff (father of appellant herein) sold a plot of 28 cents and the father of defendants (Kasianna Gounder) sold three plots of different dimensions and later on, the remaining area out of "A" schedule was disposed of by the defendants. Thus, in addition to the plaintiffs and defendants, there are certain other parties who are concerned with the result of the Suit.5. At the outset, the material on record transpires that the Suit filed by the appellant was not based on true state of affairs and the plan appended to the plaint was incorrect as the markings on the plan showing as `roads have not been properly described in respect of the right, title and interest of the parties concerned. The trial Court as well as the High Court have clearly come to the conclusion that the area in which the defendants were allegedly carrying on construction does not in fact fall within the area of plaintiffs. Apart from that, it is clear that the disputed passage has also been used by the parties who purchased the plots from plaintiff-defendant groups and therefore they are necessary parties to the Suit and it is obligatory on the part of plaintiffs to make them parties to the Suit. Non-joinder of necessary parties to the Suit is fatal. Merely for this reason alone, the Suit could have been dismissed and the trial Court has done no wrong in doing so.6. For the reasons stated above, particularly in view of non-joining of other affected parties to the cause, we find no infirmity in the impugned order passed by the High Court.
### Response:
0
### Explanation:
Admittedly, one Chinnappa Gounder was the original owner of the disputed property (pathway) which has been divided between Kasianna Gounder (Schedule "A") and Palanisamy Gounder (Schedule "B"), father of present appellant by a partition deed dated 5.6.1951. Undisputedly there were passages earmarked for the common use of both "A" and "B" group parties and hence roads were continued be in existence at the time of partition and thereafter as well. It is also on record that after the partition, first plaintiff (father of appellant herein) sold a plot of 28 cents and the father of defendants (Kasianna Gounder) sold three plots of different dimensions and later on, the remaining area out of "A" schedule was disposed of by the defendants. Thus, in addition to the plaintiffs and defendants, there are certain other parties who are concerned with the result of thefrom that, it is clear that the disputed passage has also been used by the parties who purchased the plots fromgroups and therefore they are necessary parties to the Suit and it is obligatory on the part of plaintiffs to make them parties to the Suit.of necessary parties to the Suit is fatal. Merely for this reason alone, the Suit could have been dismissed and the trial Court has done no wrong in doing so.6. For the reasons stated above, particularly in view ofof other affected parties to the cause, we find no infirmity in the impugned order passed by the High Court.
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Union of India and Others Vs. P. S. Bhatt | employment of Shri Bhatt as Producer in which post he was still on probation was likely to affect the discipline in the administration and as such he was not a person suitable to be employed in that post and his employment in that post in which he was still a probationer should be terminated and he should be reverted to his original post of Announcer. The learned Solicitor-General contends that the conduct of Shri Bhatt might have motivated the authorities in taking the action against him and in passing the order; but it cannot be said that the termination of the period of probation in such circumstances would amount to any punishment. He has referred to the decision of this Court in the cases State of U.P. v. Bhoop Singh Verma, A.I.R. 1979 S.C. 684 and also to the decision in the case of Oil and Natural Gas Commission and others v. Dr. Md. S. Iskander Ali, [1980-II L.L.J. 155]. The learned Solicitor-General, therefore, contends that as the order in question is an order of simple termination of employment on probation of the petitioner, there can be no question of Article 311 of the Constitution being attracted.7. On behalf of Shri Bhatt, the petitioner in the writ petition and respondent in the appeal, it has been argued that the termination of the period of probation in the instant case and reversion of Shri Bhatt from his post of Producer to his old post of Announcer is in the facts and circumstances of this case by way of punishment. It has been argued that the facts and circumstances of the case go to indicate that the Station Director wanted to punish him because of loose talks which had been taped and placed before him and with the object of punishing him, the Station Director had made a report on the basis of which the authorities reverted Shri Bhatt to his old post of Announcer after terminating his employment as Producer in which post he was on probation. It has been argued that if the order termination of the employment of Shri Bhatt as producer on probation and his reversion is by way of punishment the said order must be held to be illegal, as Article 311 of the Constitution will be clearly attracted. In support of this case, reference has been made to the decisions of the Supreme Court in Purushottam Lal Dhingra v. Union of India, [1958-II L.L.J. 544], S. Sukhbans Singh v. State of Punjab, [1963-I L.L.J. 671], K. H. Phadnis v. State of Maharashtra and Shamsher Singh v. State of Punjab, [1974-II L.L.J. 465].8. The law in relation to termination of service of an employee on probation is well settled. If any order terminating the service of a probationer be an order of termination simpliciter without attaching any stigma to the employee and if the said order is not an order by way of punishment, there will be no question of the provisions of Article 311 being attracted. As the law on the question appears to be well settled it does not become necessary to consider the various decisions which have been cited.9. The only question which falls for determination in the present appeal is whether the impugned order was passed by way of punishment or not. It has not been argued that the impugned order attaches any kind of stigma to Shri Bhatt. We have earlier noticed the order and it is clear from the order that the order is an order of termination of the employment on probation simpliciter and reversion to the old post without attaching any kind of stigma. The High Court had proceeded on the basis that the impugned order was by way of punishment.10. It may be true that in deciding whether an order is by way of punishment or not, the relevant facts and circumstances may have to be considered. In the instant case, the broad facts, as established, appear to be as follows :(1) Shri Bhatt and Shri Prasad had indulged in loose talk and used filthy language against the Station Director and other officers of All India Radio, Vijayawada, while in officer;(2) This Finding has been recorded by the learned single Judge;(3) The tape-recording of the conversation of Shri Bhatt and Prasad had been forwarded to the Station Director;(4) The Station Director by his memo dated December 1, 1976 which we have earlier noted, had warned Mr. Bhatt;(5) The Station Director had further reported the matter to the Director General, All India Radio for appropriate action;(6) The impugned order terminating the period of probation of Shri Bhatt as producer and reverting him to his post of Announcer had thereafter been passed.11. On a proper consideration of these facts, in our opinion, it cannot be said that the impugned order was passed by way of punishment; and, in our view, the High Court was in error in arriving at the finding that the impugned order was by way of punishment, as the report of the Station Director had influenced the Director General to pass the said order. Loose talks and filthy and abusive language which had been used against the Station director and the other officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person be having in such fashion is not a suitable person to be employed as a producer. This undesirable conduct on the part of Shri Bhatt might have been the motive for terminating the employment on probation and for reverting him to his old post of Announcer. Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. This principle has been clearly enunciated and reiterated in the case of Oil and Natural Gas Commission an others v. Dr. Md. S. Iskander Ali (supra). | 1[ds]10. It may be true that in deciding whether an order is by way of punishment or not, the relevant facts and circumstances may have to be considered. In the instant case, the broad facts, as established, appear to be as follows :(1) Shri Bhatt and Shri Prasad had indulged in loose talk and used filthy language against the Station Director and other officers of All India Radio, Vijayawada, while in officer;(2) This Finding has been recorded by the learned single Judge;(3) Theof the conversation of Shri Bhatt and Prasad had been forwarded to the Station Director;(4) The Station Director by his memo dated December 1, 1976 which we have earlier noted, had warned Mr. Bhatt;(5) The Station Director had further reported the matter to the Director General, All India Radio for appropriate action;(6) The impugned order terminating the period of probation of Shri Bhatt as producer and reverting him to his post of Announcer had thereafter been passed.11. On a proper consideration of these facts, in our opinion, it cannot be said that the impugned order was passed by way of punishment; and, in our view, the High Court was in error in arriving at the finding that the impugned order was by way of punishment, as the report of the Station Director had influenced the Director General to pass the said order. Loose talks and filthy and abusive language which had been used against the Station director and the other officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person be having in such fashion is not a suitable person to be employed as a producer. This undesirable conduct on the part of Shri Bhatt might have been the motive for terminating the employment on probation and for reverting him to his old post of Announcer. Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. This principle has been clearly enunciated and reiterated in the case of Oil and Natural Gas Commission an others v. Dr. Md. S. Iskander Ali (supra). | 1 | 2,200 | 435 | ### 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:
employment of Shri Bhatt as Producer in which post he was still on probation was likely to affect the discipline in the administration and as such he was not a person suitable to be employed in that post and his employment in that post in which he was still a probationer should be terminated and he should be reverted to his original post of Announcer. The learned Solicitor-General contends that the conduct of Shri Bhatt might have motivated the authorities in taking the action against him and in passing the order; but it cannot be said that the termination of the period of probation in such circumstances would amount to any punishment. He has referred to the decision of this Court in the cases State of U.P. v. Bhoop Singh Verma, A.I.R. 1979 S.C. 684 and also to the decision in the case of Oil and Natural Gas Commission and others v. Dr. Md. S. Iskander Ali, [1980-II L.L.J. 155]. The learned Solicitor-General, therefore, contends that as the order in question is an order of simple termination of employment on probation of the petitioner, there can be no question of Article 311 of the Constitution being attracted.7. On behalf of Shri Bhatt, the petitioner in the writ petition and respondent in the appeal, it has been argued that the termination of the period of probation in the instant case and reversion of Shri Bhatt from his post of Producer to his old post of Announcer is in the facts and circumstances of this case by way of punishment. It has been argued that the facts and circumstances of the case go to indicate that the Station Director wanted to punish him because of loose talks which had been taped and placed before him and with the object of punishing him, the Station Director had made a report on the basis of which the authorities reverted Shri Bhatt to his old post of Announcer after terminating his employment as Producer in which post he was on probation. It has been argued that if the order termination of the employment of Shri Bhatt as producer on probation and his reversion is by way of punishment the said order must be held to be illegal, as Article 311 of the Constitution will be clearly attracted. In support of this case, reference has been made to the decisions of the Supreme Court in Purushottam Lal Dhingra v. Union of India, [1958-II L.L.J. 544], S. Sukhbans Singh v. State of Punjab, [1963-I L.L.J. 671], K. H. Phadnis v. State of Maharashtra and Shamsher Singh v. State of Punjab, [1974-II L.L.J. 465].8. The law in relation to termination of service of an employee on probation is well settled. If any order terminating the service of a probationer be an order of termination simpliciter without attaching any stigma to the employee and if the said order is not an order by way of punishment, there will be no question of the provisions of Article 311 being attracted. As the law on the question appears to be well settled it does not become necessary to consider the various decisions which have been cited.9. The only question which falls for determination in the present appeal is whether the impugned order was passed by way of punishment or not. It has not been argued that the impugned order attaches any kind of stigma to Shri Bhatt. We have earlier noticed the order and it is clear from the order that the order is an order of termination of the employment on probation simpliciter and reversion to the old post without attaching any kind of stigma. The High Court had proceeded on the basis that the impugned order was by way of punishment.10. It may be true that in deciding whether an order is by way of punishment or not, the relevant facts and circumstances may have to be considered. In the instant case, the broad facts, as established, appear to be as follows :(1) Shri Bhatt and Shri Prasad had indulged in loose talk and used filthy language against the Station Director and other officers of All India Radio, Vijayawada, while in officer;(2) This Finding has been recorded by the learned single Judge;(3) The tape-recording of the conversation of Shri Bhatt and Prasad had been forwarded to the Station Director;(4) The Station Director by his memo dated December 1, 1976 which we have earlier noted, had warned Mr. Bhatt;(5) The Station Director had further reported the matter to the Director General, All India Radio for appropriate action;(6) The impugned order terminating the period of probation of Shri Bhatt as producer and reverting him to his post of Announcer had thereafter been passed.11. On a proper consideration of these facts, in our opinion, it cannot be said that the impugned order was passed by way of punishment; and, in our view, the High Court was in error in arriving at the finding that the impugned order was by way of punishment, as the report of the Station Director had influenced the Director General to pass the said order. Loose talks and filthy and abusive language which had been used against the Station director and the other officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person be having in such fashion is not a suitable person to be employed as a producer. This undesirable conduct on the part of Shri Bhatt might have been the motive for terminating the employment on probation and for reverting him to his old post of Announcer. Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. This principle has been clearly enunciated and reiterated in the case of Oil and Natural Gas Commission an others v. Dr. Md. S. Iskander Ali (supra).
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10. It may be true that in deciding whether an order is by way of punishment or not, the relevant facts and circumstances may have to be considered. In the instant case, the broad facts, as established, appear to be as follows :(1) Shri Bhatt and Shri Prasad had indulged in loose talk and used filthy language against the Station Director and other officers of All India Radio, Vijayawada, while in officer;(2) This Finding has been recorded by the learned single Judge;(3) Theof the conversation of Shri Bhatt and Prasad had been forwarded to the Station Director;(4) The Station Director by his memo dated December 1, 1976 which we have earlier noted, had warned Mr. Bhatt;(5) The Station Director had further reported the matter to the Director General, All India Radio for appropriate action;(6) The impugned order terminating the period of probation of Shri Bhatt as producer and reverting him to his post of Announcer had thereafter been passed.11. On a proper consideration of these facts, in our opinion, it cannot be said that the impugned order was passed by way of punishment; and, in our view, the High Court was in error in arriving at the finding that the impugned order was by way of punishment, as the report of the Station Director had influenced the Director General to pass the said order. Loose talks and filthy and abusive language which had been used against the Station director and the other officers may legitimately in the facts and circumstances of the case lead to the formation of a reasonable belief in the minds of the authorities that the person be having in such fashion is not a suitable person to be employed as a producer. This undesirable conduct on the part of Shri Bhatt might have been the motive for terminating the employment on probation and for reverting him to his old post of Announcer. Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the authority to terminate the service of the employee on probation, such termination cannot be termed as penalty or punishment. This principle has been clearly enunciated and reiterated in the case of Oil and Natural Gas Commission an others v. Dr. Md. S. Iskander Ali (supra).
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THE DIR. PRASAR BHARATI Vs. COMMISSIONER OF INCOME TAX, THIRUVANANTH | in these appeals and distinguished it in the following words:“61. Now we come to the judgment of the Kerala High Court in the case of CIT vs. Director, Prasar Bharti reported in (2010) 325 ITR 205(ker.) on which much reliance has been placed by the assessing authority. The Prasar Bharati is fully owned Government of India undertaking engaged in telecast of news, various sports, entertainments, cinemas and other programmes. The advertisements were canvassed through agents under the agreement with them. The advertising agencies and the Director, Prasar Bharati were principal and agent as per the agreement and the Doordarshan provided 15% discount on the basis of which it was contended that no deduction at source was required. The Tribunal held that there was no liability for deduction of tax at source under Section 194H which judgment was reversed by the Kerala High Court. From the facts of the aforesaid case, it is clear that Doordarshan had appointed agents i.e. advertising agencies and there was agreement entered between them. In the aforesaid circumstances, 15% advertisement charges collected and remitted was held to be in the form of commission payable to the agent by Doordarshan. There was explicit agreement between the agency and the Doordarshan where both understood that payment made to the agency was liable to tax deduction. It is useful to quote the following observations of the judgment of Kerala High Court:- ……………………………………………………………… ……………………………………………………………… From the above, it is very clear that parties have understood their relationship as Principal and Agent and what is paid to the agent by Doordarshan is 15% of advertisement charges collected and remitted to it by the agent which is in the form of commission payable to the Agent by Doordarshan. Counsel for the respondent referred to one of the agreements where the commission is referred to as standard discount and contended that the arrangement between respondent and advertising agency is not agency but is a Principal to Principal arrangement of sharing advertisement charges. We are unable to accept this contention because advertisement contract entered into between the customer and the agency is for telecasting advertisement in Doordarshan channels. The agent canvasses advertisement on behalf of Doordarshan under agreement between them and the advertisement charges recovered from the customers are also in accordance with tariff prescribed by Doordarshan which is incorporated in the agreement. Further it is specifically stated in the agreement that advertisement material should also conform to the discipline introduced by Doordarshan which is nothing but a Government agency which cannot telecast all what is desired to be telecast by advertising agencies. In fact, Doordarshan is bound by advertisement contract canvassed by advertising agencies and it is their duty under the agreement between them and the advertising agencies to telecast advertisement material in terms of the contract which the agency signs with the customer. In our view, the transaction is a pure agency arrangement between the respondent and the advertising agencies because one acts for the other and the act of the agent binds the respondent in their capacity as Principal of the agent. It is pertinent to note that commission or brokerage defined under explanation (i) to Section 194H has a wide meaning and it covers any payment received or receivable directly or indirectly by a person acting on behalf of another person for services rendered. In this case, no one can doubt that 15% commission paid to advertising agencies by the Doordarshan is for canvassing advertisements on behalf of the respondent. So much so, the payment of 15%, by whatever name called, whether discount or commission, falls within the definition of "commission" as defined under Explanation (i) to Section 194H of the Act. ……………………………………………………………… ……………………………………………………………… It is very clear from the above provision that the advertising agency clearly understood the agreement as an agency arrangement and the commission payable by the respondent to such agency is subject to tax deduction at source under the Income Tax Act and so much so the provision in the agreement was for the agent after retaining 15% to give cheque or demand draft for TDS amount which was originally 5% until it was enhanced to 10% by Finance Act 2007 with effect from 1.6.2007.62. In the aforesaid case, the relationship of principal and agent was fully established since the advertising agency was appointed as agent by written agreement and there was specific clause that tax shall be deductible at source on payment of trade discount. In the said circumstances, the Kerala High Court held that Section 194H of the Income Tax Act was applicable. In the present case, there is no agreement between the petitioner and the advertising agency and the advertising agency has never been appointed as agent of the petitioner. Thus the above case of the Kerala High Court is clearly inapplicable and the reliance on the said judgment for fastening the liability of tax and interest on the petitioner is wholly untenable. The judgment of the Kerala High Court thus does not help the respondents in the present case.”37. In our opinion, the Allahabad High Court very rightly noticed the distinction between the facts in the case of Jagaran Prakashan Ltd. (supra) and the case with which we are concerned in these appeals and held that it depends upon the facts of each case to decide as to what is the nature of payment made by the party concerned. Their Lordships rightly noticed that the case before them (Jagaran Prakashan Ltd.) did not have any agreement like the one in this case wherein in terms of the agreement, it is unmistakably proved that the payment was being made by the appellant (assessee) to the agencies by way of“commission”. In our view, therefore, the decision of the Allahabad High Court is of no help to the case of the appellant for taking a different view.38. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in these appeals. | 0[ds]24. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.Keeping in mind the requirements of Section 194H when we examine the transaction in question, we are of the considered view that the reasoning and the conclusion arrived at by the AO, CIT (Appeals) and the High Court appears to be just and proper and does not call for any interference.30. In other words, in our considered view, the High Court was right in holding that the provisions of Section 194H are applicable to the appellant because the payments made by the appellant pursuant to the agreement in question were in the nature of payment made by way of "commission" and, therefore, the appellant was under statutory obligation to deduct the income tax at the time of credit or/and payment to the payee.31. The aforementioned conclusion of the High Court is clear from the undisputed facts emerging from the record of the case because we notice that the agreement itself has used the expression "commission" in all relevant clauses; Second, there is no ambiguity in any clause and no complaint was made to this effect by the appellant; Third, the terms of the agreement indicate that both the parties intended that the amount paid by the appellant to the agencies should be paid by wayit was for this reason, the parties used the expression "commission" in the agreement; Fourth, keeping in view the tenure and the nature of transaction, it is clear that the appellant was paying 15% to the agencies by waynot under any other head; Fifth, the transaction in question did not show that the relationship between the appellant and the accredited agencies was principal to principal rather it was principal and Agent; Sixth, it was also clear that payment of 15% was being made by the appellant to the agencies after collecting money from them and it was for securing more advertisements for them and to earn more business from the advertisement agencies; Seventh, there was a clause in the agreement that the tax shall be deducted at source on payment of trade discount; and lastly, the definition of expression "commission" in the Explanation appended to Section 194H being an inclusive definition giving wide meaning to thethe transaction in question did fall under the definition ofthe purpose of attracting rigor of Section 194H of the Act.32. For all these reasons, we find no difficulty in holding that the payment in question was in the nature of "commission" paid by the appellant to the advertisement agencies to secure more business for the appellant.33. Once it is held that the provisions of Section 194H apply to the transactions in question, it is obligatory upon the appellant to have deducted the income tax while making payment to the advertisement agencies. Theof Section 194H by the assessee attracts the rigor of Section 201 which provides for consequences of failure to deduct or pay the tax as provided under Section 194H of the Act.34. In our view, the provisions of Section 201 were, therefore, rightly invoked in this case against the appellant by the assessing authority once having held that the appellant failed to comply with the provisions of Section 194H of the Act.35.Learned counsel for the appellant (assessee) placed reliance on the decision of the Allahabad High Court in Jagran Prakashan Ltd vs. Deputy Commissioner of Income Tax(TDS), (2012)345 ITR 288 in support of his submission.On perusal of the said judgment, we find that the law laid down by the Allahabad High Court is not applicable to the facts of the case at hand and the learned Judges rightly distinguished the case at hand with the facts involved in the Allahabad case.In our opinion, the Allahabad High Court very rightly noticed the distinction between the facts in the case of Jagaran Prakashan Ltd. (supra) and the case with which we are concerned in these appeals and held that it depends upon the facts of each case to decide as to what is the nature of payment made by the party concerned. Their Lordships rightly noticed that the case before them (Jagaran Prakashan Ltd.) did not have any agreement like the one in this case wherein in terms of the agreement, it is unmistakably proved that the payment was being made by the appellant (assessee) to the agencies by wayIn our view, therefore, the decision of the Allahabad High Court is of no help to the case of the appellant for taking a different view.In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in these appeals. | 0 | 4,250 | 860 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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in these appeals and distinguished it in the following words:“61. Now we come to the judgment of the Kerala High Court in the case of CIT vs. Director, Prasar Bharti reported in (2010) 325 ITR 205(ker.) on which much reliance has been placed by the assessing authority. The Prasar Bharati is fully owned Government of India undertaking engaged in telecast of news, various sports, entertainments, cinemas and other programmes. The advertisements were canvassed through agents under the agreement with them. The advertising agencies and the Director, Prasar Bharati were principal and agent as per the agreement and the Doordarshan provided 15% discount on the basis of which it was contended that no deduction at source was required. The Tribunal held that there was no liability for deduction of tax at source under Section 194H which judgment was reversed by the Kerala High Court. From the facts of the aforesaid case, it is clear that Doordarshan had appointed agents i.e. advertising agencies and there was agreement entered between them. In the aforesaid circumstances, 15% advertisement charges collected and remitted was held to be in the form of commission payable to the agent by Doordarshan. There was explicit agreement between the agency and the Doordarshan where both understood that payment made to the agency was liable to tax deduction. It is useful to quote the following observations of the judgment of Kerala High Court:- ……………………………………………………………… ……………………………………………………………… From the above, it is very clear that parties have understood their relationship as Principal and Agent and what is paid to the agent by Doordarshan is 15% of advertisement charges collected and remitted to it by the agent which is in the form of commission payable to the Agent by Doordarshan. Counsel for the respondent referred to one of the agreements where the commission is referred to as standard discount and contended that the arrangement between respondent and advertising agency is not agency but is a Principal to Principal arrangement of sharing advertisement charges. We are unable to accept this contention because advertisement contract entered into between the customer and the agency is for telecasting advertisement in Doordarshan channels. The agent canvasses advertisement on behalf of Doordarshan under agreement between them and the advertisement charges recovered from the customers are also in accordance with tariff prescribed by Doordarshan which is incorporated in the agreement. Further it is specifically stated in the agreement that advertisement material should also conform to the discipline introduced by Doordarshan which is nothing but a Government agency which cannot telecast all what is desired to be telecast by advertising agencies. In fact, Doordarshan is bound by advertisement contract canvassed by advertising agencies and it is their duty under the agreement between them and the advertising agencies to telecast advertisement material in terms of the contract which the agency signs with the customer. In our view, the transaction is a pure agency arrangement between the respondent and the advertising agencies because one acts for the other and the act of the agent binds the respondent in their capacity as Principal of the agent. It is pertinent to note that commission or brokerage defined under explanation (i) to Section 194H has a wide meaning and it covers any payment received or receivable directly or indirectly by a person acting on behalf of another person for services rendered. In this case, no one can doubt that 15% commission paid to advertising agencies by the Doordarshan is for canvassing advertisements on behalf of the respondent. So much so, the payment of 15%, by whatever name called, whether discount or commission, falls within the definition of "commission" as defined under Explanation (i) to Section 194H of the Act. ……………………………………………………………… ……………………………………………………………… It is very clear from the above provision that the advertising agency clearly understood the agreement as an agency arrangement and the commission payable by the respondent to such agency is subject to tax deduction at source under the Income Tax Act and so much so the provision in the agreement was for the agent after retaining 15% to give cheque or demand draft for TDS amount which was originally 5% until it was enhanced to 10% by Finance Act 2007 with effect from 1.6.2007.62. In the aforesaid case, the relationship of principal and agent was fully established since the advertising agency was appointed as agent by written agreement and there was specific clause that tax shall be deductible at source on payment of trade discount. In the said circumstances, the Kerala High Court held that Section 194H of the Income Tax Act was applicable. In the present case, there is no agreement between the petitioner and the advertising agency and the advertising agency has never been appointed as agent of the petitioner. Thus the above case of the Kerala High Court is clearly inapplicable and the reliance on the said judgment for fastening the liability of tax and interest on the petitioner is wholly untenable. The judgment of the Kerala High Court thus does not help the respondents in the present case.”37. In our opinion, the Allahabad High Court very rightly noticed the distinction between the facts in the case of Jagaran Prakashan Ltd. (supra) and the case with which we are concerned in these appeals and held that it depends upon the facts of each case to decide as to what is the nature of payment made by the party concerned. Their Lordships rightly noticed that the case before them (Jagaran Prakashan Ltd.) did not have any agreement like the one in this case wherein in terms of the agreement, it is unmistakably proved that the payment was being made by the appellant (assessee) to the agencies by way of“commission”. In our view, therefore, the decision of the Allahabad High Court is of no help to the case of the appellant for taking a different view.38. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in these appeals.
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24. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.Keeping in mind the requirements of Section 194H when we examine the transaction in question, we are of the considered view that the reasoning and the conclusion arrived at by the AO, CIT (Appeals) and the High Court appears to be just and proper and does not call for any interference.30. In other words, in our considered view, the High Court was right in holding that the provisions of Section 194H are applicable to the appellant because the payments made by the appellant pursuant to the agreement in question were in the nature of payment made by way of "commission" and, therefore, the appellant was under statutory obligation to deduct the income tax at the time of credit or/and payment to the payee.31. The aforementioned conclusion of the High Court is clear from the undisputed facts emerging from the record of the case because we notice that the agreement itself has used the expression "commission" in all relevant clauses; Second, there is no ambiguity in any clause and no complaint was made to this effect by the appellant; Third, the terms of the agreement indicate that both the parties intended that the amount paid by the appellant to the agencies should be paid by wayit was for this reason, the parties used the expression "commission" in the agreement; Fourth, keeping in view the tenure and the nature of transaction, it is clear that the appellant was paying 15% to the agencies by waynot under any other head; Fifth, the transaction in question did not show that the relationship between the appellant and the accredited agencies was principal to principal rather it was principal and Agent; Sixth, it was also clear that payment of 15% was being made by the appellant to the agencies after collecting money from them and it was for securing more advertisements for them and to earn more business from the advertisement agencies; Seventh, there was a clause in the agreement that the tax shall be deducted at source on payment of trade discount; and lastly, the definition of expression "commission" in the Explanation appended to Section 194H being an inclusive definition giving wide meaning to thethe transaction in question did fall under the definition ofthe purpose of attracting rigor of Section 194H of the Act.32. For all these reasons, we find no difficulty in holding that the payment in question was in the nature of "commission" paid by the appellant to the advertisement agencies to secure more business for the appellant.33. Once it is held that the provisions of Section 194H apply to the transactions in question, it is obligatory upon the appellant to have deducted the income tax while making payment to the advertisement agencies. Theof Section 194H by the assessee attracts the rigor of Section 201 which provides for consequences of failure to deduct or pay the tax as provided under Section 194H of the Act.34. In our view, the provisions of Section 201 were, therefore, rightly invoked in this case against the appellant by the assessing authority once having held that the appellant failed to comply with the provisions of Section 194H of the Act.35.Learned counsel for the appellant (assessee) placed reliance on the decision of the Allahabad High Court in Jagran Prakashan Ltd vs. Deputy Commissioner of Income Tax(TDS), (2012)345 ITR 288 in support of his submission.On perusal of the said judgment, we find that the law laid down by the Allahabad High Court is not applicable to the facts of the case at hand and the learned Judges rightly distinguished the case at hand with the facts involved in the Allahabad case.In our opinion, the Allahabad High Court very rightly noticed the distinction between the facts in the case of Jagaran Prakashan Ltd. (supra) and the case with which we are concerned in these appeals and held that it depends upon the facts of each case to decide as to what is the nature of payment made by the party concerned. Their Lordships rightly noticed that the case before them (Jagaran Prakashan Ltd.) did not have any agreement like the one in this case wherein in terms of the agreement, it is unmistakably proved that the payment was being made by the appellant (assessee) to the agencies by wayIn our view, therefore, the decision of the Allahabad High Court is of no help to the case of the appellant for taking a different view.In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in these appeals.
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Milind Moreshwar Kowley Vs. Manhohar Bhaskar Kowley(D)Thr.Lrs | in his office in which the plaintiff was present on behalf of his father. It also noticed the affidavit filed by the plaintiff, on behalf of his father, affirmed on March 31, 1987 reiterating and confirming the statements made by his father in the affidavit of the same date. Thus the Court held that right from the year 1984 onwards Milind was fully aware of the decree and, therefore, it was futile to claim that he became aware of the consent decree only in the first week of August, 1987.16. Similarly, the trial court considered the objection raised by the plaintiff on the ground of non-compliance of Order 23 Rule 3-B of the Code of Civil Procedure. Two submissions were advanced on behalf of the plaintiff, namely, that the Court had not granted leave to enter into a compromise in the suit which was of a representative character and secondly, that no notice was issued to the plaintiff in the said proceeding. The trial court negatived the contention holding that the suit had been filed for partition of the joint family properties and, therefore, it was not necessary to join the minor sons, who were represented by their respective Kartas. The father of the plaintiff represented him in the suit. The consent decree read as a whole made it clear that the Court which passed the decree was conscious of the fact that the suit was for partition of the joint family properties. The Court also recorded provided that the said sale was for the benefit of minors interested in the property and that the respective fathers of such minors would stand appointed as guardians with power to execute conveyance and to pass valid receipts, and that the share coming to the minors would be deposited with the Accounts Officer of the Court. There was, therefore, substantial compliance of Order 23 Rule 3-B of the Code of Civil Procedure since the Court had taken care of the interest of these minors who were not party to the suit. It was, therefore, apparent that the Court had granted leave under the said Rule. Rejecting the contention that the consent order of August 13, 1985 was a fresh decree passed after the plaintiff had attained majority without hearing him, the trial court held that the decree passed on February 28, 1980 was, in fact, confirmed by the subsequent decree and only the mode of sale was varied by the consent order of August 13, 1985. In any event, Order 23 Rule 3-B was not applicable to execution proceedings and the variation of Order dated August 13, 1985 was, merely, in execution of consent decree dated February 28, 1980. This aspect of the matter, according to the trial court, stood concluded by the order of Suresh, J, in the review petition filed by the plaintiff which was not appealed against. The trial Judge therefore, found no merit in the Notice of Motion taken out by the plaintiff.17. The Appellate Court also considered the material on record and came to the same conclusion. It rejected the submission that the consent decree was void as the leave of the Court was not expressly recorded in the proceedings and that such leave could not have been granted without notice to the plaintiff and his brothers who were interested in the properties in suit. It held that it was not correct to say that the leave of the Court was not expressly recorded in the proceedings. The fact that the consent terms were tendered in Court and the Court proceeded to pass decree in accordance with the consent terms was sufficient to hold that the leave of the Court was expressly recorded. It was not necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the consent decree was sufficient indication that the Court had granted leave. It further held that issuance of notice as contemplated in sub-rule 3-B of Order 23 of Code of Civil Procedure was not mandatory, and in case the Court found that all parties interested in the suit had joined in the consent terms and were fully conscious of consent terms, then issuance of notice was an empty formality. On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully conscious of the consent terms. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. The complaint was only about compliance with the procedure envisaged by Rule 3B of Order 23 of the Code of Civil Procedure.18. We have been taken through the findings recorded by the trial court as well as by the appellate court. They have recorded concurrent findings while rejecting the Notice of Motion praying for interim relief. It is true that the findings recorded are tentative and only for the purpose of disposal of the Notice of Motion. The plaintiffs suit is pending and the merit of his claim will have to be judged in the Suit on the basis of the evidence on record. However, we do not find that any error has been committed by the High Court in refusing interim relief. The trial court as well as the appellate bench have exhaustively dealt with the submissions urged before them and the material on record and applied their mind to the issues raised before them. They have concurrently found that there was no justification for issuance of an interim order as prayed for in the Notice of Motion. They have not taken into account any extraneous matter, nor do we find any perversity in the appreciation of the material on record. The findings of the Courts below are concurrent and based on the material on record. We have found nothing which can justify our taking a different view. | 0[ds]13. Having considered all aspects of the matter, we find no reason to interfere with the concurrent findings recorded by the trial court as well as the Appellate Bench of the High Court. We, therefore, find no merit in Civil Appeal No.368 of 1994. We shall not take up for consideration Notice of Motion No.2392 of 1989 filed by plaintiff Milind in Suit No. 2493 of 1988. We may recapitulate some of the facts. The preliminary decree was passed on September 17, 1975 and the final decree followed on February 28, 1980. The decree was varied to some extent on August 13, 1985, though as found by the courts below the variation was only with regard to the mode of sale. In the earlier consent decree only the defendants were required to bring purchasers for the plots in question but under the modified decree as passed on August 13, 1985 even the plaintiff was permitted to bring purchasers apart from the defendants. The rest of the terms and conditions were substantially the same with extension of time granted to complete the formalities.14. The plaintiff Milind attained majority on November 17, 1981. He filed a Suit on August 16, 1988 i.e. roughly 7 years after attaining majority. While considering the prayer for grant of interim relief, the Court considered the limitation aspect of the matter, not with a view to pronounce a final verdict on that question, but with a view to considering the justification for passing an interim order as prayed for in the Notice of Motion. The plea of the plaintiff was that he did not know about the pendency of the suit and the passing of the decree in the suit namely, Suit No.618 of 1967. For the first time, he came to know about the passing of the decree some time in August 1987, when he noticed that the defendants were having frequent meetings. The trial court found that this assertion of the plaintiff was belied by the material on record. It has recorded in paragraph 6 of its judgment, several reasons why it was not possible to believe that the plaintiff Milind, who was the son of Moreshwar, defendant No.1 in the earlier suit, was unaware of the passing of the consent decree so that he could not file a suit within the period of limitation prescribed by law, namely three years. In this connection, the learned Judge found that on September 30, 1985 the plaintiff was present before Markand Gandhi, Attorney, when the offers received were considered. He was also present at the meeting before the Court Receiver on December 19, 1986. He also attended the office of the Prothtonotary and Senior Master on November 24, 1986, on the request of his father. The plaintiff had himself affirmed affidavits in the suit proceedings averring that he was fully conversant with the facts of the case. He was also present in Court on 15th July, 1987 and 24th July, 1987. All these facts proved that the case pleaded by the plaintiff that he came to know about the passing of the decree sometime in August, 1987 was not true.15. The Appellate Bench also agreed with the finding recorded by the Trial court. In particular the appellate court noticed the letter of March 26, 1984 addressed by the plaintiff Milind to the Court Receiver informing the Court Receiver that his father defendant No.1, in the earlier suit, had gone out of town and that one Arvind, occupant of a room in the structure was indulging in destruction of property and that the Court Receiver should take steps to carry out repair works and prevent further damage. It also noticed the minutes recorded by the Court Receiver on December 13, 1986 of the meeting held in his office in which the plaintiff was present on behalf of his father. It also noticed the affidavit filed by the plaintiff, on behalf of his father, affirmed on March 31, 1987 reiterating and confirming the statements made by his father in the affidavit of the same date. Thus the Court held that right from the year 1984 onwards Milind was fully aware of the decree and, therefore, it was futile to claim that he became aware of the consent decree only in the first week of August, 1987.16. Similarly, the trial court considered the objection raised by the plaintiff on the ground ofof Order 23 Rule3B of the Code of CivilProcedure. Two submissions were advanced on behalf of the plaintiff, namely, that the Court had not granted leave to enter into a compromise in the suit which was of a representative character and secondly, that no notice was issued to the plaintiff in the said proceeding. The trial court negatived the contention holding that the suit had been filed for partition of the joint family properties and, therefore, it was not necessary to join the minor sons, who were represented by their respective Kartas. The father of the plaintiff represented him in the suit. The consent decree read as a whole made it clear that the Court which passed the decree was conscious of the fact that the suit was for partition of the joint family properties. The Court also recorded provided that the said sale was for the benefit of minors interested in the property and that the respective fathers of such minors would stand appointed as guardians with power to execute conveyance and to pass valid receipts, and that the share coming to the minors would be deposited with the Accounts Officer of the Court. There was, therefore, substantial complianceof Order 23 Rule3B of the Code of CivilProcedure since the Court had taken care of the interest of these minors who were not party to the suit. It was, therefore, apparent that the Court had granted leave under the said Rule. Rejecting the contention that the consent order of August 13, 1985 was a fresh decree passed after the plaintiff had attained majority without hearing him, the trial court held that the decree passed on February 28, 1980 was, in fact, confirmed by the subsequent decree and only the mode of sale was varied by the consent order of August 13, 1985. In any event, Order 23 Rulewas not applicable to execution proceedings and the variation of Order dated August 13, 1985 was, merely, in execution of consent decree dated February 28, 1980. This aspect of the matter, according to the trial court, stood concluded by the order of Suresh, J, in the review petition filed by the plaintiff which was not appealed against. The trial Judge therefore, found no merit in the Notice of Motion taken out by the plaintiff.17. The Appellate Court also considered the material on record and came to the same conclusion. It rejected the submission that the consent decree was void as the leave of the Court was not expressly recorded in the proceedings and that such leave could not have been granted without notice to the plaintiff and his brothers who were interested in the properties in suit. It held that it was not correct to say that the leave of the Court was not expressly recorded in the proceedings. The fact that the consent terms were tendered in Court and the Court proceeded to pass decree in accordance with the consent terms was sufficient to hold that the leave of the Court was expressly recorded. It was not necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the consent decree was sufficient indication that the Court had granted leave. It further held that issuance of notice as contemplated in3B of Order 23 ofCode of Civil Procedure was not mandatory, and in case the Court found that all parties interested in the suit had joined in the consent terms and were fully conscious of consent terms, then issuance of notice was an empty formality. On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully conscious of the consent terms. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. The complaint was only about compliance with the procedure envisaged by Rule3B of Order 23 ofthe Code of Civil Procedure.18. We have been taken through the findings recorded by the trial court as well as by the appellate court. They have recorded concurrent findings while rejecting the Notice of Motion praying for interim relief. It is true that the findings recorded are tentative and only for the purpose of disposal of the Notice of Motion. The plaintiffs suit is pending and the merit of his claim will have to be judged in the Suit on the basis of the evidence on record. However, we do not find that any error has been committed by the High Court in refusing interim relief. The trial court as well as the appellate bench have exhaustively dealt with the submissions urged before them and the material on record and applied their mind to the issues raised before them. They have concurrently found that there was no justification for issuance of an interim order as prayed for in the Notice of Motion. They have not taken into account any extraneous matter, nor do we find any perversity in the appreciation of the material on record. The findings of the Courts below are concurrent and based on the material on record. We have found nothing which can justify our taking a different view. | 0 | 5,470 | 1,755 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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in his office in which the plaintiff was present on behalf of his father. It also noticed the affidavit filed by the plaintiff, on behalf of his father, affirmed on March 31, 1987 reiterating and confirming the statements made by his father in the affidavit of the same date. Thus the Court held that right from the year 1984 onwards Milind was fully aware of the decree and, therefore, it was futile to claim that he became aware of the consent decree only in the first week of August, 1987.16. Similarly, the trial court considered the objection raised by the plaintiff on the ground of non-compliance of Order 23 Rule 3-B of the Code of Civil Procedure. Two submissions were advanced on behalf of the plaintiff, namely, that the Court had not granted leave to enter into a compromise in the suit which was of a representative character and secondly, that no notice was issued to the plaintiff in the said proceeding. The trial court negatived the contention holding that the suit had been filed for partition of the joint family properties and, therefore, it was not necessary to join the minor sons, who were represented by their respective Kartas. The father of the plaintiff represented him in the suit. The consent decree read as a whole made it clear that the Court which passed the decree was conscious of the fact that the suit was for partition of the joint family properties. The Court also recorded provided that the said sale was for the benefit of minors interested in the property and that the respective fathers of such minors would stand appointed as guardians with power to execute conveyance and to pass valid receipts, and that the share coming to the minors would be deposited with the Accounts Officer of the Court. There was, therefore, substantial compliance of Order 23 Rule 3-B of the Code of Civil Procedure since the Court had taken care of the interest of these minors who were not party to the suit. It was, therefore, apparent that the Court had granted leave under the said Rule. Rejecting the contention that the consent order of August 13, 1985 was a fresh decree passed after the plaintiff had attained majority without hearing him, the trial court held that the decree passed on February 28, 1980 was, in fact, confirmed by the subsequent decree and only the mode of sale was varied by the consent order of August 13, 1985. In any event, Order 23 Rule 3-B was not applicable to execution proceedings and the variation of Order dated August 13, 1985 was, merely, in execution of consent decree dated February 28, 1980. This aspect of the matter, according to the trial court, stood concluded by the order of Suresh, J, in the review petition filed by the plaintiff which was not appealed against. The trial Judge therefore, found no merit in the Notice of Motion taken out by the plaintiff.17. The Appellate Court also considered the material on record and came to the same conclusion. It rejected the submission that the consent decree was void as the leave of the Court was not expressly recorded in the proceedings and that such leave could not have been granted without notice to the plaintiff and his brothers who were interested in the properties in suit. It held that it was not correct to say that the leave of the Court was not expressly recorded in the proceedings. The fact that the consent terms were tendered in Court and the Court proceeded to pass decree in accordance with the consent terms was sufficient to hold that the leave of the Court was expressly recorded. It was not necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the consent decree was sufficient indication that the Court had granted leave. It further held that issuance of notice as contemplated in sub-rule 3-B of Order 23 of Code of Civil Procedure was not mandatory, and in case the Court found that all parties interested in the suit had joined in the consent terms and were fully conscious of consent terms, then issuance of notice was an empty formality. On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully conscious of the consent terms. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. The complaint was only about compliance with the procedure envisaged by Rule 3B of Order 23 of the Code of Civil Procedure.18. We have been taken through the findings recorded by the trial court as well as by the appellate court. They have recorded concurrent findings while rejecting the Notice of Motion praying for interim relief. It is true that the findings recorded are tentative and only for the purpose of disposal of the Notice of Motion. The plaintiffs suit is pending and the merit of his claim will have to be judged in the Suit on the basis of the evidence on record. However, we do not find that any error has been committed by the High Court in refusing interim relief. The trial court as well as the appellate bench have exhaustively dealt with the submissions urged before them and the material on record and applied their mind to the issues raised before them. They have concurrently found that there was no justification for issuance of an interim order as prayed for in the Notice of Motion. They have not taken into account any extraneous matter, nor do we find any perversity in the appreciation of the material on record. The findings of the Courts below are concurrent and based on the material on record. We have found nothing which can justify our taking a different view.
### Response:
0
### Explanation:
minutes recorded by the Court Receiver on December 13, 1986 of the meeting held in his office in which the plaintiff was present on behalf of his father. It also noticed the affidavit filed by the plaintiff, on behalf of his father, affirmed on March 31, 1987 reiterating and confirming the statements made by his father in the affidavit of the same date. Thus the Court held that right from the year 1984 onwards Milind was fully aware of the decree and, therefore, it was futile to claim that he became aware of the consent decree only in the first week of August, 1987.16. Similarly, the trial court considered the objection raised by the plaintiff on the ground ofof Order 23 Rule3B of the Code of CivilProcedure. Two submissions were advanced on behalf of the plaintiff, namely, that the Court had not granted leave to enter into a compromise in the suit which was of a representative character and secondly, that no notice was issued to the plaintiff in the said proceeding. The trial court negatived the contention holding that the suit had been filed for partition of the joint family properties and, therefore, it was not necessary to join the minor sons, who were represented by their respective Kartas. The father of the plaintiff represented him in the suit. The consent decree read as a whole made it clear that the Court which passed the decree was conscious of the fact that the suit was for partition of the joint family properties. The Court also recorded provided that the said sale was for the benefit of minors interested in the property and that the respective fathers of such minors would stand appointed as guardians with power to execute conveyance and to pass valid receipts, and that the share coming to the minors would be deposited with the Accounts Officer of the Court. There was, therefore, substantial complianceof Order 23 Rule3B of the Code of CivilProcedure since the Court had taken care of the interest of these minors who were not party to the suit. It was, therefore, apparent that the Court had granted leave under the said Rule. Rejecting the contention that the consent order of August 13, 1985 was a fresh decree passed after the plaintiff had attained majority without hearing him, the trial court held that the decree passed on February 28, 1980 was, in fact, confirmed by the subsequent decree and only the mode of sale was varied by the consent order of August 13, 1985. In any event, Order 23 Rulewas not applicable to execution proceedings and the variation of Order dated August 13, 1985 was, merely, in execution of consent decree dated February 28, 1980. This aspect of the matter, according to the trial court, stood concluded by the order of Suresh, J, in the review petition filed by the plaintiff which was not appealed against. The trial Judge therefore, found no merit in the Notice of Motion taken out by the plaintiff.17. The Appellate Court also considered the material on record and came to the same conclusion. It rejected the submission that the consent decree was void as the leave of the Court was not expressly recorded in the proceedings and that such leave could not have been granted without notice to the plaintiff and his brothers who were interested in the properties in suit. It held that it was not correct to say that the leave of the Court was not expressly recorded in the proceedings. The fact that the consent terms were tendered in Court and the Court proceeded to pass decree in accordance with the consent terms was sufficient to hold that the leave of the Court was expressly recorded. It was not necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the consent decree was sufficient indication that the Court had granted leave. It further held that issuance of notice as contemplated in3B of Order 23 ofCode of Civil Procedure was not mandatory, and in case the Court found that all parties interested in the suit had joined in the consent terms and were fully conscious of consent terms, then issuance of notice was an empty formality. On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully conscious of the consent terms. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. The complaint was only about compliance with the procedure envisaged by Rule3B of Order 23 ofthe Code of Civil Procedure.18. We have been taken through the findings recorded by the trial court as well as by the appellate court. They have recorded concurrent findings while rejecting the Notice of Motion praying for interim relief. It is true that the findings recorded are tentative and only for the purpose of disposal of the Notice of Motion. The plaintiffs suit is pending and the merit of his claim will have to be judged in the Suit on the basis of the evidence on record. However, we do not find that any error has been committed by the High Court in refusing interim relief. The trial court as well as the appellate bench have exhaustively dealt with the submissions urged before them and the material on record and applied their mind to the issues raised before them. They have concurrently found that there was no justification for issuance of an interim order as prayed for in the Notice of Motion. They have not taken into account any extraneous matter, nor do we find any perversity in the appreciation of the material on record. The findings of the Courts below are concurrent and based on the material on record. We have found nothing which can justify our taking a different view.
|
State of Punjab Vs. Iqbal Singh & Others | 1983 and was published in the Gazette of India, Extra, dated 26th December, 1983. The trial court rendered its judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on section 113A, Evidence Act, for otherwise it would have tried to place, on record the exact date of marriage to take advantage of the presumption arising thereunder. The High Court referred to this provision but did not say anything in regard to its application. Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid. Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point. 8. The law underwent a further change with the introduction of section 304B in the Penal Code and section 113B in the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986. Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry death under section 304B for which the punishment extends to imprisonment for life but not less than imprison-ment for seven years, By section 113B, Evidence Act the court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment. 9. The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are establish-ed and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members section 498A, I.P.C. would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304B, I.P.C. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, sec-tion 113B, Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract section 302, I.PC. Then we have a situation where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of sec-tion 306, I.P.C. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. In the present case the facts clearly reveal from the divorce deed Exh. D-2 that the relations between the husband and the wife were strained even in 1977. There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children. Before the execu-tion of this document she had sought police protection by her application/letter dated 12th October, 1977. Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband. Her husband had kept up the pressure for extra-dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G P. Fund, Gratuity, etc., due to her father. Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture. Added to that was the anxiety caused by her husbands conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving. The last straw on the camels back fell when she was severely beaten on the previous day i.e. 6th June, 1983, as is evident from her letter of 7th June, 1983. An atmosphere of terror was created to push her into taking the extreme step. It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more misreable after she is dead and gone. In this fact-situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his willful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C. | 1[ds]9. The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are establish-ed and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members section 498A, I.P.C. would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304B, I.P.C. When the question at issue iswhether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, sec-tion 113B, Evidence Act provides that the court shall presume that such person had caused the dowryOf course if there is proof of the person having intentionally caused her death that would attract section 302, I.PC. Then we have a situation where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of sec-tion 306, I.P.C. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. In the present case the facts clearly reveal from the divorce deed Exh. D-2 that the relations between the husband and the wife were strained even in 1977. There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children. Before the execu-tion of this document she had sought police protection by her application/letter dated 12th October, 1977. Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband. Her husband had kept up the pressure for extra-dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G P. Fund, Gratuity, etc., due to her father. Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture. Added to that was the anxiety caused by her husbands conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving. The last straw on the camels back fell when she was severely beaten on the previous day i.e. 6th June, 1983, as is evident from her letter of 7th June, 1983. An atmosphere of terror was created to push her into taking the extreme step. It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more misreable after she is dead and gone. In this fact-situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his willful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C. We think that the High Court committed an error in reversing the conviction. We, therefore, allow this appeal, set aside the High Courts order and restore the order of conviction and sentence passed by the trial court. We cannot countenance the plea for reduction of his sentence. No order on his C.M.P10. So far as his sisters involvement is concerned, we think the evidence falls short of proof beyond reasonable doubt and, therefore, we see no reason to interfere with the High Courts orderBut counsel overlooks the fact that there is intrinsic evidence in the divorce deed that their marital life was unhappy and she apprehended blood shed as well as harm to the children even after they parted companyThis letter was written on 17th April, 1983 whereas the incident in question occurred on 7th June, 1983 i.e., more than 1½ months thereafter. The immediate cause for the extreme step taken by the deceased is clearly reflected in the two letters of 7th June, 1983. Therefore, the inference drawn by the learned counsel for the respondents from the letter of 17th April, 1983 cannot advance the defence set up by the accused persons. Iqbal Singh filed a written statement jointly with Kulwant Kaur wherein he stated that he had not helped his wife to secure a transfer as the family was having a good residence in the village and this was the real cause of quarrel between the two. The statement shows that the factum of quarrel between the husband and wife is not seriously disputed. The nature of correspondence he was carrying on with the Headmaster is not difficult to judge. He then states that he had purchased the plot in the name of his wife for Rs. 12,500 but he does not disclose the source from which the consideration for the plot came. He further states that his wife was earning Rs. 900 per month and therefore, he could never have entertained an intention to push her to committing suicide. It would, therefore, appear from the evidence placed on record that the relations between the deceased and Iqbal Singh were strained because of the latters demand for extra dowry and they worsened to such an extent that the deceased decided to put an end to her life.The trial court rendered its judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on section 113A, Evidence Act, for otherwise it would have tried to place, on record the exact date of marriage to take advantage of the presumption arising thereunder. The High Court referred to this provision but did not say anything in regard to its application. Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid. Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that pointIn the present case the facts clearly reveal from the divorce deed Exh. D-2 that the relations between the husband and the wife were strained even in 1977. There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children. Before the execu-tion of this document she had sought police protection by her application/letter dated 12th October, 1977. Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband. Her husband had kept up the pressure for extra-dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G P. Fund, Gratuity, etc., due to her father. Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture. Added to that was the anxiety caused by her husbands conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving. The last straw on the camels back fell when she was severely beaten on the previous day i.e. 6th June, 1983, as is evident from her letter of 7th June, 1983. An atmosphere of terror was created to push her into taking the extreme step. It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more misreable after she is dead and gone. In this fact-situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his willful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C. | 1 | 4,478 | 1,662 | ### Instruction:
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1983 and was published in the Gazette of India, Extra, dated 26th December, 1983. The trial court rendered its judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on section 113A, Evidence Act, for otherwise it would have tried to place, on record the exact date of marriage to take advantage of the presumption arising thereunder. The High Court referred to this provision but did not say anything in regard to its application. Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid. Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that point. 8. The law underwent a further change with the introduction of section 304B in the Penal Code and section 113B in the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986. Where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relative for or in connection with any demand for dowry, such death is described as dowry death under section 304B for which the punishment extends to imprisonment for life but not less than imprison-ment for seven years, By section 113B, Evidence Act the court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment. 9. The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are establish-ed and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members section 498A, I.P.C. would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304B, I.P.C. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, sec-tion 113B, Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract section 302, I.PC. Then we have a situation where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of sec-tion 306, I.P.C. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide. In the present case the facts clearly reveal from the divorce deed Exh. D-2 that the relations between the husband and the wife were strained even in 1977. There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children. Before the execu-tion of this document she had sought police protection by her application/letter dated 12th October, 1977. Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband. Her husband had kept up the pressure for extra-dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G P. Fund, Gratuity, etc., due to her father. Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture. Added to that was the anxiety caused by her husbands conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving. The last straw on the camels back fell when she was severely beaten on the previous day i.e. 6th June, 1983, as is evident from her letter of 7th June, 1983. An atmosphere of terror was created to push her into taking the extreme step. It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more misreable after she is dead and gone. In this fact-situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his willful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C.
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### Explanation:
efforts to seek a transfer from the school where she was serving. The last straw on the camels back fell when she was severely beaten on the previous day i.e. 6th June, 1983, as is evident from her letter of 7th June, 1983. An atmosphere of terror was created to push her into taking the extreme step. It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more misreable after she is dead and gone. In this fact-situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his willful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C. We think that the High Court committed an error in reversing the conviction. We, therefore, allow this appeal, set aside the High Courts order and restore the order of conviction and sentence passed by the trial court. We cannot countenance the plea for reduction of his sentence. No order on his C.M.P10. So far as his sisters involvement is concerned, we think the evidence falls short of proof beyond reasonable doubt and, therefore, we see no reason to interfere with the High Courts orderBut counsel overlooks the fact that there is intrinsic evidence in the divorce deed that their marital life was unhappy and she apprehended blood shed as well as harm to the children even after they parted companyThis letter was written on 17th April, 1983 whereas the incident in question occurred on 7th June, 1983 i.e., more than 1½ months thereafter. The immediate cause for the extreme step taken by the deceased is clearly reflected in the two letters of 7th June, 1983. Therefore, the inference drawn by the learned counsel for the respondents from the letter of 17th April, 1983 cannot advance the defence set up by the accused persons. Iqbal Singh filed a written statement jointly with Kulwant Kaur wherein he stated that he had not helped his wife to secure a transfer as the family was having a good residence in the village and this was the real cause of quarrel between the two. The statement shows that the factum of quarrel between the husband and wife is not seriously disputed. The nature of correspondence he was carrying on with the Headmaster is not difficult to judge. He then states that he had purchased the plot in the name of his wife for Rs. 12,500 but he does not disclose the source from which the consideration for the plot came. He further states that his wife was earning Rs. 900 per month and therefore, he could never have entertained an intention to push her to committing suicide. It would, therefore, appear from the evidence placed on record that the relations between the deceased and Iqbal Singh were strained because of the latters demand for extra dowry and they worsened to such an extent that the deceased decided to put an end to her life.The trial court rendered its judgment on 23rd February, 1984 and it does not appear if the prosecution concentrated on section 113A, Evidence Act, for otherwise it would have tried to place, on record the exact date of marriage to take advantage of the presumption arising thereunder. The High Court referred to this provision but did not say anything in regard to its application. Being a rule of evidence it could perhaps have been invoked if proof regarding the exact date of marriage was laid. Since there is no cogent evidence that the marriage was solemnised within seven years from the date of incident we need not dilate on that pointIn the present case the facts clearly reveal from the divorce deed Exh. D-2 that the relations between the husband and the wife were strained even in 1977. There is intrinsic evidence in that document that the wife apprehended blood shed and harm to her children. Before the execu-tion of this document she had sought police protection by her application/letter dated 12th October, 1977. Then in April, 1983 her efforts to secure a transfer from the school where she was harassed by the Head Master were frustrated by her husband. Her husband had kept up the pressure for extra-dowry since her marriage and had stepped it up after the demise of her father on learning that her mother had received the G P. Fund, Gratuity, etc., due to her father. Since she and her mother and brother were not able to meet this demand she was subjected to considerable torture. Added to that was the anxiety caused by her husbands conduct at trying to frustrate her efforts to seek a transfer from the school where she was serving. The last straw on the camels back fell when she was severely beaten on the previous day i.e. 6th June, 1983, as is evident from her letter of 7th June, 1983. An atmosphere of terror was created to push her into taking the extreme step. It would seem it was a carefully chalked out strategy to provoke her into taking the extreme step to kill herself and her children as she apprehended that they will be much more misreable after she is dead and gone. In this fact-situation can it be said that the husband had not been responsible in creating circumstances which would provoke or force her into taking the only alternative left open to her, namely suicide? Can it be said that the husband did not realise where he was leading her by his willful conduct? We think in the peculiar facts and circumstances of the case, the trial court had rightly convicted the husband under section 306 I.P.C.
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Baranagore Jute Factory Plc. Mazdoor Sangh (Bms) Etc Vs. Baranagore Jute Factory Plc. Etc | compensation and to keep the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received. To quote the relevant background:"We have also looked into the details of utilisation of the refund as given in the schedule being Annexure L to the stay application filed before us, wherefrom it appears that Rs. 1,19,18,723/- was paid towards arrear electricity charges by three account payee cheques drawn on Axis Bank Ltd., particulars whereof have been given in the schedule. Another Rs. 2,23,00,000/- has been kept in fixed deposit as lien for issuance of bank guarantee favouring CESC Ltd., against the security deposit to be paid to CESC Ltd., for continuation of supply of electricity. This payment has been made by cheque dated 28th June, 2014 and also by transfer from Syndicate Bank on 28th June, 2014. A sum of Rs. 24,92,582/- has been paid towards arrear Central Sales Tax [Partial Payment]; Rs. 34,56,910/- towards Employees State Insurance contribution; Rs. 44,44,044/- towards Provident Fund contribution; Rs. 66,00,000/- towards arrear dues of Jute Corporation, a government body and Rs. 4,68,85,198/- towards arrear wages, arrear ex gratia payment, arrear gratuity and other arrear dues of the workmen."22. It is also seen from the order that the Division Bench had taken note of the paltry balance in the accounts of the company as on 27.06.2015. To quote:"We directed the company to furnish us with details of its bank operations. It appears that the company has about twelve bank accounts in operation in India and the combined balance in all these accounts taken together as on 27th June, 2015 was Rs. 13,96,188.79P. Our attention has been drawn by Mr. Mookherjee to the fact that there are three other bank accounts with combined balance of not more than Rs. 3,44,436/- which have not been used for over seven years and the company also has a bank account outside India that has a balance of 936 pounds [less than Rs. 1,00,000/- in value in Indian currency]."23. It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge. | 1[ds]6. It may specifically be noted that the Division Bench has not interfered with the Rule issued to the respondents in the proceedings initiated under The Contempt of Courts Act, 1971 (hereinafter referred to as the Act) for the alleged violation of the order dated 23.02.2011. The Division Bench only vacated the order regarding operation of the bank accounts of the company without securing the amount of rupees ten crores and odd.12. Thus, it may be noted that this Court declined to interfere with the order passed by the Division Bench of the High Court, which in turn refused the prayer for withdrawal of the deposit lying with the Court.As we have already clarified, the Division Bench, in the impugned order, has not interfered with the Rule issued in the contempt proceedings. The interference is only to the extent of direction to secure the TDS amount Rs. 10,55,60,331/-.Though Shri Shyam Divan, learned Senior Counsel invited our attention to the judgment of this Court in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others, (2014) 3 SCC 373 , and contended that the courts must not travel beyond the four corners of the order which is alleged to have been flouted,in the background which we have explained above, we find it difficult to appreciate the submission. This Court, in the judgment referred to above, in paragraph-19, has clarified that the directions which are explicit in the judgment or "are plainly self-evident" can be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Prima facie, we are of the view that learned Single Judge has taken note only of the plainly self-evident facts while issuing the Rule and order regarding securing the amounts which the respondents received by way of refund from the Income-Tax Department and utilized.18. It may be seen that the order dated 23.02.2011 regarding the deposit in court was passed to secure the entire compensation from the NHAI. The court was concerned about the money to be received from the NHAI towards the compensation and appropriately protecting the same from being used by the company. Even the respondents herein had "... no objection to money being protected...". The court had, in fact, declined the request made by the respondents ... "to receive the compensation and to keep the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received.It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge.26. We make it clear that any observations made by us are only for the purpose of this order and shall not have any bearing on the consideration by the learned Single Judge in the contempt proceedings. | 1 | 4,245 | 1,238 | ### 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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compensation and to keep the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received. To quote the relevant background:"We have also looked into the details of utilisation of the refund as given in the schedule being Annexure L to the stay application filed before us, wherefrom it appears that Rs. 1,19,18,723/- was paid towards arrear electricity charges by three account payee cheques drawn on Axis Bank Ltd., particulars whereof have been given in the schedule. Another Rs. 2,23,00,000/- has been kept in fixed deposit as lien for issuance of bank guarantee favouring CESC Ltd., against the security deposit to be paid to CESC Ltd., for continuation of supply of electricity. This payment has been made by cheque dated 28th June, 2014 and also by transfer from Syndicate Bank on 28th June, 2014. A sum of Rs. 24,92,582/- has been paid towards arrear Central Sales Tax [Partial Payment]; Rs. 34,56,910/- towards Employees State Insurance contribution; Rs. 44,44,044/- towards Provident Fund contribution; Rs. 66,00,000/- towards arrear dues of Jute Corporation, a government body and Rs. 4,68,85,198/- towards arrear wages, arrear ex gratia payment, arrear gratuity and other arrear dues of the workmen."22. It is also seen from the order that the Division Bench had taken note of the paltry balance in the accounts of the company as on 27.06.2015. To quote:"We directed the company to furnish us with details of its bank operations. It appears that the company has about twelve bank accounts in operation in India and the combined balance in all these accounts taken together as on 27th June, 2015 was Rs. 13,96,188.79P. Our attention has been drawn by Mr. Mookherjee to the fact that there are three other bank accounts with combined balance of not more than Rs. 3,44,436/- which have not been used for over seven years and the company also has a bank account outside India that has a balance of 936 pounds [less than Rs. 1,00,000/- in value in Indian currency]."23. It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge.
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not interfered with the Rule issued in the contempt proceedings. The interference is only to the extent of direction to secure the TDS amount Rs. 10,55,60,331/-.Though Shri Shyam Divan, learned Senior Counsel invited our attention to the judgment of this Court in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others, (2014) 3 SCC 373 , and contended that the courts must not travel beyond the four corners of the order which is alleged to have been flouted,in the background which we have explained above, we find it difficult to appreciate the submission. This Court, in the judgment referred to above, in paragraph-19, has clarified that the directions which are explicit in the judgment or "are plainly self-evident" can be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Prima facie, we are of the view that learned Single Judge has taken note only of the plainly self-evident facts while issuing the Rule and order regarding securing the amounts which the respondents received by way of refund from the Income-Tax Department and utilized.18. It may be seen that the order dated 23.02.2011 regarding the deposit in court was passed to secure the entire compensation from the NHAI. The court was concerned about the money to be received from the NHAI towards the compensation and appropriately protecting the same from being used by the company. Even the respondents herein had "... no objection to money being protected...". The court had, in fact, declined the request made by the respondents ... "to receive the compensation and to keep the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received.It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge.26. We make it clear that any observations made by us are only for the purpose of this order and shall not have any bearing on the consideration by the learned Single Judge in the contempt proceedings.
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Vikram Greentech (I) Ltd. Vs. New India Assurance Co. Ltd | proposal form is a commercial document and being an integral part of policy, reference to proposal form may not only be appropriate but rather essential. However, the surveyors report cannot be taken aid of nor can it furnish the basis for construction of a policy. Such outside aid for construction of insurance policy is impermissible. 17. That the insured submitted proposal to the Insurance Company for comprehensive floriculture insurance on January 18,1996 is not in dispute. The insured furnished particulars for the following components which were to be covered: "A)Polyhouse1234TotalValue of(Rs. in Crores)(1)Steel structure0.25(2)Fabrication0.15(3)Plastic Grippers0.10(4)Plastic & Fittings charges0.505)Cost of constr. For polyhouses, Gutters & other accessories0.251.25(B)Irrigation System (Capacities value and specifications for the following)In lakhs(1)Plasto make system15.00(2)Agricon Associates (Valves & Pipes)00.50(3)Fitting charges00.50(4)Reservoir04.00ELECTRIC MOTOR(1)Electric Motor, 15 HP 3 nos., 2 HP 20 Nos., 20 HP 1no. with pumps, pipes & valves.01.00(2)D.G. set, 2 nos., POWERICA (Kirloskar), 140 KVA & 1.25 KVA Transformer, Starters MCL -CTCL & others access04.0025.00(C)Details of flowers planted in Green house orOpen Cultivation:Green House Cultivation(i)No. of Green Houses:6 Polyhouses(ii)Area under Green Houses:2.8 hectares(iii)Area under Open Cultivation:No(D)Details of Flowers plants under cultivation(i)Total area under Floriculture:2.8 hectares(ii)Survey/Gat/Hissa No.:163, 158, 157, 156 148, 149, 147, 164(iii)Name of the flower plants:Dutch Roses under cultivation(iv)Variety:Vivaldi,Texas, Konfetti, First Red, Vanilla, Kiss, Tiamo, Lambada(v)No. of flowers:195500(vi)Distance between flower plants:14 cm.(vii)Expected date of harvest Input cost (From planting to first flowering i.e. 4 months):September 1995:Rs. 25 lacs(ix)Cost of saplings:Rs. 70 per plant(E)Cost of cultivation for flowers:25 lacs.(i)No of flowers:19,55,500.00(ii)Input cost from first flowering to harvest25 lacs.(iii)Area under Open Cultivation:No” 18. Based on the said proposal, the Insurance Company issued comprehensive floriculture insurance policy on January 23, 1996 The schedule attached to the said insurance policy is thus: `SCHEDULE Insured:M/s. VIKRAM GREENTECH (i) Ltd. Plot No. 99, Sector 24, Rigdi-Pradhikaran PUNE- 411 044 (Name and address) Policy No.:47/221200/00940 Insured at:Surat Proposal Date:18th January, 1996 Name of the Crop offered for insurance:Floriculture Period of Insurance:18/01/96 to 17/01/97 Address of the Site of the proposal to be Insured:Village : Sanghise, Near Kamshet Railway Station Tal.: Maval, District: PUNE Total sum Insured:Rs. 2 crore Total Premium:Rs. 2,20,000/- + 11,000/- (s.o.) INVENTORY OF THE PROPERTY INSURED (Section I & II) Description of the item with sum Insured DetailsRs.ExcessRs.RateRs.PremiumRs. IPOLYHOUSE: (a)Steel Structure25,00,000/- (b)Fabrication15,00,000/- (c)Gripper10,00,000/- (d)Plastic Fitting Charges50,00,000/- (e)Cutter (f)Plastic25,00,000/- 1,25,00,000/- IIIRRIGATION : A (a)Plasto Make System15,00,000/- (b)Agricon Associates (Valves & Pipes)50,000/- (c)Fitting Charges50,000/- (d)Reservoir4,00,000/- IIIELECTRIC MOTOR (a)Electric Motor HP (b)Starter-MCL-CICL1,00,000/- (c)Other Assessories, DG set 2 nos., and Transformers 4,00,000/- 19. That the aforesaid policy covered the insured for the loss and and/or damage caused by storm/hailstorm/cyclone over the insured area is not in dispute. The Insurance Company under the policy also agreed that the sum insured would be equal to the costs of placement of the insured property by new property of the same kind and same capacity; in other words replacement cost. 20. Although, Mr.Vijay Hansaria, learned senior counsel for the insured strenuously submitted that the Proposal Form did not specify the number of poly-houses and, therefore, all poly-houses including 7, 8A and 8B were covered under the policy as they were in existence at the time of calamity that occurred on May 23,1996 and June 18/19,1996, we are afraid, the submission of the senior counsel does not merit acceptance. Admittedly, at the time, the policy was taken ( i.e. proposal made on January 18,1996 and insurance policy issued on January 23,1996), poly-houses 1 to 6 were in existence and poly-houses 7, 8A and 8B were not in existence. These poly-houses (7, 8A and 8B) were completed in March 1996. Moreover it is not correct to say that the Proposal Form does not specify the number of poly-houses. It does. It clearly mentions six poly-houses. It is true that six poly-houses are mentioned in Clause(C) of the Proposal Form which is with regard to green house cultivation but what is mentioned in respect of poly-houses in Clause(C) is necessarily referable to the number of poly-houses in Clause(A) of the Proposal Form as well.21. The learned senior counsel for the insured submitted that the entire material for poly-houses 7, 8A and 8B had already been received at the time of making proposal and issuance of insurance policy and the intention was also to cover the material lying at the site for erection of poly-houses. In this regard, the learned senior counsel sought to refer to the correspondence between the parties and the Surveyors reports dated October 24,1996 and October 28,1996. He would submit that cost of six constructed poly-houses on the date of making proposal was around Rs.65-70 lakhs and for the insurance cover of these six poly-houses, the insured would not have valued their cost at Rs.1.25 crores and paid premium of Rs.2,31,000/-. 22. A careful consideration of the Proposal Form that sets out the particulars of the components which were to be covered and the inventory of the property insured (Sections I and II), mentioned in the policy leaves no manner of doubt that what was insured was existing poly-houses on the date of the issuance of policy. It is clear from the proposal and the policy. The two documents admit of no ambiguity and it is clear that six poly-houses covering an area of 2.8 hectares was covered by the policy. It may be mentioned that Clauses (C)(ii), (D)(i) and (ii) of the Proposal Form mentions Survey/Gat/Hissa no.163, 158,157,156,148,149,147 and 164 and total area 2.6 hectares. It is on this area that six poly-houses were existing on the date the proposal was made and policy issued. These six poly- houses were only covered by the policy. 23. The National Commission concluded thus: " ..... we are unable to accept the contention of the complainant that only houses 7,8A or 8B were covered under the Insurance Policy in question especially when admittedly, they were non-existent on the date, the policy was taken and policy clearly mentioned the number of poly houses as "Six". In our view the complainant has failed to prove a case based on the material on record......" | 0[ds]19. That the aforesaid policy covered the insured for the loss and and/or damage caused by storm/hailstorm/cyclone over the insured area is not in dispute. The Insurance Company under the policy also agreed that the sum insured would be equal to the costs of placement of the insured property by new property of the same kind and same capacity; in other words replacement cost.Although, Mr.Vijay Hansaria, learned senior counsel for the insured strenuously submitted that the Proposal Form did not specify the number ofand, therefore, allincluding 7, 8A and 8B were covered under the policy as they were in existence at the time of calamity that occurred on May 23,1996 and June 18/19,1996, we are afraid, the submission of the senior counsel does not merit acceptance. Admittedly, at the time, the policy was taken ( i.e. proposal made on January 18,1996 and insurance policy issued on January 23,1996),1 to 6 were in existence and7, 8A and 8B were not in existence. These(7, 8A and 8B) were completed in March 1996. Moreover it is not correct to say that the Proposal Form does not specify the number ofIt does. It clearly mentions sixIt is true that sixare mentioned in Clause(C) of the Proposal Form which is with regard to green house cultivation but what is mentioned in respect ofin Clause(C) is necessarily referable to the number ofin Clause(A) of the Proposal Form as well.A careful consideration of the Proposal Form that sets out the particulars of the components which were to be covered and the inventory of the property insured (Sections I and II), mentioned in the policy leaves no manner of doubt that what was insured was existingon the date of the issuance of policy. It is clear from the proposal and the policy. The two documents admit of no ambiguity and it is clear that sixcovering an area of 2.8 hectares was covered by the policy. It may be mentioned that Clauses (C)(ii), (D)(i) and (ii) of the Proposal Form mentions Survey/Gat/Hissa no.163, 158,157,156,148,149,147 and 164 and total area 2.6 hectares. It is on this area that sixwere existing on the date the proposal was made and policy issued. These six polyhouses were only covered by the policy. | 0 | 2,774 | 429 | ### 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:
proposal form is a commercial document and being an integral part of policy, reference to proposal form may not only be appropriate but rather essential. However, the surveyors report cannot be taken aid of nor can it furnish the basis for construction of a policy. Such outside aid for construction of insurance policy is impermissible. 17. That the insured submitted proposal to the Insurance Company for comprehensive floriculture insurance on January 18,1996 is not in dispute. The insured furnished particulars for the following components which were to be covered: "A)Polyhouse1234TotalValue of(Rs. in Crores)(1)Steel structure0.25(2)Fabrication0.15(3)Plastic Grippers0.10(4)Plastic & Fittings charges0.505)Cost of constr. For polyhouses, Gutters & other accessories0.251.25(B)Irrigation System (Capacities value and specifications for the following)In lakhs(1)Plasto make system15.00(2)Agricon Associates (Valves & Pipes)00.50(3)Fitting charges00.50(4)Reservoir04.00ELECTRIC MOTOR(1)Electric Motor, 15 HP 3 nos., 2 HP 20 Nos., 20 HP 1no. with pumps, pipes & valves.01.00(2)D.G. set, 2 nos., POWERICA (Kirloskar), 140 KVA & 1.25 KVA Transformer, Starters MCL -CTCL & others access04.0025.00(C)Details of flowers planted in Green house orOpen Cultivation:Green House Cultivation(i)No. of Green Houses:6 Polyhouses(ii)Area under Green Houses:2.8 hectares(iii)Area under Open Cultivation:No(D)Details of Flowers plants under cultivation(i)Total area under Floriculture:2.8 hectares(ii)Survey/Gat/Hissa No.:163, 158, 157, 156 148, 149, 147, 164(iii)Name of the flower plants:Dutch Roses under cultivation(iv)Variety:Vivaldi,Texas, Konfetti, First Red, Vanilla, Kiss, Tiamo, Lambada(v)No. of flowers:195500(vi)Distance between flower plants:14 cm.(vii)Expected date of harvest Input cost (From planting to first flowering i.e. 4 months):September 1995:Rs. 25 lacs(ix)Cost of saplings:Rs. 70 per plant(E)Cost of cultivation for flowers:25 lacs.(i)No of flowers:19,55,500.00(ii)Input cost from first flowering to harvest25 lacs.(iii)Area under Open Cultivation:No” 18. Based on the said proposal, the Insurance Company issued comprehensive floriculture insurance policy on January 23, 1996 The schedule attached to the said insurance policy is thus: `SCHEDULE Insured:M/s. VIKRAM GREENTECH (i) Ltd. Plot No. 99, Sector 24, Rigdi-Pradhikaran PUNE- 411 044 (Name and address) Policy No.:47/221200/00940 Insured at:Surat Proposal Date:18th January, 1996 Name of the Crop offered for insurance:Floriculture Period of Insurance:18/01/96 to 17/01/97 Address of the Site of the proposal to be Insured:Village : Sanghise, Near Kamshet Railway Station Tal.: Maval, District: PUNE Total sum Insured:Rs. 2 crore Total Premium:Rs. 2,20,000/- + 11,000/- (s.o.) INVENTORY OF THE PROPERTY INSURED (Section I & II) Description of the item with sum Insured DetailsRs.ExcessRs.RateRs.PremiumRs. IPOLYHOUSE: (a)Steel Structure25,00,000/- (b)Fabrication15,00,000/- (c)Gripper10,00,000/- (d)Plastic Fitting Charges50,00,000/- (e)Cutter (f)Plastic25,00,000/- 1,25,00,000/- IIIRRIGATION : A (a)Plasto Make System15,00,000/- (b)Agricon Associates (Valves & Pipes)50,000/- (c)Fitting Charges50,000/- (d)Reservoir4,00,000/- IIIELECTRIC MOTOR (a)Electric Motor HP (b)Starter-MCL-CICL1,00,000/- (c)Other Assessories, DG set 2 nos., and Transformers 4,00,000/- 19. That the aforesaid policy covered the insured for the loss and and/or damage caused by storm/hailstorm/cyclone over the insured area is not in dispute. The Insurance Company under the policy also agreed that the sum insured would be equal to the costs of placement of the insured property by new property of the same kind and same capacity; in other words replacement cost. 20. Although, Mr.Vijay Hansaria, learned senior counsel for the insured strenuously submitted that the Proposal Form did not specify the number of poly-houses and, therefore, all poly-houses including 7, 8A and 8B were covered under the policy as they were in existence at the time of calamity that occurred on May 23,1996 and June 18/19,1996, we are afraid, the submission of the senior counsel does not merit acceptance. Admittedly, at the time, the policy was taken ( i.e. proposal made on January 18,1996 and insurance policy issued on January 23,1996), poly-houses 1 to 6 were in existence and poly-houses 7, 8A and 8B were not in existence. These poly-houses (7, 8A and 8B) were completed in March 1996. Moreover it is not correct to say that the Proposal Form does not specify the number of poly-houses. It does. It clearly mentions six poly-houses. It is true that six poly-houses are mentioned in Clause(C) of the Proposal Form which is with regard to green house cultivation but what is mentioned in respect of poly-houses in Clause(C) is necessarily referable to the number of poly-houses in Clause(A) of the Proposal Form as well.21. The learned senior counsel for the insured submitted that the entire material for poly-houses 7, 8A and 8B had already been received at the time of making proposal and issuance of insurance policy and the intention was also to cover the material lying at the site for erection of poly-houses. In this regard, the learned senior counsel sought to refer to the correspondence between the parties and the Surveyors reports dated October 24,1996 and October 28,1996. He would submit that cost of six constructed poly-houses on the date of making proposal was around Rs.65-70 lakhs and for the insurance cover of these six poly-houses, the insured would not have valued their cost at Rs.1.25 crores and paid premium of Rs.2,31,000/-. 22. A careful consideration of the Proposal Form that sets out the particulars of the components which were to be covered and the inventory of the property insured (Sections I and II), mentioned in the policy leaves no manner of doubt that what was insured was existing poly-houses on the date of the issuance of policy. It is clear from the proposal and the policy. The two documents admit of no ambiguity and it is clear that six poly-houses covering an area of 2.8 hectares was covered by the policy. It may be mentioned that Clauses (C)(ii), (D)(i) and (ii) of the Proposal Form mentions Survey/Gat/Hissa no.163, 158,157,156,148,149,147 and 164 and total area 2.6 hectares. It is on this area that six poly-houses were existing on the date the proposal was made and policy issued. These six poly- houses were only covered by the policy. 23. The National Commission concluded thus: " ..... we are unable to accept the contention of the complainant that only houses 7,8A or 8B were covered under the Insurance Policy in question especially when admittedly, they were non-existent on the date, the policy was taken and policy clearly mentioned the number of poly houses as "Six". In our view the complainant has failed to prove a case based on the material on record......"
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### Explanation:
19. That the aforesaid policy covered the insured for the loss and and/or damage caused by storm/hailstorm/cyclone over the insured area is not in dispute. The Insurance Company under the policy also agreed that the sum insured would be equal to the costs of placement of the insured property by new property of the same kind and same capacity; in other words replacement cost.Although, Mr.Vijay Hansaria, learned senior counsel for the insured strenuously submitted that the Proposal Form did not specify the number ofand, therefore, allincluding 7, 8A and 8B were covered under the policy as they were in existence at the time of calamity that occurred on May 23,1996 and June 18/19,1996, we are afraid, the submission of the senior counsel does not merit acceptance. Admittedly, at the time, the policy was taken ( i.e. proposal made on January 18,1996 and insurance policy issued on January 23,1996),1 to 6 were in existence and7, 8A and 8B were not in existence. These(7, 8A and 8B) were completed in March 1996. Moreover it is not correct to say that the Proposal Form does not specify the number ofIt does. It clearly mentions sixIt is true that sixare mentioned in Clause(C) of the Proposal Form which is with regard to green house cultivation but what is mentioned in respect ofin Clause(C) is necessarily referable to the number ofin Clause(A) of the Proposal Form as well.A careful consideration of the Proposal Form that sets out the particulars of the components which were to be covered and the inventory of the property insured (Sections I and II), mentioned in the policy leaves no manner of doubt that what was insured was existingon the date of the issuance of policy. It is clear from the proposal and the policy. The two documents admit of no ambiguity and it is clear that sixcovering an area of 2.8 hectares was covered by the policy. It may be mentioned that Clauses (C)(ii), (D)(i) and (ii) of the Proposal Form mentions Survey/Gat/Hissa no.163, 158,157,156,148,149,147 and 164 and total area 2.6 hectares. It is on this area that sixwere existing on the date the proposal was made and policy issued. These six polyhouses were only covered by the policy.
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State Of Gujarat Vs. Ratansingh @ Chinubhai Anopsinh Chauhan | medical evidence on which strong reliance was placed by the learned counsel for the State, is of no help to arrive at the conclusion that guilt of the respondent stands proved beyond reasonable doubt. When the respondent was arrested on 19th August 2003 a Panchnama (Ex.14) was drawn. In that it is recorded that the accused had abrasions on chest, back and shoulder caused by nail and also that there was swelling on his penis and swelling on skin with abrasion. Immediately after his arrest, the respondent was sent for medical check up. As per the medical report (Ex.17) there were injuries on chest and back which is described by the doctor as linear abrasions. There were no foreign particles in his nails. The doctor also admitted in his cross-examination that he did not notice any injury on the penis of the accused. Therefore, this shows contradiction between the recording of medical condition in the Panchnama and the medical examination conducted by the doctor, in so far as they relate to the injury on the penis of the respondent. High Court has rightly observed that the Panchnama has recorded abrasions and therefore it could not have disappeared within such a short time. It reflects adversely on the prosecution case. As regards injuries found on chest and back of the respondent, they are tried to be shown as injuries caused with nail of the deceased. However, the post mortem note does not indicate presence of any traces of skin of the accused in nail of the deceased. Further, comments of the High Court in the impugned judgment about the medical evidence, pertinent for our purposes, are reproduced below as we entirely agree with the said analysis: “From the above discussion of evidence, it is clear that even according to doctor, there was no bleeding injury on penis of the accused. There was no bleeding injury to the deceased either. There were no internal injuries in the vagina of the deceased. Against this, if the results of vaginal swab are seen, presence of blood and semen is found. How this could have been found is a question which has remained unexplained and unanswered. This would cast heavy doubt about the reliability of investigation. That apart, the group has remained unidentified so far as vaginal swab is concerned.If evidence of Shakariben is seen and, even as per prosecution case, the incident occurred in the house of the accused and this is tried to be proved through deposition of Shakariben, who says that accused pushed the deceased into his house and, thereafter, she heard cry of the deceased and then sound of beating. As per the prosecution case, blood stains of the group of the deceased were found in the house of the accused at various places. No trace of semen was found in the house of the accused. But, surprisingly, at the place where the dead body was found, semen was found on the ground. That was of the group of the accused. If the incident occurred in the house, the traces of semen ought to have been found in the house and not at the place where the dead body was found. No motive is indicated for the accused to murder the deceased immediately after pushing her into the house and, if the rape or attempted rape was committed in the house followed by alleged murder, there would have been traces of semen in the house. These factors have remained unexplained and seem to have gone unnoticed by the trial court.” 18. The High Court has also expressed its doubts on recovery of grinding stone from the house of the respondent which was allegedly used for committing murder of the deceased. It is pointed out by the High Court that evidence suggests that the officer of the FSL was summoned on 19th August 2003 who inspected the place of incident and instructed the Inquiry Officer to recover the stone which was, accordingly, recovered. It is so stated in his report as well as in his deposition. Thus, as per the deposition of the officer of FSL, stone was recovered on 19th August 2003. As against this, as per discovery Panchnama drawn on 23rd August 2003 the said grinding stone was recovered from beneath steel cupboard at the instance of the respondent. How this recovery could have taken place if the stone had already been recovered on 19th August 2003. This casts doubt about the aforesaid documents and the discovery of stone itself.19. There is another aspect highlighted by the High Court which is very pertinent and cannot be ignored. After the incident when sniffer dog was brought to the site. The said dog had tracked to the house of PW16 and not the respondent. In fact, on this basis the son of PW 16 was even taken into custody by the police and was detained for 2 days. Thereafter, he was allowed to go inasmuch, as per the police he had not committed any offence. This version has come from the testimony of PW16 herself. On the other hand, I.O. has totally denied that son of PW16 was ever detained for 2 days. There is no such entry in the daily diary as well. From this evidence appearing on record, the High Court has concluded that investigation cannot be considered as honest inasmuch as it would indicate to two possibilities, namely: (1) The investigating officer did not detain or interrogate the son of PW16 for 2 days. If that is so he failed in his duty when the sniffer dog tracked to the house of PW16.(2) If I.O. had detained the son of PW16, then case diary does not record the events correctly and he is not telling the truth before the Court. That apart, it also speaks volumes about the reliability of the investigation and evidence collected, more so when no explanation is coming forward as to why the son of PW16 was released by the police and the respondent arrested. | 0[ds]13. Since it is a case of circumstantial evidence and the prosecution case starts with the theory of last seen, the first place is as to whether the prosecution has been able to conclusively and beyond reasonable doubt prove that the deceased was last seen in the company of the respondent. For this purpose, as already noted above, the prosecution has relied upon the testimonies of PW12,PW16,PW17 and PW18. The paramount question is as to whether testimonies of these witnesses is reliable. The High Court has found certain inherent contradictions in the depositions of the aforesaid witnesses on the basis of which it has come to the conclusion that it is difficult to accept their version, which is even contrary to each other about the details of the events. No doubt PW12, Sarojben was playing with the deceased and Parul on the grounds of the residence of the accused and when respondent reached the spot, he asked them to left. However, thereafter whether the deceased remained there and was not seen at all thereafter till her dead body was found , is a pertinent question. As per the prosecution version itself the deceased had left that place; elbeit at the asking of the respondent who had sent her to the market to purchase Vimal Gutka and she returned back to the respondent after purchasing the said Gutka, to hand it over to the deceased. Whether it is conclusively proved that she returned back to the respondent? Here, according to the High Court, there are various contradictions in the depositions of the witnesses. As per PW7, the shopkeeper from where the deceased had gone to purchase Gutka, the deceased had come to his shop on that date at about 3 p.m. She purchased eatable ( and not Gutka) for Rupee one and then she went away. During cross-examination, he stated that it had not happened that the victim had come to his shop to purchase Vimal Gutka. So according to him deceased had come to his shop to purchase some eatable. He also admitted that in his statement before the police on 19th August 2003, he had not stated that the deceased had come to his shop to purchase eatable. On specific question put to him in the cross-examination as to why he did not tell the police about thevisit to his shop to purchase eatable, he did not give any specific reply.14. As per PW16(Shakriben),who is the neighbour of the respondent, she had seen the three girls playing in the courtyard of the respondent. She further stated that the respondent drove away Parul and Saroj and then caught the victim and pushed her into his house. Thereafter she heard cries of the victim and then she heard sound of beating. She has further stated that she went into the house thereafter but was threatened by the respondent that if she talked to anyone in the town, he would kill her and her son. She has further stated that the accused had arrived at about 2.30 p.m. on the day of the incident and he was drunk. He tried to push open the rear door of the house. The witness said that mother of the accused, Divaliben had given the key of the house to her and, therefore, she gave the key to the accused. The witness has further stated that on the next day when mother of the victim was searching the victim, she told her that she had not seen the victim and she joined the search. During cross- examination, the witness has admitted that she had not stated in her statement before police that the accused had intimidated her. She says that she does not know whether the victim had gone to purchase Gutka packet. The distance between her house and the house of the accused is 25 to 30 feet. She says that she did not tell her husband or her son about the incident. She admits that she did not state before police that, at the time of the incident, she went into the house after washing clothes and sat in the house and, at that time, accused had intimidated her that, if she tells anyone in the village, he would kill her and her son. She admits that, on the day of incident as well as on the next day, when people were searching for the girl, she did not tell anyone about the incident.15. Apart from the aforesaid omissions on the part of PW16 and PW17 in not mentioning to the police when they gave their statements, immediately after the incident, the High Court has also analyzed their statements along with deposition of PW12 and found them to be inconsistent and self- contradictory in the followingdepositions of these three witnesses, the prosecution has tried to establish the circumstances of the accused having been seen in company of the deceased last. But scrutiny of this evidence leads us to negative this aspect. According to PW12- Saroj, she was playing with the victim and Parul. Accused arrived aroundclock and shouted(meaning young girls). Therefore, she and Parul ran away and the victim was left behind. She says that accused sent the victim to purchase a packet of Vimal. She also says that, thereafter, she went home and was doing lesson. She saw the victim going with a packet of Vimal to give it to the accused. Therefore, necessarily, if her say is taken at face value, then also the victim was seen going to the house of accused with a packet of Vimal and if she did factually reach there, at that point of time, neither Saroj nor Parul was present.Against the above situation emerging from deposition of Saroj, if deposition of Shakariben (Ex.49) is seen, she says that when Saroj, the victim and Parul were playing in the courtyard of the accused, the accused arrived and drove away Parul and Saroj and caught hold of the victim and pushed her into the house, whereafter she heard cry of the victim and then sound of beating, meaning thereby that when the deceased was taken into the house, that was the last point of time when she was seen in company of the accused and, at that point of time, both Saroj and Parul were present, which is just contrary to what Saroj says. Viewed from another angle, Shakariben does not speak of any even taking place before the victim was pushed into the house and thereafter the incident has occurred, as against the say of Saroj that the accused sent the victim to get a packet of Vimal. Necessarily, therefore, what Shakariben saw was not the last point of time when the victim and the accused were together. The victim was seen by Saroj at a later point of time and also by witness-Himatbhai. Parul has not been examined by the prosecution as a witness. Therefore, the evidence regarding the accused seen last in company of the deceased, as led by the prosecution, is inconsistent and self-contradictory.That apart, the conduct of PW16 seems to be unnatural and thus unworthy of reliance. The High Court has rightly observed that it does not inspire confidence for several reasons, namely:(1) though she claims to have the witness the accused pushing the victim into the house and then hearing her cry followed by sound of beating, she did not take any steps to rescue her.(2) She did not even tell about this incident to anyone, including her husband and son till 19th August 2003 when her statement was recorded.(3) Even in her statement to the police she has omitted to state the aforesaid purported facts.(4) On the next day of the incident, when the search for the victim was on, she still kept quite and did not disclose the incident to anybody. Strangely, she joins the group searching for the victim.(5) There is no explanation as to when and why the respondent could have intimidated her. As per the sequence of events narrated by her, the respondent came; she gave him the key of his house; the respondent went to his house and shouted at girls; the two other girls went away and respondent pushed the victim into house; and thereafter she (the witness went to her house). If these sequences are to be seen, there was no occasion for the accused to intimidate her.As far as evidence of PW12, Saroj is concerned, she stated that she had lastly seen the deceased going with packet of Vimal. She simply presumed that the victim was going to give the said packet to the accused. However, she did not see the deceased going with packet of Vimal Gutka to the respondent as she specifically stated that after seeing the deceased carrying the packet of Vimal she went home and started doing her lesson. There is no evidence to show that the deceased reached the house of the accused and met him. In fact, there is some contradiction even on the purchase of the item inasmuch as as per PW17 the deceased had purchased eatable whereas PW-12 says that she was carrying Vimal Gutka. PW17 has specifically said that the deceased had not purchased Vimal Gutka from him. From the aforesaid testimonies of Saroj Shakariben the High Court has also observed that from both the evidence taken together, prosecution story cannot be believed inasmuch as if the situation is examined from a different angle, if what Saroj says had happened, then what Shakariben says could not have happened, because according to Shakariben, on arrival, the accused shouted at the girls and drove away Parul and Saroj and pushed the deceased into the house and, if what Shakariben says is correct, what Saroj says could not have happened. The doubt assumes greater strength because of certain circumstances which would be discussed in the paragraphs to follow.Examined from any angle, the evidence led by the prosecution on last seen together aspect cannot be accepted. It is not only contradictory, inconsistent and improbable, but it also suffers from vice of improvements and, therefore, to us, it sounds unreliable. The case is founded on circumstantial evidence. This is one of the major circumstances pressed by the prosecution. We also find that the investigation is not carried out properly and does not inspire confidence. The evidence on last seen together aspect, therefore, cannot be accepted as a link in the chain of circumstances leading to exclusive hypothesis of guilt of the accused.We are in agreement with the aforesaid analysis of the evidence by the High Court and, therefore, hold that prosecution has not been able to establish, with clinching evidence that the deceased was seen lastly in the company of the accused.17. Even the medical evidence on which strong reliance was placed by the learned counsel for the State, is of no help to arrive at the conclusion that guilt of the respondent stands proved beyond reasonable doubt. When the respondent was arrested on 19th August 2003 a Panchnama (Ex.14) was drawn. In that it is recorded that the accused had abrasions on chest, back and shoulder caused by nail and also that there was swelling on his penis and swelling on skin with abrasion. Immediately after his arrest, the respondent was sent for medical check up. As per the medical report (Ex.17) there were injuries on chest and back which is described by the doctor as linear abrasions. There were no foreign particles in his nails. The doctor also admitted in his cross-examination that he did not notice any injury on the penis of the accused. Therefore, this shows contradiction between the recording of medical condition in the Panchnama and the medical examination conducted by the doctor, in so far as they relate to the injury on the penis of the respondent. High Court has rightly observed that the Panchnama has recorded abrasions and therefore it could not have disappeared within such a short time. It reflects adversely on the prosecution case. As regards injuries found on chest and back of the respondent, they are tried to be shown as injuries caused with nail of the deceased. However, the post mortem note does not indicate presence of any traces of skin of the accused in nail of the deceased. Further, comments of the High Court in the impugned judgment about the medical evidence, pertinent for our purposes, are reproduced below as we entirely agree with the saidthe above discussion of evidence, it is clear that even according to doctor, there was no bleeding injury on penis of the accused. There was no bleeding injury to the deceased either. There were no internal injuries in the vagina of the deceased. Against this, if the results of vaginal swab are seen, presence of blood and semen is found. How this could have been found is a question which has remained unexplained and unanswered. This would cast heavy doubt about the reliability of investigation. That apart, the group has remained unidentified so far as vaginal swab is concerned.If evidence of Shakariben is seen and, even as per prosecution case, the incident occurred in the house of the accused and this is tried to be proved through deposition of Shakariben, who says that accused pushed the deceased into his house and, thereafter, she heard cry of the deceased and then sound of beating. As per the prosecution case, blood stains of the group of the deceased were found in the house of the accused at various places. No trace of semen was found in the house of the accused. But, surprisingly, at the place where the dead body was found, semen was found on the ground. That was of the group of the accused. If the incident occurred in the house, the traces of semen ought to have been found in the house and not at the place where the dead body was found. No motive is indicated for the accused to murder the deceased immediately after pushing her into the house and, if the rape or attempted rape was committed in the house followed by alleged murder, there would have been traces of semen in the house. These factors have remained unexplained and seem to have gone unnoticed by the trial court.The High Court has also expressed its doubts on recovery of grinding stone from the house of the respondent which was allegedly used for committing murder of the deceased. It is pointed out by the High Court that evidence suggests that the officer of the FSL was summoned on 19th August 2003 who inspected the place of incident and instructed the Inquiry Officer to recover the stone which was, accordingly, recovered. It is so stated in his report as well as in his deposition. Thus, as per the deposition of the officer of FSL, stone was recovered on 19th August 2003. As against this, as per discovery Panchnama drawn on 23rd August 2003 the said grinding stone was recovered from beneath steel cupboard at the instance of the respondent. How this recovery could have taken place if the stone had already been recovered on 19th August 2003. This casts doubt about the aforesaid documents and the discovery of stone itself.19. There is another aspect highlighted by the High Court which is very pertinent and cannot be ignored. After the incident when sniffer dog was brought to the site. The said dog had tracked to the house of PW16 and not the respondent. In fact, on this basis the son of PW 16 was even taken into custody by the police and was detained for 2 days. Thereafter, he was allowed to go inasmuch, as per the police he had not committed any offence. This version has come from the testimony of PW16 herself. On the other hand, I.O. has totally denied that son of PW16 was ever detained for 2 days. There is no such entry in the daily diary as well. From this evidence appearing on record, the High Court has concluded that investigation cannot be considered as honest inasmuch as it would indicate to two possibilities,The investigating officer did not detain or interrogate the son of PW16 for 2 days. If that is so he failed in his duty when the sniffer dog tracked to the house of PW16.(2) If I.O. had detained the son of PW16, then case diary does not record the events correctly and he is not telling the truth before theapart, it also speaks volumes about the reliability of the investigation and evidence collected, more so when no explanation is coming forward as to why the son of PW16 was released by the police and the respondent arrested. | 0 | 5,485 | 3,070 | ### 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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medical evidence on which strong reliance was placed by the learned counsel for the State, is of no help to arrive at the conclusion that guilt of the respondent stands proved beyond reasonable doubt. When the respondent was arrested on 19th August 2003 a Panchnama (Ex.14) was drawn. In that it is recorded that the accused had abrasions on chest, back and shoulder caused by nail and also that there was swelling on his penis and swelling on skin with abrasion. Immediately after his arrest, the respondent was sent for medical check up. As per the medical report (Ex.17) there were injuries on chest and back which is described by the doctor as linear abrasions. There were no foreign particles in his nails. The doctor also admitted in his cross-examination that he did not notice any injury on the penis of the accused. Therefore, this shows contradiction between the recording of medical condition in the Panchnama and the medical examination conducted by the doctor, in so far as they relate to the injury on the penis of the respondent. High Court has rightly observed that the Panchnama has recorded abrasions and therefore it could not have disappeared within such a short time. It reflects adversely on the prosecution case. As regards injuries found on chest and back of the respondent, they are tried to be shown as injuries caused with nail of the deceased. However, the post mortem note does not indicate presence of any traces of skin of the accused in nail of the deceased. Further, comments of the High Court in the impugned judgment about the medical evidence, pertinent for our purposes, are reproduced below as we entirely agree with the said analysis: “From the above discussion of evidence, it is clear that even according to doctor, there was no bleeding injury on penis of the accused. There was no bleeding injury to the deceased either. There were no internal injuries in the vagina of the deceased. Against this, if the results of vaginal swab are seen, presence of blood and semen is found. How this could have been found is a question which has remained unexplained and unanswered. This would cast heavy doubt about the reliability of investigation. That apart, the group has remained unidentified so far as vaginal swab is concerned.If evidence of Shakariben is seen and, even as per prosecution case, the incident occurred in the house of the accused and this is tried to be proved through deposition of Shakariben, who says that accused pushed the deceased into his house and, thereafter, she heard cry of the deceased and then sound of beating. As per the prosecution case, blood stains of the group of the deceased were found in the house of the accused at various places. No trace of semen was found in the house of the accused. But, surprisingly, at the place where the dead body was found, semen was found on the ground. That was of the group of the accused. If the incident occurred in the house, the traces of semen ought to have been found in the house and not at the place where the dead body was found. No motive is indicated for the accused to murder the deceased immediately after pushing her into the house and, if the rape or attempted rape was committed in the house followed by alleged murder, there would have been traces of semen in the house. These factors have remained unexplained and seem to have gone unnoticed by the trial court.” 18. The High Court has also expressed its doubts on recovery of grinding stone from the house of the respondent which was allegedly used for committing murder of the deceased. It is pointed out by the High Court that evidence suggests that the officer of the FSL was summoned on 19th August 2003 who inspected the place of incident and instructed the Inquiry Officer to recover the stone which was, accordingly, recovered. It is so stated in his report as well as in his deposition. Thus, as per the deposition of the officer of FSL, stone was recovered on 19th August 2003. As against this, as per discovery Panchnama drawn on 23rd August 2003 the said grinding stone was recovered from beneath steel cupboard at the instance of the respondent. How this recovery could have taken place if the stone had already been recovered on 19th August 2003. This casts doubt about the aforesaid documents and the discovery of stone itself.19. There is another aspect highlighted by the High Court which is very pertinent and cannot be ignored. After the incident when sniffer dog was brought to the site. The said dog had tracked to the house of PW16 and not the respondent. In fact, on this basis the son of PW 16 was even taken into custody by the police and was detained for 2 days. Thereafter, he was allowed to go inasmuch, as per the police he had not committed any offence. This version has come from the testimony of PW16 herself. On the other hand, I.O. has totally denied that son of PW16 was ever detained for 2 days. There is no such entry in the daily diary as well. From this evidence appearing on record, the High Court has concluded that investigation cannot be considered as honest inasmuch as it would indicate to two possibilities, namely: (1) The investigating officer did not detain or interrogate the son of PW16 for 2 days. If that is so he failed in his duty when the sniffer dog tracked to the house of PW16.(2) If I.O. had detained the son of PW16, then case diary does not record the events correctly and he is not telling the truth before the Court. That apart, it also speaks volumes about the reliability of the investigation and evidence collected, more so when no explanation is coming forward as to why the son of PW16 was released by the police and the respondent arrested.
### Response:
0
### Explanation:
was seen lastly in the company of the accused.17. Even the medical evidence on which strong reliance was placed by the learned counsel for the State, is of no help to arrive at the conclusion that guilt of the respondent stands proved beyond reasonable doubt. When the respondent was arrested on 19th August 2003 a Panchnama (Ex.14) was drawn. In that it is recorded that the accused had abrasions on chest, back and shoulder caused by nail and also that there was swelling on his penis and swelling on skin with abrasion. Immediately after his arrest, the respondent was sent for medical check up. As per the medical report (Ex.17) there were injuries on chest and back which is described by the doctor as linear abrasions. There were no foreign particles in his nails. The doctor also admitted in his cross-examination that he did not notice any injury on the penis of the accused. Therefore, this shows contradiction between the recording of medical condition in the Panchnama and the medical examination conducted by the doctor, in so far as they relate to the injury on the penis of the respondent. High Court has rightly observed that the Panchnama has recorded abrasions and therefore it could not have disappeared within such a short time. It reflects adversely on the prosecution case. As regards injuries found on chest and back of the respondent, they are tried to be shown as injuries caused with nail of the deceased. However, the post mortem note does not indicate presence of any traces of skin of the accused in nail of the deceased. Further, comments of the High Court in the impugned judgment about the medical evidence, pertinent for our purposes, are reproduced below as we entirely agree with the saidthe above discussion of evidence, it is clear that even according to doctor, there was no bleeding injury on penis of the accused. There was no bleeding injury to the deceased either. There were no internal injuries in the vagina of the deceased. Against this, if the results of vaginal swab are seen, presence of blood and semen is found. How this could have been found is a question which has remained unexplained and unanswered. This would cast heavy doubt about the reliability of investigation. That apart, the group has remained unidentified so far as vaginal swab is concerned.If evidence of Shakariben is seen and, even as per prosecution case, the incident occurred in the house of the accused and this is tried to be proved through deposition of Shakariben, who says that accused pushed the deceased into his house and, thereafter, she heard cry of the deceased and then sound of beating. As per the prosecution case, blood stains of the group of the deceased were found in the house of the accused at various places. No trace of semen was found in the house of the accused. But, surprisingly, at the place where the dead body was found, semen was found on the ground. That was of the group of the accused. If the incident occurred in the house, the traces of semen ought to have been found in the house and not at the place where the dead body was found. No motive is indicated for the accused to murder the deceased immediately after pushing her into the house and, if the rape or attempted rape was committed in the house followed by alleged murder, there would have been traces of semen in the house. These factors have remained unexplained and seem to have gone unnoticed by the trial court.The High Court has also expressed its doubts on recovery of grinding stone from the house of the respondent which was allegedly used for committing murder of the deceased. It is pointed out by the High Court that evidence suggests that the officer of the FSL was summoned on 19th August 2003 who inspected the place of incident and instructed the Inquiry Officer to recover the stone which was, accordingly, recovered. It is so stated in his report as well as in his deposition. Thus, as per the deposition of the officer of FSL, stone was recovered on 19th August 2003. As against this, as per discovery Panchnama drawn on 23rd August 2003 the said grinding stone was recovered from beneath steel cupboard at the instance of the respondent. How this recovery could have taken place if the stone had already been recovered on 19th August 2003. This casts doubt about the aforesaid documents and the discovery of stone itself.19. There is another aspect highlighted by the High Court which is very pertinent and cannot be ignored. After the incident when sniffer dog was brought to the site. The said dog had tracked to the house of PW16 and not the respondent. In fact, on this basis the son of PW 16 was even taken into custody by the police and was detained for 2 days. Thereafter, he was allowed to go inasmuch, as per the police he had not committed any offence. This version has come from the testimony of PW16 herself. On the other hand, I.O. has totally denied that son of PW16 was ever detained for 2 days. There is no such entry in the daily diary as well. From this evidence appearing on record, the High Court has concluded that investigation cannot be considered as honest inasmuch as it would indicate to two possibilities,The investigating officer did not detain or interrogate the son of PW16 for 2 days. If that is so he failed in his duty when the sniffer dog tracked to the house of PW16.(2) If I.O. had detained the son of PW16, then case diary does not record the events correctly and he is not telling the truth before theapart, it also speaks volumes about the reliability of the investigation and evidence collected, more so when no explanation is coming forward as to why the son of PW16 was released by the police and the respondent arrested.
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Harendra Narain Singh Etc Vs. State Of Bihar | Jagia, the deceased was brought to the dispensary of Dr. Harendra Narain Singh while she was alive. There is further no evidence as to who brought her to the dispensary in what condition. The only evidence which the prosecution has produced in this respect is that a dead body was taken out from the dispensary of Dr. Harendra Narain Singh and placed on the ekka by Ram Nath Singh and others and taken to village Dibbi 10. The High Court was conscious of the weakness of the prosecution case, even then it upheld the conviction of the appellant perhaps on moral grounds. In para 3 of its judgment the High Court observed "Although 14 witnesses have been examined on behalf of the prosecution there is no direct evidence or eye-witness account of murder. The witnesses however are not all relevant even for proving the circumstances and other collateral matters." * 11. After making the aforesaid observations ordinarily the High Court should have rejected the prosecution case which was based on circumstantial evidence but strangely enough the High Court in spite of the aforesaid observations, upheld the conviction of the appellants 12. While dealing with the case of Dr. Harendra Narain Singh the High Court observed that he was a man of shaky character. This observation was made on the basis that even though he was a homeopath doctor but allopathic medicines were recovered from his dispensary. In our opinion, mere recovery of allopathic medicines from the dispensary of Dr. Harendra Narain Singh does not necessarily show that he was a man of shaky character. It is a matter of common knowledge that even a homeopathic doctor sometimes refers the patients to allopathic treatment. The fact of recovery of allopathic medicines has no connection or relation to the commission of the offence for which Dr. Harendra Narain Singh has been convicted. The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr. Harendra Narain Singh was present at the spot, therefore he was so closely connected with the affairs taking place at his house that none could without his assistance to anything. Apart from his there was no other evidence or circumstances against Dr. Harendra Narain Singh. It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispensary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr. Harendra Narain Singh yet they have been acquitted by the High Court. The High Court failed to give any cogent reason for upholding the conviction of Dr. Harendra Narain Singh13. We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case. In our opinion, there are two glaring circumstances which are fatal to the prosecution case. The prosecution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi. The prosecution witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi. None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same. In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi. In the absence of identification of dead body by the witnesses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that the Jagia Devi. There is another vital defect in the prosecution case. The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admitted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive. In the absence of any such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by someone. There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants. In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh. Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecution case. The prosecution has to succeed on the basis of its own evidence and it cannot rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants. The circumstances established by the prosecution are not sufficient to conclusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence. Since the prosecution failed to prove the necessary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellants conviction merely on the appellants false explanation in defence14. In view of the above discussion, we are of the opinion that the High Court and the trial court both committed error in convicting the appellants. | 1[ds]Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the court in considering the conviction of an accused resting on circumstantial evidence. It is a cardinal principle of criminal jurisprudence that circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of innocence of theour opinion, mere recovery of allopathic medicines from the dispensary of Dr. Harendra Narain Singh does not necessarily show that he was a man of shaky character. It is a matter of common knowledge that even a homeopathic doctor sometimes refers the patients to allopathic treatment. The fact of recovery of allopathic medicines has no connection or relation to the commission of the offence for which Dr. Harendra Narain Singh has been convicted. The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr. Harendra Narain Singh was present at the spot, therefore he was so closely connected with the affairs taking place at his house that none could without his assistance to anything. Apart from his there was no other evidence or circumstances against Dr. Harendra Narain Singh. It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispensary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr. Harendra Narain Singh yet they have been acquitted by the High Court. The High Court failed to give any cogent reason for upholding the conviction of Dr. Harendra Narain Singh13. We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case. In our opinion, there are two glaring circumstances which are fatal to the prosecution case. The prosecution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi. The prosecution witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi. None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same. In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi. In the absence of identification of dead body by the witnesses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that the Jagia Devi. There is another vital defect in the prosecution case. The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admitted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive. In the absence of any such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by someone. There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants. In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh. Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecution case. The prosecution has to succeed on the basis of its own evidence and it cannot rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants. The circumstances established by the prosecution are not sufficient to conclusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence. Since the prosecution failed to prove the necessary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellants conviction merely on the appellants false explanation inIn view of the above discussion, we are of the opinion that the High Court and the trial court both committed error in convicting the appellants. | 1 | 3,507 | 888 | ### 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:
Jagia, the deceased was brought to the dispensary of Dr. Harendra Narain Singh while she was alive. There is further no evidence as to who brought her to the dispensary in what condition. The only evidence which the prosecution has produced in this respect is that a dead body was taken out from the dispensary of Dr. Harendra Narain Singh and placed on the ekka by Ram Nath Singh and others and taken to village Dibbi 10. The High Court was conscious of the weakness of the prosecution case, even then it upheld the conviction of the appellant perhaps on moral grounds. In para 3 of its judgment the High Court observed "Although 14 witnesses have been examined on behalf of the prosecution there is no direct evidence or eye-witness account of murder. The witnesses however are not all relevant even for proving the circumstances and other collateral matters." * 11. After making the aforesaid observations ordinarily the High Court should have rejected the prosecution case which was based on circumstantial evidence but strangely enough the High Court in spite of the aforesaid observations, upheld the conviction of the appellants 12. While dealing with the case of Dr. Harendra Narain Singh the High Court observed that he was a man of shaky character. This observation was made on the basis that even though he was a homeopath doctor but allopathic medicines were recovered from his dispensary. In our opinion, mere recovery of allopathic medicines from the dispensary of Dr. Harendra Narain Singh does not necessarily show that he was a man of shaky character. It is a matter of common knowledge that even a homeopathic doctor sometimes refers the patients to allopathic treatment. The fact of recovery of allopathic medicines has no connection or relation to the commission of the offence for which Dr. Harendra Narain Singh has been convicted. The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr. Harendra Narain Singh was present at the spot, therefore he was so closely connected with the affairs taking place at his house that none could without his assistance to anything. Apart from his there was no other evidence or circumstances against Dr. Harendra Narain Singh. It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispensary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr. Harendra Narain Singh yet they have been acquitted by the High Court. The High Court failed to give any cogent reason for upholding the conviction of Dr. Harendra Narain Singh13. We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case. In our opinion, there are two glaring circumstances which are fatal to the prosecution case. The prosecution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi. The prosecution witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi. None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same. In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi. In the absence of identification of dead body by the witnesses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that the Jagia Devi. There is another vital defect in the prosecution case. The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admitted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive. In the absence of any such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by someone. There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants. In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh. Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecution case. The prosecution has to succeed on the basis of its own evidence and it cannot rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants. The circumstances established by the prosecution are not sufficient to conclusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence. Since the prosecution failed to prove the necessary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellants conviction merely on the appellants false explanation in defence14. In view of the above discussion, we are of the opinion that the High Court and the trial court both committed error in convicting the appellants.
### Response:
1
### Explanation:
Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the court in considering the conviction of an accused resting on circumstantial evidence. It is a cardinal principle of criminal jurisprudence that circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of innocence of theour opinion, mere recovery of allopathic medicines from the dispensary of Dr. Harendra Narain Singh does not necessarily show that he was a man of shaky character. It is a matter of common knowledge that even a homeopathic doctor sometimes refers the patients to allopathic treatment. The fact of recovery of allopathic medicines has no connection or relation to the commission of the offence for which Dr. Harendra Narain Singh has been convicted. The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr. Harendra Narain Singh was present at the spot, therefore he was so closely connected with the affairs taking place at his house that none could without his assistance to anything. Apart from his there was no other evidence or circumstances against Dr. Harendra Narain Singh. It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispensary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr. Harendra Narain Singh yet they have been acquitted by the High Court. The High Court failed to give any cogent reason for upholding the conviction of Dr. Harendra Narain Singh13. We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case. In our opinion, there are two glaring circumstances which are fatal to the prosecution case. The prosecution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi. The prosecution witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi. None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same. In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi. In the absence of identification of dead body by the witnesses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that the Jagia Devi. There is another vital defect in the prosecution case. The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admitted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive. In the absence of any such evidence there are various possibilities and probabilities, one of them being that the deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by someone. There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants. In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh. Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecution case. The prosecution has to succeed on the basis of its own evidence and it cannot rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants. The circumstances established by the prosecution are not sufficient to conclusively point to the appellants as the perpetrator of the crime or to rule out the hypothesis of their innocence. Since the prosecution failed to prove the necessary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellants conviction merely on the appellants false explanation inIn view of the above discussion, we are of the opinion that the High Court and the trial court both committed error in convicting the appellants.
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Ram Rattan Vs. State of Punjab | Untwalia, J.1. The appellant in this appeal has been convicted under Section 9(a) of the Opium Act and has been sentenced to undergo R.I. for two years and to pay a fine of Rs. 2000, in default some more imprisonment. By special leave, he has filed this appeal.2. A raid was conducted on the premises bearing No. F 16, Saraf Nagar, Ludhiana. The prosecution case is that six packets containing 48 1/2 kilograms of opium were recovered from the store-room of the house. The recovery made in the raid is not challenged. What was argued on behalf of the appellant and reiterated before us was that the prosecution has not proved that the appellant was in conscious possession of the opium recovered from the house. The raid was conducted when the appellant was not there in the house. The only person present then was Janardhan Shankar, PW 1. According to his evidence, the appellant had gone to Vaishno Devi five or six days before the raid and he was not present in the house when the recovery was made. According to his evidence, the appellant was the tenant of the house. But other witnesses did not support him on this point. According to the evidence of the landlord PW 6 the appellant was not the tenant. PW 6 was allowed to be cross-examined by the State counsel, as, apparently there was some contradiction in his testimony before the Court and his statement before the police. Even so his evidence in court, as it is, does not support the prosecution allegation that the appellant was a tenant of the house. On the other hand, according to PW 6, the house at the time of its construction was let out by his servant Som Nath to a tenant. Som Nath was examined as DW 2. According to his evidence, the house was let out to one Bawa Ram. This Bawa Ram is the uncle of the appellant. There are some materials in the records of this case to cause suspicion against the appellant that probably he was aware of the nefarious activities which were going on in this house by storing such huge quantity of opium. But then on mere suspicion no conviction could be maintained. There is nothing to indicate that the quantity of opium recovered from the house was in the conscious possession of the appellant or that even the house was recovered when the appellant was not present even in the vicinity of the house much less in the house itself.3. We are, therefore, of the opinion that the High Court committed an error of law in maintaining the conviction of the appellant. He deserves to be acquitted. | 1[ds]There are some materials in the records of this case to cause suspicion against the appellant that probably he was aware of the nefarious activities which were going on in this house by storing such huge quantity of opium. But then on mere suspicion no conviction could be maintained. There is nothing to indicate that the quantity of opium recovered from the house was in the conscious possession of the appellant or that even the house was recovered when the appellant was not present even in the vicinity of the house much less in the house itself.We are, therefore, of the opinion that the High Court committed an error of law in maintaining the conviction of the appellant. He deserves to be acquitted. | 1 | 495 | 133 | ### 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:
Untwalia, J.1. The appellant in this appeal has been convicted under Section 9(a) of the Opium Act and has been sentenced to undergo R.I. for two years and to pay a fine of Rs. 2000, in default some more imprisonment. By special leave, he has filed this appeal.2. A raid was conducted on the premises bearing No. F 16, Saraf Nagar, Ludhiana. The prosecution case is that six packets containing 48 1/2 kilograms of opium were recovered from the store-room of the house. The recovery made in the raid is not challenged. What was argued on behalf of the appellant and reiterated before us was that the prosecution has not proved that the appellant was in conscious possession of the opium recovered from the house. The raid was conducted when the appellant was not there in the house. The only person present then was Janardhan Shankar, PW 1. According to his evidence, the appellant had gone to Vaishno Devi five or six days before the raid and he was not present in the house when the recovery was made. According to his evidence, the appellant was the tenant of the house. But other witnesses did not support him on this point. According to the evidence of the landlord PW 6 the appellant was not the tenant. PW 6 was allowed to be cross-examined by the State counsel, as, apparently there was some contradiction in his testimony before the Court and his statement before the police. Even so his evidence in court, as it is, does not support the prosecution allegation that the appellant was a tenant of the house. On the other hand, according to PW 6, the house at the time of its construction was let out by his servant Som Nath to a tenant. Som Nath was examined as DW 2. According to his evidence, the house was let out to one Bawa Ram. This Bawa Ram is the uncle of the appellant. There are some materials in the records of this case to cause suspicion against the appellant that probably he was aware of the nefarious activities which were going on in this house by storing such huge quantity of opium. But then on mere suspicion no conviction could be maintained. There is nothing to indicate that the quantity of opium recovered from the house was in the conscious possession of the appellant or that even the house was recovered when the appellant was not present even in the vicinity of the house much less in the house itself.3. We are, therefore, of the opinion that the High Court committed an error of law in maintaining the conviction of the appellant. He deserves to be acquitted.
### Response:
1
### Explanation:
There are some materials in the records of this case to cause suspicion against the appellant that probably he was aware of the nefarious activities which were going on in this house by storing such huge quantity of opium. But then on mere suspicion no conviction could be maintained. There is nothing to indicate that the quantity of opium recovered from the house was in the conscious possession of the appellant or that even the house was recovered when the appellant was not present even in the vicinity of the house much less in the house itself.We are, therefore, of the opinion that the High Court committed an error of law in maintaining the conviction of the appellant. He deserves to be acquitted.
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Sahu Minerals & Properties Ltd Vs. Presiding Officer, Labour Court & Ors | to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellants construction is accepted it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workmans application. The claim under Section 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may in some cases have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution(1)". We must accordingly hold that Section 33-C (2) takes within its purview cases of work men who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-section (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-section (2). On the other hand sub-section (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-section (2)."(1) Maxwell on Interpretation of Statutes, p. 350.Furtheron this Court observed:"It is thus clear that claim made under Section 33-C (1), by itself can be only claim referable to the settlement, award, or the relevant provisions of Chapter V-A. These words of limitations are not to be found in Section 33-C (2) and to that extent, the scope of S. 33-C (2) is undoubtedly wider than that of Section 33-C (1) ........... It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under Section 33-C (2). There is no doubt that the three categories of claims mentioned in Section 33 C (1) fall under Section 33 C (2) and in that sense. Section 33-C (2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V-A, may also be competent under Section 33-C (2) and that may illustrate its wider scope."This Court then went on to discuss some of the claims which would not fall under Section 33-C (2) which is not very relevant for the purposes of this case. The present case stands on an even stronger footing. Even the employer does not dispute that the workmen are entitled to compensation. It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim. The claim also falls under Chapter V-A.5. In the decision in South Arcot Elect. Co. v. N. K. Khan, (1969) 2 SCR 902 where a right had been claimed by the various workmen in their applications under Section 33-C (2), it was held that it was a right which accrued to them under Section 25-FF at the Act and was an existing right at the time when these applications were made, that the Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision, and that the mere denial of that right by the company could not take away its jurisdiction.6. We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub-section (1) it of Section 25-FFF was attracted on closure of the establishment. The question even according to the employer falls under Section 25-FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.7. We do not consider that the reference to Item No. 10 of the Third Schedule to the Act can decide the matter one way or the other. The item reads as follows:"10. Retrenchment of workmen and closure of establishment."It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal. Logically if the contention is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was no closure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of their services and ask for compensation. The only dispute is about the compensation whether it is to be paid under Sections 25-F or 25-FFF. Item 10 of Third Schedule will not cover such a case. | 0[ds]We, therefore, do not see how the decision in the U. P. Electric Companys case (supra) can come to the aid of the appellant in this case. The said case is clearly distinguishable on the peculiar facts as noticed above.We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub-section (1) it of Section 25-FFF was attracted on closure of the establishment. The question even according to the employer falls under Section 25-FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.7. We do not consider that the reference to Item No. 10 of the Third Schedule to the Act can decide the matter one way or thedoes not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal. Logically if the contention is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was no closure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of their services and ask for compensation. The only dispute is about the compensation whether it is to be paid under Sections 25-F or 25-FFF. Item 10 of Third Schedule will not cover such a case. | 0 | 2,203 | 364 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellants construction is accepted it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workmans application. The claim under Section 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may in some cases have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-section (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution(1)". We must accordingly hold that Section 33-C (2) takes within its purview cases of work men who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-section (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-section (2). On the other hand sub-section (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-section (2)."(1) Maxwell on Interpretation of Statutes, p. 350.Furtheron this Court observed:"It is thus clear that claim made under Section 33-C (1), by itself can be only claim referable to the settlement, award, or the relevant provisions of Chapter V-A. These words of limitations are not to be found in Section 33-C (2) and to that extent, the scope of S. 33-C (2) is undoubtedly wider than that of Section 33-C (1) ........... It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under Section 33-C (2). There is no doubt that the three categories of claims mentioned in Section 33 C (1) fall under Section 33 C (2) and in that sense. Section 33-C (2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V-A, may also be competent under Section 33-C (2) and that may illustrate its wider scope."This Court then went on to discuss some of the claims which would not fall under Section 33-C (2) which is not very relevant for the purposes of this case. The present case stands on an even stronger footing. Even the employer does not dispute that the workmen are entitled to compensation. It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim. The claim also falls under Chapter V-A.5. In the decision in South Arcot Elect. Co. v. N. K. Khan, (1969) 2 SCR 902 where a right had been claimed by the various workmen in their applications under Section 33-C (2), it was held that it was a right which accrued to them under Section 25-FF at the Act and was an existing right at the time when these applications were made, that the Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision, and that the mere denial of that right by the company could not take away its jurisdiction.6. We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub-section (1) it of Section 25-FFF was attracted on closure of the establishment. The question even according to the employer falls under Section 25-FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.7. We do not consider that the reference to Item No. 10 of the Third Schedule to the Act can decide the matter one way or the other. The item reads as follows:"10. Retrenchment of workmen and closure of establishment."It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal. Logically if the contention is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was no closure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of their services and ask for compensation. The only dispute is about the compensation whether it is to be paid under Sections 25-F or 25-FFF. Item 10 of Third Schedule will not cover such a case.
### Response:
0
### Explanation:
We, therefore, do not see how the decision in the U. P. Electric Companys case (supra) can come to the aid of the appellant in this case. The said case is clearly distinguishable on the peculiar facts as noticed above.We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub-section (1) it of Section 25-FFF was attracted on closure of the establishment. The question even according to the employer falls under Section 25-FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.7. We do not consider that the reference to Item No. 10 of the Third Schedule to the Act can decide the matter one way or thedoes not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal. Logically if the contention is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal. In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was no closure at all. In the present case the workmen do not ask for reinstatement. They accept the termination of their services and ask for compensation. The only dispute is about the compensation whether it is to be paid under Sections 25-F or 25-FFF. Item 10 of Third Schedule will not cover such a case.
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N. S. Gujral Vs. Custodian Of Evacuee Property & Anr | a notification under Section 12 of the 1954-Act did not in any way affect the appellants right to acquire hold and dispose of his property. In the circumstances, the appellant cannot claim protection under Article 19 (1) (f) at all with respect to the property in suit and it is not necessary to consider whether S. 12 could be saved under Article 19 (5).We therefore agree with the High Court that the appellant cannot claim that Section 12 is ultra vires Article 19 (1) (f) and therefore the notification made thereunder affects his fundamental right to acquire, hold and dispose of property.10. Further the argument that Sec. 12 is bad under Article 14 has also no force. The contention under this head is that the creditors who have decrees against non-evacuees can execute their decrees against the properties of non-evacuees, but the creditors having decrees against evacuees cannot execute them against their properties after they had vested in the Central Government by a notification under Section 12 of the 1954-Act; and this amounts to discrimination under Article 14. But it is well settled that the Constitution does not contemplate equality of all laws or application of all laws equally to every person. There is a clear classification between evacuee property and non-evacuee property. There is a clear nexus between the object to be achieved by the enactment of the 1954-Act namely, rehabilitation of evacuees from Pakistan and the provision in Section 12 by which the property of evacuees in India is to be utilised for such rehabilitation. There is therefore no infringement of Article 14 in the circumstances.11. Lastly it is urged on behalf of the appellant on the buds of the decision of this Court in Raja Bhanupratap Singh, (1966) 1 SCR 304 = (AIR 1966 SC 245 ) that the appellant was entitled to ask the Custodian to consider his case under Section 10 (2) (n) read with Section 10 (1) of the 1950 Act, and for that purpose it is necessary to decide the main question raised in the suit, namely, that the releasedeeds of 1947 in favour of the wives were of no effect and therefore the property, though evcauee property, was the property of the judgment-debtors of the appellant namely, Mohd. Sabar and Noor Mohd. Butt. It is also pointed out that the notification of June, 3, 1955 was only with respect to immovable property and there was nothing to show that the Central Government had issued a notification under Section 14 (1) (b) of the l594-Act relating to cash balance, if any, lying with the Custodian on the date the property was acquired.12. It is urged that all that the notification of June 3, 1955 means is that as from that date no action could be taken against the property in suit or its income. But if there was any money with the Custodian on the date of vesting and if no order had been passed in respect thereof under Section 14 (1) (b), the appellant would be entitled to ask the Custodian to consider whether he should be paid anything out of the moneys lying with the Custodian provided he could establish that the property was the property of his judgment-debtors, namely, Mohd. Sabar and Noor Mohd. Butt and not of their wives. The declaration that the appellant sought was wide in terms inasmuch as he claimed that he was entitled to have his claim adjusted against the proceeds of the said building and these proceeds will include any income of a period before the date of vesting under the notification under Section 12. It is urged that as such it is necessary to decide the issue whether the release deeds of April 1947 were fictitious and fraudulent intended to defeat and delay the creditors and therefore the property belonged to Mohd. Sabar and Noor Mohd. Butt. If that is held in his favour by the civil courts he would be entitled to go to the Custodian and ask him to pass an order in his favour under Section 10 (2) (n) read with Section 10 (1) and pay him out of the moneys lying with him on the date the property vested in the Central Government under the notification under Section 12.13. We are of opinion that there is force in this contention. Though the appellant cannot claim to proceed against the property in suit or its income after the date on which it vested in the Central Government by virtue of the notification under Section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in Section 10 (2) (n) read with Sec. 10 (1) of the 1950-Act.We therefore direct that when the case goes back to the trial court as ordered by the High Court, the trial court will decide the issue whether the deeds of release of April 1947 are fictitious and fraudulent intended to defeat and delay the creditors and not binding on the appellant If the trial Court decides in favour of the appellant it will then be open to him to approach the Custodian under Section 10 (2) (n) read with Section 10 (1) for such orders as the Custodian thinks fit to pass with respect to moneys, if any, lying with him on the date of vesting. It may be mentioned that learned counsel for the appellant submitted that this property in fact vested in the Central Government by some notification in 1968 and not by the notification dated June 3, 1955, as mentioned in the plaint. On the other side it has been submitted that some orders have been passed by the Central Government under section 14 (1) (b). These are matters which may require to be gone into by the trial court and for that purpose it may be necessary to amend the plaint and the written statement, and this we permit.14. | 0[ds]At no time did the appellant have any right whatsoever in the property which vested in the Central Government on the issue of the notification under Sec. 12 It may be that if the owners had not become evacuees and if the property had not been declared evacuee property the appellant might have proceeded against that property in execution of his decree. It may also be that he cannot do so now after the said notification under Section 12. But section 12 does not in our opinion interfere with the appellants right to acquire, hold and dispose of his property, namely, the decrees against Mohd. Sabar and Noor Mohd. Butt. As the appellant had no interest in the property in suit, the fact that it was acquired by the Central Government by a notification under Section 12 of the 1954-Act did not in any way affect the appellants right to acquire hold and dispose of his property. In the circumstances, the appellant cannot claim protection under Article 19 (1) (f) at all with respect to the property in suit and it is not necessary to consider whether S. 12 could be saved under Article 19 (5).We therefore agree with the High Court that the appellant cannot claim that Section 12 is ultra vires Article 19 (1) (f) and therefore the notification made thereunder affects his fundamental right to acquire, hold and dispose of property.r the argument that Sec. 12 is bad under Article14 has also no force. The contention under this head is that the creditors who have decrees against non-evacuees can execute their decrees against the properties of non-evacuees, but the creditors having decrees against evacuees cannot execute them against their properties after they had vested in the Central Government by a notification under Section 12 of the 1954-Act; and this amounts to discrimination under Article 14. But it is well settled that the Constitution does not contemplate equality of all laws or application of all laws equally to every person. There is a clear classification between evacuee property and non-evacuee property. There is a clear nexus between the object to be achieved by the enactment of the 1954-Act namely, rehabilitation of evacuees from Pakistan and the provision in Section 12 by which the property of evacuees in India is to be utilised for such rehabilitation. There is therefore no infringement of Article 14 in the circumstances.11.We are of opinion that there is force in this contention. Though the appellant cannot claim to proceed against the property in suit or its income after the date on which it vested in the Central Government by virtue of the notification under Section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in Section 10 (2) (n) read with Sec. 10 (1) of the 1950-Act.We therefore direct that when the case goes back to the trial court as ordered by the High Court, the trial court will decide the issue whether the deeds of release of April 1947 are fictitious and fraudulent intended to defeat and delay the creditors and not binding on the appellant If the trial Court decides in favour of the appellant it will then be open to him to approach the Custodian under Section 10 (2) (n) read with Section 10 (1) for such orders as the Custodian thinks fit to pass with respect to moneys, if any, lying with him on the date of vesting. It may be mentioned that learned counsel for the appellant submitted that this property in fact vested in the Central Government by some notification in 1968 and not by the notification dated June 3, 1955, as mentioned in the plaint. On the other side it has been submitted that some orders have been passed by the Central Government under section 14 (1) (b). These are matters which may require to be gone into by the trial court and for that purpose it may be necessary to amend the plaint and the written statement, and this we permit. | 0 | 3,169 | 758 | ### 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:
a notification under Section 12 of the 1954-Act did not in any way affect the appellants right to acquire hold and dispose of his property. In the circumstances, the appellant cannot claim protection under Article 19 (1) (f) at all with respect to the property in suit and it is not necessary to consider whether S. 12 could be saved under Article 19 (5).We therefore agree with the High Court that the appellant cannot claim that Section 12 is ultra vires Article 19 (1) (f) and therefore the notification made thereunder affects his fundamental right to acquire, hold and dispose of property.10. Further the argument that Sec. 12 is bad under Article 14 has also no force. The contention under this head is that the creditors who have decrees against non-evacuees can execute their decrees against the properties of non-evacuees, but the creditors having decrees against evacuees cannot execute them against their properties after they had vested in the Central Government by a notification under Section 12 of the 1954-Act; and this amounts to discrimination under Article 14. But it is well settled that the Constitution does not contemplate equality of all laws or application of all laws equally to every person. There is a clear classification between evacuee property and non-evacuee property. There is a clear nexus between the object to be achieved by the enactment of the 1954-Act namely, rehabilitation of evacuees from Pakistan and the provision in Section 12 by which the property of evacuees in India is to be utilised for such rehabilitation. There is therefore no infringement of Article 14 in the circumstances.11. Lastly it is urged on behalf of the appellant on the buds of the decision of this Court in Raja Bhanupratap Singh, (1966) 1 SCR 304 = (AIR 1966 SC 245 ) that the appellant was entitled to ask the Custodian to consider his case under Section 10 (2) (n) read with Section 10 (1) of the 1950 Act, and for that purpose it is necessary to decide the main question raised in the suit, namely, that the releasedeeds of 1947 in favour of the wives were of no effect and therefore the property, though evcauee property, was the property of the judgment-debtors of the appellant namely, Mohd. Sabar and Noor Mohd. Butt. It is also pointed out that the notification of June, 3, 1955 was only with respect to immovable property and there was nothing to show that the Central Government had issued a notification under Section 14 (1) (b) of the l594-Act relating to cash balance, if any, lying with the Custodian on the date the property was acquired.12. It is urged that all that the notification of June 3, 1955 means is that as from that date no action could be taken against the property in suit or its income. But if there was any money with the Custodian on the date of vesting and if no order had been passed in respect thereof under Section 14 (1) (b), the appellant would be entitled to ask the Custodian to consider whether he should be paid anything out of the moneys lying with the Custodian provided he could establish that the property was the property of his judgment-debtors, namely, Mohd. Sabar and Noor Mohd. Butt and not of their wives. The declaration that the appellant sought was wide in terms inasmuch as he claimed that he was entitled to have his claim adjusted against the proceeds of the said building and these proceeds will include any income of a period before the date of vesting under the notification under Section 12. It is urged that as such it is necessary to decide the issue whether the release deeds of April 1947 were fictitious and fraudulent intended to defeat and delay the creditors and therefore the property belonged to Mohd. Sabar and Noor Mohd. Butt. If that is held in his favour by the civil courts he would be entitled to go to the Custodian and ask him to pass an order in his favour under Section 10 (2) (n) read with Section 10 (1) and pay him out of the moneys lying with him on the date the property vested in the Central Government under the notification under Section 12.13. We are of opinion that there is force in this contention. Though the appellant cannot claim to proceed against the property in suit or its income after the date on which it vested in the Central Government by virtue of the notification under Section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in Section 10 (2) (n) read with Sec. 10 (1) of the 1950-Act.We therefore direct that when the case goes back to the trial court as ordered by the High Court, the trial court will decide the issue whether the deeds of release of April 1947 are fictitious and fraudulent intended to defeat and delay the creditors and not binding on the appellant If the trial Court decides in favour of the appellant it will then be open to him to approach the Custodian under Section 10 (2) (n) read with Section 10 (1) for such orders as the Custodian thinks fit to pass with respect to moneys, if any, lying with him on the date of vesting. It may be mentioned that learned counsel for the appellant submitted that this property in fact vested in the Central Government by some notification in 1968 and not by the notification dated June 3, 1955, as mentioned in the plaint. On the other side it has been submitted that some orders have been passed by the Central Government under section 14 (1) (b). These are matters which may require to be gone into by the trial court and for that purpose it may be necessary to amend the plaint and the written statement, and this we permit.14.
### Response:
0
### Explanation:
At no time did the appellant have any right whatsoever in the property which vested in the Central Government on the issue of the notification under Sec. 12 It may be that if the owners had not become evacuees and if the property had not been declared evacuee property the appellant might have proceeded against that property in execution of his decree. It may also be that he cannot do so now after the said notification under Section 12. But section 12 does not in our opinion interfere with the appellants right to acquire, hold and dispose of his property, namely, the decrees against Mohd. Sabar and Noor Mohd. Butt. As the appellant had no interest in the property in suit, the fact that it was acquired by the Central Government by a notification under Section 12 of the 1954-Act did not in any way affect the appellants right to acquire hold and dispose of his property. In the circumstances, the appellant cannot claim protection under Article 19 (1) (f) at all with respect to the property in suit and it is not necessary to consider whether S. 12 could be saved under Article 19 (5).We therefore agree with the High Court that the appellant cannot claim that Section 12 is ultra vires Article 19 (1) (f) and therefore the notification made thereunder affects his fundamental right to acquire, hold and dispose of property.r the argument that Sec. 12 is bad under Article14 has also no force. The contention under this head is that the creditors who have decrees against non-evacuees can execute their decrees against the properties of non-evacuees, but the creditors having decrees against evacuees cannot execute them against their properties after they had vested in the Central Government by a notification under Section 12 of the 1954-Act; and this amounts to discrimination under Article 14. But it is well settled that the Constitution does not contemplate equality of all laws or application of all laws equally to every person. There is a clear classification between evacuee property and non-evacuee property. There is a clear nexus between the object to be achieved by the enactment of the 1954-Act namely, rehabilitation of evacuees from Pakistan and the provision in Section 12 by which the property of evacuees in India is to be utilised for such rehabilitation. There is therefore no infringement of Article 14 in the circumstances.11.We are of opinion that there is force in this contention. Though the appellant cannot claim to proceed against the property in suit or its income after the date on which it vested in the Central Government by virtue of the notification under Section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in Section 10 (2) (n) read with Sec. 10 (1) of the 1950-Act.We therefore direct that when the case goes back to the trial court as ordered by the High Court, the trial court will decide the issue whether the deeds of release of April 1947 are fictitious and fraudulent intended to defeat and delay the creditors and not binding on the appellant If the trial Court decides in favour of the appellant it will then be open to him to approach the Custodian under Section 10 (2) (n) read with Section 10 (1) for such orders as the Custodian thinks fit to pass with respect to moneys, if any, lying with him on the date of vesting. It may be mentioned that learned counsel for the appellant submitted that this property in fact vested in the Central Government by some notification in 1968 and not by the notification dated June 3, 1955, as mentioned in the plaint. On the other side it has been submitted that some orders have been passed by the Central Government under section 14 (1) (b). These are matters which may require to be gone into by the trial court and for that purpose it may be necessary to amend the plaint and the written statement, and this we permit.
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Jayesh Nagindas Doshi Vs. Ashapura Aluminium Limited & Others | defence has been taken belatedly in the reply to the Summons for Judgment; and(iii) The Appellant had structured the entire transaction and having unauthorizedly issued instructions for remitting funds abroad, owned up responsibility to avoid the legal consequences. The letter dated 10 December 2009, it was urged, was issued only in order to avoid being faced with proceedings under Section 138.12. The material on record indicates that on 30 June 2009 a meeting was held. In attendance at the meeting, among other persons, was a Director of the First Respondent, Mr.Chetan Shah as well as Mr.Hemant Chitre, who was the second signatory to the letter that was issued to Yes Bank Limited subsequently authorizing the remittance of Euros 1,10,000. The minutes of the meeting have not been disclosed with the plaint and subsequently have come to be filed by the appellant together with the affidavit-in-reply to the Summons for Judgment. The minutes, which are not disputed, would indicate that a detailed reference to the nature of the transaction and to the structure under which the transaction was to take place has been made. On 9 October 2009 a letter was addressed by the Appellant to Yes Bank authorizing remittance of funds in the amount of Euros 1,10,000. There are two signatories to the letter, including the Appellant and another officer of the First Respondent, Hemant Chitre, who was also a party to the meeting which was held on 30 June 2009. As noted earlier, that meeting was also attended by Mr.Chetan Shah, a Director of the First Respondent. On 16 October 2009 a communication was addressed to the Managing Director of the First Respondent, which was to be attended by Mr.Chetan Shah. The letter made a specific reference to the fact that a remittance had been made by the First Respondent to facilitate the issuance of a bank guarantee by HDFC Bank London. Therefore, from the material on record it cannot be asserted that transmission of funds abroad was something which was carried out by the Appellant on his sole authority and power and without the knowledge of the First Respondent. Mr.Chetan Shah who is a Director of the First Respondent and who was a party to the meeting and to the correspondence significantly, has neither verified the plaint nor the rejoinder which was filed in response to the reply of the Appellant to the Summons for Judgment. In the affidavit-in-reply that was filed to the Summons for Judgment, there is a detailed reference to the discussions which had taken place with the officers of the company including Mr.Chetan Shah in paragraph 5(f) and 5(g). There is a specific reference to the fact that a post dated cheque in the amount of Rs.85.00 lakhs had been procured from the Second Defendant. In paragraph 18 of the rejoinder that has been filed by the First Respondent it has been stated that the post dated cheque of Rs.85.00 lakhs was taken by way of security against the transfer of Euros 1,10,000 which cheque was subsequently dishonoured. The case of the First Respondent is that the transmission of funds took place without consulting the Board or the authorities of the First Respondent.13. Now it is in this background that the case of the First Respondent would have to be evaluated. The defence of the Appellant is that the transaction, far from being unauthorized, was to the knowledge of the First Respondent and of its Director, Mr.Chetan Shah. This defence raises a triable issue and cannot be regarded as frivolous or sham. As a matter of fact, as noted earlier, the defence is sought to be substantiated on the basis of the material on record.14. Section 118 of the Negotiable Instruments Act, 1881 raises a rebuttable presumption that every negotiable instrument has been made or drawn for consideration. As was held by the Supreme Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal (1999)3-SCC-35), the presumption under Section 118(a) can be rebutted by the Defendant by proving non existence of the consideration, by raising a probable defence. If the Defendant discharges the initial onus of showing that the existence of consideration was doubtful or that it was illegal, the onus would shift upon the Plaintiff who would be obliged to prove it as a matter of fact and upon its failure to do so, would be disentitled to the grant of relief under the Negotiable Instruments Act, 1881. The Appellant was a CFO of the First Respondent whose letter of resignation dated 11 September 2009 was to come into effect, as decided by the First Respondent, on 30 November 2009. The letter dated 26 November 2009 was issued barely a few days before the Appellant was to leave the service and the defence that the letter was procured only to enable the Appellant to leave service cannot be regarded as improper or moon shine.15. Moreover, as we have noted earlier, the suit which has been instituted by the First Respondent is not merely for the recovery of an amount of Rs.50.00 lakhs representing the dishonoured cheque but is for the recovery of the entire amount of Euros 1,10,000 (equivalent to Rs.75.65 lakhs) together with interest. If the Appellant fails to comply with the condition which has been imposed by the learned Single Judge, a decree would follow for the entirety of the claim in the suit.16. For these reasons, we are of the view that the learned Single Judge was in error in coming to the conclusion that the defence is completely sham, bogus and moon shine. There was no justification, in our view, for directing the Appellant to deposit an amount of Rs.50.00 lakhs for being granted leave to defend the suit. The Appellant has raised a bona fide triable defence. Having regard to the decision of the Supreme Court in M/s.Mechelec Engineers and Manufacturers Vs. M/s.Basic Equipment Corporation (1976)4-SCC-687), the Appellant was entitled to unconditional leave to defend. The defence raises triable issues and cannot be regarded as sham. | 1[ds]12. The material on record indicates that on 30 June 2009 a meeting was held. In attendance at the meeting, among other persons, was a Director of the First Respondent, Mr.Chetan Shah as well as Mr.Hemant Chitre, who was the second signatory to the letter that was issued to Yes Bank Limited subsequently authorizing the remittance of Euros 1,10,000. The minutes of the meeting have not been disclosed with the plaint and subsequently have come to be filed by the appellant together with theto the Summons for Judgment. The minutes, which are not disputed, would indicate that a detailed reference to the nature of the transaction and to the structure under which the transaction was to take place has been made. On 9 October 2009 a letter was addressed by the Appellant to Yes Bank authorizing remittance of funds in the amount of Euros 1,10,000. There are two signatories to the letter, including the Appellant and another officer of the First Respondent, Hemant Chitre, who was also a party to the meeting which was held on 30 June 2009. As noted earlier, that meeting was also attended by Mr.Chetan Shah, a Director of the First Respondent. On 16 October 2009 a communication was addressed to the Managing Director of the First Respondent, which was to be attended by Mr.Chetan Shah. The letter made a specific reference to the fact that a remittance had been made by the First Respondent to facilitate the issuance of a bank guarantee by HDFC Bank London. Therefore, from the material on record it cannot be asserted that transmission of funds abroad was something which was carried out by the Appellant on his sole authority and power and without the knowledge of the First Respondent. Mr.Chetan Shah who is a Director of the First Respondent and who was a party to the meeting and to the correspondence significantly, has neither verified the plaint nor the rejoinder which was filed in response to the reply of the Appellant to the Summons for Judgment. In thethat was filed to the Summons for Judgment, there is a detailed reference to the discussions which had taken place with the officers of the company including Mr.Chetan Shah in paragraph 5(f) and 5(g). There is a specific reference to the fact that a post dated cheque in the amount of Rs.85.00 lakhs had been procured from the Second Defendant. In paragraph 18 of the rejoinder that has been filed by the First Respondent it has been stated that the post dated cheque of Rs.85.00 lakhs was taken by way of security against the transfer of Euros 1,10,000 which cheque was subsequently dishonoured. The case of the First Respondent is that the transmission of funds took place without consulting the Board or the authorities of the First Respondent.13. Now it is in this background that the case of the First Respondent would have to be evaluated. The defence of the Appellant is that the transaction, far from being unauthorized, was to the knowledge of the First Respondent and of its Director, Mr.Chetan Shah. This defence raises a triable issue and cannot be regarded as frivolous or sham. As a matter of fact, as noted earlier, the defence is sought to be substantiated on the basis of the material on record.14. Section 118 of the Negotiable Instruments Act, 1881 raises a rebuttable presumption that every negotiable instrument has been made or drawn for consideration. As was held by the Supreme Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelalthe presumption under Section 118(a) can be rebutted by the Defendant by proving non existence of the consideration, by raising a probable defence. If the Defendant discharges the initial onus of showing that the existence of consideration was doubtful or that it was illegal, the onus would shift upon the Plaintiff who would be obliged to prove it as a matter of fact and upon its failure to do so, would be disentitled to the grant of relief under the Negotiable Instruments Act, 1881. The Appellant was a CFO of the First Respondent whose letter of resignation dated 11 September 2009 was to come into effect, as decided by the First Respondent, on 30 November 2009. The letter dated 26 November 2009 was issued barely a few days before the Appellant was to leave the service and the defence that the letter was procured only to enable the Appellant to leave service cannot be regarded as improper or moon shine.15. Moreover, as we have noted earlier, the suit which has been instituted by the First Respondent is not merely for the recovery of an amount of Rs.50.00 lakhs representing the dishonoured cheque but is for the recovery of the entire amount of Euros 1,10,000 (equivalent to Rs.75.65 lakhs) together with interest. If the Appellant fails to comply with the condition which has been imposed by the learned Single Judge, a decree would follow for the entirety of the claim in the suit.16. For these reasons, we are of the view that the learned Single Judge was in error in coming to the conclusion that the defence is completely sham, bogus and moon shine. There was no justification, in our view, for directing the Appellant to deposit an amount of Rs.50.00 lakhs for being granted leave to defend the suit. The Appellant has raised a bona fide triable defence. Having regard to the decision of the Supreme Court in M/s.Mechelec Engineers and Manufacturers Vs. M/s.Basic Equipment Corporationthe Appellant was entitled to unconditional leave to defend. The defence raises triable issues and cannot be regarded as sham. | 1 | 2,612 | 1,017 | ### 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:
defence has been taken belatedly in the reply to the Summons for Judgment; and(iii) The Appellant had structured the entire transaction and having unauthorizedly issued instructions for remitting funds abroad, owned up responsibility to avoid the legal consequences. The letter dated 10 December 2009, it was urged, was issued only in order to avoid being faced with proceedings under Section 138.12. The material on record indicates that on 30 June 2009 a meeting was held. In attendance at the meeting, among other persons, was a Director of the First Respondent, Mr.Chetan Shah as well as Mr.Hemant Chitre, who was the second signatory to the letter that was issued to Yes Bank Limited subsequently authorizing the remittance of Euros 1,10,000. The minutes of the meeting have not been disclosed with the plaint and subsequently have come to be filed by the appellant together with the affidavit-in-reply to the Summons for Judgment. The minutes, which are not disputed, would indicate that a detailed reference to the nature of the transaction and to the structure under which the transaction was to take place has been made. On 9 October 2009 a letter was addressed by the Appellant to Yes Bank authorizing remittance of funds in the amount of Euros 1,10,000. There are two signatories to the letter, including the Appellant and another officer of the First Respondent, Hemant Chitre, who was also a party to the meeting which was held on 30 June 2009. As noted earlier, that meeting was also attended by Mr.Chetan Shah, a Director of the First Respondent. On 16 October 2009 a communication was addressed to the Managing Director of the First Respondent, which was to be attended by Mr.Chetan Shah. The letter made a specific reference to the fact that a remittance had been made by the First Respondent to facilitate the issuance of a bank guarantee by HDFC Bank London. Therefore, from the material on record it cannot be asserted that transmission of funds abroad was something which was carried out by the Appellant on his sole authority and power and without the knowledge of the First Respondent. Mr.Chetan Shah who is a Director of the First Respondent and who was a party to the meeting and to the correspondence significantly, has neither verified the plaint nor the rejoinder which was filed in response to the reply of the Appellant to the Summons for Judgment. In the affidavit-in-reply that was filed to the Summons for Judgment, there is a detailed reference to the discussions which had taken place with the officers of the company including Mr.Chetan Shah in paragraph 5(f) and 5(g). There is a specific reference to the fact that a post dated cheque in the amount of Rs.85.00 lakhs had been procured from the Second Defendant. In paragraph 18 of the rejoinder that has been filed by the First Respondent it has been stated that the post dated cheque of Rs.85.00 lakhs was taken by way of security against the transfer of Euros 1,10,000 which cheque was subsequently dishonoured. The case of the First Respondent is that the transmission of funds took place without consulting the Board or the authorities of the First Respondent.13. Now it is in this background that the case of the First Respondent would have to be evaluated. The defence of the Appellant is that the transaction, far from being unauthorized, was to the knowledge of the First Respondent and of its Director, Mr.Chetan Shah. This defence raises a triable issue and cannot be regarded as frivolous or sham. As a matter of fact, as noted earlier, the defence is sought to be substantiated on the basis of the material on record.14. Section 118 of the Negotiable Instruments Act, 1881 raises a rebuttable presumption that every negotiable instrument has been made or drawn for consideration. As was held by the Supreme Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelal (1999)3-SCC-35), the presumption under Section 118(a) can be rebutted by the Defendant by proving non existence of the consideration, by raising a probable defence. If the Defendant discharges the initial onus of showing that the existence of consideration was doubtful or that it was illegal, the onus would shift upon the Plaintiff who would be obliged to prove it as a matter of fact and upon its failure to do so, would be disentitled to the grant of relief under the Negotiable Instruments Act, 1881. The Appellant was a CFO of the First Respondent whose letter of resignation dated 11 September 2009 was to come into effect, as decided by the First Respondent, on 30 November 2009. The letter dated 26 November 2009 was issued barely a few days before the Appellant was to leave the service and the defence that the letter was procured only to enable the Appellant to leave service cannot be regarded as improper or moon shine.15. Moreover, as we have noted earlier, the suit which has been instituted by the First Respondent is not merely for the recovery of an amount of Rs.50.00 lakhs representing the dishonoured cheque but is for the recovery of the entire amount of Euros 1,10,000 (equivalent to Rs.75.65 lakhs) together with interest. If the Appellant fails to comply with the condition which has been imposed by the learned Single Judge, a decree would follow for the entirety of the claim in the suit.16. For these reasons, we are of the view that the learned Single Judge was in error in coming to the conclusion that the defence is completely sham, bogus and moon shine. There was no justification, in our view, for directing the Appellant to deposit an amount of Rs.50.00 lakhs for being granted leave to defend the suit. The Appellant has raised a bona fide triable defence. Having regard to the decision of the Supreme Court in M/s.Mechelec Engineers and Manufacturers Vs. M/s.Basic Equipment Corporation (1976)4-SCC-687), the Appellant was entitled to unconditional leave to defend. The defence raises triable issues and cannot be regarded as sham.
### Response:
1
### Explanation:
12. The material on record indicates that on 30 June 2009 a meeting was held. In attendance at the meeting, among other persons, was a Director of the First Respondent, Mr.Chetan Shah as well as Mr.Hemant Chitre, who was the second signatory to the letter that was issued to Yes Bank Limited subsequently authorizing the remittance of Euros 1,10,000. The minutes of the meeting have not been disclosed with the plaint and subsequently have come to be filed by the appellant together with theto the Summons for Judgment. The minutes, which are not disputed, would indicate that a detailed reference to the nature of the transaction and to the structure under which the transaction was to take place has been made. On 9 October 2009 a letter was addressed by the Appellant to Yes Bank authorizing remittance of funds in the amount of Euros 1,10,000. There are two signatories to the letter, including the Appellant and another officer of the First Respondent, Hemant Chitre, who was also a party to the meeting which was held on 30 June 2009. As noted earlier, that meeting was also attended by Mr.Chetan Shah, a Director of the First Respondent. On 16 October 2009 a communication was addressed to the Managing Director of the First Respondent, which was to be attended by Mr.Chetan Shah. The letter made a specific reference to the fact that a remittance had been made by the First Respondent to facilitate the issuance of a bank guarantee by HDFC Bank London. Therefore, from the material on record it cannot be asserted that transmission of funds abroad was something which was carried out by the Appellant on his sole authority and power and without the knowledge of the First Respondent. Mr.Chetan Shah who is a Director of the First Respondent and who was a party to the meeting and to the correspondence significantly, has neither verified the plaint nor the rejoinder which was filed in response to the reply of the Appellant to the Summons for Judgment. In thethat was filed to the Summons for Judgment, there is a detailed reference to the discussions which had taken place with the officers of the company including Mr.Chetan Shah in paragraph 5(f) and 5(g). There is a specific reference to the fact that a post dated cheque in the amount of Rs.85.00 lakhs had been procured from the Second Defendant. In paragraph 18 of the rejoinder that has been filed by the First Respondent it has been stated that the post dated cheque of Rs.85.00 lakhs was taken by way of security against the transfer of Euros 1,10,000 which cheque was subsequently dishonoured. The case of the First Respondent is that the transmission of funds took place without consulting the Board or the authorities of the First Respondent.13. Now it is in this background that the case of the First Respondent would have to be evaluated. The defence of the Appellant is that the transaction, far from being unauthorized, was to the knowledge of the First Respondent and of its Director, Mr.Chetan Shah. This defence raises a triable issue and cannot be regarded as frivolous or sham. As a matter of fact, as noted earlier, the defence is sought to be substantiated on the basis of the material on record.14. Section 118 of the Negotiable Instruments Act, 1881 raises a rebuttable presumption that every negotiable instrument has been made or drawn for consideration. As was held by the Supreme Court in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Payrelalthe presumption under Section 118(a) can be rebutted by the Defendant by proving non existence of the consideration, by raising a probable defence. If the Defendant discharges the initial onus of showing that the existence of consideration was doubtful or that it was illegal, the onus would shift upon the Plaintiff who would be obliged to prove it as a matter of fact and upon its failure to do so, would be disentitled to the grant of relief under the Negotiable Instruments Act, 1881. The Appellant was a CFO of the First Respondent whose letter of resignation dated 11 September 2009 was to come into effect, as decided by the First Respondent, on 30 November 2009. The letter dated 26 November 2009 was issued barely a few days before the Appellant was to leave the service and the defence that the letter was procured only to enable the Appellant to leave service cannot be regarded as improper or moon shine.15. Moreover, as we have noted earlier, the suit which has been instituted by the First Respondent is not merely for the recovery of an amount of Rs.50.00 lakhs representing the dishonoured cheque but is for the recovery of the entire amount of Euros 1,10,000 (equivalent to Rs.75.65 lakhs) together with interest. If the Appellant fails to comply with the condition which has been imposed by the learned Single Judge, a decree would follow for the entirety of the claim in the suit.16. For these reasons, we are of the view that the learned Single Judge was in error in coming to the conclusion that the defence is completely sham, bogus and moon shine. There was no justification, in our view, for directing the Appellant to deposit an amount of Rs.50.00 lakhs for being granted leave to defend the suit. The Appellant has raised a bona fide triable defence. Having regard to the decision of the Supreme Court in M/s.Mechelec Engineers and Manufacturers Vs. M/s.Basic Equipment Corporationthe Appellant was entitled to unconditional leave to defend. The defence raises triable issues and cannot be regarded as sham.
|
Shri Mandir Sita Ramji Vs. Lt. Governor Of Delhi & Ors | report dated August 18, 1962 and in that report he stated that an objection was received from Shri Mandir Sita Ramji. There is no mention in that report that he received any report in pursuance to his order on the copy of the objection petition or that any personal or other kind of enquiry was made in respect of the land in question subsequent to July 27, 1962. In that report, the Collector, after noting the lands and houses in respect of which Shri Mandir Sita Ramji had filed objections, made the following report:"Decision may kindly be taken after the inspection of the site".Thereafter, it is common ground, that the Delhi Administration did not give hearing to the appellant before publishing the declaration. It was on the basis of these circumstances that the learned Single Judge and the Division Bench came to the conclusion that the appellant was given no opportunity of being heard under Section 5-A of the Act.4. When the appeal came up for hearing before the Division Bench, the Division Bench felt that an opportunity of being heard should have been given to the appellant and so the Bench directed the Delhi Administration to give the appellant an opportunity of being heard on the objections and its report. The appellant was heard and the Lt. Governor, by his order dated April 27, 1972, rejected the objection. Thereafter, the appeal was again taken up for hearing and the Division Bench came to the conclusion that it was not necessary that the Land Acquisition Collector should have heard the appellant under Section 5A and that there was no substance in the contention of the appellant that the land in question was attached to a religious institution and, therefore allowed the appeal and dismissed the writ petition.5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5A. The duty to afford such an opportunity is mandatory. A decision by the government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5A is that of the Collector and not of the appropriate government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to here the objector on the objection and make the recommendation.6. The objection in substance was that the lands in question were attached to a religious institution and were therefore, immune from being acquired under the notification. That was how and Land Acquisition Collector understood the objection. The objection raised a mixed question of law and fact and it was because of that the Collector called for a report. To say as the Division Bench has done, that the objection raised only a question of law and, therefore, the Collector could decline to make the recommendation and leave it to the appropriate Government to decide the question is neither here nor there, inasmuch as the High Court itself has stated that the question whether the land is attached to the religious institution would depend upon resolution of questions of fact. The Division Bench said:"Thus it is the manner of the utilisation of land which will determine whether it was `attached to or not in the present case, in as much as nothing has been shown that the land was utilised for the purpose of the temple or the institution or that its income was so utilised, it must be held that the mere contiguity of the land to the temple of Shri Hanuman or its ownership by Shree Sita Ram Bhandar/Mandir Sita Ramji at Pilani would not make the land in question `attached to any one of these".If this is so it is difficult to understand why the objection raised only a question of law which could be left to the decision of the appropriate Government without the recommendation by the Collector. As we have said the objection was that the lands belonged to the religious institution and would come within the purview of the exempted class of lands in the notification. In substance, this was an objection that the lands were attached to the religious institution. As the objection raised questions of fact, the Land Acquisition collector should have enquired into them and should have made his recommendation as provided in Section 5-A. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observation of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser. | 1[ds]5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5A. The duty to afford such an opportunity is mandatory. A decision by the government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5A is that of the Collector and not of the appropriate government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to here the objector on the objection and make the recommendation.6. The objection in substance was that the lands in question were attached to a religious institution and were therefore, immune from being acquired under the notification. That was how and Land Acquisition Collector understood the objection. The objection raised a mixed question of law and fact and it was because of that the Collector called for a report. To say as the Division Bench has done, that the objection raised only a question of law and, therefore, the Collector could decline to make the recommendation and leave it to the appropriate Government to decide the question is neither here nor there, inasmuch as the High Court itself has stated that the question whether the land is attached to the religious institution would depend upon resolution of questions ofthis is so it is difficult to understand why the objection raised only a question of law which could be left to the decision of the appropriate Government without the recommendation by the Collector. As we have said the objection was that the lands belonged to the religious institution and would come within the purview of the exempted class of lands in the notification. In substance, this was an objection that the lands were attached to the religious institution. As the objection raised questions of fact, the Land Acquisition collector should have enquired into them and should have made his recommendation as provided in Section 5-A. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observation of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser. | 1 | 1,482 | 649 | ### 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:
report dated August 18, 1962 and in that report he stated that an objection was received from Shri Mandir Sita Ramji. There is no mention in that report that he received any report in pursuance to his order on the copy of the objection petition or that any personal or other kind of enquiry was made in respect of the land in question subsequent to July 27, 1962. In that report, the Collector, after noting the lands and houses in respect of which Shri Mandir Sita Ramji had filed objections, made the following report:"Decision may kindly be taken after the inspection of the site".Thereafter, it is common ground, that the Delhi Administration did not give hearing to the appellant before publishing the declaration. It was on the basis of these circumstances that the learned Single Judge and the Division Bench came to the conclusion that the appellant was given no opportunity of being heard under Section 5-A of the Act.4. When the appeal came up for hearing before the Division Bench, the Division Bench felt that an opportunity of being heard should have been given to the appellant and so the Bench directed the Delhi Administration to give the appellant an opportunity of being heard on the objections and its report. The appellant was heard and the Lt. Governor, by his order dated April 27, 1972, rejected the objection. Thereafter, the appeal was again taken up for hearing and the Division Bench came to the conclusion that it was not necessary that the Land Acquisition Collector should have heard the appellant under Section 5A and that there was no substance in the contention of the appellant that the land in question was attached to a religious institution and, therefore allowed the appeal and dismissed the writ petition.5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5A. The duty to afford such an opportunity is mandatory. A decision by the government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5A is that of the Collector and not of the appropriate government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to here the objector on the objection and make the recommendation.6. The objection in substance was that the lands in question were attached to a religious institution and were therefore, immune from being acquired under the notification. That was how and Land Acquisition Collector understood the objection. The objection raised a mixed question of law and fact and it was because of that the Collector called for a report. To say as the Division Bench has done, that the objection raised only a question of law and, therefore, the Collector could decline to make the recommendation and leave it to the appropriate Government to decide the question is neither here nor there, inasmuch as the High Court itself has stated that the question whether the land is attached to the religious institution would depend upon resolution of questions of fact. The Division Bench said:"Thus it is the manner of the utilisation of land which will determine whether it was `attached to or not in the present case, in as much as nothing has been shown that the land was utilised for the purpose of the temple or the institution or that its income was so utilised, it must be held that the mere contiguity of the land to the temple of Shri Hanuman or its ownership by Shree Sita Ram Bhandar/Mandir Sita Ramji at Pilani would not make the land in question `attached to any one of these".If this is so it is difficult to understand why the objection raised only a question of law which could be left to the decision of the appropriate Government without the recommendation by the Collector. As we have said the objection was that the lands belonged to the religious institution and would come within the purview of the exempted class of lands in the notification. In substance, this was an objection that the lands were attached to the religious institution. As the objection raised questions of fact, the Land Acquisition collector should have enquired into them and should have made his recommendation as provided in Section 5-A. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observation of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.
### Response:
1
### Explanation:
5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5A. The duty to afford such an opportunity is mandatory. A decision by the government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5A is that of the Collector and not of the appropriate government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to here the objector on the objection and make the recommendation.6. The objection in substance was that the lands in question were attached to a religious institution and were therefore, immune from being acquired under the notification. That was how and Land Acquisition Collector understood the objection. The objection raised a mixed question of law and fact and it was because of that the Collector called for a report. To say as the Division Bench has done, that the objection raised only a question of law and, therefore, the Collector could decline to make the recommendation and leave it to the appropriate Government to decide the question is neither here nor there, inasmuch as the High Court itself has stated that the question whether the land is attached to the religious institution would depend upon resolution of questions ofthis is so it is difficult to understand why the objection raised only a question of law which could be left to the decision of the appropriate Government without the recommendation by the Collector. As we have said the objection was that the lands belonged to the religious institution and would come within the purview of the exempted class of lands in the notification. In substance, this was an objection that the lands were attached to the religious institution. As the objection raised questions of fact, the Land Acquisition collector should have enquired into them and should have made his recommendation as provided in Section 5-A. The failure of the Land Acquisition Collector to inquire into the objection after giving the appellant an opportunity of being heard would show that he declined to exercise his jurisdiction under the section. As we said, the fact that the ultimate decision has to be made by the State Government did not relieve the Collector from his statutory duty to enquire into the objection and make the recommendation. We see no reason why the Division Bench should have departed from the procedure prescribed by the statute. The observation of the procedure laid down by statute before depriving a person of his property is necessary to generate the feeling that rule of law prevails in this country. When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.
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Isaac Isanga Musumba & Others Vs. State of Maharashtra & Others | 1. Heard learned counsel for the parties. 2. Petitioners are nationals of Uganda and have filed this writ petition under Article 32 of the Constitution praying for quashing of FIR No. 88 of 2013 registered on 19th April, 2013 at MRA Marg Police Station, Mumbai in which they have been accused for offences under Sections 384, 441 and 120B, IPC.3. We have read the FIR which has been annexed to the writ petition as Annexure P-7 and we find therefrom that the complainants have alleged that the accused persons have shown copies of international warrants issued against the complainants by the Ugandan Court and letters written by Uganda Ministry of Justice & Constitutional Affairs and the accused have threatened to extort 20 million dollars (equivalent to Rs.110 crores). In the complaint, there is no mention whatsoever that pursuant to the demands made by the accused, any amount was delivered to the accused by the complainants. If that be so, we fail to see as to how an offence of extortion as defined in Section 383, IPC is made out. Section 383, IPC states that whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion. Hence, unless property is delivered to the accused person pursuant to the threat, no offence of extortion is made out and an FIR for the offence under Section 384 could not have been registered by the police.4. We also find on the reading of the FIR, there is also an allegation that on 18th April, 2013 between 1 p.m. and 5.30 p.m. the accused persons illegally entered into the Head Office of the Company at Fort and demanded 20 million dollars (equivalent to Rs.110 crores) saying that they have international arrest warrants against the complainants and upon failure to pay the said sum the complainants will have to face dire consequences. It is because of this allegation in the FIR, the offence under Section 441, IPC is alleged to have been committed by the accused persons. On reading Section 441, IPC we find that intent to commit an offence or to intimidate, insult or annoy any person in possession of property is a necessary ingredient of the offence of criminal trespass. It is not disputed that there was a business transaction between the accused persons and the complainants. Hence, if the accused persons have visited the premises of the complainants to make a demand towards their dues, we do not think a case of criminal trespass as defined in Section 441, IPC is made out against the accused persons.5. Section 120B, IPC will be attracted only if two or more persons agree to do an illegal act or a legal act by illegal means. As the offences under Sections 384 and 441, IPC are not made out, and no other illegal act is alleged in the FIR, no case of criminal conspiracy against the accused persons is also made out.6. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The word person in Article 21 is wide enough to cover not only citizens of this country but also foreigners who come to this country. The State has an obligation to protect the liberty of such foreigners who come to this country and ensure that their liberty is not deprived except in accordance with the procedure established by law. Notwithstanding the said guaranty under Article 21 of the Constitution, in this case, the Mumbai police acted on the FIR of the complainants, which we have found to be baseless. | 1[ds]5. Section 120B, IPC will be attracted only if two or more persons agree to do an illegal act or a legal act by illegal means. As the offences under Sections 384 and 441, IPC are not made out, and no other illegal act is alleged in the FIR, no case of criminal conspiracy against the accused persons is also made out.6. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The word person in Article 21 is wide enough to cover not only citizens of this country but also foreigners who come to this country. The State has an obligation to protect the liberty of such foreigners who come to this country and ensure that their liberty is not deprived except in accordance with the procedure established by law. Notwithstanding the said guaranty under Article 21 of the Constitution, in this case, the Mumbai police acted on the FIR of the complainants, which we have found to be baseless. | 1 | 696 | 194 | ### 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:
1. Heard learned counsel for the parties. 2. Petitioners are nationals of Uganda and have filed this writ petition under Article 32 of the Constitution praying for quashing of FIR No. 88 of 2013 registered on 19th April, 2013 at MRA Marg Police Station, Mumbai in which they have been accused for offences under Sections 384, 441 and 120B, IPC.3. We have read the FIR which has been annexed to the writ petition as Annexure P-7 and we find therefrom that the complainants have alleged that the accused persons have shown copies of international warrants issued against the complainants by the Ugandan Court and letters written by Uganda Ministry of Justice & Constitutional Affairs and the accused have threatened to extort 20 million dollars (equivalent to Rs.110 crores). In the complaint, there is no mention whatsoever that pursuant to the demands made by the accused, any amount was delivered to the accused by the complainants. If that be so, we fail to see as to how an offence of extortion as defined in Section 383, IPC is made out. Section 383, IPC states that whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion. Hence, unless property is delivered to the accused person pursuant to the threat, no offence of extortion is made out and an FIR for the offence under Section 384 could not have been registered by the police.4. We also find on the reading of the FIR, there is also an allegation that on 18th April, 2013 between 1 p.m. and 5.30 p.m. the accused persons illegally entered into the Head Office of the Company at Fort and demanded 20 million dollars (equivalent to Rs.110 crores) saying that they have international arrest warrants against the complainants and upon failure to pay the said sum the complainants will have to face dire consequences. It is because of this allegation in the FIR, the offence under Section 441, IPC is alleged to have been committed by the accused persons. On reading Section 441, IPC we find that intent to commit an offence or to intimidate, insult or annoy any person in possession of property is a necessary ingredient of the offence of criminal trespass. It is not disputed that there was a business transaction between the accused persons and the complainants. Hence, if the accused persons have visited the premises of the complainants to make a demand towards their dues, we do not think a case of criminal trespass as defined in Section 441, IPC is made out against the accused persons.5. Section 120B, IPC will be attracted only if two or more persons agree to do an illegal act or a legal act by illegal means. As the offences under Sections 384 and 441, IPC are not made out, and no other illegal act is alleged in the FIR, no case of criminal conspiracy against the accused persons is also made out.6. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The word person in Article 21 is wide enough to cover not only citizens of this country but also foreigners who come to this country. The State has an obligation to protect the liberty of such foreigners who come to this country and ensure that their liberty is not deprived except in accordance with the procedure established by law. Notwithstanding the said guaranty under Article 21 of the Constitution, in this case, the Mumbai police acted on the FIR of the complainants, which we have found to be baseless.
### Response:
1
### Explanation:
5. Section 120B, IPC will be attracted only if two or more persons agree to do an illegal act or a legal act by illegal means. As the offences under Sections 384 and 441, IPC are not made out, and no other illegal act is alleged in the FIR, no case of criminal conspiracy against the accused persons is also made out.6. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The word person in Article 21 is wide enough to cover not only citizens of this country but also foreigners who come to this country. The State has an obligation to protect the liberty of such foreigners who come to this country and ensure that their liberty is not deprived except in accordance with the procedure established by law. Notwithstanding the said guaranty under Article 21 of the Constitution, in this case, the Mumbai police acted on the FIR of the complainants, which we have found to be baseless.
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Jt. C. I. T., Mumbai Vs. M/s Rolta India Ltd | under the said scheme of the Act. Sections 115J/115JA of the Act were special provisions which provided that where in the case of an assessee, the total income as computed under the Act in respect of any previous year relevant to the assessment year is less than 30% of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30% of such book profit. The object is to tax zero-tax companies.8. Section 115J was inserted by Finance Act, 1987 w.e.f. 1.4.1988. This section was in force from 1.4.1988 to 31.3.1991. After 1.4.1991, Section 115JA was inserted by Finance Act of 1996 w.e.f. 1.4.1997. After insertion of Section 115JA, Section 115JB was inserted by Finance Act, 2000 w.e.f. 1.4.2001. It is clear from reading Sections 115JA and 115JB that the question whether a company which is liable to pay tax under either provision does not assume importance because specific provision(s) is made in the section saying that all other provisions of the Act shall apply to the MAT Company (Section 115JA(4) and Section 115JB(5)). Similarly, amendments have been made in the relevant Finance Acts providing for payment of advance tax under Sections 115JA and 115JB. So far as interest leviable under Section 234B is concerned, the section is clear that it applies to all companies. The pre-requisite condition for applicability of Section 234B is that assessee is liable to pay tax under Section 208 and the expression “assessed tax” is defined to mean the tax on the total income determined under section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source. Thus, there is no exclusion of Sections 115J/115JA in the levy of interest under Section 234B. The expression “assessed tax” is defined to mean the tax assessed on regular assessment which means the tax determined on the application of Sections 115J/115JA in the regular assessment.9. The question which remains to be considered is whether the assessee, which is a MAT Company, was not in a position to estimate its profits of the current year prior to the end of the financial year on 31st March. In this connection the assessee placed reliance on the judgment of the Karnataka High Court in the case of Kwality Biscuits Ltd. v. CIT, reported in (2000) 243 ITR 519 and, according to the Karnataka High Court, the profit as computed under the Income Tax Act, 1961 had to be prepared and thereafter the book profit as contemplated under Section 115J of the Act had to be determined and then, the liability of the assessee to pay tax under Section 115J of the Act arose, only if the total income as computed under the provisions of the Act was less than 30% of the book profit. According to the Karnataka High Court, this entire exercise of computing income or the book profits of the company could be done only at the end of the financial year and hence the provisions of Sections 207, 208, 209 and 210 (predecessors of Sections 234B and 234C) were not applicable until and unless the accounts stood audited and the balance sheet stood prepared, because till then even the assessee may not know whether the provisions of Section 115J would be applied or not. The Court, therefore, held that the liability would arise only after the profit is determined in accordance with the provisions of the Companies Act, 1956 and, therefore, interest under Sections 234B and 234C is not leviable in cases where Section 115J applied. This view of the Karnataka High Court in Kwality Biscuits Ltd. was not shared by the Gauhati High Court inAssam Bengal Carriers Ltd. v. CIT, reported in (1999) 239 ITR 862 and Madhya Pradesh High Court inItarsi Oil and Flours (P.) Limited v. CIT, reported in (2001) 250 ITR 686 as also by the Bombay High Court in the case of CIT v. Kotak Mahindra Finance Ltd., reported in (2003) 130 TAXMAN 730 which decided the issue in favour of the Department and against the assessee. It appears that none of the assessees challenged the decisions of the Gauhati High Court, Madhya Pradesh High Court as well as Bombay High Court in the Supreme Court. However, it may be noted that the judgment of the Karnataka High Court in Kwality Biscuits Ltd. was confined to Section 115J of the Act. The Order of the Supreme Court dismissing the Special Leave Petition in limine filed by the Department against Kwality Biscuits Ltd. is reported in (2006) 284 ITR 434. Thus, the judgment of Karnataka High Court in Kwality Biscuits stood affirmed. However, the Karnataka High Court has thereafter in the case of Jindal Thermal Power Company Ltd. v. Dy. CIT, reported in (2006) 154 TAXMAN 547 distinguished its own decision in case of Kwality Biscuits Ltd. (supra) and held that Section 115JB, with which we are concerned, is a self-contained code pertaining to MAT, which imposed liability for payment of advance tax on MAT companies and, therefore, where such companies defaulted in payment of advance tax in respect of tax payable under Section 115JB, it was liable to pay interest under Sections 234B and 234C of the Act. Thus, it can be concluded that interest under Sections 234B and 234C shall be payable on failure to pay advance tax in respect of tax payable under Sections 115JA/115JB. For the aforestated reasons, Circular No. 13/2001 dated 9.11.2001 issued by CBDT reported in 252 ITR(St.) 50 has no application. Moreover, in any event, para 2 of that Circular itself indicates that a large number of companies liable to be taxed under MAT provisions of Section 115JB were not making advance tax payments. In the said circular, it has been clarified that Section 115JB is a self-contained code and thus, all companies were liable for payment of advance tax under Section 115JB and consequently provisions of Sections 234B and 234C imposing interest on default in payment of advance tax were also applicable. | 1[ds]7. In our view, Sections 115J/115JA are special provisions. Section 207 envisages that tax shall be payable in advance during any financial year on current income in accordance with the scheme provided in Sections 208 to 219 (both inclusive) in respect of the total income of the assessee that would be chargeable to tax for the assessment year immediately following that financial year. Section 215(5) of the Act defined what is, i.e., tax determined on the basis of regular assessment so far as such tax relates to income subject to advance tax. The evaluation of the current income and the determination of the assessed income had to be made in terms of the statutory scheme comprising Sections 115J/115JA of the Act. Hence, levying of interest was inescapable. The assessee was bound to pay advance tax under the said scheme of the Act. Sections 115J/115JA of the Act were special provisions which provided that where in the case of an assessee, the total income as computed under the Act in respect of any previous year relevant to the assessment year is less than 30% of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30% of such book profit. The object is to tax zero-tax companies.8. Section 115J was inserted by Finance Act, 1987 w.e.f. 1.4.1988. This section was in force from 1.4.1988 to 31.3.1991. After 1.4.1991, Section 115JA was inserted by Finance Act of 1996 w.e.f. 1.4.1997. After insertion of Section 115JA, Section 115JB was inserted by Finance Act, 2000 w.e.f. 1.4.2001. It is clear from reading Sections 115JA and 115JB that the question whether a company which is liable to pay tax under either provision does not assume importance because specific provision(s) is made in the section saying that all other provisions of the Act shall apply to the MAT Company (Section 115JA(4) and Section 115JB(5)). Similarly, amendments have been made in the relevant Finance Acts providing for payment of advance tax under Sections 115JA and 115JB. So far as interest leviable under Section 234B is concerned, the section is clear that it applies to all companies. The pre-requisite condition for applicability of Section 234B is that assessee is liable to pay tax under Section 208 and the expressionis defined to mean the tax on the total income determined under section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source. Thus, there is no exclusion of Sections 115J/115JA in the levy of interest under Section 234B. The expressionis defined to mean the tax assessed on regular assessment which means the tax determined on the application of Sections 115J/115JA in the regular assessment.9. The question which remains to be considered is whether the assessee, which is a MAT Company, was not in a position to estimate its profits of the current year prior to the end of the financial year on 31st March. In this connection the assessee placed reliance on the judgment of the Karnataka High Court in the case of Kwality Biscuits Ltd. v. CIT, reported in (2000) 243 ITR 519 and, according to the Karnataka High Court, the profit as computed under the Income Tax Act, 1961 had to be prepared and thereafter the book profit as contemplated under Section 115J of the Act had to be determined and then, the liability of the assessee to pay tax under Section 115J of the Act arose, only if the total income as computed under the provisions of the Act was less than 30% of the book profit. According to the Karnataka High Court, this entire exercise of computing income or the book profits of the company could be done only at the end of the financial year and hence the provisions of Sections 207, 208, 209 and 210 (predecessors of Sections 234B and 234C) were not applicable until and unless the accounts stood audited and the balance sheet stood prepared, because till then even the assessee may not know whether the provisions of Section 115J would be applied or not. The Court, therefore, held that the liability would arise only after the profit is determined in accordance with the provisions of the Companies Act, 1956 and, therefore, interest under Sections 234B and 234C is not leviable in cases where Section 115J applied. This view of the Karnataka High Court in Kwality Biscuits Ltd. was not shared by the Gauhati High Court inAssam Bengal Carriers Ltd. v. CIT, reported in (1999) 239 ITR 862 and Madhya Pradesh High Court inItarsi Oil and Flours (P.) Limited v. CIT, reported in (2001) 250 ITR 686 as also by the Bombay High Court in the case of CIT v. Kotak Mahindra Finance Ltd., reported in (2003) 130 TAXMAN 730 which decided the issue in favour of the Department and against the assessee. It appears that none of the assessees challenged the decisions of the Gauhati High Court, Madhya Pradesh High Court as well as Bombay High Court in the Supreme Court. However, it may be noted that the judgment of the Karnataka High Court in Kwality Biscuits Ltd. was confined to Section 115J of the Act. The Order of the Supreme Court dismissing the Special Leave Petition in limine filed by the Department against Kwality Biscuits Ltd. is reported in (2006) 284 ITR 434. Thus, the judgment of Karnataka High Court in Kwality Biscuits stood affirmed. However, the Karnataka High Court has thereafter in the case of Jindal Thermal Power Company Ltd. v. Dy. CIT, reported in (2006) 154 TAXMAN 547 distinguished its own decision in case of Kwality Biscuits Ltd. (supra) and held that Section 115JB, with which we are concerned, is a self-contained code pertaining to MAT, which imposed liability for payment of advance tax on MAT companies and, therefore, where such companies defaulted in payment of advance tax in respect of tax payable under Section 115JB, it was liable to pay interest under Sections 234B and 234C of the Act. Thus, it can be concluded that interest under Sections 234B and 234C shall be payable on failure to pay advance tax in respect of tax payable under Sections 115JA/115JB. For the aforestated reasons, Circular No. 13/2001 dated 9.11.2001 issued by CBDT reported in 252 ITR(St.) 50 has no application. Moreover, in any event, para 2 of that Circular itself indicates that a large number of companies liable to be taxed under MAT provisions of Section 115JB were not making advance tax payments. In the said circular, it has been clarified that Section 115JB is a self-contained code and thus, all companies were liable for payment of advance tax under Section 115JB and consequently provisions of Sections 234B and 234C imposing interest on default in payment of advance tax were also applicable. | 1 | 3,585 | 1,267 | ### 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:
under the said scheme of the Act. Sections 115J/115JA of the Act were special provisions which provided that where in the case of an assessee, the total income as computed under the Act in respect of any previous year relevant to the assessment year is less than 30% of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30% of such book profit. The object is to tax zero-tax companies.8. Section 115J was inserted by Finance Act, 1987 w.e.f. 1.4.1988. This section was in force from 1.4.1988 to 31.3.1991. After 1.4.1991, Section 115JA was inserted by Finance Act of 1996 w.e.f. 1.4.1997. After insertion of Section 115JA, Section 115JB was inserted by Finance Act, 2000 w.e.f. 1.4.2001. It is clear from reading Sections 115JA and 115JB that the question whether a company which is liable to pay tax under either provision does not assume importance because specific provision(s) is made in the section saying that all other provisions of the Act shall apply to the MAT Company (Section 115JA(4) and Section 115JB(5)). Similarly, amendments have been made in the relevant Finance Acts providing for payment of advance tax under Sections 115JA and 115JB. So far as interest leviable under Section 234B is concerned, the section is clear that it applies to all companies. The pre-requisite condition for applicability of Section 234B is that assessee is liable to pay tax under Section 208 and the expression “assessed tax” is defined to mean the tax on the total income determined under section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source. Thus, there is no exclusion of Sections 115J/115JA in the levy of interest under Section 234B. The expression “assessed tax” is defined to mean the tax assessed on regular assessment which means the tax determined on the application of Sections 115J/115JA in the regular assessment.9. The question which remains to be considered is whether the assessee, which is a MAT Company, was not in a position to estimate its profits of the current year prior to the end of the financial year on 31st March. In this connection the assessee placed reliance on the judgment of the Karnataka High Court in the case of Kwality Biscuits Ltd. v. CIT, reported in (2000) 243 ITR 519 and, according to the Karnataka High Court, the profit as computed under the Income Tax Act, 1961 had to be prepared and thereafter the book profit as contemplated under Section 115J of the Act had to be determined and then, the liability of the assessee to pay tax under Section 115J of the Act arose, only if the total income as computed under the provisions of the Act was less than 30% of the book profit. According to the Karnataka High Court, this entire exercise of computing income or the book profits of the company could be done only at the end of the financial year and hence the provisions of Sections 207, 208, 209 and 210 (predecessors of Sections 234B and 234C) were not applicable until and unless the accounts stood audited and the balance sheet stood prepared, because till then even the assessee may not know whether the provisions of Section 115J would be applied or not. The Court, therefore, held that the liability would arise only after the profit is determined in accordance with the provisions of the Companies Act, 1956 and, therefore, interest under Sections 234B and 234C is not leviable in cases where Section 115J applied. This view of the Karnataka High Court in Kwality Biscuits Ltd. was not shared by the Gauhati High Court inAssam Bengal Carriers Ltd. v. CIT, reported in (1999) 239 ITR 862 and Madhya Pradesh High Court inItarsi Oil and Flours (P.) Limited v. CIT, reported in (2001) 250 ITR 686 as also by the Bombay High Court in the case of CIT v. Kotak Mahindra Finance Ltd., reported in (2003) 130 TAXMAN 730 which decided the issue in favour of the Department and against the assessee. It appears that none of the assessees challenged the decisions of the Gauhati High Court, Madhya Pradesh High Court as well as Bombay High Court in the Supreme Court. However, it may be noted that the judgment of the Karnataka High Court in Kwality Biscuits Ltd. was confined to Section 115J of the Act. The Order of the Supreme Court dismissing the Special Leave Petition in limine filed by the Department against Kwality Biscuits Ltd. is reported in (2006) 284 ITR 434. Thus, the judgment of Karnataka High Court in Kwality Biscuits stood affirmed. However, the Karnataka High Court has thereafter in the case of Jindal Thermal Power Company Ltd. v. Dy. CIT, reported in (2006) 154 TAXMAN 547 distinguished its own decision in case of Kwality Biscuits Ltd. (supra) and held that Section 115JB, with which we are concerned, is a self-contained code pertaining to MAT, which imposed liability for payment of advance tax on MAT companies and, therefore, where such companies defaulted in payment of advance tax in respect of tax payable under Section 115JB, it was liable to pay interest under Sections 234B and 234C of the Act. Thus, it can be concluded that interest under Sections 234B and 234C shall be payable on failure to pay advance tax in respect of tax payable under Sections 115JA/115JB. For the aforestated reasons, Circular No. 13/2001 dated 9.11.2001 issued by CBDT reported in 252 ITR(St.) 50 has no application. Moreover, in any event, para 2 of that Circular itself indicates that a large number of companies liable to be taxed under MAT provisions of Section 115JB were not making advance tax payments. In the said circular, it has been clarified that Section 115JB is a self-contained code and thus, all companies were liable for payment of advance tax under Section 115JB and consequently provisions of Sections 234B and 234C imposing interest on default in payment of advance tax were also applicable.
### Response:
1
### Explanation:
pay advance tax under the said scheme of the Act. Sections 115J/115JA of the Act were special provisions which provided that where in the case of an assessee, the total income as computed under the Act in respect of any previous year relevant to the assessment year is less than 30% of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30% of such book profit. The object is to tax zero-tax companies.8. Section 115J was inserted by Finance Act, 1987 w.e.f. 1.4.1988. This section was in force from 1.4.1988 to 31.3.1991. After 1.4.1991, Section 115JA was inserted by Finance Act of 1996 w.e.f. 1.4.1997. After insertion of Section 115JA, Section 115JB was inserted by Finance Act, 2000 w.e.f. 1.4.2001. It is clear from reading Sections 115JA and 115JB that the question whether a company which is liable to pay tax under either provision does not assume importance because specific provision(s) is made in the section saying that all other provisions of the Act shall apply to the MAT Company (Section 115JA(4) and Section 115JB(5)). Similarly, amendments have been made in the relevant Finance Acts providing for payment of advance tax under Sections 115JA and 115JB. So far as interest leviable under Section 234B is concerned, the section is clear that it applies to all companies. The pre-requisite condition for applicability of Section 234B is that assessee is liable to pay tax under Section 208 and the expressionis defined to mean the tax on the total income determined under section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source. Thus, there is no exclusion of Sections 115J/115JA in the levy of interest under Section 234B. The expressionis defined to mean the tax assessed on regular assessment which means the tax determined on the application of Sections 115J/115JA in the regular assessment.9. The question which remains to be considered is whether the assessee, which is a MAT Company, was not in a position to estimate its profits of the current year prior to the end of the financial year on 31st March. In this connection the assessee placed reliance on the judgment of the Karnataka High Court in the case of Kwality Biscuits Ltd. v. CIT, reported in (2000) 243 ITR 519 and, according to the Karnataka High Court, the profit as computed under the Income Tax Act, 1961 had to be prepared and thereafter the book profit as contemplated under Section 115J of the Act had to be determined and then, the liability of the assessee to pay tax under Section 115J of the Act arose, only if the total income as computed under the provisions of the Act was less than 30% of the book profit. According to the Karnataka High Court, this entire exercise of computing income or the book profits of the company could be done only at the end of the financial year and hence the provisions of Sections 207, 208, 209 and 210 (predecessors of Sections 234B and 234C) were not applicable until and unless the accounts stood audited and the balance sheet stood prepared, because till then even the assessee may not know whether the provisions of Section 115J would be applied or not. The Court, therefore, held that the liability would arise only after the profit is determined in accordance with the provisions of the Companies Act, 1956 and, therefore, interest under Sections 234B and 234C is not leviable in cases where Section 115J applied. This view of the Karnataka High Court in Kwality Biscuits Ltd. was not shared by the Gauhati High Court inAssam Bengal Carriers Ltd. v. CIT, reported in (1999) 239 ITR 862 and Madhya Pradesh High Court inItarsi Oil and Flours (P.) Limited v. CIT, reported in (2001) 250 ITR 686 as also by the Bombay High Court in the case of CIT v. Kotak Mahindra Finance Ltd., reported in (2003) 130 TAXMAN 730 which decided the issue in favour of the Department and against the assessee. It appears that none of the assessees challenged the decisions of the Gauhati High Court, Madhya Pradesh High Court as well as Bombay High Court in the Supreme Court. However, it may be noted that the judgment of the Karnataka High Court in Kwality Biscuits Ltd. was confined to Section 115J of the Act. The Order of the Supreme Court dismissing the Special Leave Petition in limine filed by the Department against Kwality Biscuits Ltd. is reported in (2006) 284 ITR 434. Thus, the judgment of Karnataka High Court in Kwality Biscuits stood affirmed. However, the Karnataka High Court has thereafter in the case of Jindal Thermal Power Company Ltd. v. Dy. CIT, reported in (2006) 154 TAXMAN 547 distinguished its own decision in case of Kwality Biscuits Ltd. (supra) and held that Section 115JB, with which we are concerned, is a self-contained code pertaining to MAT, which imposed liability for payment of advance tax on MAT companies and, therefore, where such companies defaulted in payment of advance tax in respect of tax payable under Section 115JB, it was liable to pay interest under Sections 234B and 234C of the Act. Thus, it can be concluded that interest under Sections 234B and 234C shall be payable on failure to pay advance tax in respect of tax payable under Sections 115JA/115JB. For the aforestated reasons, Circular No. 13/2001 dated 9.11.2001 issued by CBDT reported in 252 ITR(St.) 50 has no application. Moreover, in any event, para 2 of that Circular itself indicates that a large number of companies liable to be taxed under MAT provisions of Section 115JB were not making advance tax payments. In the said circular, it has been clarified that Section 115JB is a self-contained code and thus, all companies were liable for payment of advance tax under Section 115JB and consequently provisions of Sections 234B and 234C imposing interest on default in payment of advance tax were also applicable.
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Shiv Chand Amolak Chand Vs. Regional Transport Authority & Anr | not than be followed. On the other hand, if the Regional Transport Authority on receipt of applications would decide upon the limit of permits and the grant thereof would be with-in the limit prescribed then the procedure laid down in section 57 (3) of the Act would be followed." There can, therefore, be no doubt that if an application for varying the condition of a permit by extension of the route specified in th e permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in section 47 sub-section (3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority. But we do not think that the prescription in sub-section (8) of section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of sub-section (3) of section 47. Section 57 deals with the procedure in applying for and granting permits and sub- section (3) to (7) lay down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit. Sub- section (8) follows upon sub-section (3) to (7) and is part of the same section which has a definite object and scheme of providing the procedure for considering and granting an application and therefore, when it provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub- section (3) to (7) to such an application. The context in which sub-section (8) occurs and its juxtaposition with sub- section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub-section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub- section (3) to (7) of section 58 and nothing more. The requirement spelt out in sub-section (3) of section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted. This condition precedent cannot be said to have been incorporated by reference under sub-section (8) of section 57. An application to vary the conditions of a permit as set out is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub-section (3) to (7) of that section. It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant. It is the same permit which now, after the granting of the application, covers the extended route. It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect a and substance, be an application for gr ant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under section 47 sub-section (3) before the application to vary the conditions of the permit can be entertained. An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision enacted in section 47 sub- section (3) by labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in section 47 sub-section (3) may have to be complied with before the Regional Transport Authority can consider and grant the application. But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is a n application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub-section (3 ) of Section 47.We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not be considered by the Regional Transport Authority with out following the procedure prescribed under sub-section (3) of Section 47. | 1[ds]There are two independent steps required to be taken in connection with the grant of a permit, the first being the determination by the Regional Transport Authority under section 47 sub- section (3) of the number of stage carriages for which permits may be granted and the second being that "thereafter applications for stage carriage permits can be entertained" and, therefore, it would mean that before an application for grant of a permit can be entertained by the Regional Transport Authority, t here would be a determination under section 47subsection(3).Ray, J., as he then was speaking on behalf of the Court observed in Ibrahims case (supra):"In our opinion, the provisions of the Act in regard to stage carriage permits have the following consequences. If the Regional Transport Authority were to appoint a date for the receipt of applications for the grant of stage carriage permits, the Regional Transport Authority should fix the limit of the number of permits which might be granted and then notify the same under section 57 (2) of the Act. If, on the other hand, applications were sent by persons suo motu for the grant of permit the applications would have to be published and the representations would have to be asked for. The proviso of section 57 (3) of the Act furnishes the answer that if the grant of any permit in accordance with the application would have the effect of increasing the number of permits beyond the limit fixed under section 47 (3) of the Act, the Regional Transport Authority might summarily refuse the application without following the procedure laid down in section 57 of the Act. In other cases, the proper stage for fixing the limit under section 47 (3) of the Act would be after applications are received and before the same would be published under section 57 (3) of the Act asking for representations. If however the Regional Transport Authority would not increase or modify the number of permits which already exist, the grant of an application would mean transgressing the limit fixed, and procedure laid down in section 57 (3) of the Act need not than be followed. On the other hand, if the Regional Transport Authority on receipt of applications would decide upon the limit of permits and the grant thereof would be with-in the limit prescribed then the procedure laid down in section 57 (3) of the Act would bee can, therefore, be no doubt that if an application for varying the condition of a permit by extension of the route specified in th e permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in section 47 sub-section (3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority. But we do not think that the prescription in sub-section (8) of section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of sub-section (3) of section 47. Section 57 deals with the procedure in applying for and granting permits and sub- section (3) to (7) lay down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit. Sub- section (8) follows upon sub-section (3) to (7) and is part of the same section which has a definite object and scheme of providing the procedure for considering and granting an application and therefore, when it provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub- section (3) to (7) to such an application. The context in which sub-section (8) occurs and its juxtaposition with sub- section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub-section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub- section (3) to (7) of section 58 and nothing more. The requirement spelt out in sub-section (3) of section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted. This condition precedent cannot be said to have been incorporated by reference under sub-section (8) of section 57. An application to vary the conditions of a permit as set out is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub-section (3) to (7) of that section. It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant. It is the same permit which now, after the granting of the application, covers the extended route. It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect a and substance, be an application for gr ant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under section 47 sub-section (3) before the application to vary the conditions of the permit can be entertained. An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision enacted in section 47 sub- section (3) by labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in section 47 sub-section (3) may have to be complied with before the Regional Transport Authority can consider and grant the application. But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is a n application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub-section (3 ) of Section 47.We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not be considered by the Regional Transport Authority with out following the procedure prescribed under sub-section (3) of Section 47. We accordingly allow the appeal, set aside the judgment of the High Court as also the order made by the Regional Transport Authority and remit the case back to the Regional Transport Authority for considering the application of the appellants in accordance with law in the light of the observations contained in this judgment. | 1 | 4,637 | 1,550 | ### 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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not than be followed. On the other hand, if the Regional Transport Authority on receipt of applications would decide upon the limit of permits and the grant thereof would be with-in the limit prescribed then the procedure laid down in section 57 (3) of the Act would be followed." There can, therefore, be no doubt that if an application for varying the condition of a permit by extension of the route specified in th e permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in section 47 sub-section (3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority. But we do not think that the prescription in sub-section (8) of section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of sub-section (3) of section 47. Section 57 deals with the procedure in applying for and granting permits and sub- section (3) to (7) lay down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit. Sub- section (8) follows upon sub-section (3) to (7) and is part of the same section which has a definite object and scheme of providing the procedure for considering and granting an application and therefore, when it provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub- section (3) to (7) to such an application. The context in which sub-section (8) occurs and its juxtaposition with sub- section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub-section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub- section (3) to (7) of section 58 and nothing more. The requirement spelt out in sub-section (3) of section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted. This condition precedent cannot be said to have been incorporated by reference under sub-section (8) of section 57. An application to vary the conditions of a permit as set out is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub-section (3) to (7) of that section. It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant. It is the same permit which now, after the granting of the application, covers the extended route. It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect a and substance, be an application for gr ant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under section 47 sub-section (3) before the application to vary the conditions of the permit can be entertained. An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision enacted in section 47 sub- section (3) by labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in section 47 sub-section (3) may have to be complied with before the Regional Transport Authority can consider and grant the application. But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is a n application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub-section (3 ) of Section 47.We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not be considered by the Regional Transport Authority with out following the procedure prescribed under sub-section (3) of Section 47.
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doubt that if an application for varying the condition of a permit by extension of the route specified in th e permit were equated wholly with an application for grant of a new permit and the permit for the extended route were to be regarded as a new permit, the procedure prescribed in section 47 sub-section (3) would have to be followed and the number of stage carriages for which permits may be granted on the extended route would have to be determined before the application could be entertained by the Regional Transport Authority. But we do not think that the prescription in sub-section (8) of section 57 that an application for varying the condition of a permit by extension of the route shall be treated as an application for grant of a new permit has effect of equating such an application with an application for grant of a new permit for all purposes so as to attract the applicability of sub-section (3) of section 47. Section 57 deals with the procedure in applying for and granting permits and sub- section (3) to (7) lay down the procedure which must be followed in considering and deciding, inter alia, an application for grant of a stage carriage permit. Sub- section (8) follows upon sub-section (3) to (7) and is part of the same section which has a definite object and scheme of providing the procedure for considering and granting an application and therefore, when it provides that an application to vary the conditions of a permit by the inclusion of new route or routes or new area or by increasing the number of trips above the specified maximum or by altering the route covered by it shall be treated as an application for grant of a new stage carriage permit it is obviously intended to incorporate and make applicable the procedure set out in the preceding sub- section (3) to (7) to such an application. The context in which sub-section (8) occurs and its juxtaposition with sub- section (3) to (7) in section 58 clearly indicate that what is sought to be made applicable to an application referred to in sub-section (8) by treating it as an application for grant of a new permit, is the procedure set out in sub- section (3) to (7) of section 58 and nothing more. The requirement spelt out in sub-section (3) of section 47 that the number of stage carriages for which permits may be granted on any particular route must be first determined before an application for grant of a stage carriage permit can be entertained by the Regional Transport Authority under section 48, is obviously not a part of the procedure for considering an application for grant of a permit; it is a condition precedent before an application for grant of a permit can be considered and granted. This condition precedent cannot be said to have been incorporated by reference under sub-section (8) of section 57. An application to vary the conditions of a permit as set out is undoubtedly to be treated as an application for grant of a new permit, but that is only for the purpose of applying the procedure set out in sub-section (3) to (7) of that section. It is not an application for a new permit and if it is granted, the permit for the extended route does not become a new permit in the hands of the applicant. It is the same permit which now, after the granting of the application, covers the extended route. It may be possible to say that where a totally new route is sought to be included by an application to vary the conditions of a permit or the alteration of the route sought by such an application is of such a drastic character that it becomes substantially a new route, the application, though in form an application to vary the conditions of the permit, would in effect a and substance, be an application for gr ant of a new permit and in such a case, a view may conceivably be taken with some degree of plausibility that the number of stage carriages for which permits may be granted on such new route should first be determined under section 47 sub-section (3) before the application to vary the conditions of the permit can be entertained. An applicant for a permit on a route which is not merely technically, but in truth and reality a different route, distinct from the original route, may not be permitted to defeat the provision enacted in section 47 sub- section (3) by labelling his application as one for varying the conditions of the permit and in such a case, the procedure set out in section 47 sub-section (3) may have to be complied with before the Regional Transport Authority can consider and grant the application. But where an application merely seeks a short extension of the route specified in the permit as in the present case, it would not be appropriate to say that it is a n application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure set out in sub-section (3 ) of Section 47.We are, therefore, of the view that the High Court was in error in holding that the application made by the appellants for extension of the route specified in their permit from Satanwara to Shivpuri could not be considered by the Regional Transport Authority with out following the procedure prescribed under sub-section (3) of Section 47. We accordingly allow the appeal, set aside the judgment of the High Court as also the order made by the Regional Transport Authority and remit the case back to the Regional Transport Authority for considering the application of the appellants in accordance with law in the light of the observations contained in this judgment.
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SHREE AMBICA MEDICAL STORES Vs. THE SURAT PEOPLES CO-OPERATIVE BANK LTD | his commission within twenty-four hours of the collection excluding bank and postal holidays. (5) The Central Government may, by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies. (6) The Authority may, from time to time, specify, by the regulations made by it, the manner of receipt of premium by the insurer. 23. The above provision states that no risk can be assumed by the insurer unless the premium payable is received in advance. Sub-Section (3) of Section 64 (VB) provides for refund of the premium amount to the insured in case of cancellation or alteration of the terms and conditions of the policy. In the present case, the premium of Rs 992 to cover STFI perils was refunded by the insurer to the bank and the amount was deposited in the insureds account. The proposal does not conclude the contract. A contract postulates an agreement between the parties. In the present case, the insurer while issuing the new policy at a fresh location specifically excluded STFI perils and refunded the premium. The insured at the time when the loss occurred was covered by a policy that excluded STFI perils. Therefore, the insurer cannot be held to be liable. To hold to the contrary would be rewriting the agreement between the parties and creating a fresh contract to which the parties had not agreed. 24. The bank in its written statement filed before the State Commission, specifically averred in paragraph 2 that: ..The real fact is that one copy of the Policy is given to the Complainant and from this the Complainant can know the fact. One copy of the said Policy was given to them. Moreover, the Premium Amount which was returned back was debited in their Account. They could have inquired from this that what this Premium Amount was returned by the Insurance Company. The appellants in their rejoinder did not specifically deny the averment that they were furnished with a copy of the policy. The appellants have also not denied the fact that the premium on account of STFI perils which was refunded by the insurer was credited to their account. This being the position, it is not open to the appellants to disavow knowledge of the exclusion of the STFI perils in the insurance cover of Rs 60 lakhs which was issued for 2005-06 and renewed for 2006-07. 25. The appellants have placed reliance on the decision of this Court in Biman Krishna Bose v United India Insurance Co Ltd (2001) 6 SCC 477 , where this court while dealing with a mediclaim policy, observed: 5. A renewal of an insurance policy means repetition of the original policy. When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force. In common parlance, by renewal, the old policy is revived and it is sort of a substitution of obligations under the old policy unless such policy provides otherwise. It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as that of the original policy. Where an insurance company which has exclusive privilege to carry on insurance business has refused to renew the mediclaim policy of an insured on extraneous and irrelevant consideration, any disease which an insured had contacted during the period when the policy was not renewed, such decease cannot be covered under a fresh insurance policy in view of the exclusion clause. The exclusion clause provides that the pre-existing diseases would not be covered under the fresh insurance policy. If we take the view that the mediclaim policy cannot be renewed with retrospective effect, it would give handle to the insurance company to refuse the renewal of the policy on extraneous consideration thereby deprive the claim of insured for treatment of diseases which have appeared during the relevant time and further deprive the insured for all time to come to cover those diseases under an insurance policy by virtue of the exclusion clause. This being the disastrous effect of wrongful refusal of renewal of the insurance policy, the mischief and harm done to the insured must be remedied. We are, therefore, of the view that once it is found that the act of an insurance company was arbitrary in refusing to renew the policy, the policy is required to be renewed with effect from the date when it fell due for its renewal. (Emphasis supplied) 26. The above case, as the extract indicates, dealt with a situation where the act of the insurer in refusing to renew the mediclaim policy was held to be arbitrary. This Court noted the serious consequence flowing out of the arbitrary refusal to renew the contract since it would result in the exclusion of the cover and the rejection of the claim in respect of a disease which the insured had contracted during the period when the policy was not renewed. The situation in the present case is clearly distinguishable. The terms and conditions of the new policy specifically excluded STFI perils and evidently there was a change in the obligations of the insurer. There was no renewal but the issuance of a new policy. The change in the location of the premises in the present case led to the issuance of a new policy. It was open to the insurer to specifically exclude STFI perils as a commercial decision. The appellants had knowledge of the exclusion of the STFI perils as they were provided with a copy of the policy and also received the refund of the premium. Having lodged no protest with the insurer during 2005-06 or in the renewed term of 2006-07, the insured cannot lay a claim that they had no knowledge that the STFI cover was excluded from the insurance cover. Nothing prevented the appellants from either approaching the insurer or any other insurance company for obtaining a policy that covered STFI perils. | 0[ds]21. In the present case, the policy of insurance with a cover of Rs 60 lakhs for the period 2004-05 was issued for the location at B 205, Plot No 17-B, Village Karnaj. The insurance policy for 2005-06 was sought for different premises situated at 12/1123-1124, Basement, Meghdoot Apartment, Surat. The address mentioned in the policy for 2004-05 differs from that of 2005-06. The insurer proceeded on the basis that this was a fresh contract of insurance. Theinsurance policy for 1 August 2005 to 31 July 2006 was issued with the exclusion of STFI perils. This is clear from the use of words Warranted that STFI risk is excluded from the risk in the above insurance policy. The terms of the policy will govern the contract between the parties. The STFI risks were specifically excluded from the coverage of the policy. The extra premium of Rs 992 was refunded by the insurer to bank and the bank deposited the amount in the appellants account23. The above provision states that no risk can be assumed by the insurer unless the premium payable is received in advance. Sub-Section (3) of Section 64 (VB) provides for refund of the premium amount to the insured in case of cancellation or alteration of the terms and conditions of the policy. In the present case, the premium of Rs 992 to cover STFI perils was refunded by the insurer to the bank and the amount was deposited in the insureds account. The proposal does not conclude the contract. A contract postulates an agreement between the parties. In the present case, the insurer while issuing the new policy at a fresh location specifically excluded STFI perils and refunded the premium. The insured at the time when the loss occurred was covered by a policy that excluded STFI perils. Therefore, the insurer cannot be held to be liable. To hold to the contrary would be rewriting the agreement between the parties and creating a fresh contract to which the parties had not agreed25. The appellants have placed reliance on the decision of this Court in Biman Krishna Bose v United India Insurance Co Ltd (2001) 6 SCC 477 ,20. This Court, while interpreting the contract of insurance must interpret the words of the contract by giving effect to the meaning and intent which emerges from the terms of the agreementThe court through its interpretative process cannot rewrite or create a new contract between the parties. The court has to simply apply the terms and conditions of the agreement as agreed between the partiesThe appellants in their rejoinder did not specifically deny the averment that they were furnished with a copy of the policy. The appellants have also not denied the fact that the premium on account of STFI perils which was refunded by the insurer was credited to their account. This being the position, it is not open to the appellants to disavow knowledge of the exclusion of the STFI perils in the insurance cover of Rs 60 lakhs which was issued for 2005-06 and renewed for 2006-0726. The above case, as the extract indicates, dealt with a situation where the act of the insurer in refusing to renew the mediclaim policy was held to be arbitrary. This Court noted the serious consequence flowing out of the arbitrary refusal to renew the contract since it would result in the exclusion of the cover and the rejection of the claim in respect of a disease which the insured had contracted during the period when the policy was not renewed. The situation in the present case is clearly distinguishable. The terms and conditions of the new policy specifically excluded STFI perils and evidently there was a change in the obligations of the insurer. There was no renewal but the issuance of a new policy. The change in the location of the premises in the present case led to the issuance of a new policy. It was open to the insurer to specifically exclude STFI perils as a commercial decision. The appellants had knowledge of the exclusion of the STFI perils as they were provided with a copy of the policy and also received the refund of the premium. Having lodged no protest with the insurer during 2005-06 or in the renewed term of 2006-07, the insured cannot lay a claim that they had no knowledge that the STFI cover was excluded from the insurance cover. Nothing prevented the appellants from either approaching the insurer or any other insurance company for obtaining a policy that covered STFI perils. | 0 | 4,690 | 818 | ### 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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his commission within twenty-four hours of the collection excluding bank and postal holidays. (5) The Central Government may, by rules, relax the requirements of sub-section (1) in respect of particular categories in insurance policies. (6) The Authority may, from time to time, specify, by the regulations made by it, the manner of receipt of premium by the insurer. 23. The above provision states that no risk can be assumed by the insurer unless the premium payable is received in advance. Sub-Section (3) of Section 64 (VB) provides for refund of the premium amount to the insured in case of cancellation or alteration of the terms and conditions of the policy. In the present case, the premium of Rs 992 to cover STFI perils was refunded by the insurer to the bank and the amount was deposited in the insureds account. The proposal does not conclude the contract. A contract postulates an agreement between the parties. In the present case, the insurer while issuing the new policy at a fresh location specifically excluded STFI perils and refunded the premium. The insured at the time when the loss occurred was covered by a policy that excluded STFI perils. Therefore, the insurer cannot be held to be liable. To hold to the contrary would be rewriting the agreement between the parties and creating a fresh contract to which the parties had not agreed. 24. The bank in its written statement filed before the State Commission, specifically averred in paragraph 2 that: ..The real fact is that one copy of the Policy is given to the Complainant and from this the Complainant can know the fact. One copy of the said Policy was given to them. Moreover, the Premium Amount which was returned back was debited in their Account. They could have inquired from this that what this Premium Amount was returned by the Insurance Company. The appellants in their rejoinder did not specifically deny the averment that they were furnished with a copy of the policy. The appellants have also not denied the fact that the premium on account of STFI perils which was refunded by the insurer was credited to their account. This being the position, it is not open to the appellants to disavow knowledge of the exclusion of the STFI perils in the insurance cover of Rs 60 lakhs which was issued for 2005-06 and renewed for 2006-07. 25. The appellants have placed reliance on the decision of this Court in Biman Krishna Bose v United India Insurance Co Ltd (2001) 6 SCC 477 , where this court while dealing with a mediclaim policy, observed: 5. A renewal of an insurance policy means repetition of the original policy. When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force. In common parlance, by renewal, the old policy is revived and it is sort of a substitution of obligations under the old policy unless such policy provides otherwise. It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as that of the original policy. Where an insurance company which has exclusive privilege to carry on insurance business has refused to renew the mediclaim policy of an insured on extraneous and irrelevant consideration, any disease which an insured had contacted during the period when the policy was not renewed, such decease cannot be covered under a fresh insurance policy in view of the exclusion clause. The exclusion clause provides that the pre-existing diseases would not be covered under the fresh insurance policy. If we take the view that the mediclaim policy cannot be renewed with retrospective effect, it would give handle to the insurance company to refuse the renewal of the policy on extraneous consideration thereby deprive the claim of insured for treatment of diseases which have appeared during the relevant time and further deprive the insured for all time to come to cover those diseases under an insurance policy by virtue of the exclusion clause. This being the disastrous effect of wrongful refusal of renewal of the insurance policy, the mischief and harm done to the insured must be remedied. We are, therefore, of the view that once it is found that the act of an insurance company was arbitrary in refusing to renew the policy, the policy is required to be renewed with effect from the date when it fell due for its renewal. (Emphasis supplied) 26. The above case, as the extract indicates, dealt with a situation where the act of the insurer in refusing to renew the mediclaim policy was held to be arbitrary. This Court noted the serious consequence flowing out of the arbitrary refusal to renew the contract since it would result in the exclusion of the cover and the rejection of the claim in respect of a disease which the insured had contracted during the period when the policy was not renewed. The situation in the present case is clearly distinguishable. The terms and conditions of the new policy specifically excluded STFI perils and evidently there was a change in the obligations of the insurer. There was no renewal but the issuance of a new policy. The change in the location of the premises in the present case led to the issuance of a new policy. It was open to the insurer to specifically exclude STFI perils as a commercial decision. The appellants had knowledge of the exclusion of the STFI perils as they were provided with a copy of the policy and also received the refund of the premium. Having lodged no protest with the insurer during 2005-06 or in the renewed term of 2006-07, the insured cannot lay a claim that they had no knowledge that the STFI cover was excluded from the insurance cover. Nothing prevented the appellants from either approaching the insurer or any other insurance company for obtaining a policy that covered STFI perils.
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0
### Explanation:
21. In the present case, the policy of insurance with a cover of Rs 60 lakhs for the period 2004-05 was issued for the location at B 205, Plot No 17-B, Village Karnaj. The insurance policy for 2005-06 was sought for different premises situated at 12/1123-1124, Basement, Meghdoot Apartment, Surat. The address mentioned in the policy for 2004-05 differs from that of 2005-06. The insurer proceeded on the basis that this was a fresh contract of insurance. Theinsurance policy for 1 August 2005 to 31 July 2006 was issued with the exclusion of STFI perils. This is clear from the use of words Warranted that STFI risk is excluded from the risk in the above insurance policy. The terms of the policy will govern the contract between the parties. The STFI risks were specifically excluded from the coverage of the policy. The extra premium of Rs 992 was refunded by the insurer to bank and the bank deposited the amount in the appellants account23. The above provision states that no risk can be assumed by the insurer unless the premium payable is received in advance. Sub-Section (3) of Section 64 (VB) provides for refund of the premium amount to the insured in case of cancellation or alteration of the terms and conditions of the policy. In the present case, the premium of Rs 992 to cover STFI perils was refunded by the insurer to the bank and the amount was deposited in the insureds account. The proposal does not conclude the contract. A contract postulates an agreement between the parties. In the present case, the insurer while issuing the new policy at a fresh location specifically excluded STFI perils and refunded the premium. The insured at the time when the loss occurred was covered by a policy that excluded STFI perils. Therefore, the insurer cannot be held to be liable. To hold to the contrary would be rewriting the agreement between the parties and creating a fresh contract to which the parties had not agreed25. The appellants have placed reliance on the decision of this Court in Biman Krishna Bose v United India Insurance Co Ltd (2001) 6 SCC 477 ,20. This Court, while interpreting the contract of insurance must interpret the words of the contract by giving effect to the meaning and intent which emerges from the terms of the agreementThe court through its interpretative process cannot rewrite or create a new contract between the parties. The court has to simply apply the terms and conditions of the agreement as agreed between the partiesThe appellants in their rejoinder did not specifically deny the averment that they were furnished with a copy of the policy. The appellants have also not denied the fact that the premium on account of STFI perils which was refunded by the insurer was credited to their account. This being the position, it is not open to the appellants to disavow knowledge of the exclusion of the STFI perils in the insurance cover of Rs 60 lakhs which was issued for 2005-06 and renewed for 2006-0726. The above case, as the extract indicates, dealt with a situation where the act of the insurer in refusing to renew the mediclaim policy was held to be arbitrary. This Court noted the serious consequence flowing out of the arbitrary refusal to renew the contract since it would result in the exclusion of the cover and the rejection of the claim in respect of a disease which the insured had contracted during the period when the policy was not renewed. The situation in the present case is clearly distinguishable. The terms and conditions of the new policy specifically excluded STFI perils and evidently there was a change in the obligations of the insurer. There was no renewal but the issuance of a new policy. The change in the location of the premises in the present case led to the issuance of a new policy. It was open to the insurer to specifically exclude STFI perils as a commercial decision. The appellants had knowledge of the exclusion of the STFI perils as they were provided with a copy of the policy and also received the refund of the premium. Having lodged no protest with the insurer during 2005-06 or in the renewed term of 2006-07, the insured cannot lay a claim that they had no knowledge that the STFI cover was excluded from the insurance cover. Nothing prevented the appellants from either approaching the insurer or any other insurance company for obtaining a policy that covered STFI perils.
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Vishwesha Thirtha Swamiari & Ors Vs. State Of Mysore And Anr | under Article 14 of the Constitution on the ground that it was common ground that there was inequality in taxation between the lands comprised in the South Kanara District and the areas in the erstwhile Mysore State. The High Court proceeded on the basis that the land revenue was highest in the Madras area of the State as it was represented to it that in the old Madras State half of the estimated net produce was taken as land revenue where as in other areas only 1/16th of the gross produce was taken as land revenue. These facts were not admitted by the State but the High Court assumed those facts for the purpose of the case to be correct. We will also proceed on those assumptions because even assuming these facts it cannot be said that there has been any breach of Article 14 of the Constitution.16. This Court, in State of Andhra Pradesh v. Nalla Raja Reddy, ((1967) 3 SCR 28 : AIR 1967 SC 1458 ) while dealing with the Andhra Pradesh Land Revenue (Additional Assessment) and Cess Revision Act 22 of 1962, made the following general observations :"A statutory provision may offend Article 14 of the Constitution both by finding differences where there are none and by making no difference where there is one. Decided cases laid down two tests to ascertain whether a classification is permissible or not, viz. :(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and(ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question."17. After referring to the decision of the Madras High Court in the Rajagopalachariars case (supra), this Court observed :"In the said Madras Acts a surcharge was imposed in addition to the pervious rates and the previous rates had been made on the basis of the Ryotwari settlements which did not offend Article 14 of the Constitution and, therefore, a small addition to the said rates could not likewise infringe the said article."18. Referring to the judgment under appeal in the present case, this Court observed in Nalla Reddys case (supra), as follows :"Nor has the decision of the Mysore High Court in H. H. Vishwesha Thirtha Swamiar or Sri Pejawar Mutt v. The State of Mysore, ((1966) 1 Mys LJ 351) in regard to the Mysore Land Revenue Surcharge Act 13 of 1961, any bearing on the present question. There, as in the Madras Acts, the revenue surcharge levied was an additional imposition of land tax and, therefore there Mysore High Court held that it did not offend Article 14 of the Constitution. In holding that Article 14 was not infringed, the Court said :We have before us a temporary measure. That is an extremely important circumstance. The State, not unreasonably, proceeded on the basis that a temporary levy could be made on the basis of existing rates. We can think of no other reasonable basis on which the levy could have been made. It may be that in the result some areas were taxed more than others. But yet it cannot be said with any jurisdiction that there was any hostile discrimination between one area and another.It will be seen that in that case on existing rates based upon scientific data a surcharge was imposed as a temporary measure till a uniform land revenue law was enacted for the whole State."19. It seems to us that this Court rightly distinguished the two above mentioned cases on good grounds. We have here a temporary measure imposing additional land revenue while resettlement and survey was being done in the entire State. This process necessarily takes a long time. It is stated in the judgment of the High Court that the settlement report was received by the Government only in 1963. In these circumstances it cannot be said that the State acted arbitrarily in imposing a surcharge on land revenue which was being levied under the existing settlements and Acts.20. Reorganisation of the States is an important in factor in considering Article 14 and existing laws or any temporary laws that may be made because of reorganisation. This Court, in State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., ((1964) 6 SCR 846 : AIR 1964 SC 1179 ) observed :"Continuance of the laws of the old region after the reorganisation of Section 119 of the States Reorganisation Act was by it self not discriminatory even though it resulted in differential treatment of persons, objects and transactions an the new State, because it was intended to serve a dual purpose - facilitating the early formation of homogeneous units in the larger interest of the Union, and maintaining even while merging its political identity in the new unit, the distinctive character of each region, till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so."In reply to the argument that the State had sufficient time and opportunity to decide whether the continence of the impugned Act in the Bhopal region would be consistent with Article 14 of the Constitution, this Court observed :"It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution."21. The learned counsel contended before us that the State could have easily waited for a few years before levying the additional surcharge while the enquiries were pending. This is a matter not for the Courts but for the State Legislature to determine. If the State needs funds urgently it is for it to levy additional revenue provided it does not infringe Article 14. In view of the facts of this case, the temporary nature of the Acts, and the pendency of the re-settlement and survey proceeding we cannot say that the legislature has acted contrary to the provisions of Article 14. | 0[ds]12. It seems to us that the Act clearly levies land revenue although it is by way of surcharge on the existing land revenue. If this is so, the fact that the surcharge was raised to 100 per cent. of the land revenue on the wet and garden lands and 75 per cent. of the land revenue in respect of dry lands, subject to some minor exceptions, does not change the nature of the imposition.13. We may mention that the Madras High Court took the same view in C. V. Rajagopalachariar v. State of Madras. (AIR 1960 Mad 543 ).14. We agree with the High Court that the Mysore Legislature was competent to enact the impugned Acts.It seems to us that this Court rightly distinguished the two above mentioned cases on good grounds. We have here a temporary measure imposing additional land revenue while resettlement and survey was being done in the entire State. This process necessarily takes a long time. It is stated in the judgment of the High Court that the settlement report was received by the Government only in 1963. In these circumstances it cannot be said that the State acted arbitrarily in imposing a surcharge on land revenue which was being levied under the existing settlements and Acts.20. Reorganisation of the States is an important in factor in considering Article 14 and existing laws or any temporary laws that may be made because ofis a matter not for the Courts but for the State Legislature to determine. If the State needs funds urgently it is for it to levy additional revenue provided it does not infringe Article 14. In view of the facts of this case, the temporary nature of the Acts, and the pendency of the re-settlement and survey proceeding we cannot say that the legislature has acted contrary to the provisions of Article 14. | 0 | 2,543 | 338 | ### 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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under Article 14 of the Constitution on the ground that it was common ground that there was inequality in taxation between the lands comprised in the South Kanara District and the areas in the erstwhile Mysore State. The High Court proceeded on the basis that the land revenue was highest in the Madras area of the State as it was represented to it that in the old Madras State half of the estimated net produce was taken as land revenue where as in other areas only 1/16th of the gross produce was taken as land revenue. These facts were not admitted by the State but the High Court assumed those facts for the purpose of the case to be correct. We will also proceed on those assumptions because even assuming these facts it cannot be said that there has been any breach of Article 14 of the Constitution.16. This Court, in State of Andhra Pradesh v. Nalla Raja Reddy, ((1967) 3 SCR 28 : AIR 1967 SC 1458 ) while dealing with the Andhra Pradesh Land Revenue (Additional Assessment) and Cess Revision Act 22 of 1962, made the following general observations :"A statutory provision may offend Article 14 of the Constitution both by finding differences where there are none and by making no difference where there is one. Decided cases laid down two tests to ascertain whether a classification is permissible or not, viz. :(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and(ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question."17. After referring to the decision of the Madras High Court in the Rajagopalachariars case (supra), this Court observed :"In the said Madras Acts a surcharge was imposed in addition to the pervious rates and the previous rates had been made on the basis of the Ryotwari settlements which did not offend Article 14 of the Constitution and, therefore, a small addition to the said rates could not likewise infringe the said article."18. Referring to the judgment under appeal in the present case, this Court observed in Nalla Reddys case (supra), as follows :"Nor has the decision of the Mysore High Court in H. H. Vishwesha Thirtha Swamiar or Sri Pejawar Mutt v. The State of Mysore, ((1966) 1 Mys LJ 351) in regard to the Mysore Land Revenue Surcharge Act 13 of 1961, any bearing on the present question. There, as in the Madras Acts, the revenue surcharge levied was an additional imposition of land tax and, therefore there Mysore High Court held that it did not offend Article 14 of the Constitution. In holding that Article 14 was not infringed, the Court said :We have before us a temporary measure. That is an extremely important circumstance. The State, not unreasonably, proceeded on the basis that a temporary levy could be made on the basis of existing rates. We can think of no other reasonable basis on which the levy could have been made. It may be that in the result some areas were taxed more than others. But yet it cannot be said with any jurisdiction that there was any hostile discrimination between one area and another.It will be seen that in that case on existing rates based upon scientific data a surcharge was imposed as a temporary measure till a uniform land revenue law was enacted for the whole State."19. It seems to us that this Court rightly distinguished the two above mentioned cases on good grounds. We have here a temporary measure imposing additional land revenue while resettlement and survey was being done in the entire State. This process necessarily takes a long time. It is stated in the judgment of the High Court that the settlement report was received by the Government only in 1963. In these circumstances it cannot be said that the State acted arbitrarily in imposing a surcharge on land revenue which was being levied under the existing settlements and Acts.20. Reorganisation of the States is an important in factor in considering Article 14 and existing laws or any temporary laws that may be made because of reorganisation. This Court, in State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., ((1964) 6 SCR 846 : AIR 1964 SC 1179 ) observed :"Continuance of the laws of the old region after the reorganisation of Section 119 of the States Reorganisation Act was by it self not discriminatory even though it resulted in differential treatment of persons, objects and transactions an the new State, because it was intended to serve a dual purpose - facilitating the early formation of homogeneous units in the larger interest of the Union, and maintaining even while merging its political identity in the new unit, the distinctive character of each region, till uniformity of laws was secured in those branches in which it was expedient after full enquiry to do so."In reply to the argument that the State had sufficient time and opportunity to decide whether the continence of the impugned Act in the Bhopal region would be consistent with Article 14 of the Constitution, this Court observed :"It would be impossible to lay down any definite time limit within which the State had to make necessary adjustments so as to effectuate the equality clause of the Constitution."21. The learned counsel contended before us that the State could have easily waited for a few years before levying the additional surcharge while the enquiries were pending. This is a matter not for the Courts but for the State Legislature to determine. If the State needs funds urgently it is for it to levy additional revenue provided it does not infringe Article 14. In view of the facts of this case, the temporary nature of the Acts, and the pendency of the re-settlement and survey proceeding we cannot say that the legislature has acted contrary to the provisions of Article 14.
### Response:
0
### Explanation:
12. It seems to us that the Act clearly levies land revenue although it is by way of surcharge on the existing land revenue. If this is so, the fact that the surcharge was raised to 100 per cent. of the land revenue on the wet and garden lands and 75 per cent. of the land revenue in respect of dry lands, subject to some minor exceptions, does not change the nature of the imposition.13. We may mention that the Madras High Court took the same view in C. V. Rajagopalachariar v. State of Madras. (AIR 1960 Mad 543 ).14. We agree with the High Court that the Mysore Legislature was competent to enact the impugned Acts.It seems to us that this Court rightly distinguished the two above mentioned cases on good grounds. We have here a temporary measure imposing additional land revenue while resettlement and survey was being done in the entire State. This process necessarily takes a long time. It is stated in the judgment of the High Court that the settlement report was received by the Government only in 1963. In these circumstances it cannot be said that the State acted arbitrarily in imposing a surcharge on land revenue which was being levied under the existing settlements and Acts.20. Reorganisation of the States is an important in factor in considering Article 14 and existing laws or any temporary laws that may be made because ofis a matter not for the Courts but for the State Legislature to determine. If the State needs funds urgently it is for it to levy additional revenue provided it does not infringe Article 14. In view of the facts of this case, the temporary nature of the Acts, and the pendency of the re-settlement and survey proceeding we cannot say that the legislature has acted contrary to the provisions of Article 14.
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M/S OSWAL WOOLLEN MILLS LTD Vs. M/S OSWAL AGRO MILLS LTD | that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L. Jain. It is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the said application. 18. Learned senior counsel for the appellant-Company contended on merits of the case, however, the law is well settled with regard to the scope and ambit of the jurisdiction of the courts to interfere with an arbitration award as has been settled in a catena of judgments of this Court and it would be sufficient to quote Ravindra Kumar Gupta and Company vs. Union of India (2010) 1 SCC 409 wherein it was held as under:- ?9. The law with regard to scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in a catena of judgments of this Court. We may make a reference here only to some of the judgments. In State of Rajasthan v. Puri Construction Co. Ltd. this Court observed as follows: ?26. The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Kerala it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. (emphasis in original) Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a Judge on the evidence before the arbitrator.? 19. In Municipal Corporation of Delhi vs. Jagan Nath Ashok Kumar and Another (1987) 4 SCC 497 , it was held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It may be possible that on the same evidence, the court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award. 20. Following the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators. 21. In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below. | 0[ds]Either going by the very nature of functions entrusted to the Umpire or by the provisions of the First Schedule, it is crystal clear that there is no qualitative difference between the Arbitrators and the Umpire with regard to the methodology and modalities to be adopted for reaching a just and fair conclusion. It is trite to say that an Arbitrator is bound to observe the principles of natural justice and conform to the fundamentals of judicial procedure. It is his duty to afford a reasonable opportunity to the parties concerned. However, it would also be illogical to contend that the Umpire has to start de novo ipso facto. The very essence of the law of arbitration is to settle the matter efficiently in a time bound manner. Hence, when the Umpire enters upon a Reference and replaces the arbitrators, he is needed to review the evidence and submissions only on those matters about which the arbitrators have disagreed unless either party applies for the rehearing of the evidence of the parties or their witnesses. The Umpire can surely go through the evidence recorded by the previous arbitrators but without being influenced by the opinion expressed by them in that regard and even the notes taken by previous arbitrators can be relied if there exist special provisions in the agreement permitting him to do so. However, if the party makes an application for de novo hearing, the Umpire is bound to allow the same, subject to the condition that the application is made at the earliest and the applicant is not using it as last armory to turn the case around. An objection on the ground that the Umpire has not reheard the evidence may be waived by the conduct of the parties; the evidence already recorded before the previous arbitrator would remain valid and it would not be open for the parties to get the same recorded afresh later on. It is a well settled proposition that where a party seeking to impeach an Award has made no application to the Umpire for rehearing of the evidence, the same would generally operate as a waiver by conduct.inevitable outcome of the same is that a party is allowed to overcome the lacuna in the evidence already recorded before the previous arbitrators. Further, it would give an unnecessary option to the dishonest litigant to obliterate the evidence already recorded which would have adverse effect on them. Further, the witnesses to be examined afresh is a glaring anomaly that would ensue that the witnesses may not be available or might give a totally different version or a version inconsistent with their previous version, owing to the fact of faded memories. Such an interpretation of the word de novo trial would result in undue hardship to the parties and will defeat the very purpose of the Act and render arbitration ineffective.Hence, firstly, the word de novo hearing should be given a purposive interpretation and it should be understood as a fresh hearing of the matter on the basis of pleadings, evidence and documents on record. If the party wants to re-examine a witness or objects to the documents admitted, the Umpire is to hear the parties and decide the application in the interest ofHowever, having perused the records, it was found that the very first communication dated 24.05.1999, on which the appellant-Company has relied upon is a letter written to the Umpire with regard to the pending proceedings in the said matter before the High Court and the application that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L.is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the saidFollowing the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators.In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below. | 0 | 3,769 | 1,110 | ### 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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that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L. Jain. It is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the said application. 18. Learned senior counsel for the appellant-Company contended on merits of the case, however, the law is well settled with regard to the scope and ambit of the jurisdiction of the courts to interfere with an arbitration award as has been settled in a catena of judgments of this Court and it would be sufficient to quote Ravindra Kumar Gupta and Company vs. Union of India (2010) 1 SCC 409 wherein it was held as under:- ?9. The law with regard to scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in a catena of judgments of this Court. We may make a reference here only to some of the judgments. In State of Rajasthan v. Puri Construction Co. Ltd. this Court observed as follows: ?26. The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Kerala it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. (emphasis in original) Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a Judge on the evidence before the arbitrator.? 19. In Municipal Corporation of Delhi vs. Jagan Nath Ashok Kumar and Another (1987) 4 SCC 497 , it was held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It may be possible that on the same evidence, the court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award. 20. Following the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators. 21. In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below.
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just and fair conclusion. It is trite to say that an Arbitrator is bound to observe the principles of natural justice and conform to the fundamentals of judicial procedure. It is his duty to afford a reasonable opportunity to the parties concerned. However, it would also be illogical to contend that the Umpire has to start de novo ipso facto. The very essence of the law of arbitration is to settle the matter efficiently in a time bound manner. Hence, when the Umpire enters upon a Reference and replaces the arbitrators, he is needed to review the evidence and submissions only on those matters about which the arbitrators have disagreed unless either party applies for the rehearing of the evidence of the parties or their witnesses. The Umpire can surely go through the evidence recorded by the previous arbitrators but without being influenced by the opinion expressed by them in that regard and even the notes taken by previous arbitrators can be relied if there exist special provisions in the agreement permitting him to do so. However, if the party makes an application for de novo hearing, the Umpire is bound to allow the same, subject to the condition that the application is made at the earliest and the applicant is not using it as last armory to turn the case around. An objection on the ground that the Umpire has not reheard the evidence may be waived by the conduct of the parties; the evidence already recorded before the previous arbitrator would remain valid and it would not be open for the parties to get the same recorded afresh later on. It is a well settled proposition that where a party seeking to impeach an Award has made no application to the Umpire for rehearing of the evidence, the same would generally operate as a waiver by conduct.inevitable outcome of the same is that a party is allowed to overcome the lacuna in the evidence already recorded before the previous arbitrators. Further, it would give an unnecessary option to the dishonest litigant to obliterate the evidence already recorded which would have adverse effect on them. Further, the witnesses to be examined afresh is a glaring anomaly that would ensue that the witnesses may not be available or might give a totally different version or a version inconsistent with their previous version, owing to the fact of faded memories. Such an interpretation of the word de novo trial would result in undue hardship to the parties and will defeat the very purpose of the Act and render arbitration ineffective.Hence, firstly, the word de novo hearing should be given a purposive interpretation and it should be understood as a fresh hearing of the matter on the basis of pleadings, evidence and documents on record. If the party wants to re-examine a witness or objects to the documents admitted, the Umpire is to hear the parties and decide the application in the interest ofHowever, having perused the records, it was found that the very first communication dated 24.05.1999, on which the appellant-Company has relied upon is a letter written to the Umpire with regard to the pending proceedings in the said matter before the High Court and the application that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L.is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the saidFollowing the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators.In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below.
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The Indian Institute Of Information Technology, Deoghat Jhalwa Allahabad And Anr. Etc Vs. Dr. Anurika Vaish And Ors. Etc | addition to the minutes as at Item No.1 of this meeting, it was apprised by some Board members that the advertisement brought out by IIITA for these selections was NOT as per norms. Also for some of the appointments, eligibility criteria were unduly relaxed, taking incorrect pretext of the earlier BOM resolutions.The Board also noticed that through a GO issued vide F.No.3.11014/11/Q4-CDN dated 19th July, 2004, MHRD had advised heads of all autonomous Bodies prohibiting all the retiring Directors, for any action to make selections / promotions two - three months before the expiry of their term or retirement, as the case may be. Further, the erstwhile directors term expired on 26th December, 2012 and he was on six months extension in April 2013. Therefore, in April 2013, he was neither competent nor authorised to call for any selections.When these facts became known to the Board in this meeting, it became clear that the entire process of selection / appointment and other recommendations mentioned by the selection committee therein, was wrong ab initio.Accordingly, the BoM in this Meeting recommended, in supersession to the earlier decisions of the Board in this matter, that all selections / appointments done on April 6th, 2013 are CANCELLED. ..."3. Based on the above-said decision, the teachers were terminated from service. They challenged the same before the High Court in Writ Petition No.22558 of 2014 and connected cases. Those cases were disposed of by judgment dated 11.12.2015. Though the High Court has gone into the various aspects, the Court finally found that the decision-making process adopted by the Board was vitiated. The High Court was of the view that the appellant should have considered as to whether it was bound by University Grants Commission Regulations or the qualifications prescribed by the Institute and as advertised in the Notification for Selection. It was also held that the relaxation of qualification had to be individually assessed, having regard to the requirement based on experience, etc. The High Court hence set aside the Resolution at Item No.16 taken in the Board and the consequential termination of the appointments. To quote the operative portion:"For all the aforesaid reasons recorded hereinabove the entire decision making process is clearly vitiated and the unclarity on the issue of the authority of the respondents to undertake this exercise as also the correct application of rules and the law in this regard therefore persuade us to strike down the action taken against the petitioners.Consequently, the impugned cancellation orders on the basis of the impugned resolution of the 8th Board Meeting cannot be sustained and the same are hereby quashed. The writ petitions are accordingly allowed and the impugned cancellation orders in these petitions as well as the 16th Resolution of the 8th Board Meeting are hereby quashed. The resolutions passed in the 7th Board Meeting and 8th Board Meeting only in so far as they are adverse to the petitioners shall be open to consideration in the light of the observations made hereinabove.In view of the findings recorded by us hereinabove, we leave it open to the Board to take a fresh decision as may be permissible in the light of the observations made hereinabove within three months after opportunity to the petitioners."4. The appellant-Institute, in purported implementation of the directions in the judgment dated 11.12.2015 again unilaterally took certain decisions in the Fourteenth and Fifteenth Meetings of the Board and subsequently issued show-cause notices to the teachers as to why their appointment should not be cancelled.5. Since some of the teachers were not reinstated despite the declaration by the High Court that the termination was illegal, they filed contempt petitions. Since, show-cause notices were issued, some teachers challenged those show-cause notices and the High Court has stayed those show-cause notices. It is at that stage, the appellant has chosen to challenge the common final judgment and order dated 11.12.2015 passed by the High Court of Judicature at Allahabad in Writ-A No. 22558 of 2014, 21309 of 2014, 21319 of 2014, 21595 of 2014, 37213 of 2014 and 36461 of 2014; and against the Interim Order dated 16.03.2016 passed by the High Court of Judicature at Allahabad in Contempt Application (Civil) No. 645 of 2016 and 1033 of 2016; and against the Interim Order dated 04.04.2016 passed by the High Court of Judicature at Allahabad in Writ-A No. 14486 of 2016, 14488 of 2016 and 14490 of 2016; and against the Interim Order dated 13.04.2016 passed by the High Court of Judicature at Allahabad in Writ-A No. 16715 of 2016.6. Having extensively heard Shri Sunil Gupta, learned Senior Counsel for the appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned Senior Counsel appearing for the affected teachers, other learned Counsel appearing for teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are of the view that the whole ill-advised exercise undertaken by the appellant-Institute only led to unnecessary litigation. In the judgment dated 11.12.2015, the High Court has set aside Resolution at Item No.16 of the Eighth Board Meeting. It is seen from the discussion that the decision to cancel the appointments was based on a Status Report which was not furnished to the affected teachers. The High Court hence found that the decision taken by the appellant-Institute is in violation of the principles of natural justice. That is the quintessence of the judgment. And thereafter, the High Court gave liberty to the appellant to take a fresh decision in accordance with law, that is to say, after affording an opportunity of hearing to the affected teachers.7. All that the appellants should have done is to make available a copy of the Status Report discussed in the Eighth Board Meeting which led to cancellation of their appointments and afford an opportunity of making a representation and hearing. Short of that, the appellant-Institute has taken several other steps. Maybe they have intended well but worked out poorly. The teachers could not have been issued the show-cause notices based on any decision taken subsequent to the judgment. | 1[ds]6. Having extensively heard Shri Sunil Gupta, learned Senior Counsel for the appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned Senior Counsel appearing for the affected teachers, other learned Counsel appearing for teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are of the view that the whole ill-advised exercise undertaken by the appellant-Institute only led to unnecessary litigation. In the judgment dated 11.12.2015, the High Court has set aside Resolution at Item No.16 of the Eighth Board Meeting. It is seen from the discussion that the decision to cancel the appointments was based on a Status Report which was not furnished to the affected teachers. The High Court hence found that the decision taken by the appellant-Institute is in violation of the principles of natural justice. That is the quintessence of the judgment. And thereafter, the High Court gave liberty to the appellant to take a fresh decision in accordance with law, that is to say, after affording an opportunity of hearing to the affected teachers.7. All that the appellants should have done is to make available a copy of the Status Report discussed in the Eighth Board Meeting which led to cancellation of their appointments and afford an opportunity of making a representation and hearing. Short of that, the appellant-Institute has taken several other steps. Maybe they have intended well but worked out poorly. The teachers could not have been issued the show-cause notices based on any decision taken subsequent to the judgment. | 1 | 1,220 | 271 | ### 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:
addition to the minutes as at Item No.1 of this meeting, it was apprised by some Board members that the advertisement brought out by IIITA for these selections was NOT as per norms. Also for some of the appointments, eligibility criteria were unduly relaxed, taking incorrect pretext of the earlier BOM resolutions.The Board also noticed that through a GO issued vide F.No.3.11014/11/Q4-CDN dated 19th July, 2004, MHRD had advised heads of all autonomous Bodies prohibiting all the retiring Directors, for any action to make selections / promotions two - three months before the expiry of their term or retirement, as the case may be. Further, the erstwhile directors term expired on 26th December, 2012 and he was on six months extension in April 2013. Therefore, in April 2013, he was neither competent nor authorised to call for any selections.When these facts became known to the Board in this meeting, it became clear that the entire process of selection / appointment and other recommendations mentioned by the selection committee therein, was wrong ab initio.Accordingly, the BoM in this Meeting recommended, in supersession to the earlier decisions of the Board in this matter, that all selections / appointments done on April 6th, 2013 are CANCELLED. ..."3. Based on the above-said decision, the teachers were terminated from service. They challenged the same before the High Court in Writ Petition No.22558 of 2014 and connected cases. Those cases were disposed of by judgment dated 11.12.2015. Though the High Court has gone into the various aspects, the Court finally found that the decision-making process adopted by the Board was vitiated. The High Court was of the view that the appellant should have considered as to whether it was bound by University Grants Commission Regulations or the qualifications prescribed by the Institute and as advertised in the Notification for Selection. It was also held that the relaxation of qualification had to be individually assessed, having regard to the requirement based on experience, etc. The High Court hence set aside the Resolution at Item No.16 taken in the Board and the consequential termination of the appointments. To quote the operative portion:"For all the aforesaid reasons recorded hereinabove the entire decision making process is clearly vitiated and the unclarity on the issue of the authority of the respondents to undertake this exercise as also the correct application of rules and the law in this regard therefore persuade us to strike down the action taken against the petitioners.Consequently, the impugned cancellation orders on the basis of the impugned resolution of the 8th Board Meeting cannot be sustained and the same are hereby quashed. The writ petitions are accordingly allowed and the impugned cancellation orders in these petitions as well as the 16th Resolution of the 8th Board Meeting are hereby quashed. The resolutions passed in the 7th Board Meeting and 8th Board Meeting only in so far as they are adverse to the petitioners shall be open to consideration in the light of the observations made hereinabove.In view of the findings recorded by us hereinabove, we leave it open to the Board to take a fresh decision as may be permissible in the light of the observations made hereinabove within three months after opportunity to the petitioners."4. The appellant-Institute, in purported implementation of the directions in the judgment dated 11.12.2015 again unilaterally took certain decisions in the Fourteenth and Fifteenth Meetings of the Board and subsequently issued show-cause notices to the teachers as to why their appointment should not be cancelled.5. Since some of the teachers were not reinstated despite the declaration by the High Court that the termination was illegal, they filed contempt petitions. Since, show-cause notices were issued, some teachers challenged those show-cause notices and the High Court has stayed those show-cause notices. It is at that stage, the appellant has chosen to challenge the common final judgment and order dated 11.12.2015 passed by the High Court of Judicature at Allahabad in Writ-A No. 22558 of 2014, 21309 of 2014, 21319 of 2014, 21595 of 2014, 37213 of 2014 and 36461 of 2014; and against the Interim Order dated 16.03.2016 passed by the High Court of Judicature at Allahabad in Contempt Application (Civil) No. 645 of 2016 and 1033 of 2016; and against the Interim Order dated 04.04.2016 passed by the High Court of Judicature at Allahabad in Writ-A No. 14486 of 2016, 14488 of 2016 and 14490 of 2016; and against the Interim Order dated 13.04.2016 passed by the High Court of Judicature at Allahabad in Writ-A No. 16715 of 2016.6. Having extensively heard Shri Sunil Gupta, learned Senior Counsel for the appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned Senior Counsel appearing for the affected teachers, other learned Counsel appearing for teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are of the view that the whole ill-advised exercise undertaken by the appellant-Institute only led to unnecessary litigation. In the judgment dated 11.12.2015, the High Court has set aside Resolution at Item No.16 of the Eighth Board Meeting. It is seen from the discussion that the decision to cancel the appointments was based on a Status Report which was not furnished to the affected teachers. The High Court hence found that the decision taken by the appellant-Institute is in violation of the principles of natural justice. That is the quintessence of the judgment. And thereafter, the High Court gave liberty to the appellant to take a fresh decision in accordance with law, that is to say, after affording an opportunity of hearing to the affected teachers.7. All that the appellants should have done is to make available a copy of the Status Report discussed in the Eighth Board Meeting which led to cancellation of their appointments and afford an opportunity of making a representation and hearing. Short of that, the appellant-Institute has taken several other steps. Maybe they have intended well but worked out poorly. The teachers could not have been issued the show-cause notices based on any decision taken subsequent to the judgment.
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### Explanation:
6. Having extensively heard Shri Sunil Gupta, learned Senior Counsel for the appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned Senior Counsel appearing for the affected teachers, other learned Counsel appearing for teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are of the view that the whole ill-advised exercise undertaken by the appellant-Institute only led to unnecessary litigation. In the judgment dated 11.12.2015, the High Court has set aside Resolution at Item No.16 of the Eighth Board Meeting. It is seen from the discussion that the decision to cancel the appointments was based on a Status Report which was not furnished to the affected teachers. The High Court hence found that the decision taken by the appellant-Institute is in violation of the principles of natural justice. That is the quintessence of the judgment. And thereafter, the High Court gave liberty to the appellant to take a fresh decision in accordance with law, that is to say, after affording an opportunity of hearing to the affected teachers.7. All that the appellants should have done is to make available a copy of the Status Report discussed in the Eighth Board Meeting which led to cancellation of their appointments and afford an opportunity of making a representation and hearing. Short of that, the appellant-Institute has taken several other steps. Maybe they have intended well but worked out poorly. The teachers could not have been issued the show-cause notices based on any decision taken subsequent to the judgment.
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METAL BOX INDIA LTD Vs. COMMISSIONER OF CENTRAL EXCISE, MUMBAI | 1. This appeal is filed against the Order No. 152/97-WZB passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (for short the Tribunal), in Appeal No. E/789-RV/95-Bom., dated December 23, 1996. 2. The Tribunal dismissed the appeal on the ground that the amount which was required to be deposited u/s 35F of the Central Excise Tax Act, 1944 was not deposited within the period allowed by the Tribunal. 3. Mr. Rana Mukherjee, the learned Counsel for the appellants, submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company, (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered u/s 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. | 0[ds]We are afraid, we cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company, (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered u/s 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. | 0 | 327 | 174 | ### 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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1. This appeal is filed against the Order No. 152/97-WZB passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (for short the Tribunal), in Appeal No. E/789-RV/95-Bom., dated December 23, 1996. 2. The Tribunal dismissed the appeal on the ground that the amount which was required to be deposited u/s 35F of the Central Excise Tax Act, 1944 was not deposited within the period allowed by the Tribunal. 3. Mr. Rana Mukherjee, the learned Counsel for the appellants, submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company, (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered u/s 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act.
### Response:
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### Explanation:
We are afraid, we cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company, (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered u/s 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act.
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J.C. Bhatia Vs. State of Rajasthan & Others | Alagiriswami, J.1. This appeal by Special leave is against the judgment of a Division Bench of the Rajasthan High Court reversing on appeal the judgment of a learned Single Judge who allowed the writ petition filed by the appellant and another Kalu Ram. The facts necessary for the disposal of this appeal may be stated in a short compass.2. The appellant entered the service of the former Kotah State on 11-4-1949 as a temporary Overseer. In due course he was promoted as an officiating Assistant Engineer on 26-10-1959. On 8-1-1968, 41 Engineering Subordinates were appointed as officiating Assistant Engineers against permanent posts and 35 against temporary vacancies. On 17-1-1968 services of 17 temporary Assistant Engineers, were terminated and 4 temporary Assistant Engineers, including the appellant, were reverted to their substantive cadre as Engineering Subordinates. The petitioner filed a writ petition before the High Court on 22-1-1968 challenging both these orders. The learned Single Judge following his earlier decision in Guman Singh v. State of Rajasthan, Civil Writ Petn. No. 79 of 1967 = (AIR 1970 Raj 173 ) allowed the writ petition and held that reversion of the appellant while keeping or promoting junior men in his place was not valid and quashed the orders reverting the appellant as well as the order appointing the 76 Assistant Engineers, already referred to. The State of Rajasthan took the matter on appeal before a Division Bench and the Bench following its decision in Special Appeal No. 57. of 1968 = ( AIR 1971 Raj 191 ) reversing the judgment of the learned Single Judge in Civil Writ Petn. 79 of 1967 = (AIR 1970 Raj 173 ) allowed the appeal. That judgment of the Division Bench had been rendered after the judgment in the present case.3. In the meanwhile the judgment of the Division Bench in Guman Singhs case Spl. Appeal No. 57 of 1968 = (reported in AIR 1971 Raj 191 ) came up to this Court on appeal 1971 (2) SCC 452 = (1972 Lab IC 1295). In considering the circular dated August 27, 1966 containing administrative instructions for the guidance of Selection Committees and the Appointing Authorities, and laying down a marking system for that purpose, this Court observed that it was so rigid that it curtailed the powers conferred on the appointing authorities by statutory rules and it was therefore opposed to statutory Rules 28-B and 32, and held it void thus restoring the judgment of the learned Single Judge in Guman Singhs case C. W. Petn. No. 79 of 1967, dated 7-11-68 = (AIR 1970 Raj 173 ). The selections of the 76 persons, who were appointed on 8-1-1968, were made on the basis of the circular held invalid by this Court and the selections of the 76 persons, who were appointed on 8-1-1968, were made on the basis of the circular held invalid by this Court and the selections have necessarily got to be set aside. The result would be that the Departmental Promotion Committee would now have to reconsider the promotion of all these 76 persons as well as the appellant leaving out of account the circular of August 27, 1966.4. Mr. Jain appearing on behalf of Rajasthan Government tried to argue that these 76 appointments are officiating appointments under Rule 27 of the Rajasthan Service of Engineers (Irrigation Branch ) Rules 1954 and, therefore, they are not liable to be set aside. We think his argument is wholly without substance. Rule 27 reads as follows:"27. Emergent temporary appointment of Assistant Engineers :- A vacancy in the grade of Assistant Engineers may be filled by Government temporarily by appointing thereto in an officiating capacity an official eligible for promotion as Assistant Engineer or by appointing thereto any other suitable person possessing the qualification prescribed in Rule 1 2 :Provided :(i) that appointments up to a period of four months may be made by the Chief Engineer ;(ii) that appointment shall not be continued for a period exceeding one year without the concurrence of the Public Service Commission.The 76 appointments in this case were made after consideration and selection by the Departmental Promotion Committee and therefore they cannot fall under Rule 27. Indeed their appointment order does not purport to be under that Rule.The order only says that the appointments are made against the post of Assistant Engineers reserved for promotion quota under Rule 25. The very circumstances under which these appointments have been made would show that they do not fall under Rule 27.If they were appointments under Rule 27 one finds it difficult to understand why a person who has been officiating as an Assistant Engineer for nearly 9 years was reverted while 76 new appointments were being made. Instead of gracefully accepting the result of the decision of this Court in Guman Singhs case as applying to the facts of this case, a wholly pointless argument was sought to be made.The judgment of this Court in Guman Singhs case does not apply to appointments under Rule 27; it can only apply to promotions made on the recommendation of the Departmental Promotion Committees. | 1[ds]We think his argument is wholly without76 appointments in this case were made after consideration and selection by the Departmental Promotion Committee and therefore they cannot fall under Rule 27. Indeed their appointment order does not purport to be under that Rule.The order only says that the appointments are made against the post of Assistant Engineers reserved for promotion quota under Rule 25. The very circumstances under which these appointments have been made would show that they do not fall under Rule 27.If they were appointments under Rule 27 one finds it difficult to understand why a person who has been officiating as an Assistant Engineer for nearly 9 years was reverted while 76 new appointments were being made. Instead of gracefully accepting the result of the decision of this Court in Guman Singhs case as applying to the facts of this case, a wholly pointless argument was sought to be made.The judgment of this Court in Guman Singhs case does not apply to appointments under Rule 27; it can only apply to promotions made on the recommendation of the Departmental Promotion Committees. | 1 | 921 | 194 | ### Instruction:
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Alagiriswami, J.1. This appeal by Special leave is against the judgment of a Division Bench of the Rajasthan High Court reversing on appeal the judgment of a learned Single Judge who allowed the writ petition filed by the appellant and another Kalu Ram. The facts necessary for the disposal of this appeal may be stated in a short compass.2. The appellant entered the service of the former Kotah State on 11-4-1949 as a temporary Overseer. In due course he was promoted as an officiating Assistant Engineer on 26-10-1959. On 8-1-1968, 41 Engineering Subordinates were appointed as officiating Assistant Engineers against permanent posts and 35 against temporary vacancies. On 17-1-1968 services of 17 temporary Assistant Engineers, were terminated and 4 temporary Assistant Engineers, including the appellant, were reverted to their substantive cadre as Engineering Subordinates. The petitioner filed a writ petition before the High Court on 22-1-1968 challenging both these orders. The learned Single Judge following his earlier decision in Guman Singh v. State of Rajasthan, Civil Writ Petn. No. 79 of 1967 = (AIR 1970 Raj 173 ) allowed the writ petition and held that reversion of the appellant while keeping or promoting junior men in his place was not valid and quashed the orders reverting the appellant as well as the order appointing the 76 Assistant Engineers, already referred to. The State of Rajasthan took the matter on appeal before a Division Bench and the Bench following its decision in Special Appeal No. 57. of 1968 = ( AIR 1971 Raj 191 ) reversing the judgment of the learned Single Judge in Civil Writ Petn. 79 of 1967 = (AIR 1970 Raj 173 ) allowed the appeal. That judgment of the Division Bench had been rendered after the judgment in the present case.3. In the meanwhile the judgment of the Division Bench in Guman Singhs case Spl. Appeal No. 57 of 1968 = (reported in AIR 1971 Raj 191 ) came up to this Court on appeal 1971 (2) SCC 452 = (1972 Lab IC 1295). In considering the circular dated August 27, 1966 containing administrative instructions for the guidance of Selection Committees and the Appointing Authorities, and laying down a marking system for that purpose, this Court observed that it was so rigid that it curtailed the powers conferred on the appointing authorities by statutory rules and it was therefore opposed to statutory Rules 28-B and 32, and held it void thus restoring the judgment of the learned Single Judge in Guman Singhs case C. W. Petn. No. 79 of 1967, dated 7-11-68 = (AIR 1970 Raj 173 ). The selections of the 76 persons, who were appointed on 8-1-1968, were made on the basis of the circular held invalid by this Court and the selections of the 76 persons, who were appointed on 8-1-1968, were made on the basis of the circular held invalid by this Court and the selections have necessarily got to be set aside. The result would be that the Departmental Promotion Committee would now have to reconsider the promotion of all these 76 persons as well as the appellant leaving out of account the circular of August 27, 1966.4. Mr. Jain appearing on behalf of Rajasthan Government tried to argue that these 76 appointments are officiating appointments under Rule 27 of the Rajasthan Service of Engineers (Irrigation Branch ) Rules 1954 and, therefore, they are not liable to be set aside. We think his argument is wholly without substance. Rule 27 reads as follows:"27. Emergent temporary appointment of Assistant Engineers :- A vacancy in the grade of Assistant Engineers may be filled by Government temporarily by appointing thereto in an officiating capacity an official eligible for promotion as Assistant Engineer or by appointing thereto any other suitable person possessing the qualification prescribed in Rule 1 2 :Provided :(i) that appointments up to a period of four months may be made by the Chief Engineer ;(ii) that appointment shall not be continued for a period exceeding one year without the concurrence of the Public Service Commission.The 76 appointments in this case were made after consideration and selection by the Departmental Promotion Committee and therefore they cannot fall under Rule 27. Indeed their appointment order does not purport to be under that Rule.The order only says that the appointments are made against the post of Assistant Engineers reserved for promotion quota under Rule 25. The very circumstances under which these appointments have been made would show that they do not fall under Rule 27.If they were appointments under Rule 27 one finds it difficult to understand why a person who has been officiating as an Assistant Engineer for nearly 9 years was reverted while 76 new appointments were being made. Instead of gracefully accepting the result of the decision of this Court in Guman Singhs case as applying to the facts of this case, a wholly pointless argument was sought to be made.The judgment of this Court in Guman Singhs case does not apply to appointments under Rule 27; it can only apply to promotions made on the recommendation of the Departmental Promotion Committees.
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We think his argument is wholly without76 appointments in this case were made after consideration and selection by the Departmental Promotion Committee and therefore they cannot fall under Rule 27. Indeed their appointment order does not purport to be under that Rule.The order only says that the appointments are made against the post of Assistant Engineers reserved for promotion quota under Rule 25. The very circumstances under which these appointments have been made would show that they do not fall under Rule 27.If they were appointments under Rule 27 one finds it difficult to understand why a person who has been officiating as an Assistant Engineer for nearly 9 years was reverted while 76 new appointments were being made. Instead of gracefully accepting the result of the decision of this Court in Guman Singhs case as applying to the facts of this case, a wholly pointless argument was sought to be made.The judgment of this Court in Guman Singhs case does not apply to appointments under Rule 27; it can only apply to promotions made on the recommendation of the Departmental Promotion Committees.
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State Of Orissa & Anr Vs. B. K. Mohapatra | be deemed to be select lists made within the draft rules or the Promotion Regulations.23. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.24. This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso.In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b).It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned Counsel for the petitioner that the only object of the second proviso is to limit the operation of the first proviso.25. Explanation 1 really explains the expression "officiated continuously" occurring in Rule 3 (3) (b). But it does not mean that where Explanation 1 applies the second proviso does not apply. The object of Explanation 1 is to deal with the problem arising in the case of officers holding appointments as a purely temporary or local arrangement.26. If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India, (1967) 2 SCR 325 at p. 329=(AIR 1967 SC 1301 at p. 1303),"the first period (i. e., period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by the Central Government in consultation with the Commission."They have approved the period from February 10, 1956, to July 10, 1957.No material has been brought to our notice to show that the Central Government did not apply its mind to the problem.27. The learned Counsel for the petitioner contends that in the letter dated July 22, 1958, a list called the "fit for continuous officiation list" is mentioned which is said to have been approved by the Public Service Commission. The learned Counsel rightly points out that no such list exists. Apparently this is an expression coined by the draftsman to express the views of the Public service Commission which clearly stated in the letter dated February 10, 1956, that they approved the recommendation of the Selection Committee which met at Cuttack for the selection of police officers for promotion to the Indian Police Service in an officiating capacity.28. There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the requirements of a select List.29. We and unable to agree with the learned Counsel that February 10, 1956, is an arbitrary date.It has definite relation to the question of approved period of officiation because it is on this date that the Public Service Commission approved the inclusion of the petitioner in the list for officiating appointment for the first time after the Promotion Regulations had come into force.30. The next point which we may now consider is whether the officiation period prior to February 10, 1956, was as a matter of fact, approved by the Government of India. The learned counsel has taken us through the correspondence.He has been able to point out some letters written by the State Government on the point but no letter from the Government of India has been shown which could possibly be read as approving his period of officiation prior to Frbruary 10, 1956. At any rate the approval of Government of India has to be accorded after the appointment to I. P. S. and not before.31. The only point that remains now is the question of discrimination. Singh Deo was an officer who was appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of the petitioner.32. The learned Attorney General had raised the point that all the officers who were likely to be affected by the decision of the writ petition had not been impleaded as parties to the petition, and he referred to us the decision of this Court in Padam Singh Jhina v. Union of India, Civil Appeal No. 405 of 1967, D/- 14-8-1967 (SC) where Shah, J., speaking for the Court observed:"But we are unable to investigate the question whether there has been infringement of the rules governing fixation of semority, for a majority those who were placed above the appellant in the seniority list are not impleaded in the petition before the Judicial Commissioner and are not before this Court. It is impossible to pass an order, assuming that the appellant is able to convince us that a breach of the rules was committed, altering the list of seniority, unless those who are likely to be affected thereby are before the Court and have an opportunity of replying to the case set up by the appellant."This is a salutary rule and should be observed. But the learned Counsel for the petitioner says that he was concerned with his year of allotment and in that question nobody else was interested directly. Each officer has to have a year of allotment and no other officer is directly interested in it. But as we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground. | 1[ds]19. It seems to us that the 1951, 1952 and 1954 lists cannot be deemed to be Select lists within the second proviso because, as a matter of fact, the Selection Committee did not select names for the purpose of substantive appointment but only selected names for the purpose of officiation in the senior posts of the Indian Policethis clearly means that the Committee should think of substantive appointments in the service and not officiating appointments.It seems to us that the Public Service Commission and the Government of India were quite right in deciding thatthe fit for trial lists could not be deemed to be select lists made within the draft rules or the Promotion Regulations.23. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.24. This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso.In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b).It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned Counsel for the petitioner that the only object of the second proviso is to limit the operation of the first proviso.If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India, (1967) 2 SCR 325 at p. 329=(AIR 1967 SC 1301 at p. 1303),"the first period (i. e., period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by the Central Government in consultation with the Commission."They have approved the period from February 10, 1956, to July 10, 1957.No material has been brought to our notice to show that the Central Government did not apply its mind to the problem.There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the requirements of a selecto was an officer who was appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of theas we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground. | 1 | 4,400 | 579 | ### Instruction:
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be deemed to be select lists made within the draft rules or the Promotion Regulations.23. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.24. This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso.In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b).It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned Counsel for the petitioner that the only object of the second proviso is to limit the operation of the first proviso.25. Explanation 1 really explains the expression "officiated continuously" occurring in Rule 3 (3) (b). But it does not mean that where Explanation 1 applies the second proviso does not apply. The object of Explanation 1 is to deal with the problem arising in the case of officers holding appointments as a purely temporary or local arrangement.26. If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India, (1967) 2 SCR 325 at p. 329=(AIR 1967 SC 1301 at p. 1303),"the first period (i. e., period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by the Central Government in consultation with the Commission."They have approved the period from February 10, 1956, to July 10, 1957.No material has been brought to our notice to show that the Central Government did not apply its mind to the problem.27. The learned Counsel for the petitioner contends that in the letter dated July 22, 1958, a list called the "fit for continuous officiation list" is mentioned which is said to have been approved by the Public Service Commission. The learned Counsel rightly points out that no such list exists. Apparently this is an expression coined by the draftsman to express the views of the Public service Commission which clearly stated in the letter dated February 10, 1956, that they approved the recommendation of the Selection Committee which met at Cuttack for the selection of police officers for promotion to the Indian Police Service in an officiating capacity.28. There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the requirements of a select List.29. We and unable to agree with the learned Counsel that February 10, 1956, is an arbitrary date.It has definite relation to the question of approved period of officiation because it is on this date that the Public Service Commission approved the inclusion of the petitioner in the list for officiating appointment for the first time after the Promotion Regulations had come into force.30. The next point which we may now consider is whether the officiation period prior to February 10, 1956, was as a matter of fact, approved by the Government of India. The learned counsel has taken us through the correspondence.He has been able to point out some letters written by the State Government on the point but no letter from the Government of India has been shown which could possibly be read as approving his period of officiation prior to Frbruary 10, 1956. At any rate the approval of Government of India has to be accorded after the appointment to I. P. S. and not before.31. The only point that remains now is the question of discrimination. Singh Deo was an officer who was appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of the petitioner.32. The learned Attorney General had raised the point that all the officers who were likely to be affected by the decision of the writ petition had not been impleaded as parties to the petition, and he referred to us the decision of this Court in Padam Singh Jhina v. Union of India, Civil Appeal No. 405 of 1967, D/- 14-8-1967 (SC) where Shah, J., speaking for the Court observed:"But we are unable to investigate the question whether there has been infringement of the rules governing fixation of semority, for a majority those who were placed above the appellant in the seniority list are not impleaded in the petition before the Judicial Commissioner and are not before this Court. It is impossible to pass an order, assuming that the appellant is able to convince us that a breach of the rules was committed, altering the list of seniority, unless those who are likely to be affected thereby are before the Court and have an opportunity of replying to the case set up by the appellant."This is a salutary rule and should be observed. But the learned Counsel for the petitioner says that he was concerned with his year of allotment and in that question nobody else was interested directly. Each officer has to have a year of allotment and no other officer is directly interested in it. But as we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground.
### Response:
1
### Explanation:
19. It seems to us that the 1951, 1952 and 1954 lists cannot be deemed to be Select lists within the second proviso because, as a matter of fact, the Selection Committee did not select names for the purpose of substantive appointment but only selected names for the purpose of officiation in the senior posts of the Indian Policethis clearly means that the Committee should think of substantive appointments in the service and not officiating appointments.It seems to us that the Public Service Commission and the Government of India were quite right in deciding thatthe fit for trial lists could not be deemed to be select lists made within the draft rules or the Promotion Regulations.23. In view of this conclusion it is not necessary to decide the question, which was raised by the learned Attorney General, that in any event the second proviso is only dealing with select lists made after the Promotion Regulations came into force and not with select lists made under the so-called draft rules. We are assuming, without deciding, that if a proper select list had been made under the draft rules it would be a select list within the meaning of the second proviso.24. This takes us to the next point whether the petitioner is governed by the main portion of rule 3 (3) (b) and not by the second proviso.In our opinion, the object of the second proviso is to cut down the period of officiation which would be taken into consideration under Rule 3 (3) (b).It is common ground that the case of the petitioner is not covered by the first proviso. We are unable to agree with the learned Counsel for the petitioner that the only object of the second proviso is to limit the operation of the first proviso.If the second proviso applies, as we hold it does, it was for the Central Government to approve, or not to approve, the period of officiation prior to the date of inclusion of the petitioner in the Select List. As observed by this Court in D. R. Nim v. Union of India, (1967) 2 SCR 325 at p. 329=(AIR 1967 SC 1301 at p. 1303),"the first period (i. e., period before the date of inclusion of an officer in the Select List) can only be counted if such period is approved by the Central Government in consultation with the Commission."They have approved the period from February 10, 1956, to July 10, 1957.No material has been brought to our notice to show that the Central Government did not apply its mind to the problem.There is no doubt from the correspondence we have set out above that the Government of India were quite aware of the requirements of a selecto was an officer who was appointed on June 1, 1955, after the Seniority Rules had come into force and he seems to be governed by the first proviso. We have not been able to appreciate how this case has any relationship to the case of theas we are allowing the appeal it is not necessary to finally decide whether the petition should have been dismissed only on this ground.
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Commissioner of Income Tax, West Bengal Vs. Indian Mica Supply Company Private Limited | GROVER, J.1. This is an appeal by special leave from the judgment of the Calcutta High Court refusing to require the Income-tax Appellate Tribunal to state the case and to refer to it certain questions of law which it was claimed arose from the order of the Tribunal, dated March 13, 1964, relating to the assessment year 1954-55 The respondent-company was engaged during the previous year ending on December 31, 1953, relevant to the assessment year 1954-55 in mining mica and dealing therein. Madan Lal was one of the directors of the company. He had taken for himself a lease of mining rights of village Gadhi Majladih in the district of Hazaribagh for a period of 15 years from April 1, 1928. The lease was to expire on March 31, 1943. According to the terms of the lease the lessee had the option of renewal for a further period of 20 years on the expiry thereof. Madanlal gave a sub-lease of the mining rights to the respondent-company with the same convenants for renewal for a like period. On the expiry of the lease on April 1, 1943, the lessee refused to renew the lease. Madanlal filed a suit on April 15, 1953, for specific performance of the contract. The suit was dismissed by the learned Subordinate Judge but during the pendency of the appeal to the High Court a compromise was entered into. The respondent-company was a party to the appeal as also to the compromise. According to the compromise the lease was to be renewed with retrospective effect from April 1, 1943. The respondent-company had to pay the rent from April 1, 1943, to March 31, 1953. This amount came to Rs. 42, 473 which was paid during the previous year in question as rent for the aforesaid period. The respondent-company claimed a deduction in the sum of Rs. 42, 473 on the ground that it was revenue expenditure and was deductible in the computation of its income for the assessment year 1954-55. The Income-tax Officer did not allow the claim. The Appellate Assistant Commissioner allowed only a part of the claim to the extent of Rs. 2, 341, being the rent payable for one year. According to him, the balance of the rent which had been paid was relatable to the period prior to the said previous year and, therefore, it was not deductible. The Income-tax Appellate Tribunal on appeal held that the entire amount of Rs. 42, 473 was deductible as revenue expenditure from the business profits of the respondent for the aforesaid assessment year. The Tribunal was of the view that after the expiry of the lease on April 1, 1943, and the refusal to the lessor to renew the same the respondent was in the position of a trespasser particularly after the dismissal of the suit for specific performance by the trial court. Until the suit was compromised in the High Court in 1953 it could not be said that the respondents liability had become ascertained. In other words, it was only as a result of the compromise in the year 1953, that the respondent became entitled to remain in possession of the land on payment of rent. The payment of the sum of Rs. 42, 473 thus represented revenue expenditure by the respondentThe Commissioner of Income-tax applied to the Tribunal to state the case and refer the following question of law" Whether, on the facts and in the circumstances of the case, the sum of Rs. 40, 132 was payment of a revenue nature and, as such, allowable as deduction under section 10(2)(xv) of the Indian Income-tax Act, 1922 ? "The Tribunal dismissed the application for reference. The High Court also did not accede to the prayer of the present appellant to direct that a case be submitted and the aforesaid question be referred2. In our judgment the High Court was justified in refusing to direct the Appellate Tribunal to state the case and refer the question which was sought to be referred. It was perfectly clear that the amount which had been paid by the respondent was an expenditure which was wholly and exclusively incurred for the purpose of carrying on its business. If the compromise had not take place and its terms not satisfied by payment of the amount of Rs. 42, 473 the respondent would not have been in the position of a lessee and entitled to carry on mining operations on the demised lands. It is well-settled that it is a question of fact in each case whether the amount which is claimed as a deductible allowance under section 10(2)(xv) of the Income-tax Act, 1922, was laid out wholly and exclusively for the purpose of the assessees business. If the fact-finding Tribunal comes to the conclusion on evidence that the expense incurred is wholly and exclusively for the purpose of the business, then the decision of the Tribunal cannot be distributed if there is evidence upon which it could arrive at such a conclusion (see Commissioner of Income-tax v. Chandulal Keshavlal & Co.). The Tribunal, in the present case, had clearly found that it was only as a result of the compromise that the respondent became entitled to remain in possession of the demised land. Its liability also became ascertained only at that point of time. It cannot be disputed that the respondent in incurring the expenditure had acted in the interest of and for the purpose of its business. The expenditure was not laid out for any purpose other than that of carrying on the business. The deduction was properly admissible under section 10(2)(xv) of the Act and the matter being self-evident the High Court was fully justified in declining to accede to the prayer made under section 66(2) of the Income-tax Act, 1922 | 0[ds]In our judgment the High Court was justified in refusing to direct the Appellate Tribunal to state the case and refer the question which was sought to be referred. It was perfectly clear that the amount which had been paid by the respondent was an expenditure which was wholly and exclusively incurred for the purpose of carrying on its business. If the compromise had not take place and its terms not satisfied by payment of the amount of Rs. 42, 473 the respondent would not have been in the position of a lessee and entitled to carry on mining operations on the demised lands. It isthat it is a question of fact in each case whether the amount which is claimed as a deductible allowance under section 10(2)(xv) of theAct, 1922, was laid out wholly and exclusively for the purpose of the assessees business. If theTribunal comes to the conclusion on evidence that the expense incurred is wholly and exclusively for the purpose of the business, then the decision of the Tribunal cannot be distributed if there is evidence upon which it could arrive at such a conclusion (see Commissioner ofv. Chandulal Keshavlal & Co.). The Tribunal, in the present case, had clearly found that it was only as a result of the compromise that the respondent became entitled to remain in possession of the demised land. Its liability also became ascertained only at that point of time. It cannot be disputed that the respondent in incurring the expenditure had acted in the interest of and for the purpose of its business. The expenditure was not laid out for any purpose other than that of carrying on the business. The deduction was properly admissible under section 10(2)(xv) of the Act and the matter beingthe High Court was fully justified in declining to accede to the prayer made under section 66(2) of the | 0 | 1,074 | 352 | ### Instruction:
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GROVER, J.1. This is an appeal by special leave from the judgment of the Calcutta High Court refusing to require the Income-tax Appellate Tribunal to state the case and to refer to it certain questions of law which it was claimed arose from the order of the Tribunal, dated March 13, 1964, relating to the assessment year 1954-55 The respondent-company was engaged during the previous year ending on December 31, 1953, relevant to the assessment year 1954-55 in mining mica and dealing therein. Madan Lal was one of the directors of the company. He had taken for himself a lease of mining rights of village Gadhi Majladih in the district of Hazaribagh for a period of 15 years from April 1, 1928. The lease was to expire on March 31, 1943. According to the terms of the lease the lessee had the option of renewal for a further period of 20 years on the expiry thereof. Madanlal gave a sub-lease of the mining rights to the respondent-company with the same convenants for renewal for a like period. On the expiry of the lease on April 1, 1943, the lessee refused to renew the lease. Madanlal filed a suit on April 15, 1953, for specific performance of the contract. The suit was dismissed by the learned Subordinate Judge but during the pendency of the appeal to the High Court a compromise was entered into. The respondent-company was a party to the appeal as also to the compromise. According to the compromise the lease was to be renewed with retrospective effect from April 1, 1943. The respondent-company had to pay the rent from April 1, 1943, to March 31, 1953. This amount came to Rs. 42, 473 which was paid during the previous year in question as rent for the aforesaid period. The respondent-company claimed a deduction in the sum of Rs. 42, 473 on the ground that it was revenue expenditure and was deductible in the computation of its income for the assessment year 1954-55. The Income-tax Officer did not allow the claim. The Appellate Assistant Commissioner allowed only a part of the claim to the extent of Rs. 2, 341, being the rent payable for one year. According to him, the balance of the rent which had been paid was relatable to the period prior to the said previous year and, therefore, it was not deductible. The Income-tax Appellate Tribunal on appeal held that the entire amount of Rs. 42, 473 was deductible as revenue expenditure from the business profits of the respondent for the aforesaid assessment year. The Tribunal was of the view that after the expiry of the lease on April 1, 1943, and the refusal to the lessor to renew the same the respondent was in the position of a trespasser particularly after the dismissal of the suit for specific performance by the trial court. Until the suit was compromised in the High Court in 1953 it could not be said that the respondents liability had become ascertained. In other words, it was only as a result of the compromise in the year 1953, that the respondent became entitled to remain in possession of the land on payment of rent. The payment of the sum of Rs. 42, 473 thus represented revenue expenditure by the respondentThe Commissioner of Income-tax applied to the Tribunal to state the case and refer the following question of law" Whether, on the facts and in the circumstances of the case, the sum of Rs. 40, 132 was payment of a revenue nature and, as such, allowable as deduction under section 10(2)(xv) of the Indian Income-tax Act, 1922 ? "The Tribunal dismissed the application for reference. The High Court also did not accede to the prayer of the present appellant to direct that a case be submitted and the aforesaid question be referred2. In our judgment the High Court was justified in refusing to direct the Appellate Tribunal to state the case and refer the question which was sought to be referred. It was perfectly clear that the amount which had been paid by the respondent was an expenditure which was wholly and exclusively incurred for the purpose of carrying on its business. If the compromise had not take place and its terms not satisfied by payment of the amount of Rs. 42, 473 the respondent would not have been in the position of a lessee and entitled to carry on mining operations on the demised lands. It is well-settled that it is a question of fact in each case whether the amount which is claimed as a deductible allowance under section 10(2)(xv) of the Income-tax Act, 1922, was laid out wholly and exclusively for the purpose of the assessees business. If the fact-finding Tribunal comes to the conclusion on evidence that the expense incurred is wholly and exclusively for the purpose of the business, then the decision of the Tribunal cannot be distributed if there is evidence upon which it could arrive at such a conclusion (see Commissioner of Income-tax v. Chandulal Keshavlal & Co.). The Tribunal, in the present case, had clearly found that it was only as a result of the compromise that the respondent became entitled to remain in possession of the demised land. Its liability also became ascertained only at that point of time. It cannot be disputed that the respondent in incurring the expenditure had acted in the interest of and for the purpose of its business. The expenditure was not laid out for any purpose other than that of carrying on the business. The deduction was properly admissible under section 10(2)(xv) of the Act and the matter being self-evident the High Court was fully justified in declining to accede to the prayer made under section 66(2) of the Income-tax Act, 1922
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In our judgment the High Court was justified in refusing to direct the Appellate Tribunal to state the case and refer the question which was sought to be referred. It was perfectly clear that the amount which had been paid by the respondent was an expenditure which was wholly and exclusively incurred for the purpose of carrying on its business. If the compromise had not take place and its terms not satisfied by payment of the amount of Rs. 42, 473 the respondent would not have been in the position of a lessee and entitled to carry on mining operations on the demised lands. It isthat it is a question of fact in each case whether the amount which is claimed as a deductible allowance under section 10(2)(xv) of theAct, 1922, was laid out wholly and exclusively for the purpose of the assessees business. If theTribunal comes to the conclusion on evidence that the expense incurred is wholly and exclusively for the purpose of the business, then the decision of the Tribunal cannot be distributed if there is evidence upon which it could arrive at such a conclusion (see Commissioner ofv. Chandulal Keshavlal & Co.). The Tribunal, in the present case, had clearly found that it was only as a result of the compromise that the respondent became entitled to remain in possession of the demised land. Its liability also became ascertained only at that point of time. It cannot be disputed that the respondent in incurring the expenditure had acted in the interest of and for the purpose of its business. The expenditure was not laid out for any purpose other than that of carrying on the business. The deduction was properly admissible under section 10(2)(xv) of the Act and the matter beingthe High Court was fully justified in declining to accede to the prayer made under section 66(2) of the
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Prashanti Medical Services & Research Foundation Vs. Union of India & Ors | 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court 20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬2018. 21. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project. 22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬2018. 23. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬2017. 24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the assessees were not allowed to claim deduction of the amount paid by them to the appellant on account of insertion of sub-section(7) in Section 35AC of the Act with effect from 01.04.2017. 25. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here. 26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively. 27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period. 28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬2017. 29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning. 30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors. 31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there. 32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬201823. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬201725. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬201729. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more. | 0 | 3,805 | 1,102 | ### 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:
28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court 20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬2018. 21. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project. 22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬2018. 23. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬2017. 24. The dispute is now confined only to third financial year, i.e., 2017-2018 because for this year, the assessees were not allowed to claim deduction of the amount paid by them to the appellant on account of insertion of sub-section(7) in Section 35AC of the Act with effect from 01.04.2017. 25. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here. 26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively. 27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period. 28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬2017. 29. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning. 30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors. 31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there. 32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
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17. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere with the impugned order of the High Court19. It is not in dispute that 28 projects were approved by the Committee by notification dated 07.12.2015 but none of them (27) has come forward to question the constitutional validity of sub¬section (7) except the appellant herein. In other words, out of 28 projects owners whose projects were approved by the Committee by notification dated 07.12.2015, only the appellant herein has felt aggrieved and filed the petition in the High Court20. Be that as it may, as rightly argued by the learned counsel for the respondent (Revenue), the real aggrieved parties, which should have felt aggrieved by insertion of sub¬section (7) in Section 35AC of the Act, were those assesses, i.e., Donors who despite paying the donation to the appellant were not allowed to claim deduction of the said amount from their total income during the financial year 2017¬201821. In other words, one of the main objects for which Section 35AC was enacted was to allow the assessees to claim deduction of the amount paid by them to the appellant for their project22. As mentioned above, none of the assessees (Donee), who claimed to have paid amount to any eligible projects came forward complaining that despite their donating the amount to the appellant for their project, they were denied the benefit of claiming deduction of such amount from their total income by virtue of sub¬section (7) of Section 35AC of the Act during the financial year 2017¬201823. It is not in dispute that the benefit of the deduction available under Section 35AC of the Act was duly availed of by all the assessees for two financial years, namely, 2015¬2016 and 2016¬201725. We are of the view that sub¬section (7) is prospective in its operation and, therefore, all the assessees were rightly allowed to claim deduction of the amount paid by them to eligible projects from their total income during two financial years, namely, 2015¬2016 and 2016¬2017. If sub¬section (7) had been retrospective in its operation then the deduction for 2015¬2016 and 2016¬2017 too would have been disallowed. Admittedly, such is not the case here26. As rightly argued by the learned counsel for the respondent (Revenue), a plea of promissory estoppel is not available to an assessee against the exercise of legislative power and nor any vested right accrues to an assessee in the matter of grant of any tax concession to him. In other words, neither the appellant nor the assessee has any right to set up a plea of promissory estoppel against the exercise of legislative power such as the one exercised while inserting sub¬section (7) in Section 35AC of the Act (see¬M/s Motilal Padampat Sugar Mills Co. Ltd.(supra) and other cases relied on by the learned counsel for the respondent¬Revenue). It is more so when we find that this sub¬section was made applicable uniformly to all alike the appellant prospectively27. It is not in dispute that now time to donate the amount to eligible projects for claiming deduction from the total income for the year 2017¬2018 has expired. It is now no longer available due to efflux of time. In this view of the matter, even if the appellant received any amount from any assessee for their project, no deduction could be allowed to such assessee either for the period 2017-2018 or for any subsequent period28. It was, however, stated by the learned counsel for the appellant that the appellant has received 3.84 crores during the year 2017¬2018 from various assessees. It was also stated that if sub-section(7) had been held not applicable to the appellants project then the appellant would have received much more amount than Rs.3.84 crores during the financial year 2017¬2018, which is clear from the amount received by the appellant in earlier two years prior to insertion of sub¬section(7), i.e., Rs. 10.97 crores during the financial year 2015¬2016 and Rs. 20.55 crores during the financial year 2016¬201729. We find no merit in this submission. In a taxing statute, a plea based on equity or/and hardship is not legally sustainable. The constitutional validity of any provision and especially taxing provision cannot be struck down on such reasoning30. Learned counsel for the appellant then urged that having regard to the fact that the appellant has set up a charitable hospital and that they were not able to receive more amount by way of donation for their project in the third financial year 2017¬2018, this Court may consider appropriate to invoke powers under Article 142 of the Constitution and allow the appellant to receive donation even for the third financial year in terms of the notification dated 07.12.2015 from their donors31. We are afraid, we cannot accept this submission for more than one reason. First, as held above, in tax matter, neither any equity nor hardship has any role to play while deciding the rights of any taxpayer qua the Revenue; Second, once the action is held in accordance with law and especially in tax matters, the question of invoking powers under Article 142 of the Constitution does not arise; and third, the appellants Donors were admittedly allowed to claim deduction of the amount paid by them to the appellant under Section 35AC during the two financial years 2015¬ 2016 and 2016¬2017. It is for all these reasons, the matter must rest there32. Learned counsel for the appellant placed reliance on the decision of S.L. Srinivasa Jute Twine Mills (P) Ltd. (supra), Sangam Spinners (supra) and CIT vs. Vatika Township Pvt. Ltd., (supra). In our view, in the light of the foregoing discussion and the findings recorded, the arguments based on the principle laid down in these decisions cannot be accepted. We, therefore, need not deal with this issue any more.
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Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills Ltd. and Anr | and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again. 20. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed by procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some matters which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication. 21. Learned counsel for the appellant then sought to argue that there was no conciliation proceeding in progress when the alleged settlement is said to have been reached on May 17, 1983. The submission ignores the findings of fact recorded by the Tribunal in its order dated June 12, 1987 that while the reference was pending before the Tribunal certain events took place which compelled the Deputy Labour Commissioner-cum-Conciliation Officer to intervene. As noticed earlier a notice of strike was served on the Management on February 14, 1983 by one of the Unions. On the other hand the Management gave notice on April 4, 1983 under Section 25 FFFA of the Act for closing part of the undertaking related to the weaving section. These facts leave no manner of doubt that there was labour unrest coupled with the fear of strike and closure. The settlement itself recites the fact that there were series of bipartite and tripartite meetings between the representatives of the Management and the Unions in view of the labour unrest and threat of closing down the operation of the weaving department. Meetings were also held in the office of the Chief Labour Commissioner with a view to resolve the dispute and a meeting was thereafter held on May 17, 1983 in the office of Shri K. Saran, Joint Chief Labour Commissioner (Central) where the representatives of the Management and the Unions participated alongwith the officers of the Labour Department which ultimately resulted in a settlement. All these facts establish beyond doubt that there was labour unrest and the Conciliation Officer intervened in the matter and made attempts to bring about a settlement. The submission, therefore, that no conciliation proceeding was in progress when the settlement was arrived at, must be rejected. 22. Learned counsel for the appellant then submitted that the settlement was not arrived at with the assistance and concurrence of the Conciliation Officer. It was submitted, relying upon the decision of this Court in : The Bata Shoe Co. (P) Ltd. vs. D.N. Ganguly and others : AIR 1961 SC 1158 that a settlement which is made in binding under Section 18(3) of the Act on the ground that it is arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the Conciliation Officer. Such a settlement brought about while conciliation proceedings are pending, are made binding on all parties under Section 18 of the Act. Reliance was placed on the judgment of this Court in Workmen of M/s. Delhi Cloth and General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. : (1969) 3 SCC 302 . 23. Learned counsel for the respondents did not dispute the legal position as it emerges from these two judgments. It was submitted that the facts of this case clearly establish that the Conciliation Officer intervened when there was considerable labour unrest and brought the parties to the negotiating table. Several meetings were held, some of them in the chambers of higher officials of the Labour Department, and ultimately a settlement was worked out. This is quite apparent from the fact that the terms of settlement has also been signed by the Conciliation Officer, apart from the representatives of the Management and representatives of the two workers Union. We entertain no doubt that the settlement was brought about in the course of conciliation proceedings with the assistance and concurrence of the Conciliation Officer. 24. It was also urged before us by the learned counsel for the appellant that the Tribunal ought to have considered, while passing an Award on June 12, 1987, that the settlement was just and fair and protected the interest of the workmen. The recall of the order was sought on the ground that this aspect of the matter had not been considered when an Award was made in terms of the settlement. This was precisely the ground on which the Tribunal entertained the application for recall and allowed it by order dated February 19, 1990. The Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High Court. 25. It was lastly submitted that the settlement did not resolve the dispute which were subject matter of reference made to the Tribunal. The submission again proceeds on a misreading of the settlement. It is no doubt true that the dispute referred to the Tribunal mainly arose on account of the Management closing down a large number of looms which necessitated a curtailment of the work force on account of which the Management refused to give work to a large number of workers. We find that Clause 3.2 of the settlement in terms deals with the dispute relating to the weaving department and other allied departments. This submission, therefore, has no force. | 0[ds]The High Court answered the first question in favour of the respondent-Management and the second in favour of the appellant15. We shall first take up the second question namely - whether the Tribunal was functus offico having earlier made an Award which was published by the appropriate Government. It is not in dispute that the Award was made on June 12, 1987 and was published in the Gazette on August 10, 1987. The application for recall was made on September 7, 1987. Under sub-section (1) of Section 17A of the Act an Award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17 of the Act. Thus the Award would have become enforceable with effect from September 9, 1987. However, the application for recalling the Award was made on September 7, 1987 i.e. 2 days before the Award would have become enforceable in terms of sub-section (1) of Section 17A of the Act. The High Court rightly took the view that since the application for recall of the order was made before the Award had become enforceable, the Tribunal had not become fuctus offico and had jurisdiction to entertain the application for recall. This view also find supports from the judgment of this Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra). This Court after noticing the provisions of sub-section (3) of Section 20 of the Act which provides that the proceedings before the Tribunal would be deemed to continue till the date on which the Award become enforceable under Section 17A, held that till the Award becomes enforceable the Tribunal retains jurisdiction over the dispute referred to it for adjudication, and up to that date it has the power to entertain the application in connection with such dispute. The jurisdiction of the Tribunal had to be seen on the date of the application made to it and not the date on which it passed the impugned order. The judgment in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) has been reiterated by this Court in Satnam Verma vs. Union of India (supra), J.K. Synthetics Ltd. vs. Collector of Central Excise : (1996) 6 SCC 92 and M.P. Electricity Board vs. Hariram etc. : JT 2004 (8) SC 98 18. It was, therefore, submitted before us relying upon Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and review on merits. This Court in Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra) clearly highlighted this distinctionThe Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High Court20. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed by procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some matters which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication20. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed by procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some matters which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implicationThe Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High Court25. It was lastly submitted that the settlement did not resolve the dispute which were subject matter of reference made to the Tribunal.The submission again proceeds on a misreading of the settlement. It is no doubt true that the dispute referred to the Tribunal mainly arose on account of the Management closing down a large number of looms which necessitated a curtailment of the work force on account of which the Management refused to give work to a large number of workers. We find that Clause 3.2 of the settlement in terms deals with the dispute relating to the weaving department and other allied departments. This submission, therefore, has no force16. In the instant case as well we find that as on September 7, 1987 the Award had not become enforceable and, therefore, on that date the Tribunal had jurisdiction over the disputes referred to it for adjudication. Consequently it had the power to entertain an application in connection with such dispute. The order of recall passed by the Tribunal on February 19, 1990, therefore, cannot be assailed on the ground that the Tribunal had become fuctus offico19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again21. Learned counsel for the appellant then sought to argue that there was no conciliation proceeding in progress when the alleged settlement is said to have been reached on May 17,submission ignores the findings of fact recorded by the Tribunal in its order dated June 12, 1987 that while the reference was pending before the Tribunal certain events took place which compelled the Deputy Labour Commissioner-cum-Conciliation Officer to intervene. As noticed earlier a notice of strike was served on the Management on February 14, 1983 by one of the Unions. On the other hand the Management gave notice on April 4, 1983 under Section 25 FFFA of the Act for closing part of the undertaking related to the weaving section. These facts leave no manner of doubt that there was labour unrest coupled with the fear of strike and closure. The settlement itself recites the fact that there were series of bipartite and tripartite meetings between the representatives of the Management and the Unions in view of the labour unrest and threat of closing down the operation of the weaving department. Meetings were also held in the office of the Chief Labour Commissioner with a view to resolve the dispute and a meeting was thereafter held on May 17, 1983 in the office of Shri K. Saran, Joint Chief Labour Commissioner (Central) where the representatives of the Management and the Unions participated alongwith the officers of the Labour Department which ultimately resulted in a settlement. All these facts establish beyond doubt that there was labour unrest and the Conciliation Officer intervened in the matter and made attempts to bring about a settlement. The submission, therefore, that no conciliation proceeding was in progress when the settlement was arrived at, must be rejectedThe Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High CourtThe Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High | 0 | 5,089 | 2,420 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again. 20. The facts of the instant case are quite different. The recall of the Award of the Tribunal was sought not on the ground that in passing the Award the Tribunal had committed by procedural illegality or mistake of the nature which vitiated the proceeding itself and consequently the Award, but on the ground that some matters which ought to have been considered by the Tribunal were not duly considered. Apparently the recall or review sought was not a procedural review, but a review on merits. Such a review was not permissible in the absence of a provision in the Act conferring the power of review on the Tribunal either expressly or by necessary implication. 21. Learned counsel for the appellant then sought to argue that there was no conciliation proceeding in progress when the alleged settlement is said to have been reached on May 17, 1983. The submission ignores the findings of fact recorded by the Tribunal in its order dated June 12, 1987 that while the reference was pending before the Tribunal certain events took place which compelled the Deputy Labour Commissioner-cum-Conciliation Officer to intervene. As noticed earlier a notice of strike was served on the Management on February 14, 1983 by one of the Unions. On the other hand the Management gave notice on April 4, 1983 under Section 25 FFFA of the Act for closing part of the undertaking related to the weaving section. These facts leave no manner of doubt that there was labour unrest coupled with the fear of strike and closure. The settlement itself recites the fact that there were series of bipartite and tripartite meetings between the representatives of the Management and the Unions in view of the labour unrest and threat of closing down the operation of the weaving department. Meetings were also held in the office of the Chief Labour Commissioner with a view to resolve the dispute and a meeting was thereafter held on May 17, 1983 in the office of Shri K. Saran, Joint Chief Labour Commissioner (Central) where the representatives of the Management and the Unions participated alongwith the officers of the Labour Department which ultimately resulted in a settlement. All these facts establish beyond doubt that there was labour unrest and the Conciliation Officer intervened in the matter and made attempts to bring about a settlement. The submission, therefore, that no conciliation proceeding was in progress when the settlement was arrived at, must be rejected. 22. Learned counsel for the appellant then submitted that the settlement was not arrived at with the assistance and concurrence of the Conciliation Officer. It was submitted, relying upon the decision of this Court in : The Bata Shoe Co. (P) Ltd. vs. D.N. Ganguly and others : AIR 1961 SC 1158 that a settlement which is made in binding under Section 18(3) of the Act on the ground that it is arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the Conciliation Officer. Such a settlement brought about while conciliation proceedings are pending, are made binding on all parties under Section 18 of the Act. Reliance was placed on the judgment of this Court in Workmen of M/s. Delhi Cloth and General Mills Ltd. vs. The Management of M/s. Delhi Cloth and General Mills Ltd. : (1969) 3 SCC 302 . 23. Learned counsel for the respondents did not dispute the legal position as it emerges from these two judgments. It was submitted that the facts of this case clearly establish that the Conciliation Officer intervened when there was considerable labour unrest and brought the parties to the negotiating table. Several meetings were held, some of them in the chambers of higher officials of the Labour Department, and ultimately a settlement was worked out. This is quite apparent from the fact that the terms of settlement has also been signed by the Conciliation Officer, apart from the representatives of the Management and representatives of the two workers Union. We entertain no doubt that the settlement was brought about in the course of conciliation proceedings with the assistance and concurrence of the Conciliation Officer. 24. It was also urged before us by the learned counsel for the appellant that the Tribunal ought to have considered, while passing an Award on June 12, 1987, that the settlement was just and fair and protected the interest of the workmen. The recall of the order was sought on the ground that this aspect of the matter had not been considered when an Award was made in terms of the settlement. This was precisely the ground on which the Tribunal entertained the application for recall and allowed it by order dated February 19, 1990. The Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High Court. 25. It was lastly submitted that the settlement did not resolve the dispute which were subject matter of reference made to the Tribunal. The submission again proceeds on a misreading of the settlement. It is no doubt true that the dispute referred to the Tribunal mainly arose on account of the Management closing down a large number of looms which necessitated a curtailment of the work force on account of which the Management refused to give work to a large number of workers. We find that Clause 3.2 of the settlement in terms deals with the dispute relating to the weaving department and other allied departments. This submission, therefore, has no force.
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it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again19. Applying these principles it is apparent that where a Court or quasi judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the Court or the quasi judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the Court or quasi judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the Court or the quasi judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and others (supra), it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be re-heard and decided again21. Learned counsel for the appellant then sought to argue that there was no conciliation proceeding in progress when the alleged settlement is said to have been reached on May 17,submission ignores the findings of fact recorded by the Tribunal in its order dated June 12, 1987 that while the reference was pending before the Tribunal certain events took place which compelled the Deputy Labour Commissioner-cum-Conciliation Officer to intervene. As noticed earlier a notice of strike was served on the Management on February 14, 1983 by one of the Unions. On the other hand the Management gave notice on April 4, 1983 under Section 25 FFFA of the Act for closing part of the undertaking related to the weaving section. These facts leave no manner of doubt that there was labour unrest coupled with the fear of strike and closure. The settlement itself recites the fact that there were series of bipartite and tripartite meetings between the representatives of the Management and the Unions in view of the labour unrest and threat of closing down the operation of the weaving department. Meetings were also held in the office of the Chief Labour Commissioner with a view to resolve the dispute and a meeting was thereafter held on May 17, 1983 in the office of Shri K. Saran, Joint Chief Labour Commissioner (Central) where the representatives of the Management and the Unions participated alongwith the officers of the Labour Department which ultimately resulted in a settlement. All these facts establish beyond doubt that there was labour unrest and the Conciliation Officer intervened in the matter and made attempts to bring about a settlement. The submission, therefore, that no conciliation proceeding was in progress when the settlement was arrived at, must be rejectedThe Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High CourtThe Tribunal in our view proceeded on a factually incorrect assumption. The High Court has found that the Tribunal while making an Award in terms of the settlement has in clear terms recorded its satisfaction in paragraph 25 of its order (which we have quoted earlier in the judgment) that the settlement was fair and just. We entirely agree with the High
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Avadh Kishore Das Vs. Ram Gopal and Others | It cannot be said that the defendant had inadvertently affirmed the correctness of the admission/declaration made in the aforesaid Will by the deceased Mahant. It was a conscious admission. The defendant himself repeatedly admitted this position with regard to the ownership of the land being exclusively of the idol, Thakurji Maharaj, in the applications filed for receiving annuity under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1952, which was granted to the idol, in respect of the Trust property.25. Exhibit 13 is a copy of an application, dated July 25, 1956 filed by the appellant on behalf of Shri Ram Jankiji Maharaj, installed in the temple of village Bahawalpura. In this application, he represented himself that this property of the temple was under the management of the applicant as a Mahant. This application was filed by the appellant before the Compensation Officer, Tehsil Konch, for grant of the compensation in the shape of annuity, in respect of the property of the Trust. The idol of Shri Ram Janki installed in the temple at village Bahawalpura is mentioned as the applicant. This application bears the verification and signature of the appellant, himself.26. Exhibit 12 is another application of a similar nature made by the appellant before the Compensation Officer, on July 18, 1957, for receiving the annuity.27. Exhibit 11 is an affidavit, dated October 14, 1958, filed by the appellant before the Rehabilitation Grant Officer, Konch. In this affidavit, the appellant solemnly affirmed that the income of the Muafi property of the temple had been expended and shall, in future, be expended towards Bhog, Puja and functions held on the occasion of festivals and, also, towards the repairs of the temple.28. Exhibit 15 is a copy of the order, dated August 16, 1955, passed by the Compensation Officer. In this order, it is stated that the Zamindari property was in the name of Shri Ram Jankiji Maharaj installed in the temple of village Bahawalpura and the Manager recorded in the Khewat was Avadh Kishore Das (defendant-appellant), Chela of Mahant Raghubir Das. The deity, Shri Ram Jankiji is recorded as intermediary in the Khewat of 1849 Fasli. The Compensation Officer ordered that an annuity of Rs. 596/6 be paid to the appellant as Manager of the aforesaid idol.29. Then, there is another document (Ex. 14). It is an agreement, dated August 16, 1955, between the Government of Uttar Pradesh and Shri Ram Jankiji Maharaj Wakf Trust. This agreement was signed by the appellant, himself, on behalf of the aforesaid Wakf Trust. By this document, the appellant had made a representation to the State Government that the Trust was in urgent need of funds for carrying out the performances of the Wakf Trust or endowment. He further requested that pending determination of compensation and annuity, an amount of Rs. 596/6 be advanced to the grantee on the terms and conditions mentioned in the agreement. The State Government had agreed to advance this loan on the terms contained in the agreement.30. In the fact of this evidence reinforced by the oral evidence on the record, the learned Judge of the High Court concluded that the Math and the temple in this case are a public religious Trust and not the personal property of the defendant. We do not find any reason to take a different view.31. Mr. Goyal cited certain observations of the Judicial Committee in Babu Bhagwan Din v. Gir Har Saroop (AIR 1940 PC 7 ) in support of his contention that the mere fact that the property descended from Guru to Chela and that there was a grant from the then Rulers from time to time for the temple, is not sufficient to show that it was a public endowment. This is stated only to be rejected. The facts of that case were entirely different. The points of distinction have been fully brought out by the High Court and we do not intend to burden this judgment by a repetition of the same.32. In the alternative, Mr. Goyal tried to advance a new plea which was never taken by the defendant in his pleadings or at the time of arguments in the courts below. The argument is that if it was assumed that Mahant Raghubir Das had no right to gift the property to the appellant, the latter would then be treated a trespasser over the same and as no suit for his ejectment was filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, within three years of his coming into possession in 1954, he became a Sirdar under Section 210 of that Act. Thereafter, Raghubir Das acquired the Bhumidhari rights in the suit land under Section 18 of that Act in his own right and there is nothing to show that the temple or the idol got such rights. The point sought to be made out is that Bhumidhari rights acquired by the defendant were new statutory rights and the old proprietary rights had extinguished and become vested in the State free from all encumbrances under Section 6 of the said Act, with effect from the date of vesting (i.e. July 1, 1952).33. An application, dated March 14, 1969, (C.M.P. No. 1437 of 1969) has also been made in this Court by the appellant for taking additional grounds. This application has been stoutly opposed by Shri R. K. Garg, counsel for the respondent. It is submitted that this is not a pure question of law, but one depending on evidence. No extract from the revenue records to show that Bhumidhari rights were granted not to the idol or the temple as a juristic person, but to the appellant personally.34. It appears to us that this plea cannot be entertained at this belated stage. It is not even faintly adumbrated in the written statement of the defendant, nor was it agitated at any stage before the courts below. It is not a pure question or law. We, therefore, decline to go into it. | 0[ds]The argument is that if it was assumed that Mahant Raghubir Das had no right to gift the property to the appellant, the latter would then be treated a trespasser over the same and as no suit for his ejectment was filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, within three years of his coming into possession in 1954, he became a Sirdar under Section 210 of that Act. Thereafter, Raghubir Das acquired the Bhumidhari rights in the suit land under Section 18 of that Act in his own right and there is nothing to show that the temple or the idol got such rights. The point sought to be made out is that Bhumidhari rights acquired by the defendant were new statutory rights and the old proprietary rights had extinguished and become vested in the State free from all encumbrances under Section 6 of the said Act, with effect from the date of vesting (i.e. July 1, 1952).33. An application, dated March 14, 1969, (C.M.P. No. 1437 of 1969) has also been made in this Court by the appellant for taking additional grounds. This application has been stoutly opposed by Shri R. K. Garg, counsel for the respondent. It is submitted that this is not a pure question of law, but one depending on evidence. No extract from the revenue records to show that Bhumidhari rights were granted not to the idol or the temple as a juristic person, but to the appellant personally.34. It appears to us that this plea cannot be entertained at this belated stage. It is not even faintly adumbrated in the written statement of the defendant, nor was it agitated at any stage before the courts below. It is not a pure question or law. We, therefore, decline to go into it. | 0 | 4,094 | 343 | ### 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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It cannot be said that the defendant had inadvertently affirmed the correctness of the admission/declaration made in the aforesaid Will by the deceased Mahant. It was a conscious admission. The defendant himself repeatedly admitted this position with regard to the ownership of the land being exclusively of the idol, Thakurji Maharaj, in the applications filed for receiving annuity under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1952, which was granted to the idol, in respect of the Trust property.25. Exhibit 13 is a copy of an application, dated July 25, 1956 filed by the appellant on behalf of Shri Ram Jankiji Maharaj, installed in the temple of village Bahawalpura. In this application, he represented himself that this property of the temple was under the management of the applicant as a Mahant. This application was filed by the appellant before the Compensation Officer, Tehsil Konch, for grant of the compensation in the shape of annuity, in respect of the property of the Trust. The idol of Shri Ram Janki installed in the temple at village Bahawalpura is mentioned as the applicant. This application bears the verification and signature of the appellant, himself.26. Exhibit 12 is another application of a similar nature made by the appellant before the Compensation Officer, on July 18, 1957, for receiving the annuity.27. Exhibit 11 is an affidavit, dated October 14, 1958, filed by the appellant before the Rehabilitation Grant Officer, Konch. In this affidavit, the appellant solemnly affirmed that the income of the Muafi property of the temple had been expended and shall, in future, be expended towards Bhog, Puja and functions held on the occasion of festivals and, also, towards the repairs of the temple.28. Exhibit 15 is a copy of the order, dated August 16, 1955, passed by the Compensation Officer. In this order, it is stated that the Zamindari property was in the name of Shri Ram Jankiji Maharaj installed in the temple of village Bahawalpura and the Manager recorded in the Khewat was Avadh Kishore Das (defendant-appellant), Chela of Mahant Raghubir Das. The deity, Shri Ram Jankiji is recorded as intermediary in the Khewat of 1849 Fasli. The Compensation Officer ordered that an annuity of Rs. 596/6 be paid to the appellant as Manager of the aforesaid idol.29. Then, there is another document (Ex. 14). It is an agreement, dated August 16, 1955, between the Government of Uttar Pradesh and Shri Ram Jankiji Maharaj Wakf Trust. This agreement was signed by the appellant, himself, on behalf of the aforesaid Wakf Trust. By this document, the appellant had made a representation to the State Government that the Trust was in urgent need of funds for carrying out the performances of the Wakf Trust or endowment. He further requested that pending determination of compensation and annuity, an amount of Rs. 596/6 be advanced to the grantee on the terms and conditions mentioned in the agreement. The State Government had agreed to advance this loan on the terms contained in the agreement.30. In the fact of this evidence reinforced by the oral evidence on the record, the learned Judge of the High Court concluded that the Math and the temple in this case are a public religious Trust and not the personal property of the defendant. We do not find any reason to take a different view.31. Mr. Goyal cited certain observations of the Judicial Committee in Babu Bhagwan Din v. Gir Har Saroop (AIR 1940 PC 7 ) in support of his contention that the mere fact that the property descended from Guru to Chela and that there was a grant from the then Rulers from time to time for the temple, is not sufficient to show that it was a public endowment. This is stated only to be rejected. The facts of that case were entirely different. The points of distinction have been fully brought out by the High Court and we do not intend to burden this judgment by a repetition of the same.32. In the alternative, Mr. Goyal tried to advance a new plea which was never taken by the defendant in his pleadings or at the time of arguments in the courts below. The argument is that if it was assumed that Mahant Raghubir Das had no right to gift the property to the appellant, the latter would then be treated a trespasser over the same and as no suit for his ejectment was filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, within three years of his coming into possession in 1954, he became a Sirdar under Section 210 of that Act. Thereafter, Raghubir Das acquired the Bhumidhari rights in the suit land under Section 18 of that Act in his own right and there is nothing to show that the temple or the idol got such rights. The point sought to be made out is that Bhumidhari rights acquired by the defendant were new statutory rights and the old proprietary rights had extinguished and become vested in the State free from all encumbrances under Section 6 of the said Act, with effect from the date of vesting (i.e. July 1, 1952).33. An application, dated March 14, 1969, (C.M.P. No. 1437 of 1969) has also been made in this Court by the appellant for taking additional grounds. This application has been stoutly opposed by Shri R. K. Garg, counsel for the respondent. It is submitted that this is not a pure question of law, but one depending on evidence. No extract from the revenue records to show that Bhumidhari rights were granted not to the idol or the temple as a juristic person, but to the appellant personally.34. It appears to us that this plea cannot be entertained at this belated stage. It is not even faintly adumbrated in the written statement of the defendant, nor was it agitated at any stage before the courts below. It is not a pure question or law. We, therefore, decline to go into it.
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The argument is that if it was assumed that Mahant Raghubir Das had no right to gift the property to the appellant, the latter would then be treated a trespasser over the same and as no suit for his ejectment was filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, within three years of his coming into possession in 1954, he became a Sirdar under Section 210 of that Act. Thereafter, Raghubir Das acquired the Bhumidhari rights in the suit land under Section 18 of that Act in his own right and there is nothing to show that the temple or the idol got such rights. The point sought to be made out is that Bhumidhari rights acquired by the defendant were new statutory rights and the old proprietary rights had extinguished and become vested in the State free from all encumbrances under Section 6 of the said Act, with effect from the date of vesting (i.e. July 1, 1952).33. An application, dated March 14, 1969, (C.M.P. No. 1437 of 1969) has also been made in this Court by the appellant for taking additional grounds. This application has been stoutly opposed by Shri R. K. Garg, counsel for the respondent. It is submitted that this is not a pure question of law, but one depending on evidence. No extract from the revenue records to show that Bhumidhari rights were granted not to the idol or the temple as a juristic person, but to the appellant personally.34. It appears to us that this plea cannot be entertained at this belated stage. It is not even faintly adumbrated in the written statement of the defendant, nor was it agitated at any stage before the courts below. It is not a pure question or law. We, therefore, decline to go into it.
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Punjab University Chandigarh Vs. Devjani Chakrabarti and Others | contended that the new decisions Annexures R. 2 and R. 3 were taken bonafide and are only prospective in operation and that the doctrine of promissory estoppel pleaded by the petitioners in the Writ Petitions does not apply to the University.The decisions Annexures P. 2, P. 3, R. 2 and R. 3 are of the Syndicate which has power to make rules etc under s. 20 (5) of the Punjab University Act in the same manner as the Senate has similar power under s. 31 of that Act. The learned Judges of the Division Bench rejected the contention of the petitioners before them that the Syndicate has no power which the Senate has under s. 31 of the Act and held that the Syndicate has similar powers under s. 20 (5) of the Act They rejected the further contention that there is any bar of promissory estoppel against the University in regard to the. matter and, however, held that petitioners 1 to 37 had joined the 10+2 course in the Central Schools lying within the territorial jurisdiction of the Punjab University in 1978 and passed the 12th Standard Examination and had planned their education in a particular manner to join the colleges affiliated to the Punjab University in the second year of the 3-year degree course and other courses after passing the 12th standard examination in the plus 2 system. They found that similar is the case of petitioners 38 to 92 in W.P. 1917 o f 1980 who had been promoted from the 11th to the 12th standard in the plus 2 system. They held that Annexure R. 3 will deprive petitioners 1 to 37 and Annexure R. 2 will deprive petitioners 38 to 92 of the right to seek admission in Engineering and Medical Colleges after passing the 12th Standard in the 10+2 system, and Annexures R. 2 and R. 3 take away that right and are retrospective in nature. In coming to this conclusion the learned Judges of the Division Bench relied very strongly upon the decision of a full Bench of the Punjab and Haryana High Court in Punjab University v. Subhash Chander. The learned Judges accordingly allowed W.P. 1917 of 1980 on the sole ground, namely, that Annexures R. 2 and R. 3 are bad as being retrospective in operation without an order as to costs and held that Annexures R. 3 and R. 2 will not stand in the way of petitioners 1 to 7 and 38 to 92 respectively before them from seeking admission to higher classes or in Engineering and Medical Colleges on the basis of the old decisions, Annexures P. 2 and P. 3. The Other Division Bench which heard W.P. 2349 of 1980 allowed that petition without any order as to costs as being covered by the decision in W P. 1917 of 1980.We are of the opinion that these appeals have to be allowed. The learned Judges of the High Court allowed the Writ Petitions only on the ground that the new decisions Annexures R. 2 and R. 3 are retrospective in operation and that they cannot affect the writ petitioners before them from seeking admission to higher classes or in Engineering or Medical Colleges on the basis of tile earlier decisions Annexures P. 2 and P. 3, relying mainly upon the decision of the Full Bench in Punjab University v. Subhash Chander (supra). We have, in our separate judgment delivered today in C.A. 2828 of 1977, which arose out of that Full Bench decision, reversed that decision and held that there is nothing retrospective in the order challenged in that case. In that case one Subhash Chander was admitted to the integrated M.B.B.S course in the Daya Nand Medical College, Ludhiana in the year 1965. At the time of his admission, under Regulation 25 read with r. 7.1, a student who fail s in one subject/paper was entitled to grace marks at 1 per cent of the total aggregate marks of all the subjects for which he appeared. But in 1970 the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed Subhash Chander appeared for the Final M.B.B.S. examination in 1974 and secured 106 out of 200 marks in the practical examination and 95 out 200 marks in the theory examination in Midwifery, which was one of the four subjects for which he appeared. at that time. He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks. Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks. But he was allowed only 4 grace marks under the new rule being 1 per cent of, the aggregate for the subject in which he had failed namely, Midwifery. The High Court accepted his contention that amendment of the rule made in 1970 was retrospective in operation though it was made applicable to Subhash Chander only in 1974 merely because he had joined the integrated course in 1965 when the rule regarding the award of grace marks was more liberal. In allowing the appeal against the judgment of the Full Bench we have held that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974. It could not be stated to be retrospective ill operation merely because it was applied to Subhash Chander who had joined the course in 1965 before the amendment was made in 1970.In the present case also the new decisions are prima facie prospective in operation and they did not become. retrospective merely because they subsequently applied to students who had already started their educational careers. We | 1[ds]We have, in our separate judgment delivered today in C.A. 2828 of 1977, which arose out of that Full Bench decision, reversed that decision and held that there is nothing retrospective in the order challenged in that case. In that case one Subhash Chander was admitted to the integrated M.B.B.S course in the Daya Nand Medical College, Ludhiana in the year 1965. At the time of his admission, under Regulation 25 read with r. 7.1, a student who fail s in one subject/paper was entitled to grace marks at 1 per cent of the total aggregate marks of all the subjects for which he appeared. But in 1970 the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed Subhash Chander appeared for the Final M.B.B.S. examination in 1974 and secured 106 out of 200 marks in the practical examination and 95 out 200 marks in the theory examination in Midwifery, which was one of the four subjects for which he appeared. at that time. He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks. Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks. But he was allowed only 4 grace marks under the new rule being 1 per cent of, the aggregate for the subject in which he had failed namely, Midwifery. The High Court accepted his contention that amendment of the rule made in 1970 was retrospective in operation though it was made applicable to Subhash Chander only in 1974 merely because he had joined the integrated course in 1965 when the rule regarding the award of grace marks was more liberal. In allowing the appeal against the judgment of the Full Bench we have held that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974. It could not be stated to be retrospective ill operation merely because it was applied to Subhash Chander who had joined the course in 1965 before the amendment was made in 1970.In the present case also the new decisions are prima facie prospective in operation and they did not become. retrospective merely because they subsequently applied to students who had already started their educational careers. | 1 | 2,022 | 464 | ### Instruction:
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contended that the new decisions Annexures R. 2 and R. 3 were taken bonafide and are only prospective in operation and that the doctrine of promissory estoppel pleaded by the petitioners in the Writ Petitions does not apply to the University.The decisions Annexures P. 2, P. 3, R. 2 and R. 3 are of the Syndicate which has power to make rules etc under s. 20 (5) of the Punjab University Act in the same manner as the Senate has similar power under s. 31 of that Act. The learned Judges of the Division Bench rejected the contention of the petitioners before them that the Syndicate has no power which the Senate has under s. 31 of the Act and held that the Syndicate has similar powers under s. 20 (5) of the Act They rejected the further contention that there is any bar of promissory estoppel against the University in regard to the. matter and, however, held that petitioners 1 to 37 had joined the 10+2 course in the Central Schools lying within the territorial jurisdiction of the Punjab University in 1978 and passed the 12th Standard Examination and had planned their education in a particular manner to join the colleges affiliated to the Punjab University in the second year of the 3-year degree course and other courses after passing the 12th standard examination in the plus 2 system. They found that similar is the case of petitioners 38 to 92 in W.P. 1917 o f 1980 who had been promoted from the 11th to the 12th standard in the plus 2 system. They held that Annexure R. 3 will deprive petitioners 1 to 37 and Annexure R. 2 will deprive petitioners 38 to 92 of the right to seek admission in Engineering and Medical Colleges after passing the 12th Standard in the 10+2 system, and Annexures R. 2 and R. 3 take away that right and are retrospective in nature. In coming to this conclusion the learned Judges of the Division Bench relied very strongly upon the decision of a full Bench of the Punjab and Haryana High Court in Punjab University v. Subhash Chander. The learned Judges accordingly allowed W.P. 1917 of 1980 on the sole ground, namely, that Annexures R. 2 and R. 3 are bad as being retrospective in operation without an order as to costs and held that Annexures R. 3 and R. 2 will not stand in the way of petitioners 1 to 7 and 38 to 92 respectively before them from seeking admission to higher classes or in Engineering and Medical Colleges on the basis of the old decisions, Annexures P. 2 and P. 3. The Other Division Bench which heard W.P. 2349 of 1980 allowed that petition without any order as to costs as being covered by the decision in W P. 1917 of 1980.We are of the opinion that these appeals have to be allowed. The learned Judges of the High Court allowed the Writ Petitions only on the ground that the new decisions Annexures R. 2 and R. 3 are retrospective in operation and that they cannot affect the writ petitioners before them from seeking admission to higher classes or in Engineering or Medical Colleges on the basis of tile earlier decisions Annexures P. 2 and P. 3, relying mainly upon the decision of the Full Bench in Punjab University v. Subhash Chander (supra). We have, in our separate judgment delivered today in C.A. 2828 of 1977, which arose out of that Full Bench decision, reversed that decision and held that there is nothing retrospective in the order challenged in that case. In that case one Subhash Chander was admitted to the integrated M.B.B.S course in the Daya Nand Medical College, Ludhiana in the year 1965. At the time of his admission, under Regulation 25 read with r. 7.1, a student who fail s in one subject/paper was entitled to grace marks at 1 per cent of the total aggregate marks of all the subjects for which he appeared. But in 1970 the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed Subhash Chander appeared for the Final M.B.B.S. examination in 1974 and secured 106 out of 200 marks in the practical examination and 95 out 200 marks in the theory examination in Midwifery, which was one of the four subjects for which he appeared. at that time. He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks. Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks. But he was allowed only 4 grace marks under the new rule being 1 per cent of, the aggregate for the subject in which he had failed namely, Midwifery. The High Court accepted his contention that amendment of the rule made in 1970 was retrospective in operation though it was made applicable to Subhash Chander only in 1974 merely because he had joined the integrated course in 1965 when the rule regarding the award of grace marks was more liberal. In allowing the appeal against the judgment of the Full Bench we have held that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974. It could not be stated to be retrospective ill operation merely because it was applied to Subhash Chander who had joined the course in 1965 before the amendment was made in 1970.In the present case also the new decisions are prima facie prospective in operation and they did not become. retrospective merely because they subsequently applied to students who had already started their educational careers. We
### Response:
1
### Explanation:
We have, in our separate judgment delivered today in C.A. 2828 of 1977, which arose out of that Full Bench decision, reversed that decision and held that there is nothing retrospective in the order challenged in that case. In that case one Subhash Chander was admitted to the integrated M.B.B.S course in the Daya Nand Medical College, Ludhiana in the year 1965. At the time of his admission, under Regulation 25 read with r. 7.1, a student who fail s in one subject/paper was entitled to grace marks at 1 per cent of the total aggregate marks of all the subjects for which he appeared. But in 1970 the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed Subhash Chander appeared for the Final M.B.B.S. examination in 1974 and secured 106 out of 200 marks in the practical examination and 95 out 200 marks in the theory examination in Midwifery, which was one of the four subjects for which he appeared. at that time. He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks. Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks. But he was allowed only 4 grace marks under the new rule being 1 per cent of, the aggregate for the subject in which he had failed namely, Midwifery. The High Court accepted his contention that amendment of the rule made in 1970 was retrospective in operation though it was made applicable to Subhash Chander only in 1974 merely because he had joined the integrated course in 1965 when the rule regarding the award of grace marks was more liberal. In allowing the appeal against the judgment of the Full Bench we have held that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974. It could not be stated to be retrospective ill operation merely because it was applied to Subhash Chander who had joined the course in 1965 before the amendment was made in 1970.In the present case also the new decisions are prima facie prospective in operation and they did not become. retrospective merely because they subsequently applied to students who had already started their educational careers.
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Anupama Sen Gupta and Others Vs. Deb Kumar Sen Sarma and Others | includes an employee of the Central or State Government or any local authority.7. The first question which arises for consideration in these appeals is whether the first respondent was entitled to get possession of the premises in question under Section 29-B of the Act at all. This contention is raised by the appellants on the ground that the premises in question which stood in the name of his wife actually belonged to her and that Section 29-B was applicable only to cases where the residential accommodation in question truly belongs to the government employee and is standing in his own name or nominally in the name of his wife or dependent child. It is urged on behalf of the appellants that since the finding of the High Court is that the premises in question belonged to the wife of the first respondent, the eviction petitions filed were liable to be dismissed. On the other hand it is urged on behalf of the respondents that the question of title to the property in question of foreign to the scope of a proceeding before a Controller who has to dispose of the matter in a summary way and that the government employee acquires a right to resort to Chapter VI of the Act by mere service of a notice on him by his employer requiring him to vacate any residential accommodation provided for by the employer or in default to incur certain obligations on the ground that he owns a residential accommodation in his name, or in the name of his wife or dependent child, near the place where he is posted. It is urged that since in this case a notice containing a statement which satisfies the requirements of sub-section (1) of Section 29-B of the Act had been served on the first respondent, no enquiry is called for on the question of title. In the alternative, it is urged on behalf of the respondents that even granting that the issue relating to title can be raised, the respondents have established that the premises in question belonged to the first respondent though it stood in the name of his wife. It is further urged that the finding of the High Court on the question of title is not sustainable and that they are entitled to raise that plea in support of the judgment of the High Court which has gone in their favour. In the circumstances of this case we feel that it is not necessary to go into the questions whether the question of title to the premises is relevant at all and if it is relevant, whether it can be gone into by the Controller. We shall assume for purposes of these appeals (but without deciding) that as contended on behalf of the appellants, a government employee can succeed, where the building stands in the name of his wife or dependent child, only if the establishes that he is himself its true owner and that the building is only nominally standing in the name of his wife or dependent child, as the case may be. In the instant case it is to be noted that on the date of the petitions before the Controller, the wife of the first respondent had died. Even granting that she was the owner of the building in question, the first respondent had become its co-owner along with his children. The order asking him to vacate the government accommodation issued earlier had not been withdrawn and was still in force even on the date of the petition. He was, therefore, entitled to maintain the petitions as he otherwise satisfied the requirements of the law. Such a petition had to be filed before the Controller as the civil court had no jurisdiction to try it. As held by this Court in Kanta Goel v. B.P. Pathak [(1977) 3 SCR 412 : (1977) 2 SCC 814 ] even though the first respondent was a co-owner, he was as such an owner of the entire property as any sole owner of the property and owned every part of the composite property along with others and he could file the petitions. In Sri Ram Pasricha v. Jagannath [(1977) 1 SCR 395 : (1976) 4 SCC 184 : AIR 1976 SC 2335 ] which was a case arising under the Act this Court had expressed the same view. The first respondent as an heir could avail of the benefit of the notices issued in the name of his wife under Section 13(6) of the Act which she was entitled to issue the object of which was only to give previous intimation to the tenants that eviction petitions would be filed against them. There was no need to issue fresh notices after her death. Having regard to the peculiar features of the case, we do not consider that there is any infirmity in the petitions filed for the eviction of the appellants. Any other wise would defeat the very object of Chapter VIA of the Act.8. The only other ground urged on behalf of the appellants is that since the first respondent had retired during the pendency of these proceedings, he had lost his right to prosecute the petition under Section 29-B of the Act as he was no longer a government employee. This contention again is untenable as a petition duly filed under the circumstances stated above cannot be defeated on the ground that the government employee has retired subsequently. (See Nihal Chand v. Kalyan Chand Jain [(1978) 2 SCR 183 : (1978) 1 SCC 49 ] per Tulzapurkar, J. which was a case under Section 14-A of the Delhi Rent Control Act.)9. It is not the contention of the appellants that the respondents had not established that the premises were reasonably required by them for their own occupation and they were not in possession of any other reasonably suitable accommodation. It is unfortunate that even the so-called summary remedy provided by the statute has taken nearly four years. | 0[ds]n the circumstances of this case we feel that it is not necessary to go into the questions whether the question of title to the premises is relevant at all and if it is relevant, whether it can be gone into by the Controller. We shall assume for purposes of these appeals (but without deciding) that as contended on behalf of the appellants, a government employee can succeed, where the building stands in the name of his wife or dependent child, only if the establishes that he is himself its true owner and that the building is only nominally standing in the name of his wife or dependent child, as the case may be. In the instant case it is to be noted that on the date of the petitions before the Controller, the wife of the first respondent had died. Even granting that she was the owner of the building in question, the first respondent had become itsalong with his children. The order asking him to vacate the government accommodation issued earlier had not been withdrawn and was still in force even on the date of the petition. He was, therefore, entitled to maintain the petitions as he otherwise satisfied the requirements of the law. Such a petition had to be filed before the Controller as the civil court had no jurisdiction to try it. As held by this Court in Kanta Goel v. B.P. Pathak [(1977) 3 SCR 412 : (1977) 2 SCC 814 ] even though the first respondent was ahe was as such an owner of the entire property as any sole owner of the property and owned every part of the composite property along with others and he could file the petitions. In Sri Ram Pasricha v. Jagannath [(1977) 1 SCR 395 : (1976) 4 SCC 184 : AIR 1976 SC 2335 ] which was a case arising under the Act this Court had expressed the same view. The first respondent as an heir could avail of the benefit of the notices issued in the name of his wife under Section 13(6) of the Act which she was entitled to issue the object of which was only to give previous intimation to the tenants that eviction petitions would be filed against them. There was no need to issue fresh notices after her death. Having regard to the peculiar features of the case, we do not consider that there is any infirmity in the petitions filed for the eviction of the appellants. Any other wise would defeat the very object of Chapter VIA of thecontention again is untenable as a petition duly filed under the circumstances stated above cannot be defeated on the ground that the government employee has retired subsequently. (See Nihal Chand v. Kalyan Chand Jain [(1978) 2 SCR 183 : (1978) 1 SCC 49 ] per Tulzapurkar, J. which was a case under Sectionof the Delhi Rent Control Act.)9. It is not the contention of the appellants that the respondents had not established that the premises were reasonably required by them for their own occupation and they were not in possession of any other reasonably suitable accommodation. It is unfortunate that even thesummary remedy provided by the statute has taken nearly four years. | 0 | 3,092 | 596 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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includes an employee of the Central or State Government or any local authority.7. The first question which arises for consideration in these appeals is whether the first respondent was entitled to get possession of the premises in question under Section 29-B of the Act at all. This contention is raised by the appellants on the ground that the premises in question which stood in the name of his wife actually belonged to her and that Section 29-B was applicable only to cases where the residential accommodation in question truly belongs to the government employee and is standing in his own name or nominally in the name of his wife or dependent child. It is urged on behalf of the appellants that since the finding of the High Court is that the premises in question belonged to the wife of the first respondent, the eviction petitions filed were liable to be dismissed. On the other hand it is urged on behalf of the respondents that the question of title to the property in question of foreign to the scope of a proceeding before a Controller who has to dispose of the matter in a summary way and that the government employee acquires a right to resort to Chapter VI of the Act by mere service of a notice on him by his employer requiring him to vacate any residential accommodation provided for by the employer or in default to incur certain obligations on the ground that he owns a residential accommodation in his name, or in the name of his wife or dependent child, near the place where he is posted. It is urged that since in this case a notice containing a statement which satisfies the requirements of sub-section (1) of Section 29-B of the Act had been served on the first respondent, no enquiry is called for on the question of title. In the alternative, it is urged on behalf of the respondents that even granting that the issue relating to title can be raised, the respondents have established that the premises in question belonged to the first respondent though it stood in the name of his wife. It is further urged that the finding of the High Court on the question of title is not sustainable and that they are entitled to raise that plea in support of the judgment of the High Court which has gone in their favour. In the circumstances of this case we feel that it is not necessary to go into the questions whether the question of title to the premises is relevant at all and if it is relevant, whether it can be gone into by the Controller. We shall assume for purposes of these appeals (but without deciding) that as contended on behalf of the appellants, a government employee can succeed, where the building stands in the name of his wife or dependent child, only if the establishes that he is himself its true owner and that the building is only nominally standing in the name of his wife or dependent child, as the case may be. In the instant case it is to be noted that on the date of the petitions before the Controller, the wife of the first respondent had died. Even granting that she was the owner of the building in question, the first respondent had become its co-owner along with his children. The order asking him to vacate the government accommodation issued earlier had not been withdrawn and was still in force even on the date of the petition. He was, therefore, entitled to maintain the petitions as he otherwise satisfied the requirements of the law. Such a petition had to be filed before the Controller as the civil court had no jurisdiction to try it. As held by this Court in Kanta Goel v. B.P. Pathak [(1977) 3 SCR 412 : (1977) 2 SCC 814 ] even though the first respondent was a co-owner, he was as such an owner of the entire property as any sole owner of the property and owned every part of the composite property along with others and he could file the petitions. In Sri Ram Pasricha v. Jagannath [(1977) 1 SCR 395 : (1976) 4 SCC 184 : AIR 1976 SC 2335 ] which was a case arising under the Act this Court had expressed the same view. The first respondent as an heir could avail of the benefit of the notices issued in the name of his wife under Section 13(6) of the Act which she was entitled to issue the object of which was only to give previous intimation to the tenants that eviction petitions would be filed against them. There was no need to issue fresh notices after her death. Having regard to the peculiar features of the case, we do not consider that there is any infirmity in the petitions filed for the eviction of the appellants. Any other wise would defeat the very object of Chapter VIA of the Act.8. The only other ground urged on behalf of the appellants is that since the first respondent had retired during the pendency of these proceedings, he had lost his right to prosecute the petition under Section 29-B of the Act as he was no longer a government employee. This contention again is untenable as a petition duly filed under the circumstances stated above cannot be defeated on the ground that the government employee has retired subsequently. (See Nihal Chand v. Kalyan Chand Jain [(1978) 2 SCR 183 : (1978) 1 SCC 49 ] per Tulzapurkar, J. which was a case under Section 14-A of the Delhi Rent Control Act.)9. It is not the contention of the appellants that the respondents had not established that the premises were reasonably required by them for their own occupation and they were not in possession of any other reasonably suitable accommodation. It is unfortunate that even the so-called summary remedy provided by the statute has taken nearly four years.
### Response:
0
### Explanation:
n the circumstances of this case we feel that it is not necessary to go into the questions whether the question of title to the premises is relevant at all and if it is relevant, whether it can be gone into by the Controller. We shall assume for purposes of these appeals (but without deciding) that as contended on behalf of the appellants, a government employee can succeed, where the building stands in the name of his wife or dependent child, only if the establishes that he is himself its true owner and that the building is only nominally standing in the name of his wife or dependent child, as the case may be. In the instant case it is to be noted that on the date of the petitions before the Controller, the wife of the first respondent had died. Even granting that she was the owner of the building in question, the first respondent had become itsalong with his children. The order asking him to vacate the government accommodation issued earlier had not been withdrawn and was still in force even on the date of the petition. He was, therefore, entitled to maintain the petitions as he otherwise satisfied the requirements of the law. Such a petition had to be filed before the Controller as the civil court had no jurisdiction to try it. As held by this Court in Kanta Goel v. B.P. Pathak [(1977) 3 SCR 412 : (1977) 2 SCC 814 ] even though the first respondent was ahe was as such an owner of the entire property as any sole owner of the property and owned every part of the composite property along with others and he could file the petitions. In Sri Ram Pasricha v. Jagannath [(1977) 1 SCR 395 : (1976) 4 SCC 184 : AIR 1976 SC 2335 ] which was a case arising under the Act this Court had expressed the same view. The first respondent as an heir could avail of the benefit of the notices issued in the name of his wife under Section 13(6) of the Act which she was entitled to issue the object of which was only to give previous intimation to the tenants that eviction petitions would be filed against them. There was no need to issue fresh notices after her death. Having regard to the peculiar features of the case, we do not consider that there is any infirmity in the petitions filed for the eviction of the appellants. Any other wise would defeat the very object of Chapter VIA of thecontention again is untenable as a petition duly filed under the circumstances stated above cannot be defeated on the ground that the government employee has retired subsequently. (See Nihal Chand v. Kalyan Chand Jain [(1978) 2 SCR 183 : (1978) 1 SCC 49 ] per Tulzapurkar, J. which was a case under Sectionof the Delhi Rent Control Act.)9. It is not the contention of the appellants that the respondents had not established that the premises were reasonably required by them for their own occupation and they were not in possession of any other reasonably suitable accommodation. It is unfortunate that even thesummary remedy provided by the statute has taken nearly four years.
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M/S. Kusum Ingots & Alloys Ltd Vs. Union Of India | cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen partly within specified areas in arisen in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The Court will find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action." 25. The said decision is an authority for the proposition that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. 26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow (supra) that situs of issue of an order or notification by the Government would come within the meaning of expression cases arising in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instruction issued in this behalf shall also come with within the purview thereof, situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. 28. Lt. Col. Khajoor Singh vs. The Union of India and Another (1961) 2 SCR 828 ) whereupon the learned counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office of the authority who is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood stating: ".. The concept of cause of action cannot in our opinion be introduced in Art. 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to person residing far away from New Delhi who are aggrieved by some other of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Art. 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Art. 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it." 29. In view of clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh (supra), has, thus, no application. Forum Conveniens. 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga vs. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan vs. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited vs. M/s. Jharia Talkies & Cold. Storage Pvt. Ltd. (1997) CWN 122; S.S. Jain & Co. & Anr. vs. Union of India and others (1994) CHN 445: M/s. New Horizon Ltd. vs. Union of India, AIR 1994 Delhi 126). Conclusion | 0[ds]9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to a writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.10. Keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to have rise to a cause of action which would confer jurisdiction on the court.19. Passing of a legislation by itself in our opinion do not confer any such right to file a writ petition unless a cause of action arises therefor.20. A distinction between a legislation and executive action should be borne in mind while determining the said question.The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow (supra) that situs of issue of an order or notification by the Government would come within the meaning of expression cases arising in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instruction issued in this behalf shall also come with within the purview thereof, situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga vs. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan vs. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited vs. M/s. Jharia Talkies & Cold. Storage Pvt. Ltd. (1997) CWN 122; S.S. Jain & Co. & Anr. vs. Union of India and others (1994) CHN 445: M/s. New Horizon Ltd. vs. Union of India, AIR 1994 Delhi 126). | 0 | 3,430 | 857 | ### 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:
cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen partly within specified areas in arisen in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The Court will find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action." 25. The said decision is an authority for the proposition that the place from where an appellate order or a revisional order is passed may give rise to a part of cause of action although the original order was at a place outside the said area. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum. 26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow (supra) that situs of issue of an order or notification by the Government would come within the meaning of expression cases arising in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instruction issued in this behalf shall also come with within the purview thereof, situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. 28. Lt. Col. Khajoor Singh vs. The Union of India and Another (1961) 2 SCR 828 ) whereupon the learned counsel appearing on behalf of the appellant placed strong reliance was rendered at a point of time when clause (2) of Article 226 had not been inserted. In that case the Court held that the jurisdiction of the High Court under Article 226 of the Constitution of India, properly construed, depends not on the residence or location of the person affected by the order but of the person or authority passing the order and the place where the order has effect. In the latter sense, namely, the office of the authority who is to implement the order would attract the territorial jurisdiction of the Court was considered having regard to Section 20(c) of the Code of Civil Procedure as Article 226 of the Constitution thence stood stating: ".. The concept of cause of action cannot in our opinion be introduced in Art. 226, for by doing so we shall be doing away with the express provision contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to person residing far away from New Delhi who are aggrieved by some other of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Art. 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Art. 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it." 29. In view of clause 2 of Article 226 of the Constitution of India now if a part of cause of action arises outside the jurisdiction of the High Court, it would have jurisdiction to issue a writ. The decision in Khajoor Singh (supra), has, thus, no application. Forum Conveniens. 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga vs. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan vs. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited vs. M/s. Jharia Talkies & Cold. Storage Pvt. Ltd. (1997) CWN 122; S.S. Jain & Co. & Anr. vs. Union of India and others (1994) CHN 445: M/s. New Horizon Ltd. vs. Union of India, AIR 1994 Delhi 126). Conclusion
### Response:
0
### Explanation:
9. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to a writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts.10. Keeping in view the expressions used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to have rise to a cause of action which would confer jurisdiction on the court.19. Passing of a legislation by itself in our opinion do not confer any such right to file a writ petition unless a cause of action arises therefor.20. A distinction between a legislation and executive action should be borne in mind while determining the said question.The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow (supra) that situs of issue of an order or notification by the Government would come within the meaning of expression cases arising in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by the Parliament or Legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instruction issued in this behalf shall also come with within the purview thereof, situs of office of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a Court or Tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagar Singh Bagga vs. Dewan Jagbir Sawhany, AIR 1941 Cal; Mandal Jalan vs. Madanlal, (1945) 49 CWN 357; Bharat Coking Coal Limited vs. M/s. Jharia Talkies & Cold. Storage Pvt. Ltd. (1997) CWN 122; S.S. Jain & Co. & Anr. vs. Union of India and others (1994) CHN 445: M/s. New Horizon Ltd. vs. Union of India, AIR 1994 Delhi 126).
|
V.E.A. Annamalai Chettiar & Another Vs. S.V.V.S. Veerappa Chettiar & Others | the Stridhanam money, Eadu pon Kalutturu money and sundry jewels, etc. money of the mother of Shanmugham.The amount had aggregated to Rs. 1, 310 inclusive of interest. It was this sum which was deposited by Veerappa Chettiar whose sister was married to Ramanatha in the name of his minor son Shanmugham with the joint family, carrying on business as Nattukottai Chettiars. Under these circumstances it is clear that the transaction was a transaction of deposit and were more analogous to those between a banker and customer than those between a debtor and creditor.The investment of stridhanam money in the firm of Nattukottai Chettiars was treated as a deposit within the meaning of Art. 60, Limitation Act in a decision of the Madras High Court reported in - "Subbiah Chetty v. Visalakshi Achi", AIR 1932 Mad 685 (A). We are of the opinion that the cadjan voucher executed by Ramanatha in favour of shanmugham set out above was a receipt evidencing the deposit and was not a document recording a transaction of loan between the parties.9. The words "we shall pay the said sum" did not make any difference to the position. Even though the transaction was a transaction of deposit as above stated the deposit could be coupled with an agreement that it would be payable on demand. Such an agreement could be express or implied and if an express agreement in that behalf was recorded in the document in the terms above, the transaction of deposit could not be thereby converted into a transaction of loan and the words "we shall pay the said sum" could not convert the document into a promissory note.The promise to pay would be involved in a promissory note as well as in a deposit within the meaning of Art. 60, Limitation Act and the court would have regard to the intention of the parties and the circumstances of the case in order to arrive at the conclusion whether the document was a promissory note. We are of the opinion that the conclusion reached by both the courts below in regard to the cadjan voucher was correct and the contention of the appellants to the contrary is untenable.10. There is also a further difficulty in the way of the appellants and it is that the document having been admitted in evidence such admission could not be called in question at any stage of the proceedings on the ground that it had not been duly stamped. The provisions of S. 36, Stamp Act prelude the appellants from raising any objection against the admission of the document at this stage and the appellants are not entitled now to urge this objection before us.11. It was lastly contended that the plaintiffs suit was barred by the Law of Limitation. The argument of the appellants in this behalf was twofold :(1) That the document being a promissory note the suit should have been filed within three years of the execution of the cadjan voucher i.e., on or before 15-8-1891, and(2) That the plaintiffs had made a demand for the deposit more than three years before the institution of the suit on 13-11-1944.The first part of this argument cannot avail the plaintiffs in view of the finding recorded above that the cadjan voucher was a receipt evidencing the deposit and was not a promissory note, the second part of the argument was based on the construction which the plaintiffs put on the receipt dated 14-11-1941 Ex. P. 3 and the evidence of P.W.1. The receipt, Ex. P. 3 was executed by the plaintiffs in favour of Annamalai and recited :"when we pursued and demanded you for the said sums as belonging to us, both of us agreed that your moiety of the same shall be paid, according to which the amount settled in full quit including interest upto date, as for your half share is Rs. 17, 356-3-9."P.W. 1 stated in his evidence that the negotiations between the parties went on for about 8 to 10 days before this settlement. Relying upon the above the appellants contended that the demand for the deposit was made by the plaintiffs in any event 8 or 10 days before 14-11-1941 and was therefore more than 3 years before the institution of the suit. This demand upon Annamalai however was not in his capacity as the karta and managing member of the whole joint and undivided Hindu family.A severance of joint status had been effected long prior to 1941 and Annamalai did not represent the junior branch of the family when this demand was made upon him. He only represented the senior branch of the family and he agreed to satisfy the demand made upon him by the plaintiffs by agreeing to pay a moiety of the liability of the joint family at the foot of the deposit. The demand which was made by the plaintiffs upon annamalai was thus satisfied and no. further demand upon Annamalai servived after this settlement.The only demand made by the plaintiffs upon the defendants representing the junior branch of the family was in October 1942 and thereafter as alleged by the plaintiffs in their plaint. This allegation of the plaintiffs was however denied by the defendants and as the matters stood there was really no. proof of any demand having been made by the plaintiffs upon the defendants for payment of their moiety of the deposit and the suit was filed by the plaintiffs against the defendants without any such demand having been made.If that was so the period of limitation had not commenced to run against the defendants and the suit against them was well within time. With regard to this contention also there were concurrent findings of fact reached by the Trial Court as well as the High Court, viz. that no. demand was made within the period prescribed under Art. 60. If that was so, the suit was certainly not barred by the Law of Limitation. This contention of the appellants also therefore fails. | 0[ds]The Trial Court accepted the testimony of P.W.1 and also brought to aid the presumption under S. 90, Evidence Act, held that the cadjan voucher was duly proved and admitted it as Ex. P. 8.The High Court concurred in the finding and there were thus concurrent findings of both the courts below in regard to the genuineness and validity of theargument could not avail the appellants, Ramanatha was the karta and the managing member of the joint family and as such had the authority to execute the document evidencing the deposit and if he did so, his act was binding on all the members of the joint family. Neither the senior branch nor the junior branch of the joint family could be heard to say that they were not bound by the transaction and the defendants were liable to Shanmugham and the plaintiffs for the amount due at the foot of the deposit along with the other members constituting the senior branch of the family. This contention of the defendants is thereforethe courts below came to the conclusion that the cadjan voucher was not a promisory note but was a receipt evidencing thea transaction is a transaction of loan or deposit does not depend merely on the terms of the document but has got to be judged from the intention of the parties and all the circumstances of the case. The defendants joint family was carrying on business as Nattukottai Chettiars. The moneys represented the Stridhanam money, Eadu pon Kalutturu money and sundry jewels, etc. money of the mother of Shanmugham.The amount had aggregated to Rs. 1, 310 inclusive of interest. It was this sum which was deposited by Veerappa Chettiar whose sister was married to Ramanatha in the name of his minor son Shanmugham with the joint family, carrying on business as Nattukottai Chettiars. Under these circumstances it is clear that the transaction was a transaction of deposit and were more analogous to those between a banker and customer than those between a debtor and creditor.The investment of stridhanam money in the firm of Nattukottai Chettiars was treated as a deposit within the meaning of Art. 60, Limitation Act in a decision of the Madras High Court reported in"Subbiah Chetty v. Visalakshi Achi", AIR 1932 Mad 685 (A). We are of the opinion that the cadjan voucher executed by Ramanatha in favour of shanmugham set out above was a receipt evidencing the deposit and was not a document recording a transaction of loan between the parties.There is also a further difficulty in the way of the appellants and it is that the document having been admitted in evidence such admission could not be called in question at any stage of the proceedings on the ground that it had not been duly stamped. The provisions of S. 36, Stamp Act prelude the appellants from raising any objection against the admission of the document at this stage and the appellants are not entitled now to urge this objection beforefirst part of this argument cannot avail the plaintiffs in view of the finding recorded above that the cadjan voucher was a receipt evidencing the deposit and was not a promissory note, the second part of the argument was based on the construction which the plaintiffs put on the receipt datedEx. P. 3 and the evidence ofthat was so the period of limitation had not commenced to run against the defendants and the suit against them was well within time. With regard to this contention also there were concurrent findings of fact reached by the Trial Court as well as the High Court, viz. that no. demand was made within the period prescribed under Art. 60. If that was so, the suit was certainly not barred by the Law of Limitation. This contention of the appellants also therefore fails. | 0 | 2,313 | 680 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the Stridhanam money, Eadu pon Kalutturu money and sundry jewels, etc. money of the mother of Shanmugham.The amount had aggregated to Rs. 1, 310 inclusive of interest. It was this sum which was deposited by Veerappa Chettiar whose sister was married to Ramanatha in the name of his minor son Shanmugham with the joint family, carrying on business as Nattukottai Chettiars. Under these circumstances it is clear that the transaction was a transaction of deposit and were more analogous to those between a banker and customer than those between a debtor and creditor.The investment of stridhanam money in the firm of Nattukottai Chettiars was treated as a deposit within the meaning of Art. 60, Limitation Act in a decision of the Madras High Court reported in - "Subbiah Chetty v. Visalakshi Achi", AIR 1932 Mad 685 (A). We are of the opinion that the cadjan voucher executed by Ramanatha in favour of shanmugham set out above was a receipt evidencing the deposit and was not a document recording a transaction of loan between the parties.9. The words "we shall pay the said sum" did not make any difference to the position. Even though the transaction was a transaction of deposit as above stated the deposit could be coupled with an agreement that it would be payable on demand. Such an agreement could be express or implied and if an express agreement in that behalf was recorded in the document in the terms above, the transaction of deposit could not be thereby converted into a transaction of loan and the words "we shall pay the said sum" could not convert the document into a promissory note.The promise to pay would be involved in a promissory note as well as in a deposit within the meaning of Art. 60, Limitation Act and the court would have regard to the intention of the parties and the circumstances of the case in order to arrive at the conclusion whether the document was a promissory note. We are of the opinion that the conclusion reached by both the courts below in regard to the cadjan voucher was correct and the contention of the appellants to the contrary is untenable.10. There is also a further difficulty in the way of the appellants and it is that the document having been admitted in evidence such admission could not be called in question at any stage of the proceedings on the ground that it had not been duly stamped. The provisions of S. 36, Stamp Act prelude the appellants from raising any objection against the admission of the document at this stage and the appellants are not entitled now to urge this objection before us.11. It was lastly contended that the plaintiffs suit was barred by the Law of Limitation. The argument of the appellants in this behalf was twofold :(1) That the document being a promissory note the suit should have been filed within three years of the execution of the cadjan voucher i.e., on or before 15-8-1891, and(2) That the plaintiffs had made a demand for the deposit more than three years before the institution of the suit on 13-11-1944.The first part of this argument cannot avail the plaintiffs in view of the finding recorded above that the cadjan voucher was a receipt evidencing the deposit and was not a promissory note, the second part of the argument was based on the construction which the plaintiffs put on the receipt dated 14-11-1941 Ex. P. 3 and the evidence of P.W.1. The receipt, Ex. P. 3 was executed by the plaintiffs in favour of Annamalai and recited :"when we pursued and demanded you for the said sums as belonging to us, both of us agreed that your moiety of the same shall be paid, according to which the amount settled in full quit including interest upto date, as for your half share is Rs. 17, 356-3-9."P.W. 1 stated in his evidence that the negotiations between the parties went on for about 8 to 10 days before this settlement. Relying upon the above the appellants contended that the demand for the deposit was made by the plaintiffs in any event 8 or 10 days before 14-11-1941 and was therefore more than 3 years before the institution of the suit. This demand upon Annamalai however was not in his capacity as the karta and managing member of the whole joint and undivided Hindu family.A severance of joint status had been effected long prior to 1941 and Annamalai did not represent the junior branch of the family when this demand was made upon him. He only represented the senior branch of the family and he agreed to satisfy the demand made upon him by the plaintiffs by agreeing to pay a moiety of the liability of the joint family at the foot of the deposit. The demand which was made by the plaintiffs upon annamalai was thus satisfied and no. further demand upon Annamalai servived after this settlement.The only demand made by the plaintiffs upon the defendants representing the junior branch of the family was in October 1942 and thereafter as alleged by the plaintiffs in their plaint. This allegation of the plaintiffs was however denied by the defendants and as the matters stood there was really no. proof of any demand having been made by the plaintiffs upon the defendants for payment of their moiety of the deposit and the suit was filed by the plaintiffs against the defendants without any such demand having been made.If that was so the period of limitation had not commenced to run against the defendants and the suit against them was well within time. With regard to this contention also there were concurrent findings of fact reached by the Trial Court as well as the High Court, viz. that no. demand was made within the period prescribed under Art. 60. If that was so, the suit was certainly not barred by the Law of Limitation. This contention of the appellants also therefore fails.
### Response:
0
### Explanation:
The Trial Court accepted the testimony of P.W.1 and also brought to aid the presumption under S. 90, Evidence Act, held that the cadjan voucher was duly proved and admitted it as Ex. P. 8.The High Court concurred in the finding and there were thus concurrent findings of both the courts below in regard to the genuineness and validity of theargument could not avail the appellants, Ramanatha was the karta and the managing member of the joint family and as such had the authority to execute the document evidencing the deposit and if he did so, his act was binding on all the members of the joint family. Neither the senior branch nor the junior branch of the joint family could be heard to say that they were not bound by the transaction and the defendants were liable to Shanmugham and the plaintiffs for the amount due at the foot of the deposit along with the other members constituting the senior branch of the family. This contention of the defendants is thereforethe courts below came to the conclusion that the cadjan voucher was not a promisory note but was a receipt evidencing thea transaction is a transaction of loan or deposit does not depend merely on the terms of the document but has got to be judged from the intention of the parties and all the circumstances of the case. The defendants joint family was carrying on business as Nattukottai Chettiars. The moneys represented the Stridhanam money, Eadu pon Kalutturu money and sundry jewels, etc. money of the mother of Shanmugham.The amount had aggregated to Rs. 1, 310 inclusive of interest. It was this sum which was deposited by Veerappa Chettiar whose sister was married to Ramanatha in the name of his minor son Shanmugham with the joint family, carrying on business as Nattukottai Chettiars. Under these circumstances it is clear that the transaction was a transaction of deposit and were more analogous to those between a banker and customer than those between a debtor and creditor.The investment of stridhanam money in the firm of Nattukottai Chettiars was treated as a deposit within the meaning of Art. 60, Limitation Act in a decision of the Madras High Court reported in"Subbiah Chetty v. Visalakshi Achi", AIR 1932 Mad 685 (A). We are of the opinion that the cadjan voucher executed by Ramanatha in favour of shanmugham set out above was a receipt evidencing the deposit and was not a document recording a transaction of loan between the parties.There is also a further difficulty in the way of the appellants and it is that the document having been admitted in evidence such admission could not be called in question at any stage of the proceedings on the ground that it had not been duly stamped. The provisions of S. 36, Stamp Act prelude the appellants from raising any objection against the admission of the document at this stage and the appellants are not entitled now to urge this objection beforefirst part of this argument cannot avail the plaintiffs in view of the finding recorded above that the cadjan voucher was a receipt evidencing the deposit and was not a promissory note, the second part of the argument was based on the construction which the plaintiffs put on the receipt datedEx. P. 3 and the evidence ofthat was so the period of limitation had not commenced to run against the defendants and the suit against them was well within time. With regard to this contention also there were concurrent findings of fact reached by the Trial Court as well as the High Court, viz. that no. demand was made within the period prescribed under Art. 60. If that was so, the suit was certainly not barred by the Law of Limitation. This contention of the appellants also therefore fails.
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M/S. Amit Products (India) Ltd Vs. Chief Engineer (O&M) Circle | K.G. Balakrishnan, J. 1. Leave granted. 2. Heard the learned Counsel for the appellant and the learned Counsel for the Maharashtra State Electricity Board (in short "MSEB"). By the impugned Judgment, the Writ Petition filed by the appellant company was rejected by the High Court. The appellant company, M/s. Amit Products (India) Ltd., is a company incorporated in India and registered under the provisions of the Companies Act, 1956. The appellant company obtained Provisional Registration Certificate as a small scale industry from the Director of Companies of Government of Maharashtra. The Director of the Appellant Company Shri Shridhar Natekar filed an application for getting electricity connection. This was rejected by the respondent MSEB. MSEB insisted on clearance of all arrears of electricity charges payable by M/s. Amar Amit Jalna Alloys Pvt. Limited which according to the MSEB was the previous consumer. The appellant company contended that they are not liable to pay the electricity charges payable by M/s. Amar Amit Jalna Alloys Pvt. Ltd. and the appellant company herein is a distinct and separate company which had nothing to do with M/s. Amar Amit Jalna Alloys Pvt. Ltd. 3. It may be noted that previously appellant company filed a Writ Petition namely, W.P. 2090/2002. In the Writ Petition, the appellant company requested for power supply to its factory contending that it is a separate company situated at a separate portion of the property comprised in the same Survey No. and the insistence of the MSEB to pay the arrears of electricity charges to be payable by M/s. Amar Amit Jalna Alloys Pvt. Ltd. and the refusal to give supply was arbitrary and violative of Article 14 and 19(1)(g) of the Constitution. The matter was elaborately considered by the High Court of Bombay and by judgment dated 18.12.21003, it was held that the appellant company was seeking connection in respect of the same premises, by the same consumer, under the guise of separate corporate body and it was found that the appellant company was the very same corporate entity which committed default in paying the electricity charges. It was held that the appellant company was not an independent entity having no concern with the previous defaulter. 4. The present appellant company now contends that the previous judgment was passed at a time when the Directors of the appellant Company were Amit Dembada, Anita Dembada and Thakur Das Tejnani and it is now pointed out that the present Directors are Abhay Abad, Sridhar Natekar and Thakurdas Tejnani and the learned counsel for the appellant company further contended that the shareholders of the appellant company have also been changed and the details of the present shareholders are mentioned to be seven in number and they are not belonging to the family to Dembada. It is submitted that the previous defaulter M/s. Amar Amit Jalna Alloys Pvt. Ltd. was a family concern of Dembada and they have nothing to do with the present appellant company and the whole corporate entity has changed and the respondent MSEB is bound to give connection without insisting for the payment of electricity charges to be payable by M/s. Amar Amit Jalna Alloys Pvt. Ltd. 5. The appellant company also contended that it is in possession of only 40 Ares of land out of the total property comprising Gut No. 953; Its total area bearing 2 hectares 82 Ares. The appellant company has also pointed out that M/s. Amar Amit Jalna Alloys Pvt. Ltd. was having factory on the north-eastern corner of the property whereas the appellant company is on the north-western corner side of the property. 6. The learned Counsel for the first respondent contended that the very same company had applied for connection and the Writ Petition filed by the appellant company previously was dismissed and the same was challenged before this Court and this Court dismissed SLP and there was further Review and Curative Petition and all of them were dismissed by this Court, and therefore, the appellant company was not justified in filing a fresh appeal. 7. We have carefully considered the rival contentions of both the parties. We are unable to accept the contention of the appellant company that by changing the members of the Board of Directors of the Company or by changing the shareholding pattern, the appellant Company had undergone any change. The very same company wanted the electricity connection without making any payment towards the electricity charges payable by the previous consumer and the matter was dealt with in detail by the High Court and it was held that the appellant company is none other than the sister concern of M/s. Amar Amit Jalna Alloys Pvt. Ltd. and was representing the same consumer who had committed the default and it was held that Condition 23(b) of the Conditions of Miscellaneous Charges for supply of electricity energy would apply to the appellant Company. We do not think that by change of Directors or by change of pattern of the shareholding, the appellant company is really a different entity than M/s. Amit Products (India) Ltd. who filed the previous Writ Petition No. 2090/2002. The reasons given in the previous Judgment which were confirmed by this Court would apply with all force against the present appellant company and the High Court has rightly dismissed the Writ Petition filed by the appellant Company. | 0[ds]7. We have carefully considered the rival contentions of both the parties. We are unable to accept the contention of the appellant company that by changing the members of the Board of Directors of the Company or by changing the shareholding pattern, the appellant Company had undergone any change. The very same company wanted the electricity connection without making any payment towards the electricity charges payable by the previous consumer and the matter was dealt with in detail by the High Court and it was held that the appellant company is none other than the sister concern of M/s. Amar Amit Jalna Alloys Pvt. Ltd. and was representing the same consumer who had committed the default and it was held that Condition 23(b) of the Conditions of Miscellaneous Charges for supply of electricity energy would apply to the appellant Company. We do not think that by change of Directors or by change of pattern of the shareholding, the appellant company is really a different entity than M/s. Amit Products (India) Ltd. who filed the previous Writ Petition No. 2090/2002. The reasons given in the previous Judgment which were confirmed by this Court would apply with all force against the present appellant company and the High Court has rightly dismissed the Writ Petition filed by the appellant Company. | 0 | 974 | 238 | ### 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:
K.G. Balakrishnan, J. 1. Leave granted. 2. Heard the learned Counsel for the appellant and the learned Counsel for the Maharashtra State Electricity Board (in short "MSEB"). By the impugned Judgment, the Writ Petition filed by the appellant company was rejected by the High Court. The appellant company, M/s. Amit Products (India) Ltd., is a company incorporated in India and registered under the provisions of the Companies Act, 1956. The appellant company obtained Provisional Registration Certificate as a small scale industry from the Director of Companies of Government of Maharashtra. The Director of the Appellant Company Shri Shridhar Natekar filed an application for getting electricity connection. This was rejected by the respondent MSEB. MSEB insisted on clearance of all arrears of electricity charges payable by M/s. Amar Amit Jalna Alloys Pvt. Limited which according to the MSEB was the previous consumer. The appellant company contended that they are not liable to pay the electricity charges payable by M/s. Amar Amit Jalna Alloys Pvt. Ltd. and the appellant company herein is a distinct and separate company which had nothing to do with M/s. Amar Amit Jalna Alloys Pvt. Ltd. 3. It may be noted that previously appellant company filed a Writ Petition namely, W.P. 2090/2002. In the Writ Petition, the appellant company requested for power supply to its factory contending that it is a separate company situated at a separate portion of the property comprised in the same Survey No. and the insistence of the MSEB to pay the arrears of electricity charges to be payable by M/s. Amar Amit Jalna Alloys Pvt. Ltd. and the refusal to give supply was arbitrary and violative of Article 14 and 19(1)(g) of the Constitution. The matter was elaborately considered by the High Court of Bombay and by judgment dated 18.12.21003, it was held that the appellant company was seeking connection in respect of the same premises, by the same consumer, under the guise of separate corporate body and it was found that the appellant company was the very same corporate entity which committed default in paying the electricity charges. It was held that the appellant company was not an independent entity having no concern with the previous defaulter. 4. The present appellant company now contends that the previous judgment was passed at a time when the Directors of the appellant Company were Amit Dembada, Anita Dembada and Thakur Das Tejnani and it is now pointed out that the present Directors are Abhay Abad, Sridhar Natekar and Thakurdas Tejnani and the learned counsel for the appellant company further contended that the shareholders of the appellant company have also been changed and the details of the present shareholders are mentioned to be seven in number and they are not belonging to the family to Dembada. It is submitted that the previous defaulter M/s. Amar Amit Jalna Alloys Pvt. Ltd. was a family concern of Dembada and they have nothing to do with the present appellant company and the whole corporate entity has changed and the respondent MSEB is bound to give connection without insisting for the payment of electricity charges to be payable by M/s. Amar Amit Jalna Alloys Pvt. Ltd. 5. The appellant company also contended that it is in possession of only 40 Ares of land out of the total property comprising Gut No. 953; Its total area bearing 2 hectares 82 Ares. The appellant company has also pointed out that M/s. Amar Amit Jalna Alloys Pvt. Ltd. was having factory on the north-eastern corner of the property whereas the appellant company is on the north-western corner side of the property. 6. The learned Counsel for the first respondent contended that the very same company had applied for connection and the Writ Petition filed by the appellant company previously was dismissed and the same was challenged before this Court and this Court dismissed SLP and there was further Review and Curative Petition and all of them were dismissed by this Court, and therefore, the appellant company was not justified in filing a fresh appeal. 7. We have carefully considered the rival contentions of both the parties. We are unable to accept the contention of the appellant company that by changing the members of the Board of Directors of the Company or by changing the shareholding pattern, the appellant Company had undergone any change. The very same company wanted the electricity connection without making any payment towards the electricity charges payable by the previous consumer and the matter was dealt with in detail by the High Court and it was held that the appellant company is none other than the sister concern of M/s. Amar Amit Jalna Alloys Pvt. Ltd. and was representing the same consumer who had committed the default and it was held that Condition 23(b) of the Conditions of Miscellaneous Charges for supply of electricity energy would apply to the appellant Company. We do not think that by change of Directors or by change of pattern of the shareholding, the appellant company is really a different entity than M/s. Amit Products (India) Ltd. who filed the previous Writ Petition No. 2090/2002. The reasons given in the previous Judgment which were confirmed by this Court would apply with all force against the present appellant company and the High Court has rightly dismissed the Writ Petition filed by the appellant Company.
### Response:
0
### Explanation:
7. We have carefully considered the rival contentions of both the parties. We are unable to accept the contention of the appellant company that by changing the members of the Board of Directors of the Company or by changing the shareholding pattern, the appellant Company had undergone any change. The very same company wanted the electricity connection without making any payment towards the electricity charges payable by the previous consumer and the matter was dealt with in detail by the High Court and it was held that the appellant company is none other than the sister concern of M/s. Amar Amit Jalna Alloys Pvt. Ltd. and was representing the same consumer who had committed the default and it was held that Condition 23(b) of the Conditions of Miscellaneous Charges for supply of electricity energy would apply to the appellant Company. We do not think that by change of Directors or by change of pattern of the shareholding, the appellant company is really a different entity than M/s. Amit Products (India) Ltd. who filed the previous Writ Petition No. 2090/2002. The reasons given in the previous Judgment which were confirmed by this Court would apply with all force against the present appellant company and the High Court has rightly dismissed the Writ Petition filed by the appellant Company.
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State Of Haryana Vs. M/S Samtel India Ltd | was entitled to addition of Colour Monitors in eligibility certificate dated 23.2.1995 entitling it to sales tax exemption under rule 28A of Haryana General Sales Tax Rules, 1975 (for short, "1975 Rules") for the manufacture of monochrome monitors and black and white TV sets? In other words, whether the respondent was entitled to claim addition of a new item (colour monitor) in the eligibility certificate given to it, which certificate was restricted to the manufacture of monochrome monitors and black and white TV sets. 4. On 23.2.1995, the respondent was granted "eligibility certificate" entitling it to avail of sales tax exemption under rule 28A of 1975 Rules to the extent of Rs. 276.95 lakhs for a period of 7 years commencing from 23.2.1995 to 22.2.2002 for the manufacture of monochrome monitors and black and white TV sets alone. In other words, the said eligibility certificate did not cover colour monitors. At that time, the capital investment of the company was Rs. 55.39 lakhs. On 13.3.1996, the respondent submitted an application claiming tax benefit for an investment of Rs. 26.74 lakhs made for diversification of extending the unit to manufacture "colour monitor". The said application was allowed. Respondent was granted a new eligibility certificate on 15.9.1997 entitling it to avail the benefit of exemption from sales tax to the extent of Rs. 122.85 lakhs for the period commencing from 15.12.1995 to 14.12.2001. 5. On 1.2.1998, however, the respondent submitted an application requesting for insertion of "colour monitor" in the earlier eligibility certificate dated 23.2.1995. By order dated 11.10.1999 the competent authority rejected the application on the ground that there was no provision under rule 28A authorizing such addition in the eligibility certificate already granted. 6. Suffice it to state that the decision of the competent authority dated 11.10.1999 ultimately came to be challenged before Haryana Tax Tribunal. By its order dated 30.11.2005, the Tribunal accepted the appeal inter alia on the ground that a liberal approach needs to be taken while interpreting the said rule 28A and, accordingly, directed the Department (appellant herein) to add "colour monitor" to the eligibility certificate dated 23.2.1995. The decision of the Tribunal has been affirmed by the High Court by impugned judgment dated 9.7.2007 in CWP No. 9764/07. 7. At the outset, we quote hereinbelow sub-rule (2)(d) of rule 28A of the 1975 Rules, which reads as under: "Expansion/diversification of industrial unit means a capacity set up or installed during the operative period which creates additional productions/manufacturing facilities for manufacture of the same product/product as of the existing unit (expansion) or different products (diversification) at the same or new location; and (i) in which the additional fixed capital investment made during the operative period exceeds 25% of the fixed capital investment of the existing unit; and (ii) which results into increase in annual production by 25% of the installed capacity of the existing unit in case of expansion." 8. In this case, the High Court was concerned with interpretation of the above rule. It was not concerned with interpretation of a notification. Be that as it may, it is well settled, that, in a matter of exemption the rule/notification is required to be interpreted strictly. The question raised by the Department before the High Court was that the above rule confines the certificate of eligibility to the manufacture of the same product. Before the High Court inter alia it was contended that expansion/diversification of industrial unit meant creation of additional manufacturing facility for the manufacture of the same product (monochrome monitors). That, there was no scope for addition of colour monitor in existing eligibility certificate dated 23.2.1995, which was granted only in respect of manufacture of monochrome monitors. Further, according to the Department, under sub-rule (4)(a), different scales of tax benefit and different duration of exemption period have been provided for new industrial units and units undertaking expansion/diversification. Therefore, according to the Department, there was no question of liberal interpretation of rule 28A. 9. According to the respondent herein, colour monitor was an improved version of monochrome monitor and, therefore, it was entitled to the modification of eligibility certificate dated 23.2.1995. It was further urged on behalf of the respondent that, with the improved technology, liberal interpretation of the rule was warranted. 10. In this case we find that, while deciding the writ petition filed by the Department, the above rule has not been analysed by the High Court. No reason has been given by the High Court in its impugned judgment as to what weightage should be given to the words used in the above rule, particularly, the expression "for manufacture of the same product". Similarly, the High Court has failed to consider the effect of a cap/ceiling being put on the capital investment which, in the present case, stood at Rs. 276.95 lakhs vide eligibility certificate dated 23.2.1995. Similarly, the High Court has not discussed the scope of sub-rule (4)(a) which provides for different scales of tax benefit and different duration of exemption period. In this case, the High Court has primarily proceeded to dismiss the Departments writ petition on the ground that it had already issued modified eligibility certificate in terms of the directions given by the Tribunal. Secondly, the High Court has proceeded on the basis of its earlier judgment in the case of State of Haryana v. Bharti Teletech Ltd., Gurgaon in CWP NO. 11884/03. 11. In our view, the High Court had erred in relying upon the fact that modified eligibility certificate stood granted as it was granted pursuant to the impugned judgment of the Tribunal. Similarly, the High Court has relied upon its earlier judgment in Bharti Teletech Ltd. (supra) in which the writ petition filed by the Department stood dismissed on the ground of laches. Therefore, in our view, both the above circumstances were irrelevant. As stated above, High Court should have considered the matter on interpretation of rule 28A of 1975 Rules. It has not considered the said rule. It has not considered the above arguments. | 0[ds]10. In this case we find that, while deciding the writ petition filed by the Department, the above rule has not been analysed by the High Court. No reason has been given by the High Court in its impugned judgment as to what weightage should be given to the words used in the above rule, particularly, the expression "for manufacture of the same product". Similarly, the High Court has failed to consider the effect of a cap/ceiling being put on the capital investment which, in the present case, stood at Rs. 276.95 lakhs vide eligibility certificate dated 23.2.1995. Similarly, the High Court has not discussed the scope of(4)(a) which provides for different scales of tax benefit and different duration of exemption period. In this case, the High Court has primarily proceeded to dismiss the Departments writ petition on the ground that it had already issued modified eligibility certificate in terms of the directions given by the Tribunal. Secondly, the High Court has proceeded on the basis of its earlier judgment in the case of State of Haryana v. Bharti Teletech Ltd., Gurgaon in CWP NO. 11884/03.In our view, the High Court had erred in relying upon the fact that modified eligibility certificate stood granted as it was granted pursuant to the impugned judgment of the Tribunal. Similarly, the High Court has relied upon its earlier judgment in Bharti Teletech Ltd. (supra) in which the writ petition filed by the Department stood dismissed on the ground of laches. Therefore, in our view, both the above circumstances were irrelevant. As stated above, High Court should have considered the matter on interpretation of rule 28A of 1975 Rules. It has not considered the said rule. It has not considered the above arguments. | 0 | 1,179 | 333 | ### 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:
was entitled to addition of Colour Monitors in eligibility certificate dated 23.2.1995 entitling it to sales tax exemption under rule 28A of Haryana General Sales Tax Rules, 1975 (for short, "1975 Rules") for the manufacture of monochrome monitors and black and white TV sets? In other words, whether the respondent was entitled to claim addition of a new item (colour monitor) in the eligibility certificate given to it, which certificate was restricted to the manufacture of monochrome monitors and black and white TV sets. 4. On 23.2.1995, the respondent was granted "eligibility certificate" entitling it to avail of sales tax exemption under rule 28A of 1975 Rules to the extent of Rs. 276.95 lakhs for a period of 7 years commencing from 23.2.1995 to 22.2.2002 for the manufacture of monochrome monitors and black and white TV sets alone. In other words, the said eligibility certificate did not cover colour monitors. At that time, the capital investment of the company was Rs. 55.39 lakhs. On 13.3.1996, the respondent submitted an application claiming tax benefit for an investment of Rs. 26.74 lakhs made for diversification of extending the unit to manufacture "colour monitor". The said application was allowed. Respondent was granted a new eligibility certificate on 15.9.1997 entitling it to avail the benefit of exemption from sales tax to the extent of Rs. 122.85 lakhs for the period commencing from 15.12.1995 to 14.12.2001. 5. On 1.2.1998, however, the respondent submitted an application requesting for insertion of "colour monitor" in the earlier eligibility certificate dated 23.2.1995. By order dated 11.10.1999 the competent authority rejected the application on the ground that there was no provision under rule 28A authorizing such addition in the eligibility certificate already granted. 6. Suffice it to state that the decision of the competent authority dated 11.10.1999 ultimately came to be challenged before Haryana Tax Tribunal. By its order dated 30.11.2005, the Tribunal accepted the appeal inter alia on the ground that a liberal approach needs to be taken while interpreting the said rule 28A and, accordingly, directed the Department (appellant herein) to add "colour monitor" to the eligibility certificate dated 23.2.1995. The decision of the Tribunal has been affirmed by the High Court by impugned judgment dated 9.7.2007 in CWP No. 9764/07. 7. At the outset, we quote hereinbelow sub-rule (2)(d) of rule 28A of the 1975 Rules, which reads as under: "Expansion/diversification of industrial unit means a capacity set up or installed during the operative period which creates additional productions/manufacturing facilities for manufacture of the same product/product as of the existing unit (expansion) or different products (diversification) at the same or new location; and (i) in which the additional fixed capital investment made during the operative period exceeds 25% of the fixed capital investment of the existing unit; and (ii) which results into increase in annual production by 25% of the installed capacity of the existing unit in case of expansion." 8. In this case, the High Court was concerned with interpretation of the above rule. It was not concerned with interpretation of a notification. Be that as it may, it is well settled, that, in a matter of exemption the rule/notification is required to be interpreted strictly. The question raised by the Department before the High Court was that the above rule confines the certificate of eligibility to the manufacture of the same product. Before the High Court inter alia it was contended that expansion/diversification of industrial unit meant creation of additional manufacturing facility for the manufacture of the same product (monochrome monitors). That, there was no scope for addition of colour monitor in existing eligibility certificate dated 23.2.1995, which was granted only in respect of manufacture of monochrome monitors. Further, according to the Department, under sub-rule (4)(a), different scales of tax benefit and different duration of exemption period have been provided for new industrial units and units undertaking expansion/diversification. Therefore, according to the Department, there was no question of liberal interpretation of rule 28A. 9. According to the respondent herein, colour monitor was an improved version of monochrome monitor and, therefore, it was entitled to the modification of eligibility certificate dated 23.2.1995. It was further urged on behalf of the respondent that, with the improved technology, liberal interpretation of the rule was warranted. 10. In this case we find that, while deciding the writ petition filed by the Department, the above rule has not been analysed by the High Court. No reason has been given by the High Court in its impugned judgment as to what weightage should be given to the words used in the above rule, particularly, the expression "for manufacture of the same product". Similarly, the High Court has failed to consider the effect of a cap/ceiling being put on the capital investment which, in the present case, stood at Rs. 276.95 lakhs vide eligibility certificate dated 23.2.1995. Similarly, the High Court has not discussed the scope of sub-rule (4)(a) which provides for different scales of tax benefit and different duration of exemption period. In this case, the High Court has primarily proceeded to dismiss the Departments writ petition on the ground that it had already issued modified eligibility certificate in terms of the directions given by the Tribunal. Secondly, the High Court has proceeded on the basis of its earlier judgment in the case of State of Haryana v. Bharti Teletech Ltd., Gurgaon in CWP NO. 11884/03. 11. In our view, the High Court had erred in relying upon the fact that modified eligibility certificate stood granted as it was granted pursuant to the impugned judgment of the Tribunal. Similarly, the High Court has relied upon its earlier judgment in Bharti Teletech Ltd. (supra) in which the writ petition filed by the Department stood dismissed on the ground of laches. Therefore, in our view, both the above circumstances were irrelevant. As stated above, High Court should have considered the matter on interpretation of rule 28A of 1975 Rules. It has not considered the said rule. It has not considered the above arguments.
### Response:
0
### Explanation:
10. In this case we find that, while deciding the writ petition filed by the Department, the above rule has not been analysed by the High Court. No reason has been given by the High Court in its impugned judgment as to what weightage should be given to the words used in the above rule, particularly, the expression "for manufacture of the same product". Similarly, the High Court has failed to consider the effect of a cap/ceiling being put on the capital investment which, in the present case, stood at Rs. 276.95 lakhs vide eligibility certificate dated 23.2.1995. Similarly, the High Court has not discussed the scope of(4)(a) which provides for different scales of tax benefit and different duration of exemption period. In this case, the High Court has primarily proceeded to dismiss the Departments writ petition on the ground that it had already issued modified eligibility certificate in terms of the directions given by the Tribunal. Secondly, the High Court has proceeded on the basis of its earlier judgment in the case of State of Haryana v. Bharti Teletech Ltd., Gurgaon in CWP NO. 11884/03.In our view, the High Court had erred in relying upon the fact that modified eligibility certificate stood granted as it was granted pursuant to the impugned judgment of the Tribunal. Similarly, the High Court has relied upon its earlier judgment in Bharti Teletech Ltd. (supra) in which the writ petition filed by the Department stood dismissed on the ground of laches. Therefore, in our view, both the above circumstances were irrelevant. As stated above, High Court should have considered the matter on interpretation of rule 28A of 1975 Rules. It has not considered the said rule. It has not considered the above arguments.
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T.S. Shylaja Vs. Oriental Insurance Co. | hence unsustainable in law.7. Section 30 of the Employees Compensation Act, 1923 no doubt provides for an appeal to the High Court from the orders passed by the Commissioner and enumerated in clauses (a) to (e) sub-Section (1) of Section 30. Proviso to Section 30(1), however, makes it abundantly clear that no such appeal shall lie unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees. Section 30(1) reads as under: “30. Appeals.—(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:—(a) an order as awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;1[(aa) an order awarding interest or penalty under section 4A;](b) an order refusing to allow redemption of a half-monthly payment;(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.” 8. What is important is that in terms of the 1st proviso, no appeal is maintainable against any order passed by the Commissioner unless a substantial question of law is involved. This necessarily implies that the High Court would in the ordinary course formulate such a question or at least address the same in the judgment especially when the High Court takes a view contrary to the view taken by the Commissioner. 9. The Commissioner for Workmen’s Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed employed as a driver by the owner of the vehicle no matter the owner happened to be his brother. That finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent-owner of the vehicle had appeared as a witness and clearly stated that the deceased was his younger brother, but was working as a paid driver under him. The Commissioner had, in this regard, observed: “After examining the judgment of the Andhra Pradesh High Court relied upon by 2nd opponent it is seen that the owner of the vehicle being the sole witness has been unsuccessful in establishing his case but in this proceeding the owner of the vehicle has appeared before this Court even though he is a relative of the deceased, and has submitted in his objections, even evidence that even though the deceased was his younger brother he was working as a driver under him, and has admitted that he was paying salary to him. The applicant in support of his case has submitted Hon’ble High Court judgment reported in ILR 2006 KAR 518. The Divisional Manager, United India Insurance Company Ltd. Vs. Yellappa Bheemappa Alagudi & Ors. which I have examined in depth which holds that there is no law that relatives cannot be in employer employee relationship. Therefore it is no possible to ignore the oral and documentary evidence in favour of the applicant and such evidence has to be weighed in favour of the applicant. For these reasons I hold that the deceased was working as driver under first opponent and driving Toyota Quails No.KA-02-C-423, that he died in accident on 03.09.2005, that he is a ‘workman’ as defined in the Workmen’s Compensation Act and it is held that he has caused accident in the course of employment in a negligent fashion which has resulted in his death”. 10. The only reason which the High Court has given to upset the above finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analysing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected. | 1[ds]10. The only reason which the High Court has given to upset the above finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analysing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected. | 1 | 1,792 | 209 | ### Instruction:
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hence unsustainable in law.7. Section 30 of the Employees Compensation Act, 1923 no doubt provides for an appeal to the High Court from the orders passed by the Commissioner and enumerated in clauses (a) to (e) sub-Section (1) of Section 30. Proviso to Section 30(1), however, makes it abundantly clear that no such appeal shall lie unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees. Section 30(1) reads as under: “30. Appeals.—(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:—(a) an order as awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;1[(aa) an order awarding interest or penalty under section 4A;](b) an order refusing to allow redemption of a half-monthly payment;(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of sub-section (2) of section 12; or(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties:Provided further that no appeal by an employer under clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.” 8. What is important is that in terms of the 1st proviso, no appeal is maintainable against any order passed by the Commissioner unless a substantial question of law is involved. This necessarily implies that the High Court would in the ordinary course formulate such a question or at least address the same in the judgment especially when the High Court takes a view contrary to the view taken by the Commissioner. 9. The Commissioner for Workmen’s Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed employed as a driver by the owner of the vehicle no matter the owner happened to be his brother. That finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent-owner of the vehicle had appeared as a witness and clearly stated that the deceased was his younger brother, but was working as a paid driver under him. The Commissioner had, in this regard, observed: “After examining the judgment of the Andhra Pradesh High Court relied upon by 2nd opponent it is seen that the owner of the vehicle being the sole witness has been unsuccessful in establishing his case but in this proceeding the owner of the vehicle has appeared before this Court even though he is a relative of the deceased, and has submitted in his objections, even evidence that even though the deceased was his younger brother he was working as a driver under him, and has admitted that he was paying salary to him. The applicant in support of his case has submitted Hon’ble High Court judgment reported in ILR 2006 KAR 518. The Divisional Manager, United India Insurance Company Ltd. Vs. Yellappa Bheemappa Alagudi & Ors. which I have examined in depth which holds that there is no law that relatives cannot be in employer employee relationship. Therefore it is no possible to ignore the oral and documentary evidence in favour of the applicant and such evidence has to be weighed in favour of the applicant. For these reasons I hold that the deceased was working as driver under first opponent and driving Toyota Quails No.KA-02-C-423, that he died in accident on 03.09.2005, that he is a ‘workman’ as defined in the Workmen’s Compensation Act and it is held that he has caused accident in the course of employment in a negligent fashion which has resulted in his death”. 10. The only reason which the High Court has given to upset the above finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analysing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected.
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10. The only reason which the High Court has given to upset the above finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analysing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected.
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Gurbakhsh Singh and Ors Vs. Buta Singh and Ors | in existence at the time of filing of the suit, an ex parte decree has been procured by suspension of the material facts.a) Land measuring 48 kanals 7 marlas entered at rect. No. 39, Killa No. 19/2, 12, 19/1, 18/2, 10, 23, rect. No. 38, killa No. 5, 6/1, rect. No. 60, killa No. 2/1 min.b) Land measuring 36 kanals 16 marlas entered at rect. No. 38, kill No. 16/2, 25/1, 14/2, 6/3, 24, 15/1, rect. No. killas No. 14, 15/1.c) Land measuring 68 kanals entered at rect. No. 213, killas No. 16/2, 14, 15, 17/1, 16/2, rect. No. 114, killa No. 11, 12, 10, 9, rect. No. 212, killa No. 21, rect. No. 92, killa No. 5. It may also be mentioned here that the suit filed by Buta Singh, Defendant No. 1 alone as shown in the copy of the order/judgment and decree of civil suit No. 195 of 1968 without impleading all the legal heirs of vendor Mehnga Singh and when the 2nd suit was filed after the death of Mehnga Singh which was pending before the court of Sh. Rajesh Garg, no detail of the vendees and their successors in interest has been given in the plaint. At the most if the decree is not set aside a fact disputed and denied then too may the Defendant No. 1 is only at the best can claim relief to the extent of 1/9th share of the total property and other Defendant No. 17 to 24 are not legally entitled to any relief in view of the ex parte decree passed in civil suit No. 195 of 1968.3-B That the prayer Clause also requires to be amended. So before the words "costs of the suit and after the words" during the pendency of the suit following prayer may also be inserted.4. The aforesaid application came to be dismissed by the trial court observing that the Appellants had failed to exercise due diligence and that the facts in question could have been raised before framing of the issues. The rejection of the application for amendment was challenged by way of Civil Revision No. 5373 of 2014 in the High Court. It was submitted on behalf of the Appellants that there was no change in the nature of the suit except that specific khasra numbers were sought to be specified by way of amendment. It was further submitted that the amendment would not prejudice the case of the Defendants.5. The High Court, however, dismissed said revision petition by its judgment and order dated 25.07.2017, which is presently under appeal. It was observed by the High Court:No doubt, the amendment would not change the nature of the suit, however, all amendments which do not change the suit cannot be allowed particularly after the commencement of the trial. It has been found by the Court that necessary pleadings are already in existence in the original plaint.The High Court was of the view that Proviso to Order 6 Rule 17 of the Code of Civil Procedure, as duly amended, laid down that once the trial had commenced, no amendment could be allowed unless the court were to come to the conclusion that the party could not have raised the matter before the commencement of the trial despite due diligence.6. In the present case the record of Civil Suit No. 195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the Appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the Defendants.7. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. v. Mohd. Ruldu and Ors. (2012) 11 SCC 341 , had observed:11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the Rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Ors. v. Gattu Mahesh and Ors. (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. and Ors. (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the Appellants have made out a case for amendment. | 1[ds]6. In the present case the record of Civil Suit No. 195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the Appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the Defendants7. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. v. Mohd. Ruldu and Ors. (2012) 11 SCC 341 , had observed:11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the Rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Ors. v. Gattu Mahesh and Ors. (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. and Ors. (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the Appellants have made out a case for amendment. | 1 | 1,355 | 511 | ### Instruction:
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in existence at the time of filing of the suit, an ex parte decree has been procured by suspension of the material facts.a) Land measuring 48 kanals 7 marlas entered at rect. No. 39, Killa No. 19/2, 12, 19/1, 18/2, 10, 23, rect. No. 38, killa No. 5, 6/1, rect. No. 60, killa No. 2/1 min.b) Land measuring 36 kanals 16 marlas entered at rect. No. 38, kill No. 16/2, 25/1, 14/2, 6/3, 24, 15/1, rect. No. killas No. 14, 15/1.c) Land measuring 68 kanals entered at rect. No. 213, killas No. 16/2, 14, 15, 17/1, 16/2, rect. No. 114, killa No. 11, 12, 10, 9, rect. No. 212, killa No. 21, rect. No. 92, killa No. 5. It may also be mentioned here that the suit filed by Buta Singh, Defendant No. 1 alone as shown in the copy of the order/judgment and decree of civil suit No. 195 of 1968 without impleading all the legal heirs of vendor Mehnga Singh and when the 2nd suit was filed after the death of Mehnga Singh which was pending before the court of Sh. Rajesh Garg, no detail of the vendees and their successors in interest has been given in the plaint. At the most if the decree is not set aside a fact disputed and denied then too may the Defendant No. 1 is only at the best can claim relief to the extent of 1/9th share of the total property and other Defendant No. 17 to 24 are not legally entitled to any relief in view of the ex parte decree passed in civil suit No. 195 of 1968.3-B That the prayer Clause also requires to be amended. So before the words "costs of the suit and after the words" during the pendency of the suit following prayer may also be inserted.4. The aforesaid application came to be dismissed by the trial court observing that the Appellants had failed to exercise due diligence and that the facts in question could have been raised before framing of the issues. The rejection of the application for amendment was challenged by way of Civil Revision No. 5373 of 2014 in the High Court. It was submitted on behalf of the Appellants that there was no change in the nature of the suit except that specific khasra numbers were sought to be specified by way of amendment. It was further submitted that the amendment would not prejudice the case of the Defendants.5. The High Court, however, dismissed said revision petition by its judgment and order dated 25.07.2017, which is presently under appeal. It was observed by the High Court:No doubt, the amendment would not change the nature of the suit, however, all amendments which do not change the suit cannot be allowed particularly after the commencement of the trial. It has been found by the Court that necessary pleadings are already in existence in the original plaint.The High Court was of the view that Proviso to Order 6 Rule 17 of the Code of Civil Procedure, as duly amended, laid down that once the trial had commenced, no amendment could be allowed unless the court were to come to the conclusion that the party could not have raised the matter before the commencement of the trial despite due diligence.6. In the present case the record of Civil Suit No. 195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the Appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the Defendants.7. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. v. Mohd. Ruldu and Ors. (2012) 11 SCC 341 , had observed:11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the Rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Ors. v. Gattu Mahesh and Ors. (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. and Ors. (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the Appellants have made out a case for amendment.
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6. In the present case the record of Civil Suit No. 195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the Appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the Defendants7. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. v. Mohd. Ruldu and Ors. (2012) 11 SCC 341 , had observed:11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the Rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Ors. v. Gattu Mahesh and Ors. (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. and Ors. (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the Appellants have made out a case for amendment.
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Dhanraj Vs. Suraj Bai | coming into force of the Act : vide para 489 at page 554 of Mullas Hindu Law, Fourteenth Edition. Identical is the position under the Act. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. Section 9 of the Act enumerates the persons capable of giving in adoption. Sub-section (1) says :"No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption."The departure in the law is that under the Act even the guardian of a child has the capacity to give him or her in adoption. But, the step-mother as such has not. The father or mother mentioned in sub-section (l) must necessarily mean the natural father and the natural mother. Explanation (i) amended to Section 9 was pressed into service to say that the step-mother is included in the term "mother" because the said explanation says "the expressions "father" and "mother" do not include an adoptive father and "an adoptive mother." Learned counsel for the appellant submitted that step-mother has not been excluded from the expression "mother" and only an adoptive mother has been so excluded. By necessary implications, therefore, it was submitted that it ought to be held that the word "mother in sub-section (1) includes a step-mother. We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother, means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is distinct and different from mother : while, generally speaking an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebody else.8. Learned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption no consent was necessary of and person except the adoptee himself. No body could be available to give him in adoption. The use of the word "child" in clause (vi) of Section l1 and in Section 9 (l) read in contra-distinction of the use of word "person" in clause (iii) of Section 6 would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult. We see no substance in this argument. Under the law as engrafted in Section l0 of the Act a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in Sections 9 and 11. The use of the word "person" in Section 6 (iii) and at the commencement of Section l0 is not for the purpose of bringing about any difference in law in regard to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. Child would not necessarily mean in that context a minor child if the child is a minor, in absence of the father or the mother, a guardian appointed by the will of the childs father to mother and a guardian appointed or declared by a Court would be competent to give the child in adoption. But in case of a major in absence of the father or the mother nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to the contrary.9. Learned counsel for the appellant then attempted to argue on the basis of the decisions of the Bombay High Court in the cases of Motilal Mansukhram v Maneklal Davabhai. AIR 1921 Bom 147 (l) and Pralhad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao. AIR l958 Bom 79. that even under the old Hindu Law the adoption of an orphan was not valid except by custom ; but if the custom permitted it, and in the case of Porwal Jains it did permit then an orphan who was not minor could go in adoption by his own consent without the consent of and the giving by any body else. We think that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would save such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our inclement it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon. | 0[ds]We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother, means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is distinct and different from mother : while, generally speaking an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebodysee no substance in this argument. Under the law as engrafted in Section l0 of the Act a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in Sections 9 and 11. The use of the word "person" in Section 6 (iii) and at the commencement of Section l0 is not for the purpose of bringing about any difference in law in regard to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. Child would not necessarily mean in that context a minor child if the child is a minor, in absence of the father or the mother, a guardian appointed by the will of the childs father to mother and a guardian appointed or declared by a Court would be competent to give the child in adoption. But in case of a major in absence of the father or the mother nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to thethink that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would save such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our inclement it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon. | 0 | 2,085 | 616 | ### 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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coming into force of the Act : vide para 489 at page 554 of Mullas Hindu Law, Fourteenth Edition. Identical is the position under the Act. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. Section 9 of the Act enumerates the persons capable of giving in adoption. Sub-section (1) says :"No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption."The departure in the law is that under the Act even the guardian of a child has the capacity to give him or her in adoption. But, the step-mother as such has not. The father or mother mentioned in sub-section (l) must necessarily mean the natural father and the natural mother. Explanation (i) amended to Section 9 was pressed into service to say that the step-mother is included in the term "mother" because the said explanation says "the expressions "father" and "mother" do not include an adoptive father and "an adoptive mother." Learned counsel for the appellant submitted that step-mother has not been excluded from the expression "mother" and only an adoptive mother has been so excluded. By necessary implications, therefore, it was submitted that it ought to be held that the word "mother in sub-section (1) includes a step-mother. We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother, means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is distinct and different from mother : while, generally speaking an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebody else.8. Learned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption no consent was necessary of and person except the adoptee himself. No body could be available to give him in adoption. The use of the word "child" in clause (vi) of Section l1 and in Section 9 (l) read in contra-distinction of the use of word "person" in clause (iii) of Section 6 would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult. We see no substance in this argument. Under the law as engrafted in Section l0 of the Act a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in Sections 9 and 11. The use of the word "person" in Section 6 (iii) and at the commencement of Section l0 is not for the purpose of bringing about any difference in law in regard to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. Child would not necessarily mean in that context a minor child if the child is a minor, in absence of the father or the mother, a guardian appointed by the will of the childs father to mother and a guardian appointed or declared by a Court would be competent to give the child in adoption. But in case of a major in absence of the father or the mother nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to the contrary.9. Learned counsel for the appellant then attempted to argue on the basis of the decisions of the Bombay High Court in the cases of Motilal Mansukhram v Maneklal Davabhai. AIR 1921 Bom 147 (l) and Pralhad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao. AIR l958 Bom 79. that even under the old Hindu Law the adoption of an orphan was not valid except by custom ; but if the custom permitted it, and in the case of Porwal Jains it did permit then an orphan who was not minor could go in adoption by his own consent without the consent of and the giving by any body else. We think that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would save such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our inclement it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon.
### Response:
0
### Explanation:
We have no difficulty in rejecting this argument. Reading Section 9 as a whole and specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother, means the natural mother and not the step-mother. A step-mother for many purposes such as inheritance etc. is distinct and different from mother : while, generally speaking an adoptive mother takes the place of mother to all intents and purposes. The necessity of the explanation, therefore, arose to exclude the adoptive mother from the expression mother so that an adoptive mother may not be competent to give the adopted son in adoption to somebodysee no substance in this argument. Under the law as engrafted in Section l0 of the Act a person is not capable of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in Sections 9 and 11. The use of the word "person" in Section 6 (iii) and at the commencement of Section l0 is not for the purpose of bringing about any difference in law in regard to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. Child would not necessarily mean in that context a minor child if the child is a minor, in absence of the father or the mother, a guardian appointed by the will of the childs father to mother and a guardian appointed or declared by a Court would be competent to give the child in adoption. But in case of a major in absence of the father or the mother nobody will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency. The scheme of the Act was not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to thethink that it would be a ticklish and debatable question to decide whether the second part of clause (a) of Section 4 would save such a custom from the overriding effects of Sections 6, 9 and 11. But it will be a futile exercise here to embark upon the decision of this point as in our inclement it does not arise at all in this case. In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old could be taken in adoption. Nothing was pleaded to say that there was a custom of giving an orphan in adoption or that a person above the age of 15 years could go in adoption without the physical act of giving by anybody, on his own and with his consent only. On the other hand the pleading in sub-paras (1) and (3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in adoption and that she did give him in adoption. It was not open to the appellant, therefore, to take this new point of law for the first time in this Court without the foundation of facts to found it upon.
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M/s. Tata Finance Ltd. now Tata Motors Ltd Vs. N. Poongodi & Another | 1. Leave granted. 2. In this case, vide the impugned judgment, the Monopolies and Restrictive Trade Practices Commission (Commission for short) has dismissed the application, C.A.No.7/2007, filed by the appellant herein for deciding the issue of maintainability of the Compensation Application bearing No. M.A.No.7/2007 as a preliminary issue, hence, this Civil Appeal. 3. Appellant-Company is a non-banking financial institution. Respondents had entered into four hire purchase agreements with the appellant, the details of which are given in synopsis D to the S.L.P. paper book. Disputes arose between the parties which went to arbitration. Two Awards were given. Ultimately the matter came to this Court by way of Special Leave Petition and the Awards stood confirmed. In the process, a period of almost ten years elapsed. Pursuant to the Awards, execution proceedings, including insolvency proceedings, have been taken. We do not wish to comment about those proceedings as the matter is sub judice. 4. Suffice it to state that after ten years, the Commission has been moved claiming damages in which appellant herein raised the contention that it should decide the question of maintainability of the above Compensation Application No.7/2007 as a preliminary issue. 5. According to the appellant, the said Compensation Application No.7/2007 amounts to abuse of process and it is this issue which the appellant wanted the Commission to be decided as a preliminary issue. 6. When the matter came for hearing, we have examined the voluminous record threadbare. After examining the entire record, without commenting on the merits of the case, we are of the view that the Commission has erred in holding, vide para 11, that the question of maintainability of Compensation Application No.7/2007 is a question of fact and law which can be decided only when the evidence is led. It is important to note that in this case what the Commission ought to have done is to have examined the scope of the arbitration proceedings. It ought to have examined the pleadings before the Arbitrator before coming to the conclusion as stated hereinabove vide para 11 of the impugned judgment. The bare fact remains after ten years and after the parties have gone through the entire gamut of the various proceedings, the matter has been moved before the Commission alleging unfair trade practice. There are various nuances of the concept of abuse of process, which includes moving the Commission after ten years. None of these aspects have been examined by the Commission. 7. On the facts and circumstances of this case, we are of the view that the Commission should frame and decide the issue of the Complaint being an abuse of the process as a preliminary issue before proceeding further in the matter. We do not wish to express any opinion on that issue or on the merits of the case. We make it clear that all contentions on the preliminary issue are kept open. Any observation made in the impugned judgment as well as herein on merits will not bind the Commission while deciding the preliminary issue. 8. Before concluding, we are constrained to observe that certain allegations have been made in the Compensation Application against the Chairperson of the Appellant Company. It would be open to the Commission to examine at the threshold whether those allegations have any relevance to the Complaint filed before the Commission and, if it comes to the conclusion after hearing the parties that such allegations have no relevance to the Compensation Application, then, it may consider ordering deletion of such allegations. 9. | 1[ds]After examining the entire record, without commenting on the merits of the case, we are of the view that the Commission has erred in holding, vide para 11, that the question of maintainability of Compensation Application No.7/2007 is a question of fact and law which can be decided only when the evidence is led. It is important to note that in this case what the Commission ought to have done is to have examined the scope of the arbitration proceedings. It ought to have examined the pleadings before the Arbitrator before coming to the conclusion as stated hereinabove vide para 11 of the impugned judgment. The bare fact remains after ten years and after the parties have gone through the entire gamut of the various proceedings, the matter has been moved before the Commission alleging unfair trade practice. There are various nuances of the concept of abuse of process, which includes moving the Commission after ten years. None of these aspects have been examined by thethe facts and circumstances of this case, we are of the view that the Commission should frame and decide the issue of the Complaint being an abuse of the process as a preliminary issue before proceeding further in the matter. We do not wish to express any opinion on that issue or on the merits of the case. We make it clear that all contentions on the preliminary issue are kept open. Any observation made in the impugned judgment as well as herein on merits will not bind the Commission while deciding the preliminaryconcluding, we are constrained to observe that certain allegations have been made in the Compensation Application against the Chairperson of the Appellant Company. It would be open to the Commission to examine at the threshold whether those allegations have any relevance to the Complaint filed before the Commission and, if it comes to the conclusion after hearing the parties that such allegations have no relevance to the Compensation Application, then, it may consider ordering deletion of such allegations. | 1 | 648 | 361 | ### 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:
1. Leave granted. 2. In this case, vide the impugned judgment, the Monopolies and Restrictive Trade Practices Commission (Commission for short) has dismissed the application, C.A.No.7/2007, filed by the appellant herein for deciding the issue of maintainability of the Compensation Application bearing No. M.A.No.7/2007 as a preliminary issue, hence, this Civil Appeal. 3. Appellant-Company is a non-banking financial institution. Respondents had entered into four hire purchase agreements with the appellant, the details of which are given in synopsis D to the S.L.P. paper book. Disputes arose between the parties which went to arbitration. Two Awards were given. Ultimately the matter came to this Court by way of Special Leave Petition and the Awards stood confirmed. In the process, a period of almost ten years elapsed. Pursuant to the Awards, execution proceedings, including insolvency proceedings, have been taken. We do not wish to comment about those proceedings as the matter is sub judice. 4. Suffice it to state that after ten years, the Commission has been moved claiming damages in which appellant herein raised the contention that it should decide the question of maintainability of the above Compensation Application No.7/2007 as a preliminary issue. 5. According to the appellant, the said Compensation Application No.7/2007 amounts to abuse of process and it is this issue which the appellant wanted the Commission to be decided as a preliminary issue. 6. When the matter came for hearing, we have examined the voluminous record threadbare. After examining the entire record, without commenting on the merits of the case, we are of the view that the Commission has erred in holding, vide para 11, that the question of maintainability of Compensation Application No.7/2007 is a question of fact and law which can be decided only when the evidence is led. It is important to note that in this case what the Commission ought to have done is to have examined the scope of the arbitration proceedings. It ought to have examined the pleadings before the Arbitrator before coming to the conclusion as stated hereinabove vide para 11 of the impugned judgment. The bare fact remains after ten years and after the parties have gone through the entire gamut of the various proceedings, the matter has been moved before the Commission alleging unfair trade practice. There are various nuances of the concept of abuse of process, which includes moving the Commission after ten years. None of these aspects have been examined by the Commission. 7. On the facts and circumstances of this case, we are of the view that the Commission should frame and decide the issue of the Complaint being an abuse of the process as a preliminary issue before proceeding further in the matter. We do not wish to express any opinion on that issue or on the merits of the case. We make it clear that all contentions on the preliminary issue are kept open. Any observation made in the impugned judgment as well as herein on merits will not bind the Commission while deciding the preliminary issue. 8. Before concluding, we are constrained to observe that certain allegations have been made in the Compensation Application against the Chairperson of the Appellant Company. It would be open to the Commission to examine at the threshold whether those allegations have any relevance to the Complaint filed before the Commission and, if it comes to the conclusion after hearing the parties that such allegations have no relevance to the Compensation Application, then, it may consider ordering deletion of such allegations. 9.
### Response:
1
### Explanation:
After examining the entire record, without commenting on the merits of the case, we are of the view that the Commission has erred in holding, vide para 11, that the question of maintainability of Compensation Application No.7/2007 is a question of fact and law which can be decided only when the evidence is led. It is important to note that in this case what the Commission ought to have done is to have examined the scope of the arbitration proceedings. It ought to have examined the pleadings before the Arbitrator before coming to the conclusion as stated hereinabove vide para 11 of the impugned judgment. The bare fact remains after ten years and after the parties have gone through the entire gamut of the various proceedings, the matter has been moved before the Commission alleging unfair trade practice. There are various nuances of the concept of abuse of process, which includes moving the Commission after ten years. None of these aspects have been examined by thethe facts and circumstances of this case, we are of the view that the Commission should frame and decide the issue of the Complaint being an abuse of the process as a preliminary issue before proceeding further in the matter. We do not wish to express any opinion on that issue or on the merits of the case. We make it clear that all contentions on the preliminary issue are kept open. Any observation made in the impugned judgment as well as herein on merits will not bind the Commission while deciding the preliminaryconcluding, we are constrained to observe that certain allegations have been made in the Compensation Application against the Chairperson of the Appellant Company. It would be open to the Commission to examine at the threshold whether those allegations have any relevance to the Complaint filed before the Commission and, if it comes to the conclusion after hearing the parties that such allegations have no relevance to the Compensation Application, then, it may consider ordering deletion of such allegations.
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NAND KISHORE Vs. THE STATE OF MADHYA PRADESH | than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. In the case of Neel Kumar v. State of Haryana (2012) 5 SCC 766 which is a case of rape and murder of a minor, while confirming the conviction, this Court, on the facts and circumstances of the case and having regard to the evidence on record, has modified the death sentence with award of life imprisonment and directed that the accused must serve a minimum of 30 years of jail without remission. Paragraphs 37, 38 and 39 of the said judgment read as under : 37. A three-Judge Bench of this Court in Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767 , considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life. 38. Similarly, in Ramraj v. State of Chhattisgarh (2010) 1 SCC 573 , this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years imprisonment. 39. Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for premature release. In the case of Selvam v. State (2014) 12 SCC 274 which is a case involving murder and rape of a child aged about 9 years, without interferring with the finding of conviction, this Court, in the facts and circumstances of the case and considering the evidence on record, imposed a sentence of 30 years in jail without remission. In the case of Tattu Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675 in a case involving kidnapping of minor girl aged about 7 years and attempt to rape and murder, in the facts of the case and the evidence on record, death sentence was modified to imprisonment for life with a direction not to release the accused from prison till he completes actual period of 25 years of imprisonment. Further, in the case of Raj Kumar v. State of Madhya Pradesh (2014) 5 SCC 353 in similar circumstances, this Court has modified death sentence and awarded life imprisonment and directed the appellant therein to serve a minimum of 35 years in jail without remission. Further, in the case of Anil v. State of Maharashtra (2014) 4 SCC 69 where in a case involving murder of a 10 year old boy who was subjected to carnal intercourse, this Court has held as under : 36. The legislative policy is discernible from Section 235(2) read with Section 354(3) CrPC, that when culpability assumes the proportions of depravity, the Court has to give special reasons within the meaning of Section 354(3) for imposition of death sentence. A legislative policy is that when special reasons do exist, as in the instant case, the Court has to discharge its constitutional obligations and honour the legislative policy by awarding appropriate sentence, that is, the will of the people. We are of the view that incarceration for a further period of thirty years, without remission, in addition to the sentence already undergone, will be an adequate punishment in the facts and circumstances of the case, rather than death sentence. Ordered accordingly. 14. The learned counsel appearing for the State has placed reliance on the judgment of this Court in the case Mukesh & Anr. v. State (NCT of Delhi) & Ors. (2017) 6 SCC 1 [known as Nirbhaya case] in support of her case and submitted that applying the ratio laid down in the aforesaid judgment, the case falls in the rarest of rare cases attracting death penalty. With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra) is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused. | 1[ds]10. So far as the conviction is concerned, we are satisfied with the findings recorded by the trial court which are based on the appreciation of oral and documentary evidence on record.By applying the last seen theory to the facts of the case and further considering the forensic and medical evidence on record, trial court has rightly recorded guilt of the accused for the offences alleged. Even the High Court, referring to the relevant evidence on record, has rightly confirmed the conviction of the appellant for the charges levelled against him.13. A useful reference can be made to the judgment in this regard in the case of Swamy Shradhananda(2) v. State of Karnataka. In the aforesaid judgment, while confirming the(1980) 2 SCC 684 (2008) 13 SCC 767 conviction for offence under Section 302 of IPC, this Court, having regard to the facts and circumstances of the case and considering the evidence on record, has substituted the death sentence by imposing imprisonment for life with a specific direction that he shall not be released from the prison till the rest of his life.With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra)(2017) 6 SCC 1 is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section354(3) of the Cr.PC to impose death penalty on the accused. | 1 | 3,232 | 489 | ### 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:
than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years imprisonment would amount to no punishment at all. In the case of Neel Kumar v. State of Haryana (2012) 5 SCC 766 which is a case of rape and murder of a minor, while confirming the conviction, this Court, on the facts and circumstances of the case and having regard to the evidence on record, has modified the death sentence with award of life imprisonment and directed that the accused must serve a minimum of 30 years of jail without remission. Paragraphs 37, 38 and 39 of the said judgment read as under : 37. A three-Judge Bench of this Court in Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767 , considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life. 38. Similarly, in Ramraj v. State of Chhattisgarh (2010) 1 SCC 573 , this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years imprisonment. 39. Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for premature release. In the case of Selvam v. State (2014) 12 SCC 274 which is a case involving murder and rape of a child aged about 9 years, without interferring with the finding of conviction, this Court, in the facts and circumstances of the case and considering the evidence on record, imposed a sentence of 30 years in jail without remission. In the case of Tattu Lodhi v. State of Madhya Pradesh (2016) 9 SCC 675 in a case involving kidnapping of minor girl aged about 7 years and attempt to rape and murder, in the facts of the case and the evidence on record, death sentence was modified to imprisonment for life with a direction not to release the accused from prison till he completes actual period of 25 years of imprisonment. Further, in the case of Raj Kumar v. State of Madhya Pradesh (2014) 5 SCC 353 in similar circumstances, this Court has modified death sentence and awarded life imprisonment and directed the appellant therein to serve a minimum of 35 years in jail without remission. Further, in the case of Anil v. State of Maharashtra (2014) 4 SCC 69 where in a case involving murder of a 10 year old boy who was subjected to carnal intercourse, this Court has held as under : 36. The legislative policy is discernible from Section 235(2) read with Section 354(3) CrPC, that when culpability assumes the proportions of depravity, the Court has to give special reasons within the meaning of Section 354(3) for imposition of death sentence. A legislative policy is that when special reasons do exist, as in the instant case, the Court has to discharge its constitutional obligations and honour the legislative policy by awarding appropriate sentence, that is, the will of the people. We are of the view that incarceration for a further period of thirty years, without remission, in addition to the sentence already undergone, will be an adequate punishment in the facts and circumstances of the case, rather than death sentence. Ordered accordingly. 14. The learned counsel appearing for the State has placed reliance on the judgment of this Court in the case Mukesh & Anr. v. State (NCT of Delhi) & Ors. (2017) 6 SCC 1 [known as Nirbhaya case] in support of her case and submitted that applying the ratio laid down in the aforesaid judgment, the case falls in the rarest of rare cases attracting death penalty. With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra) is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section 354(3) of the Cr.PC to impose death penalty on the accused.
### Response:
1
### Explanation:
10. So far as the conviction is concerned, we are satisfied with the findings recorded by the trial court which are based on the appreciation of oral and documentary evidence on record.By applying the last seen theory to the facts of the case and further considering the forensic and medical evidence on record, trial court has rightly recorded guilt of the accused for the offences alleged. Even the High Court, referring to the relevant evidence on record, has rightly confirmed the conviction of the appellant for the charges levelled against him.13. A useful reference can be made to the judgment in this regard in the case of Swamy Shradhananda(2) v. State of Karnataka. In the aforesaid judgment, while confirming the(1980) 2 SCC 684 (2008) 13 SCC 767 conviction for offence under Section 302 of IPC, this Court, having regard to the facts and circumstances of the case and considering the evidence on record, has substituted the death sentence by imposing imprisonment for life with a specific direction that he shall not be released from the prison till the rest of his life.With reference to above said arguments of learned counsel for the State, it is to be noticed that the case of Mukesh (supra)(2017) 6 SCC 1 is distinguishable on the facts from the case on hand. It is to be noticed that Mukesh (supra) is a case of gang-rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120-B of the IPC apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused-Mukesh had been involved in other criminal activity on the same night. Further, it is also to be noticed that in the aforesaid case, there was a dying declaration, eye witness to the incident etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied the proper legal assistance in the matter and he is a manhole worker. The appellant was aged about 50 years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court, do not constitute special reasons within the meaning of Section354(3) of the Cr.PC to impose death penalty on the accused.
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P. NAZEER ETC Vs. SALAFI TRUST & ANR. ETC | appeal shall lie against any decision given by the Waqf Tribunal. Therefore, the learned senior counsel contended that the proviso to Sub--section (9) which confers a revisional jurisdiction upon the High Court, is meant to confer a jurisdiction narrower than the jurisdiction of an appellate Court. In the case on hand, according to the learned senior counsel for the appellants , the High Court appreciated the evidence independently and recorded findings on questions which were not even framed as issues by the Tribunal and that, therefore, the impugned order of the High Court is completely contrary to law. 12. While we agree with the learned senior counsel for the appellants that the revisional jurisdiction conferred by the proviso to Sub--section (9) of Section 83 is narrower than the jurisdiction that could have been conferred upon an appellate court, we do not think that the impugned order of the High Court suffers from the vice sought to be attributed by the learned senior counsel for the appellants. 13. Admittedly, the Mahal Committee which is appellant No.1 in one of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004. In the plaint in O.S No.9 of 2004, there was not even a whisper about the corporate status of the Mahal Committee. In the written statement filed by Salafi Trust, they raised a specific contention that plaintiff No.1 was not a legal entity and that it is an illegal association of certain individuals and that there was not even a pleading as to whether there were any bye--laws and as to how plaintiffs No.2 and 3 became the President and Secretary respectively. 14. Unfortunately, the Waqf Tribunal, in paragraph 17 of its Judgment held that plaintiff No.1 is a legal entity, entitled to sue and be sued. This was solely on the ground that plaintiff No.1 (Mahal Committee) was one of the Sakha units affiliated to a registered society by name Kerala Naduvathil Mujahideen (KNM for short). 15. The aforesaid finding is completely contrary to law. A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its bye--laws. The bye--laws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society. Under section 6 of the Societies Registration Act, 1860, every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. Even the Travancore--Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which is applicable to parts of Kerala carries a similar provision in section 9. Therefore, unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye--laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye--laws support the institution of such a suit. 16. The Waqf Tribunal committed a gross illegality, first in not framing an issue about the status of the Mahal Committee and then in recording a finding as though the local unit of a registered society which is in enjoyment of affiliated status, was entitled to sue. Such an illegality committed by the Tribunal was liable to be corrected by the High Court under its revisional jurisdiction and hence the fulcrum of the argument of the learned senior counsel for the appellants, has to fall to the ground. 17. As a matter of fact, the Mahal Committee did not file any revision against the rejection by the Waqf Tribunal of the relief of declaration regarding the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala State Waqf Board. In the plaint filed by the Mahal Committee in OS No.9 of 2004, they assailed the certificate, on the ground that the said certificate completely repudiated the findings of the Enquiry Officer that the Mahal Committee was in management and administration of the Masjid. In other words the appellants herein understood, and rightly so, that the certificate dated 24.03.2004 sought to dislodge their claim to be in management and administration of the mosque. Therefore, the rejection by the Waqf Tribunal, of the prayer for declaring the said certificate to be null and void was fatal to their claim. Yet the appellants did not choose to file a revision. Today they cannot take umbrage under the fact that in any case, the Tribunal found them to be in management and administration of the waqf. 18. Though the High Court did not put against the appellants, their failure to file a revision, we think it is a crucial fact which cannot be overlooked. This is for the reason that the document dated 24.03.2004 is a certificate of registration issued under Section 36 of the Waqf Act, 1995. Once it is admitted that it was the first respondent namely the Salafi Trust who got the mosque registered as a waqf under Section 36 of the Act and once it is admitted by the appellants in paragraph 2 of their plaint in OS No.9 of 2004 that the mosque was constructed in a vacant plot demised by Salafi Trust, it was not open to them to go against the statutory prescriptions and claim to be the Mutawalli. 19. Though Shri R. Basant, learned senior counsel for the appellants also invited our attention to certain other aspects in the impugned judgment, we do not think that we need to go into each of these issues when we are convinced that the High Court exercised its revisional jurisdiction correctly and justly. | 0[ds]12. While we agree with the learned senior counsel for the appellants that the revisional jurisdiction conferred by the proviso to Sub--section (9) of Section 83 is narrower than the jurisdiction that could have been conferred upon an appellate court, we do not think that the impugned order of the High Court suffers from the vice sought to be attributed by the learned senior counsel for the appellants.13. Admittedly, the Mahal Committee which is appellant No.1 in one of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004. In the plaint in O.S No.9 of 2004, there was not even a whisper about the corporate status of the Mahal Committee. In the written statement filed by Salafi Trust, they raised a specific contention that plaintiff No.1 was not a legal entity and that it is an illegal association of certain individuals and that there was not even a pleading as to whether there were any bye--laws and as to how plaintiffs No.2 and 3 became the President and Secretary respectively.14. Unfortunately, the Waqf Tribunal, in paragraph 17 of its Judgment held that plaintiff No.1 is a legal entity, entitled to sue and be sued. This was solely on the ground that plaintiff No.1 (Mahal Committee) was one of the Sakha units affiliated to a registered society by name Kerala Naduvathil Mujahideen (KNM for short).15. The aforesaid finding is completely contrary to law. A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its bye--laws. The bye--laws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society. Under section 6 of the Societies Registration Act, 1860, every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. Even the Travancore--Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which is applicable to parts of Kerala carries a similar provision in section 9. Therefore, unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye--laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye--laws support the institution of such a suit.16. The Waqf Tribunal committed a gross illegality, first in not framing an issue about the status of the Mahal Committee and then in recording a finding as though the local unit of a registered society which is in enjoyment of affiliated status, was entitled to sue. Such an illegality committed by the Tribunal was liable to be corrected by the High Court under its revisional jurisdiction and hence the fulcrum of the argument of the learned senior counsel for the appellants, has to fall to the ground.17. As a matter of fact, the Mahal Committee did not file any revision against the rejection by the Waqf Tribunal of the relief of declaration regarding the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala State Waqf Board. In the plaint filed by the Mahal Committee in OS No.9 of 2004, they assailed the certificate, on the ground that the said certificate completely repudiated the findings of the Enquiry Officer that the Mahal Committee was in management and administration of the Masjid. In other words the appellants herein understood, and rightly so, that the certificate dated 24.03.2004 sought to dislodge their claim to be in management and administration of the mosque. Therefore, the rejection by the Waqf Tribunal, of the prayer for declaring the said certificate to be null and void was fatal to their claim. Yet the appellants did not choose to file a revision. Today they cannot take umbrage under the fact that in any case, the Tribunal found them to be in management and administration of the waqf.18. Though the High Court did not put against the appellants, their failure to file a revision, we think it is a crucial fact which cannot be overlooked. This is for the reason that the document dated 24.03.2004 is a certificate of registration issued under Section 36 of the Waqf Act, 1995. Once it is admitted that it was the first respondent namely the Salafi Trust who got the mosque registered as a waqf under Section 36 of the Act and once it is admitted by the appellants in paragraph 2 of their plaint in OS No.9 of 2004 that the mosque was constructed in a vacant plot demised by Salafi Trust, it was not open to them to go against the statutory prescriptions and claim to be the Mutawalli.19. Though Shri R. Basant, learned senior counsel for the appellants also invited our attention to certain other aspects in the impugned judgment, we do not think that we need to go into each of these issues when we are convinced that the High Court exercised its revisional jurisdiction correctly and justly. | 0 | 2,670 | 990 | ### 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:
appeal shall lie against any decision given by the Waqf Tribunal. Therefore, the learned senior counsel contended that the proviso to Sub--section (9) which confers a revisional jurisdiction upon the High Court, is meant to confer a jurisdiction narrower than the jurisdiction of an appellate Court. In the case on hand, according to the learned senior counsel for the appellants , the High Court appreciated the evidence independently and recorded findings on questions which were not even framed as issues by the Tribunal and that, therefore, the impugned order of the High Court is completely contrary to law. 12. While we agree with the learned senior counsel for the appellants that the revisional jurisdiction conferred by the proviso to Sub--section (9) of Section 83 is narrower than the jurisdiction that could have been conferred upon an appellate court, we do not think that the impugned order of the High Court suffers from the vice sought to be attributed by the learned senior counsel for the appellants. 13. Admittedly, the Mahal Committee which is appellant No.1 in one of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004. In the plaint in O.S No.9 of 2004, there was not even a whisper about the corporate status of the Mahal Committee. In the written statement filed by Salafi Trust, they raised a specific contention that plaintiff No.1 was not a legal entity and that it is an illegal association of certain individuals and that there was not even a pleading as to whether there were any bye--laws and as to how plaintiffs No.2 and 3 became the President and Secretary respectively. 14. Unfortunately, the Waqf Tribunal, in paragraph 17 of its Judgment held that plaintiff No.1 is a legal entity, entitled to sue and be sued. This was solely on the ground that plaintiff No.1 (Mahal Committee) was one of the Sakha units affiliated to a registered society by name Kerala Naduvathil Mujahideen (KNM for short). 15. The aforesaid finding is completely contrary to law. A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its bye--laws. The bye--laws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society. Under section 6 of the Societies Registration Act, 1860, every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. Even the Travancore--Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which is applicable to parts of Kerala carries a similar provision in section 9. Therefore, unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye--laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye--laws support the institution of such a suit. 16. The Waqf Tribunal committed a gross illegality, first in not framing an issue about the status of the Mahal Committee and then in recording a finding as though the local unit of a registered society which is in enjoyment of affiliated status, was entitled to sue. Such an illegality committed by the Tribunal was liable to be corrected by the High Court under its revisional jurisdiction and hence the fulcrum of the argument of the learned senior counsel for the appellants, has to fall to the ground. 17. As a matter of fact, the Mahal Committee did not file any revision against the rejection by the Waqf Tribunal of the relief of declaration regarding the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala State Waqf Board. In the plaint filed by the Mahal Committee in OS No.9 of 2004, they assailed the certificate, on the ground that the said certificate completely repudiated the findings of the Enquiry Officer that the Mahal Committee was in management and administration of the Masjid. In other words the appellants herein understood, and rightly so, that the certificate dated 24.03.2004 sought to dislodge their claim to be in management and administration of the mosque. Therefore, the rejection by the Waqf Tribunal, of the prayer for declaring the said certificate to be null and void was fatal to their claim. Yet the appellants did not choose to file a revision. Today they cannot take umbrage under the fact that in any case, the Tribunal found them to be in management and administration of the waqf. 18. Though the High Court did not put against the appellants, their failure to file a revision, we think it is a crucial fact which cannot be overlooked. This is for the reason that the document dated 24.03.2004 is a certificate of registration issued under Section 36 of the Waqf Act, 1995. Once it is admitted that it was the first respondent namely the Salafi Trust who got the mosque registered as a waqf under Section 36 of the Act and once it is admitted by the appellants in paragraph 2 of their plaint in OS No.9 of 2004 that the mosque was constructed in a vacant plot demised by Salafi Trust, it was not open to them to go against the statutory prescriptions and claim to be the Mutawalli. 19. Though Shri R. Basant, learned senior counsel for the appellants also invited our attention to certain other aspects in the impugned judgment, we do not think that we need to go into each of these issues when we are convinced that the High Court exercised its revisional jurisdiction correctly and justly.
### Response:
0
### Explanation:
12. While we agree with the learned senior counsel for the appellants that the revisional jurisdiction conferred by the proviso to Sub--section (9) of Section 83 is narrower than the jurisdiction that could have been conferred upon an appellate court, we do not think that the impugned order of the High Court suffers from the vice sought to be attributed by the learned senior counsel for the appellants.13. Admittedly, the Mahal Committee which is appellant No.1 in one of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004. In the plaint in O.S No.9 of 2004, there was not even a whisper about the corporate status of the Mahal Committee. In the written statement filed by Salafi Trust, they raised a specific contention that plaintiff No.1 was not a legal entity and that it is an illegal association of certain individuals and that there was not even a pleading as to whether there were any bye--laws and as to how plaintiffs No.2 and 3 became the President and Secretary respectively.14. Unfortunately, the Waqf Tribunal, in paragraph 17 of its Judgment held that plaintiff No.1 is a legal entity, entitled to sue and be sued. This was solely on the ground that plaintiff No.1 (Mahal Committee) was one of the Sakha units affiliated to a registered society by name Kerala Naduvathil Mujahideen (KNM for short).15. The aforesaid finding is completely contrary to law. A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its bye--laws. The bye--laws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society. Under section 6 of the Societies Registration Act, 1860, every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. Even the Travancore--Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, which is applicable to parts of Kerala carries a similar provision in section 9. Therefore, unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye--laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye--laws support the institution of such a suit.16. The Waqf Tribunal committed a gross illegality, first in not framing an issue about the status of the Mahal Committee and then in recording a finding as though the local unit of a registered society which is in enjoyment of affiliated status, was entitled to sue. Such an illegality committed by the Tribunal was liable to be corrected by the High Court under its revisional jurisdiction and hence the fulcrum of the argument of the learned senior counsel for the appellants, has to fall to the ground.17. As a matter of fact, the Mahal Committee did not file any revision against the rejection by the Waqf Tribunal of the relief of declaration regarding the certificate dated 24.03.2004 issued by the Chief Executive Officer of the Kerala State Waqf Board. In the plaint filed by the Mahal Committee in OS No.9 of 2004, they assailed the certificate, on the ground that the said certificate completely repudiated the findings of the Enquiry Officer that the Mahal Committee was in management and administration of the Masjid. In other words the appellants herein understood, and rightly so, that the certificate dated 24.03.2004 sought to dislodge their claim to be in management and administration of the mosque. Therefore, the rejection by the Waqf Tribunal, of the prayer for declaring the said certificate to be null and void was fatal to their claim. Yet the appellants did not choose to file a revision. Today they cannot take umbrage under the fact that in any case, the Tribunal found them to be in management and administration of the waqf.18. Though the High Court did not put against the appellants, their failure to file a revision, we think it is a crucial fact which cannot be overlooked. This is for the reason that the document dated 24.03.2004 is a certificate of registration issued under Section 36 of the Waqf Act, 1995. Once it is admitted that it was the first respondent namely the Salafi Trust who got the mosque registered as a waqf under Section 36 of the Act and once it is admitted by the appellants in paragraph 2 of their plaint in OS No.9 of 2004 that the mosque was constructed in a vacant plot demised by Salafi Trust, it was not open to them to go against the statutory prescriptions and claim to be the Mutawalli.19. Though Shri R. Basant, learned senior counsel for the appellants also invited our attention to certain other aspects in the impugned judgment, we do not think that we need to go into each of these issues when we are convinced that the High Court exercised its revisional jurisdiction correctly and justly.
|
Vijay Shankar Mishra Vs. Union Of India | cases, Commanding Officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his service and the discharge should be ordered only when it is absolutely necessary in the interest of service".6. In the submission of the appellant the mere fact that he had been punished while in service on nine occasions inclusive of six red entries was no ground to exercise the power under Rule 13(3) Table III(v). It was urged that the mere award of four red entries does not render a discharge mandatory and that the individual facts including the nature of the offence for which the entries were awarded and long service in hard stations where a member of the force was posted have to be duly borne in mind.7. The issue which arises in the present case is not res integra. A Bench of three learned Judges of this Court including one of us (the learned Chief Justice) in Veerendra Kumar Dubey v. Chief of Army Staff, 2015(4) S.C.T. 816 : (2016) 2 SCC 627 held as follows :"10. The Government has, as rightly mentioned by the learned counsel for the appellant, stipulated not only a show-cause notice which is an indispensable part of the requirement of the Rule but also an impartial enquiry into the allegations against him in which he is entitled to an adequate opportunity of putting up his defence and adducing evidence in support thereof. More importantly, certain inbuilt safeguards against discharge from service based on four red ink entries have also been prescribed. The first and foremost is an unequivocal declaration that mere award of four red ink entries to an individual does not make his discharge mandatory. This implies that four red ink entries is not some kind of Laxman rekha, which if crossed would by itself render the individual concerned undesirable or unworthy of retention in the force. Award of four red ink entries simply pushes the individual concerned into a grey area where he can be considered for discharge. But just because he qualifies for such discharge, does not mean that he must necessarily suffer that fate. It is one thing to qualify for consideration and an entirely different thing to be found fit for discharge. Four red ink entries in that sense take the individual closer to discharge but does not push him over. It is axiomatic that the Commanding Officer is, even after the award of such entries, required to consider the nature of the offence for which such entries have been awarded and other aspects made relevant by the Government in the procedure it has prescribed."This Court has in the above judgment construed the provisions of Rule 13 of the Army Rules, 1954 together with a letter of the Army Headquarters dated 28 December 1988 (bearing No. A/15010/150/AG/PS-2(c). Emphasising the factors which have to be borne in mind, this Court held thus :"16. The procedure prescribed by the Circular dated 28-12-1988 far from violating Rule 13 provides safeguards against an unfair and improper use of the power vested in the authority, especially when even independent of the procedure stipulated by the competent authority in the Circular aforementioned, the authority exercising the power of discharge is expected to take into consideration all relevant factors. That an individual has put in long years of service giving more often than not the best part of his life to armed forces, that he has been exposed to hard stations and difficult living conditions during his tenure and that he may be completing pensionable service, are factors which the authority competent to discharge would have even independent of the procedure been required to take into consideration while exercising the power of discharge. Inasmuch as the procedure stipulated specifically made them relevant for the exercise of the power by the competent authority there was neither any breach nor any encroachment by executive instructions into the territory covered by the statute."8. In the present case, it is evident that there was no application of mind by the authorities to the circumstances which have to be taken into consideration while exercising the power under Rule 13. The mere fact that the appellant had crossed the threshold of four red entries could not be a ground to discharge him without considering other relevant circumstances including (i) the nature of the violation which led to the award of the red ink entries; (ii) whether the appellant had been exposed to duty in hard stations and to difficult living conditions; (iii) long years of service, just short of completing the qualifying period for pension. Even after the Madhya Pradesh High Court specifically directed consideration of his case bearing in mind the provisions of the circular, the relevant factors were not borne in mind. The order that was passed on 26 February 2007 failed to consider relevant and germane circumstances and does not indicate a due application of mind to the requirements of the letter of Army Headquarters dated 28 December 1988 and the circular dated 10 January 1989.9. For these reasons, we are of the view that the Armed Forces Tribunal was in error in rejecting the application. The orders of the Tribunal dated 23 September 2010 and 15 September 2011 are set aside. Since the appellant would have attained the age of superannuation, the ends of justice would be met if he is treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back-wages shall however be admissible. The benefit of continuity of service for all other purposes shall be granted to the appellant including pension. The monetary benefits payable to the appellant shall be released within a period of four months from the date of this order. | 1[ds]8. In the present case, it is evident that there was no application of mind by the authorities to the circumstances which have to be taken into consideration while exercising the power under Rule 13. The mere fact that the appellant had crossed the threshold of four red entries could not be a ground to discharge him without considering other relevant circumstances including (i) the nature of the violation which led to the award of the red ink entries; (ii) whether the appellant had been exposed to duty in hard stations and to difficult living conditions; (iii) long years of service, just short of completing the qualifying period for pension. Even after the Madhya Pradesh High Court specifically directed consideration of his case bearing in mind the provisions of the circular, the relevant factors were not borne in mind. The order that was passed on 26 February 2007 failed to consider relevant and germane circumstances and does not indicate a due application of mind to the requirements of the letter of Army Headquarters dated 28 December 1988 and the circular dated 10 January 1989.9. For these reasons, we are of the view that the Armed Forces Tribunal was in error in rejecting the application. The orders of the Tribunal dated 23 September 2010 and 15 September 2011 are set aside. Since the appellant would have attained the age of superannuation, the ends of justice would be met if he is treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back-wages shall however be admissible. The benefit of continuity of service for all other purposes shall be granted to the appellant including pension. The monetary benefits payable to the appellant shall be released within a period of four months from the date of this | 1 | 1,631 | 332 | ### 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:
cases, Commanding Officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his service and the discharge should be ordered only when it is absolutely necessary in the interest of service".6. In the submission of the appellant the mere fact that he had been punished while in service on nine occasions inclusive of six red entries was no ground to exercise the power under Rule 13(3) Table III(v). It was urged that the mere award of four red entries does not render a discharge mandatory and that the individual facts including the nature of the offence for which the entries were awarded and long service in hard stations where a member of the force was posted have to be duly borne in mind.7. The issue which arises in the present case is not res integra. A Bench of three learned Judges of this Court including one of us (the learned Chief Justice) in Veerendra Kumar Dubey v. Chief of Army Staff, 2015(4) S.C.T. 816 : (2016) 2 SCC 627 held as follows :"10. The Government has, as rightly mentioned by the learned counsel for the appellant, stipulated not only a show-cause notice which is an indispensable part of the requirement of the Rule but also an impartial enquiry into the allegations against him in which he is entitled to an adequate opportunity of putting up his defence and adducing evidence in support thereof. More importantly, certain inbuilt safeguards against discharge from service based on four red ink entries have also been prescribed. The first and foremost is an unequivocal declaration that mere award of four red ink entries to an individual does not make his discharge mandatory. This implies that four red ink entries is not some kind of Laxman rekha, which if crossed would by itself render the individual concerned undesirable or unworthy of retention in the force. Award of four red ink entries simply pushes the individual concerned into a grey area where he can be considered for discharge. But just because he qualifies for such discharge, does not mean that he must necessarily suffer that fate. It is one thing to qualify for consideration and an entirely different thing to be found fit for discharge. Four red ink entries in that sense take the individual closer to discharge but does not push him over. It is axiomatic that the Commanding Officer is, even after the award of such entries, required to consider the nature of the offence for which such entries have been awarded and other aspects made relevant by the Government in the procedure it has prescribed."This Court has in the above judgment construed the provisions of Rule 13 of the Army Rules, 1954 together with a letter of the Army Headquarters dated 28 December 1988 (bearing No. A/15010/150/AG/PS-2(c). Emphasising the factors which have to be borne in mind, this Court held thus :"16. The procedure prescribed by the Circular dated 28-12-1988 far from violating Rule 13 provides safeguards against an unfair and improper use of the power vested in the authority, especially when even independent of the procedure stipulated by the competent authority in the Circular aforementioned, the authority exercising the power of discharge is expected to take into consideration all relevant factors. That an individual has put in long years of service giving more often than not the best part of his life to armed forces, that he has been exposed to hard stations and difficult living conditions during his tenure and that he may be completing pensionable service, are factors which the authority competent to discharge would have even independent of the procedure been required to take into consideration while exercising the power of discharge. Inasmuch as the procedure stipulated specifically made them relevant for the exercise of the power by the competent authority there was neither any breach nor any encroachment by executive instructions into the territory covered by the statute."8. In the present case, it is evident that there was no application of mind by the authorities to the circumstances which have to be taken into consideration while exercising the power under Rule 13. The mere fact that the appellant had crossed the threshold of four red entries could not be a ground to discharge him without considering other relevant circumstances including (i) the nature of the violation which led to the award of the red ink entries; (ii) whether the appellant had been exposed to duty in hard stations and to difficult living conditions; (iii) long years of service, just short of completing the qualifying period for pension. Even after the Madhya Pradesh High Court specifically directed consideration of his case bearing in mind the provisions of the circular, the relevant factors were not borne in mind. The order that was passed on 26 February 2007 failed to consider relevant and germane circumstances and does not indicate a due application of mind to the requirements of the letter of Army Headquarters dated 28 December 1988 and the circular dated 10 January 1989.9. For these reasons, we are of the view that the Armed Forces Tribunal was in error in rejecting the application. The orders of the Tribunal dated 23 September 2010 and 15 September 2011 are set aside. Since the appellant would have attained the age of superannuation, the ends of justice would be met if he is treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back-wages shall however be admissible. The benefit of continuity of service for all other purposes shall be granted to the appellant including pension. The monetary benefits payable to the appellant shall be released within a period of four months from the date of this order.
### Response:
1
### Explanation:
8. In the present case, it is evident that there was no application of mind by the authorities to the circumstances which have to be taken into consideration while exercising the power under Rule 13. The mere fact that the appellant had crossed the threshold of four red entries could not be a ground to discharge him without considering other relevant circumstances including (i) the nature of the violation which led to the award of the red ink entries; (ii) whether the appellant had been exposed to duty in hard stations and to difficult living conditions; (iii) long years of service, just short of completing the qualifying period for pension. Even after the Madhya Pradesh High Court specifically directed consideration of his case bearing in mind the provisions of the circular, the relevant factors were not borne in mind. The order that was passed on 26 February 2007 failed to consider relevant and germane circumstances and does not indicate a due application of mind to the requirements of the letter of Army Headquarters dated 28 December 1988 and the circular dated 10 January 1989.9. For these reasons, we are of the view that the Armed Forces Tribunal was in error in rejecting the application. The orders of the Tribunal dated 23 September 2010 and 15 September 2011 are set aside. Since the appellant would have attained the age of superannuation, the ends of justice would be met if he is treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back-wages shall however be admissible. The benefit of continuity of service for all other purposes shall be granted to the appellant including pension. The monetary benefits payable to the appellant shall be released within a period of four months from the date of this
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MADHUKAR S/O GOVINDRAO KAMBLE & ORS Vs. VIDARBHA IRRIGATION DEVELOPMENT CORPORATION & ORS | exemplars were after the date of publication of notification under Section 4 of the Act. However, the three sale exemplars were considered i.e. Exh. 31, Exh.32 and Exh.33. The date of sale, land survey number; amount of the sale consideration and the price at the rate per hectare was sole is mentioned in the following table: Exhibit Date of sale Survey No Area sold Price paid in Rupees Rate per Hectare in Rupees Exh. 31 11.2.1998 67/1 2.70 hectares 4,50,000/- 1,66,666.66 Exh. 32 5.12.1998 337 2.20 hectares 2,20,000/- 1,00,000/- Exh. 33 30.10.1998 216/1, 314/3 151 sq.mtrs (0.0151) 19,710/- 13,073,00/- 4. The learned Reference Court found that Exh.31 and Exh.32 is of agricultural land but there is no concrete evidence to conclude that the land in these two exemplars were having non-agricultural potentiality at the time of acquisition. The sale exemplar Exh.33 was taken into consideration though it was in respect of a small portion. The sale deed Exh. 33 was executed by Nagar Parishad, Deoli after conducting public auction. The learned Reference Court proceeded to take Rs. 130.73 per sq. mtr. as the base value. It was also noticed that the land was adjacent to road whereas as per the map of Exh.30, the land acquired falling part of Survey No.592 has no access to road. The Reference Court found that the land in sale deed Exh.33 is in the near vicinity of the land acquired but deducted 30% of the value on account of nonsimilarity, 30% on account of the sale being of a small area and another 30% on account of development charges. Thus, the Reference Court found that per hectare market value would be Rs.1,95,853.55/-. It is the said compensation which was allowed by the Reference Court along with the statutory benefits. 5. The landowners in their reference have averred that the acquired land was near to the populated area of Deoli town having all the facilities like Educational Institutions, Banks, Tahsil Office, Hospitals, Courts and is located within the municipal area of the Deoli. The State in its reply have simply denied the claim for enhancement without disputing the location of the land acquired. 6. In fact, one of the landowners, Prakash as a witness examined on behalf of the landowners deposed that the land, subject matter of the sale deed Exh.33 is near to the acquired land. The landowners have reserved the land for non-agricultural use i.e. residential plots considering heavy demands in the locality. In the cross-examination, only the suggestion was put to the witness that there were no houses or offices near the acquired land or that acquired land is at a distance of 4 to 5 kms from the highway. 7. One Mr. Rahul Shakarrao Sangle, an architect, was examined by the landowner. He is the one who prepared a map of the proposed layout Exh. 30 and valuation report. In the cross-examination, he deposed that the acquired land is at around ½ km from highway. He denied the suggestion that the acquired land is at 5 to 7 kms from highway. On the other hand, the respondent, Ravindra Bhalchandra Khanjaji, Special Land Acquisition Officer, deposed that there is electricity office, Municipal Council, Primary School in the village but has not deposed regarding the location of land or its proximity with the educational Institutions, Banks, Tahsil Office, Hospitals, Courts or that the land is not located within the municipal area etc. as deposed by a witness examined on behalf of the landowner. 8. Learned counsel for the appellant argued that the learned Reference Court has made deduction to the extent of 90% from the best sale instance which is near to the acquired land. The Reference Court has made deduction 30% of the value on account of non-similarity, 30% on account of the sale being of a small area and another 30% on account of development charges. Therefore, the compensation awarded by the Reference Court has been illegally interfered with by the High Court. The sale exemplars Exh.31 and Exh.32 are of agricultural land which have no potentiality for non-agricultural activity comparable to the acquired land for residential and commercial purpose being in close vicinity near to such Educational Institutions, Banks, Tahsil Office, Hospitals, Courts. Therefore, the order of the High Court is not sustainable. Thus, the appellant prayed for restoration of the order passed by the Reference Court. 9. On the other hand, learned counsel for the respondent argued that the sale exemplars Exh.31 and Exh.32 were of agricultural land whereas the land acquired was a non-agricultural land. Therefore, the High Court had rightly set aside the compensation based on a sale exemplar of a small area of 151 square meters. 10. We have heard learned counsel for the parties and find that the High Court has erred in law in setting aside the determination of market value of the land by the Reference Court. 11. The evidence produced by the landowners is that the acquired land is close to Educational Institutions, Banks, Tahsil Office etc. whereas there is no evidence that the irrigated agricultural land has the potential of use for either residential or commercial purposes. It is not the nature of land which alone is determinative of the market value of the land. The market value must be determined keeping in view the various factors including proximity to the developed area and the road etc. As per the evidence led by the landowners, the land acquired is ½ km from the road. The land is close to developed residential or commercial or institutional area. On the other hand, there is no evidence that Exh.31 and Exh.32 are in any way comparable to the land acquired. The High Court has erred in law in holding that since the land of the sale exemplars Exh.31 and Exh.32 is of irrigated agricultural land whereas the land acquired is unirrigated, is not the reasonable yardstick to determine market value of the land as the land in question is close to already developed area. | 1[ds]10. We have heard learned counsel for the parties and find that the High Court has erred in law in setting aside the determination of market value of the land by the Reference Court.11. The evidence produced by the landowners is that the acquired land is close to Educational Institutions, Banks, Tahsil Office etc. whereas there is no evidence that the irrigated agricultural land has the potential of use for either residential or commercial purposes. It is not the nature of land which alone is determinative of the market value of the land. The market value must be determined keeping in view the various factors including proximity to the developed area and the road etc. As per the evidence led by the landowners, the land acquired is ½ km from the road. The land is close to developed residential or commercial or institutional area. On the other hand, there is no evidence that Exh.31 and Exh.32 are in any way comparable to the land acquired. The High Court has erred in law in holding that since the land of the sale exemplars Exh.31 and Exh.32 is of irrigated agricultural land whereas the land acquired is unirrigated, is not the reasonable yardstick to determine market value of the land as the land in question is close to already developed area. | 1 | 1,288 | 238 | ### 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:
exemplars were after the date of publication of notification under Section 4 of the Act. However, the three sale exemplars were considered i.e. Exh. 31, Exh.32 and Exh.33. The date of sale, land survey number; amount of the sale consideration and the price at the rate per hectare was sole is mentioned in the following table: Exhibit Date of sale Survey No Area sold Price paid in Rupees Rate per Hectare in Rupees Exh. 31 11.2.1998 67/1 2.70 hectares 4,50,000/- 1,66,666.66 Exh. 32 5.12.1998 337 2.20 hectares 2,20,000/- 1,00,000/- Exh. 33 30.10.1998 216/1, 314/3 151 sq.mtrs (0.0151) 19,710/- 13,073,00/- 4. The learned Reference Court found that Exh.31 and Exh.32 is of agricultural land but there is no concrete evidence to conclude that the land in these two exemplars were having non-agricultural potentiality at the time of acquisition. The sale exemplar Exh.33 was taken into consideration though it was in respect of a small portion. The sale deed Exh. 33 was executed by Nagar Parishad, Deoli after conducting public auction. The learned Reference Court proceeded to take Rs. 130.73 per sq. mtr. as the base value. It was also noticed that the land was adjacent to road whereas as per the map of Exh.30, the land acquired falling part of Survey No.592 has no access to road. The Reference Court found that the land in sale deed Exh.33 is in the near vicinity of the land acquired but deducted 30% of the value on account of nonsimilarity, 30% on account of the sale being of a small area and another 30% on account of development charges. Thus, the Reference Court found that per hectare market value would be Rs.1,95,853.55/-. It is the said compensation which was allowed by the Reference Court along with the statutory benefits. 5. The landowners in their reference have averred that the acquired land was near to the populated area of Deoli town having all the facilities like Educational Institutions, Banks, Tahsil Office, Hospitals, Courts and is located within the municipal area of the Deoli. The State in its reply have simply denied the claim for enhancement without disputing the location of the land acquired. 6. In fact, one of the landowners, Prakash as a witness examined on behalf of the landowners deposed that the land, subject matter of the sale deed Exh.33 is near to the acquired land. The landowners have reserved the land for non-agricultural use i.e. residential plots considering heavy demands in the locality. In the cross-examination, only the suggestion was put to the witness that there were no houses or offices near the acquired land or that acquired land is at a distance of 4 to 5 kms from the highway. 7. One Mr. Rahul Shakarrao Sangle, an architect, was examined by the landowner. He is the one who prepared a map of the proposed layout Exh. 30 and valuation report. In the cross-examination, he deposed that the acquired land is at around ½ km from highway. He denied the suggestion that the acquired land is at 5 to 7 kms from highway. On the other hand, the respondent, Ravindra Bhalchandra Khanjaji, Special Land Acquisition Officer, deposed that there is electricity office, Municipal Council, Primary School in the village but has not deposed regarding the location of land or its proximity with the educational Institutions, Banks, Tahsil Office, Hospitals, Courts or that the land is not located within the municipal area etc. as deposed by a witness examined on behalf of the landowner. 8. Learned counsel for the appellant argued that the learned Reference Court has made deduction to the extent of 90% from the best sale instance which is near to the acquired land. The Reference Court has made deduction 30% of the value on account of non-similarity, 30% on account of the sale being of a small area and another 30% on account of development charges. Therefore, the compensation awarded by the Reference Court has been illegally interfered with by the High Court. The sale exemplars Exh.31 and Exh.32 are of agricultural land which have no potentiality for non-agricultural activity comparable to the acquired land for residential and commercial purpose being in close vicinity near to such Educational Institutions, Banks, Tahsil Office, Hospitals, Courts. Therefore, the order of the High Court is not sustainable. Thus, the appellant prayed for restoration of the order passed by the Reference Court. 9. On the other hand, learned counsel for the respondent argued that the sale exemplars Exh.31 and Exh.32 were of agricultural land whereas the land acquired was a non-agricultural land. Therefore, the High Court had rightly set aside the compensation based on a sale exemplar of a small area of 151 square meters. 10. We have heard learned counsel for the parties and find that the High Court has erred in law in setting aside the determination of market value of the land by the Reference Court. 11. The evidence produced by the landowners is that the acquired land is close to Educational Institutions, Banks, Tahsil Office etc. whereas there is no evidence that the irrigated agricultural land has the potential of use for either residential or commercial purposes. It is not the nature of land which alone is determinative of the market value of the land. The market value must be determined keeping in view the various factors including proximity to the developed area and the road etc. As per the evidence led by the landowners, the land acquired is ½ km from the road. The land is close to developed residential or commercial or institutional area. On the other hand, there is no evidence that Exh.31 and Exh.32 are in any way comparable to the land acquired. The High Court has erred in law in holding that since the land of the sale exemplars Exh.31 and Exh.32 is of irrigated agricultural land whereas the land acquired is unirrigated, is not the reasonable yardstick to determine market value of the land as the land in question is close to already developed area.
### Response:
1
### Explanation:
10. We have heard learned counsel for the parties and find that the High Court has erred in law in setting aside the determination of market value of the land by the Reference Court.11. The evidence produced by the landowners is that the acquired land is close to Educational Institutions, Banks, Tahsil Office etc. whereas there is no evidence that the irrigated agricultural land has the potential of use for either residential or commercial purposes. It is not the nature of land which alone is determinative of the market value of the land. The market value must be determined keeping in view the various factors including proximity to the developed area and the road etc. As per the evidence led by the landowners, the land acquired is ½ km from the road. The land is close to developed residential or commercial or institutional area. On the other hand, there is no evidence that Exh.31 and Exh.32 are in any way comparable to the land acquired. The High Court has erred in law in holding that since the land of the sale exemplars Exh.31 and Exh.32 is of irrigated agricultural land whereas the land acquired is unirrigated, is not the reasonable yardstick to determine market value of the land as the land in question is close to already developed area.
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Collector Of Cent.Excise,Pune Vs. M/S.Bajaj Tempo Ltd | In the show-cause notice, it was alleged by the Department that the assessee had failed to disclose and had failed to pay appropriate duty on the expenses incurred on its publicity/advertisement which in turn promoted the marketability of the goods. In the said notice, it was further alleged that the dealers’ commission included the cost of selling the product, the cost of meeting the service obligations to the customers, the cost of advertisement and cost of sales promotions. In the said show-cause notice, it was further alleged that the assessee had recovered from its dealers part of the advertisement expenses, initially incurred by the assessee which was not disclosed to the Department and, therefore, the Department was entitled to invoke the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944 (hereinafter referred to for the sake of brevity as “the 1944 Act”), as it stood at the material time.3. Vide reply dated 20.12.1989, the assessee denied the aforestated charges levelled against it in the show-cause notice. The assessee contended that its price-list was approved and consequently, the Department was not entitled to invoke the extended period of limitation; that the assessee had recovered advertisement expenses from its dealers only in cases where the assessee had initially incurred such expenses on behalf of the dealers and at the request of the dealers. It was further submitted that all the expenses incurred by the assessee towards advertisement were already included in the assessable value. It was further submitted that the question of including such expenses on account of advertisement would only arise if the assessee had claimed deduction and since the assessee had not claimed deduction for such expenses, the Department was not entitled to include such expenses in the assessable value. According to the assessee, the said advertisement charges were incurred by the dealers on their own account and, therefore, such charges were not includible in the assessable value. It was further submitted that in any event, the goods in question have been sold to all the dealers at the same price and all the dealers were treated equally and, therefore, such charges were not includible in the assessable value. It was further submitted that the correct manner to assess excisable goods was to ascertain whether there was any allied activity or whether there was any implicated activity. It was contended that any profit accruing to the manufacturer in any allied activity cannot be subjected to levy of excise duty. It was urged that in the present case the assessee had given video cassettes to the dealers which was the allied activity and, therefore, recovery made on this account by the assessee from the dealer cannot be subjected to duty of excise. On the question of limitation, it was submitted that there was no suppression of fact and, therefore, the Department was not entitled to invoke the proviso to Section 11A(1) of the 1944 Act.4. By order dated 29.4.1991, the Additional Collector (hereinafter referred to for the sake of brevity as the “Adjudicating Authority”) found that the assessee had incurred `advertising charges initially and had got themselves reimbursed through debit notes which were not disclosed by the assessee to the Department at the time of approval of the price-list. The Adjudicating Authority further found that the assessee was undertaking advertisement in national and regional papers on behalf of the dealers for which the assessee used to charge the dealers for such expenses over and above the wholesale margin allowed to the dealers. According to the Adjudicating Authority, these facts were evident from the debit notes. According to the Adjudicating Authority, such expenses incurred by the assessee constituted additional consideration. According to the Adjudicating Authority, such additional consideration was incurred by the assessee and charged to the dealers in addition to expenses incurred by the dealer on their own and, therefore, such charges were includible in the assessable value. Accordingly, the Adjudicating Authority confirmed the show-cause notice.5. Aggrieved by the order passed by the Adjudicating Authority, the assessee preferred Appeal No. E/1125/94-A to the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to for the sake of brevity as “the Tribunal”). By the impugned judgment and order dated 9.3.1999, which is a cryptic order, the Tribunal without discussing the evidence on record allowed the appeal on the ground that the matter was covered by the judgments of this Court in Philips India Ltd. v. Collector of Central Excise, Pune, reported in 1997 (91) ELT 540 and Mahindra and Mahindra Ltd. v. Collector of Central Excise, Bombay, reported in 1998 (103) ELT 606. Hence, this civil appeal by the Department.6. At the outset, we may point out that there is conceptual difference between “expenses” and “reimbursement”. This difference has not been taken into account by the Tribunal. In the present case, it appears from the decision of the Adjudicating Authority that the company had initially incurred advertisement expenses which expenses were subsequently reimbursed by them from their dealers. It is not clear from the decision of the Adjudicating Authority as to at what stage the reimbursement took place. It is not clear from the decision of the Adjudicating Authority as to whether the reimbursement was at the end of the year by way of adjustment of accounts or whether the reimbursement had taken place within a short interval of time from the date of the advertisement. The fundamental point however in the present case is whether such reimbursements by the manufacturer are includible in the assessable value and whether such reimbursement would constitute “advertisements by the dealers on their own account” or whether they would fall in the category of “advertisements solely made by the assessee on their own account” for computing the assessable value. These questions were not the subject matter of the decisions in Philips India Ltd. (supra) and Mahindra and Mahindra Ltd. (supra). The Tribunal was wrong in applying the aforestated two decisions to the facts of the present case. | 1[ds]6. At the outset, we may point out that there is conceptual difference betweenThis difference has not been taken into account by the Tribunal. In the present case, it appears from the decision of the Adjudicating Authority that the company had initially incurred advertisement expenses which expenses were subsequently reimbursed by them from their dealers. It is not clear from the decision of the Adjudicating Authority as to at what stage the reimbursement took place. It is not clear from the decision of the Adjudicating Authority as to whether the reimbursement was at the end of the year by way of adjustment of accounts or whether the reimbursement had taken place within a short interval of time from the date of the advertisement. The fundamental point however in the present case is whether such reimbursements by the manufacturer are includible in the assessable value and whether such reimbursement would constituteby the dealers on their ownor whether they would fall in the category ofsolely made by the assessee on their ownfor computing the assessable value. These questions were not the subject matter of the decisions in Philips India Ltd. (supra) and Mahindra and Mahindra Ltd. (supra). The Tribunal was wrong in applying the aforestated two decisions to the facts of the present case. | 1 | 1,255 | 230 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
In the show-cause notice, it was alleged by the Department that the assessee had failed to disclose and had failed to pay appropriate duty on the expenses incurred on its publicity/advertisement which in turn promoted the marketability of the goods. In the said notice, it was further alleged that the dealers’ commission included the cost of selling the product, the cost of meeting the service obligations to the customers, the cost of advertisement and cost of sales promotions. In the said show-cause notice, it was further alleged that the assessee had recovered from its dealers part of the advertisement expenses, initially incurred by the assessee which was not disclosed to the Department and, therefore, the Department was entitled to invoke the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944 (hereinafter referred to for the sake of brevity as “the 1944 Act”), as it stood at the material time.3. Vide reply dated 20.12.1989, the assessee denied the aforestated charges levelled against it in the show-cause notice. The assessee contended that its price-list was approved and consequently, the Department was not entitled to invoke the extended period of limitation; that the assessee had recovered advertisement expenses from its dealers only in cases where the assessee had initially incurred such expenses on behalf of the dealers and at the request of the dealers. It was further submitted that all the expenses incurred by the assessee towards advertisement were already included in the assessable value. It was further submitted that the question of including such expenses on account of advertisement would only arise if the assessee had claimed deduction and since the assessee had not claimed deduction for such expenses, the Department was not entitled to include such expenses in the assessable value. According to the assessee, the said advertisement charges were incurred by the dealers on their own account and, therefore, such charges were not includible in the assessable value. It was further submitted that in any event, the goods in question have been sold to all the dealers at the same price and all the dealers were treated equally and, therefore, such charges were not includible in the assessable value. It was further submitted that the correct manner to assess excisable goods was to ascertain whether there was any allied activity or whether there was any implicated activity. It was contended that any profit accruing to the manufacturer in any allied activity cannot be subjected to levy of excise duty. It was urged that in the present case the assessee had given video cassettes to the dealers which was the allied activity and, therefore, recovery made on this account by the assessee from the dealer cannot be subjected to duty of excise. On the question of limitation, it was submitted that there was no suppression of fact and, therefore, the Department was not entitled to invoke the proviso to Section 11A(1) of the 1944 Act.4. By order dated 29.4.1991, the Additional Collector (hereinafter referred to for the sake of brevity as the “Adjudicating Authority”) found that the assessee had incurred `advertising charges initially and had got themselves reimbursed through debit notes which were not disclosed by the assessee to the Department at the time of approval of the price-list. The Adjudicating Authority further found that the assessee was undertaking advertisement in national and regional papers on behalf of the dealers for which the assessee used to charge the dealers for such expenses over and above the wholesale margin allowed to the dealers. According to the Adjudicating Authority, these facts were evident from the debit notes. According to the Adjudicating Authority, such expenses incurred by the assessee constituted additional consideration. According to the Adjudicating Authority, such additional consideration was incurred by the assessee and charged to the dealers in addition to expenses incurred by the dealer on their own and, therefore, such charges were includible in the assessable value. Accordingly, the Adjudicating Authority confirmed the show-cause notice.5. Aggrieved by the order passed by the Adjudicating Authority, the assessee preferred Appeal No. E/1125/94-A to the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to for the sake of brevity as “the Tribunal”). By the impugned judgment and order dated 9.3.1999, which is a cryptic order, the Tribunal without discussing the evidence on record allowed the appeal on the ground that the matter was covered by the judgments of this Court in Philips India Ltd. v. Collector of Central Excise, Pune, reported in 1997 (91) ELT 540 and Mahindra and Mahindra Ltd. v. Collector of Central Excise, Bombay, reported in 1998 (103) ELT 606. Hence, this civil appeal by the Department.6. At the outset, we may point out that there is conceptual difference between “expenses” and “reimbursement”. This difference has not been taken into account by the Tribunal. In the present case, it appears from the decision of the Adjudicating Authority that the company had initially incurred advertisement expenses which expenses were subsequently reimbursed by them from their dealers. It is not clear from the decision of the Adjudicating Authority as to at what stage the reimbursement took place. It is not clear from the decision of the Adjudicating Authority as to whether the reimbursement was at the end of the year by way of adjustment of accounts or whether the reimbursement had taken place within a short interval of time from the date of the advertisement. The fundamental point however in the present case is whether such reimbursements by the manufacturer are includible in the assessable value and whether such reimbursement would constitute “advertisements by the dealers on their own account” or whether they would fall in the category of “advertisements solely made by the assessee on their own account” for computing the assessable value. These questions were not the subject matter of the decisions in Philips India Ltd. (supra) and Mahindra and Mahindra Ltd. (supra). The Tribunal was wrong in applying the aforestated two decisions to the facts of the present case.
### Response:
1
### Explanation:
6. At the outset, we may point out that there is conceptual difference betweenThis difference has not been taken into account by the Tribunal. In the present case, it appears from the decision of the Adjudicating Authority that the company had initially incurred advertisement expenses which expenses were subsequently reimbursed by them from their dealers. It is not clear from the decision of the Adjudicating Authority as to at what stage the reimbursement took place. It is not clear from the decision of the Adjudicating Authority as to whether the reimbursement was at the end of the year by way of adjustment of accounts or whether the reimbursement had taken place within a short interval of time from the date of the advertisement. The fundamental point however in the present case is whether such reimbursements by the manufacturer are includible in the assessable value and whether such reimbursement would constituteby the dealers on their ownor whether they would fall in the category ofsolely made by the assessee on their ownfor computing the assessable value. These questions were not the subject matter of the decisions in Philips India Ltd. (supra) and Mahindra and Mahindra Ltd. (supra). The Tribunal was wrong in applying the aforestated two decisions to the facts of the present case.
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M/S. Harman Electronics (P) Ltd. Vs. M/S. National Panasonic India Ltd | In Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. [(2006) 3 SCC 658] , this court held: "30. In terms of Section 177 of the Code of Criminal Procedure every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. 178 provides for place of inquiry or trial in the following terms:‘178. (a) When it is uncertain in which of several local areas an offence was committed, or(b) where an offence is committed partly in one local area and partly in another, or(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or(d) where it consists of several acts done in different local areas.31. A bare perusal of the complaint petition would clearly go to show that according to the complainant the entire cause of action arose within the jurisdiction of the district courts of Birbhum and in that view of the matter it is that court which will have jurisdiction to take congnizance of the offence. In fact the jurisdiction of the court of CJM, Suri, Birbhum is not in question. It is not contended that the complainant had suppressed material fact and which if not disclosed would have demonstrated that the offence was committed outside the jurisdiction of the said court. Even if Section 178 of the Code of Criminal Procedure is attracted, the court of the Chief Judicial Magistrate, Birbhum will alone have jurisdiction in the matter.32. Sending of cheques from Ernakulam or the respondents having an office at that place did not form an integral part of cause of action for which the complaint petition was filed by the appellant and cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Chief Judicial Magistrate, Suri." 22. In Y.A. Ajit. v. Sofana Ajit [AIR 2007 SC 3151 ), this Court held: "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases." 23. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. Only because presumption of service of notice is possible to be raised at the trial, the same by itself may not be a ground to hold that the distinction between giving of notice and service of notice ceases to exist. 24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., [ (2001) 6 SCC 463 ] emphasis has been laid on service of notice. 25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the Code of Criminal Procedure. 26. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature 27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle. 28. For the views we have taken it must be held that Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh.29. | 1[ds]We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the Code of Criminalregret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common lawthe views we have taken it must be held that Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh. | 1 | 5,031 | 301 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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In Mosaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. [(2006) 3 SCC 658] , this court held: "30. In terms of Section 177 of the Code of Criminal Procedure every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. 178 provides for place of inquiry or trial in the following terms:‘178. (a) When it is uncertain in which of several local areas an offence was committed, or(b) where an offence is committed partly in one local area and partly in another, or(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or(d) where it consists of several acts done in different local areas.31. A bare perusal of the complaint petition would clearly go to show that according to the complainant the entire cause of action arose within the jurisdiction of the district courts of Birbhum and in that view of the matter it is that court which will have jurisdiction to take congnizance of the offence. In fact the jurisdiction of the court of CJM, Suri, Birbhum is not in question. It is not contended that the complainant had suppressed material fact and which if not disclosed would have demonstrated that the offence was committed outside the jurisdiction of the said court. Even if Section 178 of the Code of Criminal Procedure is attracted, the court of the Chief Judicial Magistrate, Birbhum will alone have jurisdiction in the matter.32. Sending of cheques from Ernakulam or the respondents having an office at that place did not form an integral part of cause of action for which the complaint petition was filed by the appellant and cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by the Chief Judicial Magistrate, Suri." 22. In Y.A. Ajit. v. Sofana Ajit [AIR 2007 SC 3151 ), this Court held: "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases." 23. Presumption raised in support of service of notice would depend upon the facts and circumstances of each case. Its application is on the question of law or the fact obtaining. Presumption has to be raised not on the hypothesis or surmises but if the foundational facts are laid down therefor. Only because presumption of service of notice is possible to be raised at the trial, the same by itself may not be a ground to hold that the distinction between giving of notice and service of notice ceases to exist. 24. Indisputably all statutes deserve their strict application, but while doing so the cardinal principles therefor cannot be lost sight of. A Court derives a jurisdiction only when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of the accused. A distinction must also be borne in mind between the ingredient of an offence and commission of a part of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission of an completes. Giving of notice, therefore, cannot have any precedent over the service. It is only from that view of the matter in Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., [ (2001) 6 SCC 463 ] emphasis has been laid on service of notice. 25. We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the Code of Criminal Procedure. 26. Learned counsel for the respondent contends that the principle that the debtor must seek the creditor should be applied in a case of this nature 27. We regret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common law principle. 28. For the views we have taken it must be held that Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh.29.
### Response:
1
### Explanation:
We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-à-vis the provisions of the Code of Criminalregret that such a principle cannot be applied in a criminal case. Jurisdiction of the Court to try a criminal case is governed by the provisions of the Criminal Procedure Code and not on common lawthe views we have taken it must be held that Delhi High Court has no jurisdiction to try the case. We, however, while exercising our jurisdiction under Article 142 of the Constitution of India direct that Complaint Case No.1549 pending in the Court of Shri N.K. Kaushik, Additional Sessions Judge, New Delhi, be transferred to the Court of the District and Sessions Judge, Chandigarh who shall assign the same to a court of competent jurisdiction. The transferee court shall fix a specific date of hearing and shall not grant any adjournment on the date on which the complainant and its witnesses are present. The transferee court is furthermore directed to dispose of the matter within a period of six months from the date of receipt of the records of the case on assignment by the learned District and Sessions Judge, Chandigarh.
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New India Assurance Co.Ltd Vs. Tara Devi & Others | 1. Leave granted. 2. This appeal is directed against the judgment and order passed by the High Court of Uttaranchal at Nainital in Appeal Against Award No.45 of 2003, dated 31.03.2005. By the impugned judgment and order, the High Court while confirming the compensation awarded by the Motor Accidents Claims Tribunal (for short the Tribunal) has dismissed the appeal filed by the appellant-Insurance Company.3. The respondents/claimants sustained injuries while the bus in which they were travelling met with an accident. The Tribunal, on the claim made by the respondents/claimants, had awarded a compensation of Rs.6,39,600/- with 9 per cent interest thereon. The High Court while upholding the order so passed by the Tribunal has dismissed the appeal filed by the Insurance Company.4. Aggrieved by the judgment and order passed by the High Court the appellant/Insurance Company is before us in this appeal. 5. Heard learned counsel for the parties to the lis.6. Learned counsel appearing for the Appellant/Insurance Company submits that on the date of the alleged incident, the vehicle in question did not have the valid insurance policy. To buttress his argument, the learned counsel brings to our notice the date of the policy lapsed, the date of intimation of dishonor of the cheque and the cancellation letter written to the insured/owner. But this aspect of the matter has not taken note either by the Tribunal or the High Court while passing the impugned judgment(s) and order(s). 7. We have carefully perused the documents furnished by learned counsel for the appellant-Insurance Company. From these documents, it is clear that the alleged accident took place on 09.5.2001 and on the said date the vehicle in question did not have the valid insurance policy. In that view of the matter we are of the opinion that, the Tribunal as well as the High Court are not justified in granting compensation to the respondents/claimants. | 1[ds]7. We have carefully perused the documents furnished by learned counsel for theCompany. From these documents, it is clear that the alleged accident took place on 09.5.2001 and on the said date the vehicle in question did not have the valid insurance policy. In that view of the matter we are of the opinion that, the Tribunal as well as the High Court are not justified in granting compensation to thethis aspect of the matter has not taken note either by the Tribunal or the High Court while passing the impugned judgment(s) and order(s). | 1 | 347 | 110 | ### 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 is directed against the judgment and order passed by the High Court of Uttaranchal at Nainital in Appeal Against Award No.45 of 2003, dated 31.03.2005. By the impugned judgment and order, the High Court while confirming the compensation awarded by the Motor Accidents Claims Tribunal (for short the Tribunal) has dismissed the appeal filed by the appellant-Insurance Company.3. The respondents/claimants sustained injuries while the bus in which they were travelling met with an accident. The Tribunal, on the claim made by the respondents/claimants, had awarded a compensation of Rs.6,39,600/- with 9 per cent interest thereon. The High Court while upholding the order so passed by the Tribunal has dismissed the appeal filed by the Insurance Company.4. Aggrieved by the judgment and order passed by the High Court the appellant/Insurance Company is before us in this appeal. 5. Heard learned counsel for the parties to the lis.6. Learned counsel appearing for the Appellant/Insurance Company submits that on the date of the alleged incident, the vehicle in question did not have the valid insurance policy. To buttress his argument, the learned counsel brings to our notice the date of the policy lapsed, the date of intimation of dishonor of the cheque and the cancellation letter written to the insured/owner. But this aspect of the matter has not taken note either by the Tribunal or the High Court while passing the impugned judgment(s) and order(s). 7. We have carefully perused the documents furnished by learned counsel for the appellant-Insurance Company. From these documents, it is clear that the alleged accident took place on 09.5.2001 and on the said date the vehicle in question did not have the valid insurance policy. In that view of the matter we are of the opinion that, the Tribunal as well as the High Court are not justified in granting compensation to the respondents/claimants.
### Response:
1
### Explanation:
7. We have carefully perused the documents furnished by learned counsel for theCompany. From these documents, it is clear that the alleged accident took place on 09.5.2001 and on the said date the vehicle in question did not have the valid insurance policy. In that view of the matter we are of the opinion that, the Tribunal as well as the High Court are not justified in granting compensation to thethis aspect of the matter has not taken note either by the Tribunal or the High Court while passing the impugned judgment(s) and order(s).
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Union Of India Vs. Bungo Steel Furniture Pvt. Ltd | out by this Court that the observations of Bose, J. in 1955-2 SCR 48 : (AIR 1955 SC 468 ), supra, were not intended to lay down such a broad and unqualified proposition (See Nachiappa Chettiar v. Subramaniam Chettiar, 1960-2 SCR 209 at p. 238 : (AIR 1960 SC 307 at p. 320) and Satinder Singh v. Umrao Singh, 1961-3 SCR 676 at p. 695: (AIR 1961 SC 908 at p. 916). In 1955-2 SCR 48 (AIR 1955 SC 468 ), supra, the material facts were that the arbitrator had awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. In this Court, counsel for the appellant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention, but it should be noticed that the judgment of this Court in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), does not deal with the question whether the arbitrator can award interest subsequent to the passing of the award if the claim regarding interest was referred to arbitration. In the present case, all the disputes in the suit, including the question of interest, were referred to the arbitrator for his decision. In our opinion, the arbitrator had jurisdiction, in the present case, to grant interest on the amount of the award from the date of the award till the date of the decree granted by Mallick, J. The reason is that it is an implied term of the reference that the arbitrator will decide the dispute according to existing law and give such relief with regard to interest as a Court could give if it decided the dispute. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitration proceedings, the principle of that section will be applied by the arbitrator for awarding interest in cases where a Court of law in a suit having jurisdiction of the subject-matter covered by S. 34 could grant a decree for interest. In Edwards v. Great Western Rly., (1851) 11 CB 588, one of the questions at issue was whether an arbitrator could or could not award interest in a case which was within S. 28 of the Civil Procedure Act, 1833. It was held by the Court of Common Pleas that the arbitrator, under a submission of all matters in difference, might award the plaintiff interest, notwithstanding the notice of action did not contain a demand of interest; and, further, that, assuming a notice of action to have been necessary, the want or insufficiency of such notice could not be taken advantage of, since the 5 and 6 Vict. C. 97, S. 3, unless pleaded specially. In the course of his Judgment Jervis, C. J. Observed :"A further answer would be, that this is a submission, not only of the action, but of all matters in difference; and the interest would be a matter in difference, whether demanded by the notice of action or not. If the arbitrator could give it, he might give it in that way, notwithstanding the want of claim of interest in the notice.". This clearly decides that, although the Civil Procedure Act, 1833, speaks in terms of a jury, and only confers upon a jury a discretionary right to give interest, none the less, if a matter was referred to an arbitrator - a matter with regard to which a jury could have given interest - an arbitrator may equally give interest, and that despite the language used in that Act. The principle of this case was applied by the Court of Appeal in Chandris v. Isbrandtsen-Moller Co., 1951-1 KB 240, and it was held that though in terms S. 3 of the Law Reform (Miscellaneous Provisions) Act, 1934 giving the Court power to award interest on any debt or damages did not apply to an arbitrator, it was an implied term of the contract that the arbitrator could award interest in a case where the Court could award it. It was pointed out by the Court of Appeal that the power of an arbitrator to award interest was derived from the submission to him, which impliedly gave him power to decide "all matters in difference" according to the existing law of contract, exercising every right and discretionary remedy given to a Court of law, that the Law Reform (Miscellaneous Provisions) Act, 1934, which repealed S. 28 of the Civil Procedure Act, 1833, was not concerned with the powers of arbitrators and that the plaintiff was entitled to the interest awarded by the arbitrator. 6. The legal position is the same in India. In Bhowanidas Ramgobind v. Harasukhdas Balkishendas, AIR 1924 Cal 524 , the Division Bench of the Calcutta High Court consisting of Rankin and Mookerjee, JJ. held that the arbitrators had authority to make a decree for interest after the date of the award and expressly, approved the decision of the English cases-(1851) 11 CB 588, Sherry v. Oke. (1885) 3 Dowl 349 : 1 H and W 119 and Beahan v. Wolfe, (1832) 1 Al and Na 233. The same view has been expressed by this Court in a recent judgment in Firm. Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, C. A. No. 878 of 1964, D/-19-8-1966 AIR 1967 SC 1030.We are accordingly of the opinion that the arbitrator had authority to grant interest from the date of the award to the date of the decree of Mallick, J. and Mr. Bindra is unable to make good his argument on this aspect of the case. | 0[ds]In the present case, the affidavits filed by the parties before the arbitrator are not incorporated in the award and it is, therefore, not permissible for the Court to examine these affidavits in order to ascertain whether the arbitrator has committed any error of lawApplying the principle to the present case, it is manifest that there is no error of law on the face of the award and the argument of the appellant on this aspect of the case must failThis clearly decides that, although the Civil Procedure Act, 1833, speaks in terms of a jury, and only confers upon a jury a discretionary right to give interest, none the less, if a matter was referred to an arbitrator - a matter with regard to which a jury could have given interest - an arbitrator may equally give interest, and that despite the language used in that Act. The principle of this case was applied by the Court of Appeal ins v. Isbrandtsen-Moller Co., 1951-1 KB240, and it was held that though in terms S. 3 of the Law Reform (Miscellaneous Provisions) Act, 1934 giving the Court power to award interest on any debt or damages did not apply to an arbitrator, it was an implied term of the contract that the arbitrator could award interest in a case where the Court could award it. It was pointed out by the Court of Appeal that the power of an arbitrator to award interest was derived from the submission to him, which impliedly gave him power to decide "all matters in difference" according to the existing law of contract, exercising every right and discretionary remedy given to a Court of law, that the Law Reform (Miscellaneous Provisions) Act, 1934, which repealed S. 28 of the Civil Procedure Act, 1833, was not concerned with the powers of arbitrators and that the plaintiff was entitled to the interest awarded by the arbitratorWe are accordingly of the opinion that the arbitrator had authority to grant interest from the date of the award to the date of the decree of Mallick, J. and Mr. Bindra is unable to make good his argument on this aspect of the caseIt is not possible for us to accept this argument. The award of the arbitrator does not show on its face that the amount of Rs. 3,57,500 has been deducted from the bills submitted by the Company for the price of the bedsteads under the three contractsThere were conflicting statements of the parties in the affidavits filed by them before Mallick, J. in connection with the application for setting aside the award. The affidavit filed by the appellant, dated January 5, 1957 before the arbitrator suggests that at least part of the deductions were made from bills submitted by the Company in other contractsOn behalf of the appellant Mr. Bindra referred to the affidavits and the statements made before the arbitrator, but it is well settled that the Court has no jurisdiction to investigate into the merits of the case and to examine the documentary and oral evidence on the record for the purpose of finding out whether or not the arbitrator has committed an error of law and that the award of the arbitrator can be set aside on the ground of error of law on the face of the award only when in the award or in a document incorporated with it, as for instance a note appended by the arbitrator stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneousIn the present case, the affidavits filed by the parties before the arbitrator are not incorporated in the award and it is, therefore, not permissible for the Court to examine these affidavits in order to ascertain whether the arbitrator has committed any error ofn Hodgkinsonv. Fernie, (1857) 3 CB (NS) 189 at p.202, the law on this point has been clearly stated by William, J. as follows:"The law has for many years been settled, and remains so at this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final Judge of all questions both of law and of fact. The only exceptions to that rule, are, cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted, is now, I think, firmly established, viz., where the question of law necessarily arises on the face of the award, or upon some paper accompanying and forming part of the award. Though the propriety of this latter may very well be doubted, I think it may be considered as established."The decision of this case was approved by the Judicial Committee in Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd., 50 Ind App 324 : (AIR 1923 PC 66), in which the appellants sold cotton to the respondent by a contract which contained a submission to arbitration of disputes as to quality, and a further clause submitting to arbitration all other disputes arising out of the contract. Cotton was delivered, but the respondents objected to its quality, and upon arbitration an allowance was awarded, the respondents thereupon rejected the cotton. The appellants claimed damages for the rejection. The dispute was referred to arbitration and the award recited that the contract was subject in the rules of the Bombay Cotton Trade Association, which were not further referred to; and that the respondents had rejected on the grounds contained in a letter of a certain date. That letter stated merely that as the arbitrators had made an allowance of a certain amount the respondents rejected the cotton. The High Court set aside the award, holding that it was bad on its face, in that under one of the rules of the Association the respondents were entitled to reject without liability. It was held on appeal by the Judicial Committee that the award could not be set aside and though the award recited that the contract was subject to the rules of the Bombay Cotton Trade Association, yet those rules were not so incorporated in the award as to entitle the Court to refer to them for ascertaining whether there was an error of 1aw on the face of the awardThis passage supports the argument of the appellant that interest cannot be awarded by the arbitrator after the date of the award but in later cases it has been pointed out by this Court that the observations of Bose, J. in2 SCR 48 : (AIR 1955 SC 468 ), supra, were not intended to lay down such a broad and unqualified proposition (See Nachiappa Chettiar v. Subramaniam Chettiar,2 SCR 209 at p. 238 : (AIR 1960 SC 307 at p. 320) and Satinder Singh v. Umrao Singh,3 SCR 676 at p. 695: (AIR 1961 SC 908 at p. 916). In2 SCR 48 (AIR 1955 SC 468 ), supra, the material facts were that the arbitrator had awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claimIn this Court, counsel for the appellant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention, but it should be noticed that the judgment of this Court in Thawardass case,2 SCR 48 : (AIR 1955 SC 468 ), does not deal with the question whether the arbitrator can award interest subsequent to the passing of the award if the claim regarding interest was referred to arbitration. In the present case, all the disputes in the suit, including the question of interest, were referred to the arbitrator for his decision. In our opinion, the arbitrator had jurisdiction, in the present case, to grant interest on the amount of the award from the date of the award till the date of the decree granted by Mallick, J. The reason is that it is an implied term of the reference that the arbitrator will decide the dispute according to existing law and give such relief with regard to interest as a Court could give if it decided the dispute. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitration proceedings, the principle of that section will be applied by the arbitrator for awarding interest in cases where a Court of law in a suit having jurisdiction of ther covered by S. 34 could grant a decree for interest. Ins v. Great Western Rly., (1851) 11 CB588, one of the questions at issue was whether an arbitrator could or could not award interest in a case which was within S. 28 of the Civil Procedure Act, 1833. It was held by the Court of Common Pleas that the arbitrator, under a submission of all matters in difference, might award the plaintiff interest, notwithstanding the notice of action did not contain a demand of interest; and, further, that, assuming a notice of action to have been necessary, the want or insufficiency of such notice could not be taken advantage of, since the 5 and 6 Vict. C. 97, S. 3, unless pleaded specially. In the course of his Judgment Jervis, C. J. Observed :"A further answer would be, that this is a submission, not only of the action, but of all matters in difference; and the interest would be a matter in difference, whether demanded by the notice of action or not. If the arbitrator could give it, he might give it in that way, notwithstanding the want of claim of interest in the notice."6. The legal position is the same in India. In Bhowanidas Ramgobind v. Harasukhdas Balkishendas, AIR 1924 Cal 524 , the Division Bench of the Calcutta High Court consisting of Rankin and Mookerjee, JJ. held that the arbitrators had authority to make a decree for interest after the date of the award and expressly, approved the decision of the English) 11 CB 588,y v. Oke. (1885) 3 Dowl 349 : 1 H and W119 andn v. Wolfe, (1832) 1 Al and Na233. The same view has been expressed by this Court in a recent judgment in Firm. Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, C. A. No. 878 of 1964,6 AIR 1967 SC 1030. | 0 | 3,049 | 1,982 | ### Instruction:
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out by this Court that the observations of Bose, J. in 1955-2 SCR 48 : (AIR 1955 SC 468 ), supra, were not intended to lay down such a broad and unqualified proposition (See Nachiappa Chettiar v. Subramaniam Chettiar, 1960-2 SCR 209 at p. 238 : (AIR 1960 SC 307 at p. 320) and Satinder Singh v. Umrao Singh, 1961-3 SCR 676 at p. 695: (AIR 1961 SC 908 at p. 916). In 1955-2 SCR 48 (AIR 1955 SC 468 ), supra, the material facts were that the arbitrator had awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claim. In this Court, counsel for the appellant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention, but it should be noticed that the judgment of this Court in Thawardass case, 1955-2 SCR 48 : (AIR 1955 SC 468 ), does not deal with the question whether the arbitrator can award interest subsequent to the passing of the award if the claim regarding interest was referred to arbitration. In the present case, all the disputes in the suit, including the question of interest, were referred to the arbitrator for his decision. In our opinion, the arbitrator had jurisdiction, in the present case, to grant interest on the amount of the award from the date of the award till the date of the decree granted by Mallick, J. The reason is that it is an implied term of the reference that the arbitrator will decide the dispute according to existing law and give such relief with regard to interest as a Court could give if it decided the dispute. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitration proceedings, the principle of that section will be applied by the arbitrator for awarding interest in cases where a Court of law in a suit having jurisdiction of the subject-matter covered by S. 34 could grant a decree for interest. In Edwards v. Great Western Rly., (1851) 11 CB 588, one of the questions at issue was whether an arbitrator could or could not award interest in a case which was within S. 28 of the Civil Procedure Act, 1833. It was held by the Court of Common Pleas that the arbitrator, under a submission of all matters in difference, might award the plaintiff interest, notwithstanding the notice of action did not contain a demand of interest; and, further, that, assuming a notice of action to have been necessary, the want or insufficiency of such notice could not be taken advantage of, since the 5 and 6 Vict. C. 97, S. 3, unless pleaded specially. In the course of his Judgment Jervis, C. J. Observed :"A further answer would be, that this is a submission, not only of the action, but of all matters in difference; and the interest would be a matter in difference, whether demanded by the notice of action or not. If the arbitrator could give it, he might give it in that way, notwithstanding the want of claim of interest in the notice.". This clearly decides that, although the Civil Procedure Act, 1833, speaks in terms of a jury, and only confers upon a jury a discretionary right to give interest, none the less, if a matter was referred to an arbitrator - a matter with regard to which a jury could have given interest - an arbitrator may equally give interest, and that despite the language used in that Act. The principle of this case was applied by the Court of Appeal in Chandris v. Isbrandtsen-Moller Co., 1951-1 KB 240, and it was held that though in terms S. 3 of the Law Reform (Miscellaneous Provisions) Act, 1934 giving the Court power to award interest on any debt or damages did not apply to an arbitrator, it was an implied term of the contract that the arbitrator could award interest in a case where the Court could award it. It was pointed out by the Court of Appeal that the power of an arbitrator to award interest was derived from the submission to him, which impliedly gave him power to decide "all matters in difference" according to the existing law of contract, exercising every right and discretionary remedy given to a Court of law, that the Law Reform (Miscellaneous Provisions) Act, 1934, which repealed S. 28 of the Civil Procedure Act, 1833, was not concerned with the powers of arbitrators and that the plaintiff was entitled to the interest awarded by the arbitrator. 6. The legal position is the same in India. In Bhowanidas Ramgobind v. Harasukhdas Balkishendas, AIR 1924 Cal 524 , the Division Bench of the Calcutta High Court consisting of Rankin and Mookerjee, JJ. held that the arbitrators had authority to make a decree for interest after the date of the award and expressly, approved the decision of the English cases-(1851) 11 CB 588, Sherry v. Oke. (1885) 3 Dowl 349 : 1 H and W 119 and Beahan v. Wolfe, (1832) 1 Al and Na 233. The same view has been expressed by this Court in a recent judgment in Firm. Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, C. A. No. 878 of 1964, D/-19-8-1966 AIR 1967 SC 1030.We are accordingly of the opinion that the arbitrator had authority to grant interest from the date of the award to the date of the decree of Mallick, J. and Mr. Bindra is unable to make good his argument on this aspect of the case.
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Balloo Spinning and Weaving Co. Ltd., 50 Ind App 324 : (AIR 1923 PC 66), in which the appellants sold cotton to the respondent by a contract which contained a submission to arbitration of disputes as to quality, and a further clause submitting to arbitration all other disputes arising out of the contract. Cotton was delivered, but the respondents objected to its quality, and upon arbitration an allowance was awarded, the respondents thereupon rejected the cotton. The appellants claimed damages for the rejection. The dispute was referred to arbitration and the award recited that the contract was subject in the rules of the Bombay Cotton Trade Association, which were not further referred to; and that the respondents had rejected on the grounds contained in a letter of a certain date. That letter stated merely that as the arbitrators had made an allowance of a certain amount the respondents rejected the cotton. The High Court set aside the award, holding that it was bad on its face, in that under one of the rules of the Association the respondents were entitled to reject without liability. It was held on appeal by the Judicial Committee that the award could not be set aside and though the award recited that the contract was subject to the rules of the Bombay Cotton Trade Association, yet those rules were not so incorporated in the award as to entitle the Court to refer to them for ascertaining whether there was an error of 1aw on the face of the awardThis passage supports the argument of the appellant that interest cannot be awarded by the arbitrator after the date of the award but in later cases it has been pointed out by this Court that the observations of Bose, J. in2 SCR 48 : (AIR 1955 SC 468 ), supra, were not intended to lay down such a broad and unqualified proposition (See Nachiappa Chettiar v. Subramaniam Chettiar,2 SCR 209 at p. 238 : (AIR 1960 SC 307 at p. 320) and Satinder Singh v. Umrao Singh,3 SCR 676 at p. 695: (AIR 1961 SC 908 at p. 916). In2 SCR 48 (AIR 1955 SC 468 ), supra, the material facts were that the arbitrator had awarded interest on unliquidated damages for a period before the reference to arbitration and also for a period subsequent to the reference. The High Court set aside the award regarding interest on the ground that the claim for interest was not referred to arbitration and the arbitrator had no jurisdiction to entertain the claimIn this Court, counsel for the appellant contended that the arbitrator had statutory power under the Interest Act of 1839 to award the interest and in any event, he had power to award interest during the pendency of the arbitration proceedings under S. 34 of the Code of Civil Procedure, 1908. Bose, J. rejected this contention, but it should be noticed that the judgment of this Court in Thawardass case,2 SCR 48 : (AIR 1955 SC 468 ), does not deal with the question whether the arbitrator can award interest subsequent to the passing of the award if the claim regarding interest was referred to arbitration. In the present case, all the disputes in the suit, including the question of interest, were referred to the arbitrator for his decision. In our opinion, the arbitrator had jurisdiction, in the present case, to grant interest on the amount of the award from the date of the award till the date of the decree granted by Mallick, J. The reason is that it is an implied term of the reference that the arbitrator will decide the dispute according to existing law and give such relief with regard to interest as a Court could give if it decided the dispute. Though, in terms, S. 34 of the Code of Civil Procedure does not apply to arbitration proceedings, the principle of that section will be applied by the arbitrator for awarding interest in cases where a Court of law in a suit having jurisdiction of ther covered by S. 34 could grant a decree for interest. Ins v. Great Western Rly., (1851) 11 CB588, one of the questions at issue was whether an arbitrator could or could not award interest in a case which was within S. 28 of the Civil Procedure Act, 1833. It was held by the Court of Common Pleas that the arbitrator, under a submission of all matters in difference, might award the plaintiff interest, notwithstanding the notice of action did not contain a demand of interest; and, further, that, assuming a notice of action to have been necessary, the want or insufficiency of such notice could not be taken advantage of, since the 5 and 6 Vict. C. 97, S. 3, unless pleaded specially. In the course of his Judgment Jervis, C. J. Observed :"A further answer would be, that this is a submission, not only of the action, but of all matters in difference; and the interest would be a matter in difference, whether demanded by the notice of action or not. If the arbitrator could give it, he might give it in that way, notwithstanding the want of claim of interest in the notice."6. The legal position is the same in India. In Bhowanidas Ramgobind v. Harasukhdas Balkishendas, AIR 1924 Cal 524 , the Division Bench of the Calcutta High Court consisting of Rankin and Mookerjee, JJ. held that the arbitrators had authority to make a decree for interest after the date of the award and expressly, approved the decision of the English) 11 CB 588,y v. Oke. (1885) 3 Dowl 349 : 1 H and W119 andn v. Wolfe, (1832) 1 Al and Na233. The same view has been expressed by this Court in a recent judgment in Firm. Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, C. A. No. 878 of 1964,6 AIR 1967 SC 1030.
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CCI PROJECTS (P) LTD Vs. VRAJENDRA JOGJIVANDAS THAKKAR | the disputed sums with the Commission, whereafter the possession of the flats was taken on 04.08.2017. The matters before the Commission thus stood confined to the issue whether the complainants in both the cases were entitled to any compensation in respect of delayed payment or whether the appellant was entitled to have the period extended in terms of aforesaid clause No.17. 8. The Commission rejected the submission in respect of amended NOC granted on 07.05.2013. It further rejected the submission regarding non- availability of sand by observing that no document had been placed on record to substantiate such claim. The Commission observed that except the sum of Rs.104,207/- which the appellant sought to recover towards interest for delayed payment, rest of the sums were not disputed by the complainants and stood paid to the appellant. After considering the rival claims the Commission disposed of the complaints with following directions:?1. The balance, if any, out of the amount deposited by the complainant with this Commission before taking possession of the flat and proportionate interest which may have accrued on that amount deducting (i) the interest amount of Rs.10427/- (in both the complaints) and (ii) an amount equivalent to compensation payable to the complainant in terms of direction (3) below, shall be released to the opposite party. 2. The amount of Rs.104207/- shall (in both the cases) be released to the complainant along with proportionate interest which may have accrued on that amount. 3. The opposite party shall pay compensation in the form of simple interest @ 8% per annum on the amount which had been paid by that date, to the complainant, w.e.f. 01.09.2014 till the date on which the possession was actually delivered to him. The compensation to the extent available shall be adjusted out of the amount payable to the complainant in terms of direction (1) above. 4. The opposite party shall also pay Rs.25,000/- as the cost of litigation in each complainant to the complainant. 5. The payment by the OP in terms of the order shall be made within three months from today.?9. In these appeals challenging the correctness of the decision of the Commission, we heard Mr. Sanjiv Sen, learned Senior Advocate and Dr. Vinod Kumar Tewari, learned Advocate for the parties. 10. It was submitted by Mr. Sanjiv Sen, learned Senior Advocate:(a) The complaints were not maintainable in as much as the original allottees had transferred their interest. Reliance was placed on the decision of this Court in Haryana Urban Development Authority v. Raje Ram (2008) 17 SCC 407 . (b) The time lost between 21.12.2012 till 07.05.2013 on account of mandatory requirement for re-submission of plans, the appellant was entitled to have that period extended. (c) The National Green Tribunal had banned sand mining activities across the country on 05.08.2013 which came to be relaxed only when new policy was formulated by Union of India in September, 2015. It was submitted that the availability of sand during this period had come down to 20% of what it was before.It was therefore submitted that the appellant was not at fault. In any case the possession was offered on 16.11.2016 and thus it was only a short period of more than 2 years between August, 2014 and 16.11.2016 which was the period in question. In his submission, the period stood completely explained and as such the Commission was not justified in imposing liability on the appellant. 11. The learned Advocate for the respondent on the other hand submitted that the transfers effected by the parties were within the family. He submitted that the appellant was not entitled to any extension of period. He further submitted that the order passed by the National Green Tribunal had banned illegal sand mining activity and not sand mining activity itself. The sand was thus available in market. 12. We have gone through the record and considered the rival submissions. The decision of this Court in the case of Haryana Development Authority (supra) turned on individual facts of the case where the very entitlement of the subsequent allottees to claim damages or compensation for delayed delivery of possession was found to be unsustainable. Said decision of this Court related to cases where the original allottees had transferred the allotment in favour of total strangers with the permission of the authority and as found by this Court, the subsequent allottees were aware that there was delay in delivering the allotted plots on account of time taken in forming the layout or on account of encroachment and yet had purchased the interest of the original allottees. In the present case the transfers were effected within the family where the members had been living together. The decision of this Court in Haryana Urban Development Authority (supra) cannot be stretched to say that in every case where there is a transfer, the complaint by the subsequent transferee would not be maintainable at all. 13. At the same time, the appellant is justified in saying that as a result of mandatory requirements to resubmit the plans and get the fresh NOC in respect of fire safety permission, the period between 21.12.2012 to 07.05.2013 stood completely explained. Thus, out of the period between August, 2014 till 16.11.2016, the appellant would be entitled to have a period of 6 months of extension. That still leaves us with a period of a year and 8 months. The Commission has awarded 8% interest on the deposited sum. The deposited sum in either case being Rs.85.86 lakhs, going by the direction issued by the Commission, the interest element in respect of the period of one year and 8 months would be in the region of Rs.11.4 lakhs. We now consider the second part of the submission. It is true that there was no complete ban on sand mining. But as a result of reduced availability of sand in the market, the demand and supply ratio must have been upset. The appellant would therefore be entitled to some benefit on that count. | 0[ds]12. We have gone through the record and considered the rival submissions. The decision of this Court in the case of Haryana Development Authority (supra) turned on individual facts of the case where the very entitlement of the subsequent allottees to claim damages or compensation for delayed delivery of possession was found to be unsustainable. Said decision of this Court related to cases where the original allottees had transferred the allotment in favour of total strangers with the permission of the authority and as found by this Court, the subsequent allottees were aware that there was delay in delivering the allotted plots on account of time taken in forming the layout or on account of encroachment and yet had purchased the interest of the original allottees. In the present case the transfers were effected within the family where the members had been living together. The decision of this Court in Haryana Urban Development Authority (supra) cannot be stretched to say that in every case where there is a transfer, the complaint by the subsequent transferee would not be maintainable at all.At the same time, the appellant is justified in saying that as a result of mandatory requirements to resubmit the plans and get the fresh NOC in respect of fire safety permission, the period between 21.12.2012 to 07.05.2013 stood completely explained. Thus, out of the period between August, 2014 till 16.11.2016, the appellant would be entitled to have a period of 6 months of extension. That still leaves us with a period of a year and 8 months. The Commission has awarded 8% interest on the deposited sum. The deposited sum in either case being Rs.85.86 lakhs, going by the direction issued by the Commission, the interest element in respect of the period of one year and 8 months would be in the region of Rs.11.4 lakhs. We now consider the second part of the submission. It is true that there was no complete ban on sand mining. But as a result of reduced availability of sand in the market, the demand and supply ratio must have been upset. The appellant would therefore be entitled to some benefit on that count. | 0 | 2,319 | 395 | ### Instruction:
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the disputed sums with the Commission, whereafter the possession of the flats was taken on 04.08.2017. The matters before the Commission thus stood confined to the issue whether the complainants in both the cases were entitled to any compensation in respect of delayed payment or whether the appellant was entitled to have the period extended in terms of aforesaid clause No.17. 8. The Commission rejected the submission in respect of amended NOC granted on 07.05.2013. It further rejected the submission regarding non- availability of sand by observing that no document had been placed on record to substantiate such claim. The Commission observed that except the sum of Rs.104,207/- which the appellant sought to recover towards interest for delayed payment, rest of the sums were not disputed by the complainants and stood paid to the appellant. After considering the rival claims the Commission disposed of the complaints with following directions:?1. The balance, if any, out of the amount deposited by the complainant with this Commission before taking possession of the flat and proportionate interest which may have accrued on that amount deducting (i) the interest amount of Rs.10427/- (in both the complaints) and (ii) an amount equivalent to compensation payable to the complainant in terms of direction (3) below, shall be released to the opposite party. 2. The amount of Rs.104207/- shall (in both the cases) be released to the complainant along with proportionate interest which may have accrued on that amount. 3. The opposite party shall pay compensation in the form of simple interest @ 8% per annum on the amount which had been paid by that date, to the complainant, w.e.f. 01.09.2014 till the date on which the possession was actually delivered to him. The compensation to the extent available shall be adjusted out of the amount payable to the complainant in terms of direction (1) above. 4. The opposite party shall also pay Rs.25,000/- as the cost of litigation in each complainant to the complainant. 5. The payment by the OP in terms of the order shall be made within three months from today.?9. In these appeals challenging the correctness of the decision of the Commission, we heard Mr. Sanjiv Sen, learned Senior Advocate and Dr. Vinod Kumar Tewari, learned Advocate for the parties. 10. It was submitted by Mr. Sanjiv Sen, learned Senior Advocate:(a) The complaints were not maintainable in as much as the original allottees had transferred their interest. Reliance was placed on the decision of this Court in Haryana Urban Development Authority v. Raje Ram (2008) 17 SCC 407 . (b) The time lost between 21.12.2012 till 07.05.2013 on account of mandatory requirement for re-submission of plans, the appellant was entitled to have that period extended. (c) The National Green Tribunal had banned sand mining activities across the country on 05.08.2013 which came to be relaxed only when new policy was formulated by Union of India in September, 2015. It was submitted that the availability of sand during this period had come down to 20% of what it was before.It was therefore submitted that the appellant was not at fault. In any case the possession was offered on 16.11.2016 and thus it was only a short period of more than 2 years between August, 2014 and 16.11.2016 which was the period in question. In his submission, the period stood completely explained and as such the Commission was not justified in imposing liability on the appellant. 11. The learned Advocate for the respondent on the other hand submitted that the transfers effected by the parties were within the family. He submitted that the appellant was not entitled to any extension of period. He further submitted that the order passed by the National Green Tribunal had banned illegal sand mining activity and not sand mining activity itself. The sand was thus available in market. 12. We have gone through the record and considered the rival submissions. The decision of this Court in the case of Haryana Development Authority (supra) turned on individual facts of the case where the very entitlement of the subsequent allottees to claim damages or compensation for delayed delivery of possession was found to be unsustainable. Said decision of this Court related to cases where the original allottees had transferred the allotment in favour of total strangers with the permission of the authority and as found by this Court, the subsequent allottees were aware that there was delay in delivering the allotted plots on account of time taken in forming the layout or on account of encroachment and yet had purchased the interest of the original allottees. In the present case the transfers were effected within the family where the members had been living together. The decision of this Court in Haryana Urban Development Authority (supra) cannot be stretched to say that in every case where there is a transfer, the complaint by the subsequent transferee would not be maintainable at all. 13. At the same time, the appellant is justified in saying that as a result of mandatory requirements to resubmit the plans and get the fresh NOC in respect of fire safety permission, the period between 21.12.2012 to 07.05.2013 stood completely explained. Thus, out of the period between August, 2014 till 16.11.2016, the appellant would be entitled to have a period of 6 months of extension. That still leaves us with a period of a year and 8 months. The Commission has awarded 8% interest on the deposited sum. The deposited sum in either case being Rs.85.86 lakhs, going by the direction issued by the Commission, the interest element in respect of the period of one year and 8 months would be in the region of Rs.11.4 lakhs. We now consider the second part of the submission. It is true that there was no complete ban on sand mining. But as a result of reduced availability of sand in the market, the demand and supply ratio must have been upset. The appellant would therefore be entitled to some benefit on that count.
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12. We have gone through the record and considered the rival submissions. The decision of this Court in the case of Haryana Development Authority (supra) turned on individual facts of the case where the very entitlement of the subsequent allottees to claim damages or compensation for delayed delivery of possession was found to be unsustainable. Said decision of this Court related to cases where the original allottees had transferred the allotment in favour of total strangers with the permission of the authority and as found by this Court, the subsequent allottees were aware that there was delay in delivering the allotted plots on account of time taken in forming the layout or on account of encroachment and yet had purchased the interest of the original allottees. In the present case the transfers were effected within the family where the members had been living together. The decision of this Court in Haryana Urban Development Authority (supra) cannot be stretched to say that in every case where there is a transfer, the complaint by the subsequent transferee would not be maintainable at all.At the same time, the appellant is justified in saying that as a result of mandatory requirements to resubmit the plans and get the fresh NOC in respect of fire safety permission, the period between 21.12.2012 to 07.05.2013 stood completely explained. Thus, out of the period between August, 2014 till 16.11.2016, the appellant would be entitled to have a period of 6 months of extension. That still leaves us with a period of a year and 8 months. The Commission has awarded 8% interest on the deposited sum. The deposited sum in either case being Rs.85.86 lakhs, going by the direction issued by the Commission, the interest element in respect of the period of one year and 8 months would be in the region of Rs.11.4 lakhs. We now consider the second part of the submission. It is true that there was no complete ban on sand mining. But as a result of reduced availability of sand in the market, the demand and supply ratio must have been upset. The appellant would therefore be entitled to some benefit on that count.
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State of Maharashtra & Others Vs. Khanzode Engineers Private Limited | Mr. Patel, J. appointed Mr. A.K.Shenolikar, B.Sc. B.E.(Hons.) F.I.E. (Ind) Member IWRS Retd. Chief Engineer, Irrigation Department, Maharashtra Government Consulting Engineer, 306 Himalaya Park, 99. Shivaji Nagar, Nagpur 400010, as an Arbitrator. In the order, it was made clear that apart from the disputes sought to be referred by the Respondent, if there arose any arbitral disputes, they could also be referred to the arbitrator. It is curious enough to note that even after issuance of the notice by Mr. Patel, J., the applicant has not chosen to appear before him subsequently, when the matter came up for appointment of person as an arbitrator on 20th October, 2000, the learned A.G.P. was appearing for the Respondent Nos.1 to 3. But, it appears from the order, he has not made any submission on that day. However, on 20th October, 2000, Mr. A.K.Shenolikar, as aforesaid, was appointed as sole arbitrator. Therefore, the order dated 6th October, 2000 and 20th October, 2000, passed by Mr. J.N.Patel, J. in exercise of the powers under Section 11 of the said Act, are under challenge by way of this writ petition. 5.In a normal circumstance we would not have interfered with the orders passed by learned single Judge of this Court. The Arbitration Application filed by the Respondent/Company before the learned Single Judge was with the following prayers: (i) Direct the non-applicants to refer the matter/ dispute between the parties to a panel of three Arbitrators, one each appointed by the Government of Maharashtra. the contractor and the Indian Road Congress as per clause 67 of the Agreement between the parties filed at Annexure-A; (ii) in the alternative, direct appointment of a panel consisting of three arbitrators as per clause 67 of the Agreement between the parties for deciding the dispute of the parties; (iii) allow the application with costs; (iv) Grant any other relief which this Honble Court deems fit and proper in the facts and circumstances of the case; 6.It is true that the non-applicants (present petitioners) were absent, in which case the learned Single Judge could have granted prayer as prayed for by the applicant (present respondent) in their application. However, instead of granting its prayer, the learned Single Judge has appointed the sole arbitrator, as aforesaid. In this context, we have to disallow the contention raised by the respondent herein that the non-applicant/ State having remained absent themselves before the learned Single Judge and having obtained order ex parte, the State Government or the petitioners herein cannot challenge that order of appointing the sole arbitrator. In the first blush the said argument appears to be attractive, because Section 11 of the Act contemplates that if a party is not following the procedure laid down by the Arbitration agreement for the purpose of appointment of an arbitrator, then Chief Justice or his nominee Judge can appoint an arbitrator even contrary to the procedure laid down in the arbitration agreement. It is true, that the Chief Engineer/ petitioner No.2 herein, by his letter dated 29th February, 2000 refused to appoint an arbitrator in the manner prescribed under clause 67 of Vol.I of the agreement for arbitration, contending that since there arose no arbitral dispute, there is every justification for invoking section 11 of the Act. But the respondent/company approached the learned Single Judge of this Court by way of aforesaid arbitration application, seeking appointment of an arbitrator in terms of the arbitration Clause 67. The State Government or the Respondent could have never expected that relief, which was not asked for, would be granted by the learned Single Judge of this Court, particularly which is more disadvantageous to them. Then definitely in that circumstances, the respondent has a cause of action to challenge that order by way of the writ petition. Because it is in violation of principle of natural justice. Therefore, merely because the respondent/State remained absent before the learned Single Judge will not disentitle it to challenge that order when the order is vitiated by violation of principles of natural justice or fair play. The defendant or a respondent, as the case may be, may remain absent from a court in response to a notice to appear. Normally circumstances may constrain a party to remain absent before the court on a particular day, then the Court may pass an ex parte order, and then subsequently that party can approach the Court and say to the Court that there is justifiable reasons and circumstances which compelled it to remain absent itself from the Court. Then in that eventuality, exercising the discretion, the Court may condone the absence of that party. In another context after perusal of the pleadings and the relief sought for by the petitioners/ plaintiff the defendant or the respondent may take a reasonable decision that it need not put any contest because in its judgment the plaintiff is lawfully entitled for the relief sought for and that the Court can grant the relief; and in that case party is entitled to remain absent thinking that no more money and time be spent on that litigation. In such situation, any litigant is entitled to remain absent and suffer the consequence of decision. But the Court, passes an order contrary to what has been prayed for, that too when it is disadvantageous to the party who remains absent from the Court, then definitely that party can challenge that order in an appeal. For the aforesaid reasoning, we are constrained to set aside the order of the learned Single Judge. 7.According to the appellant they were ready to appoint arbitrator as prescribed in clause 67 of the arbitration agreement and the petitioners have also approached for the said relief. The learned Single Judge took a different course and appointed sole arbitrator. It is well settled law in the realm of arbitration, that even if when the Court exercises with limited jurisdiction in the realm of arbitration, as far as possible the legal effect to be given to the arbitration agreement between the parties. | 1[ds]6.It is true that thes (present petitioners) were absent, in which case the learned Single Judge could have granted prayer as prayed for by the applicant (present respondent) in their application. However, instead of granting its prayer, the learned Single Judge has appointed the sole arbitrator, as aforesaid. In this context, we have to disallow the contention raised by the respondent herein that the/ State having remained absent themselves before the learned Single Judge and having obtained order ex parte, the State Government or the petitioners herein cannot challenge that order of appointing the sole arbitrator. In the first blush the said argument appears to be attractive, because Section 11 of the Act contemplates that if a party is not following the procedure laid down by the Arbitration agreement for the purpose of appointment of an arbitrator, then Chief Justice or his nominee Judge can appoint an arbitrator even contrary to the procedure laid down in the arbitration agreement. It is true, that the Chief Engineer/ petitioner No.2 herein, by his letter dated 29th February, 2000 refused to appoint an arbitrator in the manner prescribed under clause 67 of Vol.I of the agreement for arbitration, contending that since there arose no arbitral dispute, there is every justification for invoking section 11 of the Act. But the respondent/company approached the learned Single Judge of this Court by way of aforesaid arbitration application, seeking appointment of an arbitrator in terms of the arbitration Clause 67. The State Government or the Respondent could have never expected that relief, which was not asked for, would be granted by the learned Single Judge of this Court, particularly which is more disadvantageous to them. Then definitely in that circumstances, the respondent has a cause of action to challenge that order by way of the writ petition. Because it is in violation of principle of natural justice. Therefore, merely because the respondent/State remained absent before the learned Single Judge will not disentitle it to challenge that order when the order is vitiated by violation of principles of natural justice or fair play. The defendant or a respondent, as the case may be, may remain absent from a court in response to a notice to appear. Normally circumstances may constrain a party to remain absent before the court on a particular day, then the Court may pass an ex parte order, and then subsequently that party can approach the Court and say to the Court that there is justifiable reasons and circumstances which compelled it to remain absent itself from the Court. Then in that eventuality, exercising the discretion, the Court may condone the absence of that party. In another context after perusal of the pleadings and the relief sought for by the petitioners/ plaintiff the defendant or the respondent may take a reasonable decision that it need not put any contest because in its judgment the plaintiff is lawfully entitled for the relief sought for and that the Court can grant the relief; and in that case party is entitled to remain absent thinking that no more money and time be spent on that litigation. In such situation, any litigant is entitled to remain absent and suffer the consequence of decision. But the Court, passes an order contrary to what has been prayed for, that too when it is disadvantageous to the party who remains absent from the Court, then definitely that party can challenge that order in an appeal. For the aforesaid reasoning, we are constrained to set aside the order of the learned Single Judge7.According to the appellant they were ready to appoint arbitrator as prescribed in clause 67 of the arbitration agreement and the petitioners have also approached for the said relief. The learned Single Judge took a different course and appointed sole arbitrator. It is well settled law in the realm of arbitration, that even if when the Court exercises with limited jurisdiction in the realm of arbitration, as far as possible the legal effect to be given to the arbitration agreement between the parties. Here in this case we could see that both the parties are willing to abide by the arbitration agreement and we find no reason to deviate from that procedure. No legal impediment of any other circumstances is standing in the way of giving effect to the agreement of the parties. Therefore, we are inclined to set aside the order of the learned Single Judge, allowing the parties to go with the arbitration in the light of provisions of clause 67 of the arbitration agreement. | 1 | 1,436 | 822 | ### Instruction:
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Mr. Patel, J. appointed Mr. A.K.Shenolikar, B.Sc. B.E.(Hons.) F.I.E. (Ind) Member IWRS Retd. Chief Engineer, Irrigation Department, Maharashtra Government Consulting Engineer, 306 Himalaya Park, 99. Shivaji Nagar, Nagpur 400010, as an Arbitrator. In the order, it was made clear that apart from the disputes sought to be referred by the Respondent, if there arose any arbitral disputes, they could also be referred to the arbitrator. It is curious enough to note that even after issuance of the notice by Mr. Patel, J., the applicant has not chosen to appear before him subsequently, when the matter came up for appointment of person as an arbitrator on 20th October, 2000, the learned A.G.P. was appearing for the Respondent Nos.1 to 3. But, it appears from the order, he has not made any submission on that day. However, on 20th October, 2000, Mr. A.K.Shenolikar, as aforesaid, was appointed as sole arbitrator. Therefore, the order dated 6th October, 2000 and 20th October, 2000, passed by Mr. J.N.Patel, J. in exercise of the powers under Section 11 of the said Act, are under challenge by way of this writ petition. 5.In a normal circumstance we would not have interfered with the orders passed by learned single Judge of this Court. The Arbitration Application filed by the Respondent/Company before the learned Single Judge was with the following prayers: (i) Direct the non-applicants to refer the matter/ dispute between the parties to a panel of three Arbitrators, one each appointed by the Government of Maharashtra. the contractor and the Indian Road Congress as per clause 67 of the Agreement between the parties filed at Annexure-A; (ii) in the alternative, direct appointment of a panel consisting of three arbitrators as per clause 67 of the Agreement between the parties for deciding the dispute of the parties; (iii) allow the application with costs; (iv) Grant any other relief which this Honble Court deems fit and proper in the facts and circumstances of the case; 6.It is true that the non-applicants (present petitioners) were absent, in which case the learned Single Judge could have granted prayer as prayed for by the applicant (present respondent) in their application. However, instead of granting its prayer, the learned Single Judge has appointed the sole arbitrator, as aforesaid. In this context, we have to disallow the contention raised by the respondent herein that the non-applicant/ State having remained absent themselves before the learned Single Judge and having obtained order ex parte, the State Government or the petitioners herein cannot challenge that order of appointing the sole arbitrator. In the first blush the said argument appears to be attractive, because Section 11 of the Act contemplates that if a party is not following the procedure laid down by the Arbitration agreement for the purpose of appointment of an arbitrator, then Chief Justice or his nominee Judge can appoint an arbitrator even contrary to the procedure laid down in the arbitration agreement. It is true, that the Chief Engineer/ petitioner No.2 herein, by his letter dated 29th February, 2000 refused to appoint an arbitrator in the manner prescribed under clause 67 of Vol.I of the agreement for arbitration, contending that since there arose no arbitral dispute, there is every justification for invoking section 11 of the Act. But the respondent/company approached the learned Single Judge of this Court by way of aforesaid arbitration application, seeking appointment of an arbitrator in terms of the arbitration Clause 67. The State Government or the Respondent could have never expected that relief, which was not asked for, would be granted by the learned Single Judge of this Court, particularly which is more disadvantageous to them. Then definitely in that circumstances, the respondent has a cause of action to challenge that order by way of the writ petition. Because it is in violation of principle of natural justice. Therefore, merely because the respondent/State remained absent before the learned Single Judge will not disentitle it to challenge that order when the order is vitiated by violation of principles of natural justice or fair play. The defendant or a respondent, as the case may be, may remain absent from a court in response to a notice to appear. Normally circumstances may constrain a party to remain absent before the court on a particular day, then the Court may pass an ex parte order, and then subsequently that party can approach the Court and say to the Court that there is justifiable reasons and circumstances which compelled it to remain absent itself from the Court. Then in that eventuality, exercising the discretion, the Court may condone the absence of that party. In another context after perusal of the pleadings and the relief sought for by the petitioners/ plaintiff the defendant or the respondent may take a reasonable decision that it need not put any contest because in its judgment the plaintiff is lawfully entitled for the relief sought for and that the Court can grant the relief; and in that case party is entitled to remain absent thinking that no more money and time be spent on that litigation. In such situation, any litigant is entitled to remain absent and suffer the consequence of decision. But the Court, passes an order contrary to what has been prayed for, that too when it is disadvantageous to the party who remains absent from the Court, then definitely that party can challenge that order in an appeal. For the aforesaid reasoning, we are constrained to set aside the order of the learned Single Judge. 7.According to the appellant they were ready to appoint arbitrator as prescribed in clause 67 of the arbitration agreement and the petitioners have also approached for the said relief. The learned Single Judge took a different course and appointed sole arbitrator. It is well settled law in the realm of arbitration, that even if when the Court exercises with limited jurisdiction in the realm of arbitration, as far as possible the legal effect to be given to the arbitration agreement between the parties.
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6.It is true that thes (present petitioners) were absent, in which case the learned Single Judge could have granted prayer as prayed for by the applicant (present respondent) in their application. However, instead of granting its prayer, the learned Single Judge has appointed the sole arbitrator, as aforesaid. In this context, we have to disallow the contention raised by the respondent herein that the/ State having remained absent themselves before the learned Single Judge and having obtained order ex parte, the State Government or the petitioners herein cannot challenge that order of appointing the sole arbitrator. In the first blush the said argument appears to be attractive, because Section 11 of the Act contemplates that if a party is not following the procedure laid down by the Arbitration agreement for the purpose of appointment of an arbitrator, then Chief Justice or his nominee Judge can appoint an arbitrator even contrary to the procedure laid down in the arbitration agreement. It is true, that the Chief Engineer/ petitioner No.2 herein, by his letter dated 29th February, 2000 refused to appoint an arbitrator in the manner prescribed under clause 67 of Vol.I of the agreement for arbitration, contending that since there arose no arbitral dispute, there is every justification for invoking section 11 of the Act. But the respondent/company approached the learned Single Judge of this Court by way of aforesaid arbitration application, seeking appointment of an arbitrator in terms of the arbitration Clause 67. The State Government or the Respondent could have never expected that relief, which was not asked for, would be granted by the learned Single Judge of this Court, particularly which is more disadvantageous to them. Then definitely in that circumstances, the respondent has a cause of action to challenge that order by way of the writ petition. Because it is in violation of principle of natural justice. Therefore, merely because the respondent/State remained absent before the learned Single Judge will not disentitle it to challenge that order when the order is vitiated by violation of principles of natural justice or fair play. The defendant or a respondent, as the case may be, may remain absent from a court in response to a notice to appear. Normally circumstances may constrain a party to remain absent before the court on a particular day, then the Court may pass an ex parte order, and then subsequently that party can approach the Court and say to the Court that there is justifiable reasons and circumstances which compelled it to remain absent itself from the Court. Then in that eventuality, exercising the discretion, the Court may condone the absence of that party. In another context after perusal of the pleadings and the relief sought for by the petitioners/ plaintiff the defendant or the respondent may take a reasonable decision that it need not put any contest because in its judgment the plaintiff is lawfully entitled for the relief sought for and that the Court can grant the relief; and in that case party is entitled to remain absent thinking that no more money and time be spent on that litigation. In such situation, any litigant is entitled to remain absent and suffer the consequence of decision. But the Court, passes an order contrary to what has been prayed for, that too when it is disadvantageous to the party who remains absent from the Court, then definitely that party can challenge that order in an appeal. For the aforesaid reasoning, we are constrained to set aside the order of the learned Single Judge7.According to the appellant they were ready to appoint arbitrator as prescribed in clause 67 of the arbitration agreement and the petitioners have also approached for the said relief. The learned Single Judge took a different course and appointed sole arbitrator. It is well settled law in the realm of arbitration, that even if when the Court exercises with limited jurisdiction in the realm of arbitration, as far as possible the legal effect to be given to the arbitration agreement between the parties. Here in this case we could see that both the parties are willing to abide by the arbitration agreement and we find no reason to deviate from that procedure. No legal impediment of any other circumstances is standing in the way of giving effect to the agreement of the parties. Therefore, we are inclined to set aside the order of the learned Single Judge, allowing the parties to go with the arbitration in the light of provisions of clause 67 of the arbitration agreement.
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U.P. Hotels Etc Vs. U.P. State Electricity Board | of the report observed that it was permissible to look a the whole of the pleadings delivered in the arbitration, and it appears therein that the respondents affirmed and the applicants denied that the respondents were entitled to terminate the agreement as the applicants refused to attend daily at the site, and that this was a specific question submitted to the decision of the arbitrator. Our attention was also drawn to the observations of House of Lords in Pioneer Shipping Ltd. v. BTP Tioxide Ltd. ((1981) 2 All ER 1030). In that case by a charterparty dated November 2, 1978 the owners of a vessel chartered her to the charterers. It was held by the House of Lords that having regard to the purpose of the Arbitration Act, 1970 of England which was to promote greater finality in arbitration awards than had been the case under the special case procedure judicial interference with the arbitrators award was only justified if it was shown that the arbitrator had misdirected himself in law or had reached a decision which no reasonable arbitrator could have. 27. In the instant case, the view taken by the Umpire on the interpretation of the agreement between the parties in the light of the observations of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ) was at bests a possible view to take, if not the correct view. If that was the position then such a view, even if wrong, cannot be corrected by this court on the basis of long line of decisions of this Court. In the aforesaid view of the matter it is necessary to examine the aforesaid decision in the Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). There under Section 49(1) and (2) of the Electricity (supply) Act, 1948, the legislature had empowered the State Electricity Board to frame Uniform tariffs and had also indicated the factors to be taken into account in fixing uniform tariffs. Under sub-section (3), the Board was empowered, in the special circumstances mentioned therein, to fix different tariffs for the supply of electricity, but in doing so, sub-section (4) directed that the Board was not to show undue preference to any person. Under Section 59 it was stipulated that the Board shall not, as far as practicable, carry on its operations at a loss and shall adjust its charges accordingly from time to time. Certain consumer of electricity had entered into agreements for the supply of electricity for their manufacturing purposes at specified rates for specified period. Some of the agreements were entered into with the State Governments and the others with the State Electricity Boards. In one of the agreements there was an arbitration clause. On account of the increase in the operation and maintenance cost, due to various causes which caused loss to the State Electricity Boards, the Boards wanted to increase the charges in all the cases. The consumers challenged the competency of the Boards to do so by petitions in the respective High Courts. The High Court sustained the Boards claim, in some cases, under Section 49 and 59, and in others, held that the Board was incompetent to do so. In the case of the consumer where there was the arbitration clause, the High court refused to entertain the petition on account of the clause. This Court held that fixation of special tariffs under Section 49(3) can be a unilateral Act on the part of the Board but more often it is the result of negotiations between the Board and the consumer and hence a matter of agreement between them. Therefore, the Board can, in exercise of the power conferred under the sub-section, enter into an agreement with a consumer stipulating for special tariff for supply of electricity for a specific period of time. The agreements for supply of electricity to the consumers must therefore be regarded as having been entered into by the Boards in exercise of the statutory power conferred under Section 49(3). The Umpire in his award stated that the decision of this Court covered and supported the claim of the claimant. In the present case the only difference is that there was only an agreement by which the Electricity Board accepted the agreement which was held by the Umpire to have become operative. Once that agreement was binding on the Board, its terms could not be varied form the uniform rate under sub-section (1) and (2) of Section 49. The Umpire was right. In our opinion, the Umpire committed no error in arriving at such conclusion. Furthermore, such a conclusion is certainly a possible view of the interpretation of the decision of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ), if not the only view. We need go no further than that. 28. We are, therefore, of the opinion that the view taken by the Umpire on Section 49 was a possible view in the light of the decision of this Court in Indian Aluminium case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). In the premises, a question of law arose certainly during the course of the proceedings. Such a question has been decided by the Umpire on view which is possible one to take. Even if there was no specific reference of a question of law referred to the Umpire, there was a question of law involved. Even on the assumption that such a view is not right, the award is not amenable to interference or correction by the courts of law as there is no proposition of law which could be said to be the basis of the award of the Umpire, and which is erroneous. 29. In the premises, we are of the opinion that the High Court and the learned Second Additional District Judge were in error in the view they took of the award of the Umpire. | 1[ds]27. In the instant case, the view taken by the Umpire on the interpretation of the agreement between the parties in the light of the observations of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ) was at bests a possible view to take, if not the correct view. If that was the position then such a view, even if wrong, cannot be corrected by this court on the basis of long line of decisions of this Court. In the aforesaid view of the matter it is necessary to examine the aforesaid decision in the Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). There under Section 49(1) and (2) of the Electricity (supply) Act, 1948, the legislature had empowered the State Electricity Board to frame Uniform tariffs and had also indicated the factors to be taken into account in fixing uniform tariffs. Undern (3), the Board was empowered, in the special circumstances mentioned therein, to fix different tariffs for the supply of electricity, but in doing so,n (4) directed that the Board was not to show undue preference to any person. Under Section 59 it was stipulated that the Board shall not, as far as practicable, carry on its operations at a loss and shall adjust its charges accordingly from time to time. Certain consumer of electricity had entered into agreements for the supply of electricity for their manufacturing purposes at specified rates for specified period. Some of the agreements were entered into with the State Governments and the others with the State Electricity Boards. In one of the agreements there was an arbitration clause. On account of the increase in the operation and maintenance cost, due to various causes which caused loss to the State Electricity Boards, the Boards wanted to increase the charges in all the cases. The consumers challenged the competency of the Boards to do so by petitions in the respective High Courts. The High Court sustained the Boards claim, in some cases, under Section 49 and 59, and in others, held that the Board was incompetent to do so. In the case of the consumer where there was the arbitration clause, the High court refused to entertain the petition on account of the clause. This Court held that fixation of special tariffs under Section 49(3) can be a unilateral Act on the part of the Board but more often it is the result of negotiations between the Board and the consumer and hence a matter of agreement between them. Therefore, the Board can, in exercise of the power conferred under the, enter into an agreement with a consumer stipulating for special tariff for supply of electricity for a specific period of time. The agreements for supply of electricity to the consumers must therefore be regarded as having been entered into by the Boards in exercise of the statutory power conferred under Section 49(3). The Umpire in his award stated that the decision of this Court covered and supported the claim of the claimant. In the present case the only difference is that there was only an agreement by which the Electricity Board accepted the agreement which was held by the Umpire to have become operative. Once that agreement was binding on the Board, its terms could not be varied form the uniform rate undern (1) and (2) of Section 49. The Umpire was right. In our opinion, the Umpire committed no error in arriving at such conclusion. Furthermore, such a conclusion is certainly a possible view of the interpretation of the decision of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ), if not the only view. We need go no further than that28. We are, therefore, of the opinion that the view taken by the Umpire on Section 49 was a possible view in the light of the decision of this Court in Indian Aluminium case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). In the premises, a question of law arose certainly during the course of the proceedings. Such a question has been decided by the Umpire on view which is possible one to take. Even if there was no specific reference of a question of law referred to the Umpire, there was a question of law involved. Even on the assumption that such a view is not right, the award is not amenable to interference or correction by the courts of law as there is no proposition of law which could be said to be the basis of the award of the Umpire, and which is erroneous29. In the premises, we are of the opinion that the High Court and the learned Second Additional District Judge were in error in the view they took of the award of the Umpire. | 1 | 8,012 | 923 | ### Instruction:
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of the report observed that it was permissible to look a the whole of the pleadings delivered in the arbitration, and it appears therein that the respondents affirmed and the applicants denied that the respondents were entitled to terminate the agreement as the applicants refused to attend daily at the site, and that this was a specific question submitted to the decision of the arbitrator. Our attention was also drawn to the observations of House of Lords in Pioneer Shipping Ltd. v. BTP Tioxide Ltd. ((1981) 2 All ER 1030). In that case by a charterparty dated November 2, 1978 the owners of a vessel chartered her to the charterers. It was held by the House of Lords that having regard to the purpose of the Arbitration Act, 1970 of England which was to promote greater finality in arbitration awards than had been the case under the special case procedure judicial interference with the arbitrators award was only justified if it was shown that the arbitrator had misdirected himself in law or had reached a decision which no reasonable arbitrator could have. 27. In the instant case, the view taken by the Umpire on the interpretation of the agreement between the parties in the light of the observations of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ) was at bests a possible view to take, if not the correct view. If that was the position then such a view, even if wrong, cannot be corrected by this court on the basis of long line of decisions of this Court. In the aforesaid view of the matter it is necessary to examine the aforesaid decision in the Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). There under Section 49(1) and (2) of the Electricity (supply) Act, 1948, the legislature had empowered the State Electricity Board to frame Uniform tariffs and had also indicated the factors to be taken into account in fixing uniform tariffs. Under sub-section (3), the Board was empowered, in the special circumstances mentioned therein, to fix different tariffs for the supply of electricity, but in doing so, sub-section (4) directed that the Board was not to show undue preference to any person. Under Section 59 it was stipulated that the Board shall not, as far as practicable, carry on its operations at a loss and shall adjust its charges accordingly from time to time. Certain consumer of electricity had entered into agreements for the supply of electricity for their manufacturing purposes at specified rates for specified period. Some of the agreements were entered into with the State Governments and the others with the State Electricity Boards. In one of the agreements there was an arbitration clause. On account of the increase in the operation and maintenance cost, due to various causes which caused loss to the State Electricity Boards, the Boards wanted to increase the charges in all the cases. The consumers challenged the competency of the Boards to do so by petitions in the respective High Courts. The High Court sustained the Boards claim, in some cases, under Section 49 and 59, and in others, held that the Board was incompetent to do so. In the case of the consumer where there was the arbitration clause, the High court refused to entertain the petition on account of the clause. This Court held that fixation of special tariffs under Section 49(3) can be a unilateral Act on the part of the Board but more often it is the result of negotiations between the Board and the consumer and hence a matter of agreement between them. Therefore, the Board can, in exercise of the power conferred under the sub-section, enter into an agreement with a consumer stipulating for special tariff for supply of electricity for a specific period of time. The agreements for supply of electricity to the consumers must therefore be regarded as having been entered into by the Boards in exercise of the statutory power conferred under Section 49(3). The Umpire in his award stated that the decision of this Court covered and supported the claim of the claimant. In the present case the only difference is that there was only an agreement by which the Electricity Board accepted the agreement which was held by the Umpire to have become operative. Once that agreement was binding on the Board, its terms could not be varied form the uniform rate under sub-section (1) and (2) of Section 49. The Umpire was right. In our opinion, the Umpire committed no error in arriving at such conclusion. Furthermore, such a conclusion is certainly a possible view of the interpretation of the decision of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ), if not the only view. We need go no further than that. 28. We are, therefore, of the opinion that the view taken by the Umpire on Section 49 was a possible view in the light of the decision of this Court in Indian Aluminium case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). In the premises, a question of law arose certainly during the course of the proceedings. Such a question has been decided by the Umpire on view which is possible one to take. Even if there was no specific reference of a question of law referred to the Umpire, there was a question of law involved. Even on the assumption that such a view is not right, the award is not amenable to interference or correction by the courts of law as there is no proposition of law which could be said to be the basis of the award of the Umpire, and which is erroneous. 29. In the premises, we are of the opinion that the High Court and the learned Second Additional District Judge were in error in the view they took of the award of the Umpire.
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27. In the instant case, the view taken by the Umpire on the interpretation of the agreement between the parties in the light of the observations of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ) was at bests a possible view to take, if not the correct view. If that was the position then such a view, even if wrong, cannot be corrected by this court on the basis of long line of decisions of this Court. In the aforesaid view of the matter it is necessary to examine the aforesaid decision in the Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). There under Section 49(1) and (2) of the Electricity (supply) Act, 1948, the legislature had empowered the State Electricity Board to frame Uniform tariffs and had also indicated the factors to be taken into account in fixing uniform tariffs. Undern (3), the Board was empowered, in the special circumstances mentioned therein, to fix different tariffs for the supply of electricity, but in doing so,n (4) directed that the Board was not to show undue preference to any person. Under Section 59 it was stipulated that the Board shall not, as far as practicable, carry on its operations at a loss and shall adjust its charges accordingly from time to time. Certain consumer of electricity had entered into agreements for the supply of electricity for their manufacturing purposes at specified rates for specified period. Some of the agreements were entered into with the State Governments and the others with the State Electricity Boards. In one of the agreements there was an arbitration clause. On account of the increase in the operation and maintenance cost, due to various causes which caused loss to the State Electricity Boards, the Boards wanted to increase the charges in all the cases. The consumers challenged the competency of the Boards to do so by petitions in the respective High Courts. The High Court sustained the Boards claim, in some cases, under Section 49 and 59, and in others, held that the Board was incompetent to do so. In the case of the consumer where there was the arbitration clause, the High court refused to entertain the petition on account of the clause. This Court held that fixation of special tariffs under Section 49(3) can be a unilateral Act on the part of the Board but more often it is the result of negotiations between the Board and the consumer and hence a matter of agreement between them. Therefore, the Board can, in exercise of the power conferred under the, enter into an agreement with a consumer stipulating for special tariff for supply of electricity for a specific period of time. The agreements for supply of electricity to the consumers must therefore be regarded as having been entered into by the Boards in exercise of the statutory power conferred under Section 49(3). The Umpire in his award stated that the decision of this Court covered and supported the claim of the claimant. In the present case the only difference is that there was only an agreement by which the Electricity Board accepted the agreement which was held by the Umpire to have become operative. Once that agreement was binding on the Board, its terms could not be varied form the uniform rate undern (1) and (2) of Section 49. The Umpire was right. In our opinion, the Umpire committed no error in arriving at such conclusion. Furthermore, such a conclusion is certainly a possible view of the interpretation of the decision of this Court in Indian Aluminium Co. case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ), if not the only view. We need go no further than that28. We are, therefore, of the opinion that the view taken by the Umpire on Section 49 was a possible view in the light of the decision of this Court in Indian Aluminium case ((1975) 2 SCC 414 : (1976) 1 SCR 70 ). In the premises, a question of law arose certainly during the course of the proceedings. Such a question has been decided by the Umpire on view which is possible one to take. Even if there was no specific reference of a question of law referred to the Umpire, there was a question of law involved. Even on the assumption that such a view is not right, the award is not amenable to interference or correction by the courts of law as there is no proposition of law which could be said to be the basis of the award of the Umpire, and which is erroneous29. In the premises, we are of the opinion that the High Court and the learned Second Additional District Judge were in error in the view they took of the award of the Umpire.
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Kanpur Elect.Supply Co.Ltd Vs. M/S L.M.L.Limited | of the Respondent-Company was Rs.8.42 crores and when Clause 4.49 was amended, the Respondent-Company was asked to submit a Bank Guarantee/Bond to secure the amount of Rs.10.24 crores outstanding as arrears on that date. In compliance thereof, the Respondent-Company duly furnished a Bond on 17th June, 2007, which was not accepted by the Petitioners on the ground that it did not secure the outstanding dues of the Petitioner No.1 and were not to its satisfaction. As a result of the above, although, the Petitioners were fully aware of the precarious financial condition of the Respondent-Company and having agreed to reduce the contract load from 8 MVA to 1.25 MVA, it refused to do so on the ground that the Bond provided did not secure the outstanding dues, resulting in a vicious circle of events. On the one hand, the high MVA load continued to contribute to the raising of high electricity bills, which the Respondent-Company was not able to pay, and, on the other hand, the Respondent-Company continued to suffer further financial losses on account thereof.26. An argument had been advanced on behalf of the Petitioners that in the unamended provisions of Clause 4.49, provision had been made for the defaulting Company to furnish a Bond and as an alternative, to furnish a Bank Guarantee, apparently to assuage the aggravated economic conditions. In the amended provisions of Clause 4.49 the furnishing of a Bond by way of security was excluded. However, the discretion not to accept such Bond always lay with the Petitioners, giving them the discretion not to accept the Bond furnished by the Respondent-Company. That is exactly what has happened in the instant case. While agreeing to give the Respondent-Company the benefit of a reduced MVA, the Petitioners had prevented the Respondent-Company from accessing such privilege by continuing to raise bills on the basis of the high MVA which the Respondent-Company apparently was unable to bear on account of its financial conditions. As a result, instead of helping the Respondent-Company to come out of its financial crisis, the Petitioners have prevented the Company from doing so by refusing to lower the load from 8 MVA to 1.25 MVA, as agreed upon. It is not the case of the Petitioners that the agreement which had been arrived at between the Managing Director of the Petitioners and the Executive Director of the Respondent-Company, had been breached by the Respondent-Company. On the other hand, it has been categorically contended by the Company that it had scrupulously given effect to the said agreement as also the order of the BIFR dated 22nd October, 2007 upon the Respondent No.1-Company being declared a Sick Industrial Company under Section 3(1)(o) of SICA on 8th May, 2007.27. It is apparent that while passing the impugned order, the High Court lost sight of the said order of the BIFR and confined itself to the provisions of Clauses 4.41 and 4.49 of the U.P. Electricity Supply Code, 2005 framed under Section 50 of the Electricity Code, 2003. If the Respondent No.1-Company is to revive, and, thereafter, survive, a certain amount of consideration has to be shown, which was fully realized by the Petitioners themselves, but they allowed themselves to be tied up in knots over compliance with the provisions of Clauses 4.41 and 4.49 which are Rules framed for application in special cases in order to help industries which had fallen on difficult days, to recoup its losses and to bring its finances on an even keel.28. There is no dispute that pursuant to an application made on 31st March, 2006 by the Respondent No.1-Company, praying for the reduction of the contract load from 8 MVA to 1.25 MVA with effect from 1st April, 2006, a Meeting had been held between the Managing Director of KESCO and the representatives of the Respondent-Company in which a decision was taken for reduction of the load with certain conditions. There is also no dispute that on the said date itself KESCO conveyed its agreement for reduction of load to the U.P. Electricity Regulatory Commission and sought its formal approval and that no objection was raised by the Commission with regard to the said decision except to indicate that the said decision would have to be implemented strictly in accordance with the Electricity Supply Code, 2005. There is also no dispute that when the decision was taken on 19th April, 2006 to reduce the contract load, the unamended version of Clause 4.49 of the Code was in existence and that the same provided for submission of either a Bank Guarantee or a Bond or any other instrument to the satisfaction of the licensee of the equal amount of pending dues. The only problem which has arisen is KESCOs decision not to accept the Bond given by the Respondent-Company on the ground that it did not provide sufficient security for the outstanding dues. In the totality of the existing circumstances, of which KESCO was fully aware, the decision not to accept the Bond was not in accordance with the decision arrived at on 19th April, 2006 to reduce the contract load from 8 MVA to 1.25 MVA. In fact, the Respondent-Company had been declared to be a Relief Undertaking by the State Government on an application dated 24th June, 2004. Furthermore, soon after the decision was arrived at to lower the contract load, the Respondent-Company was also declared as a Sick Company on 8th May, 2007 and the BIFR, while considering the revival of the Respondent-Company by its order dated 22nd April, 2007, directed KESCO to continue to accept Rs.5 lakhs per month against the arrears apart from payment of the current electricity bills on actual consumption basis and also not to adopt coercive measures to disconnect the supply of electricity of the Respondent-Company. As indicated hereinabove, the result of the continued insistence of KESCO that a Bank Guarantee should be provided by the Respondent No.1-Company in respect of its outstanding dues, had the effect of negating the decisions to revive the Company. | 0[ds]24. The facts of this case are relatively simple and straightforward. What is difficult to comprehend is the inscrutable manner in which decisions arrived at in common are sought to be negated on account of bureaucratic lethargy. The case of thewhich is not denied on behalf of the Petitioners, is that owing to market fluctuations thehad to put a halt to its manufacturing activities and to make a representation to the State Government for declaring it to be a "Relief Undertaking" under the relevant provisions of the U.P. Industrial Undertaking (Special Provisions for Prevention of Unemployment) Act, 1966. Responding to the said representation, the State Government issued a notification on 24th June, 2004, suspending all contracts, agreements and other instruments in force for a period of one year leading to strikes and complete disruption of the work of the Respondentany to apply to the Petitioners for reduction of the contracted load from 8 MVA to 1.25 MVA from 1st April, 2006. The materials on record indicate that as a result of such representation a meeting took place between the Managing Director of KESCO and the Executive Director of theon 19th April, 2006, wherein a decision was taken to reduce the load as requested by thewith effect from 1st April, 2006, on certain terms and conditions, which have been set out hereinabove in paragraph 18. Apart from the above, thewas also declared as a "Sick Company" under SICA on 8th May, 2007, and an order was passed by BIFR under Section 22(3) of SICA on 22nd October, 2007, inter alia, directing that KESCO would continue to accept Rs.5 lakhs per month against the arrear dues together with the current dues on the basis of the actual consumption. What is of significance is that despite compliance by the Respondentwith the said order the Petitioners continued to raise bills on theon the basis of 8 MVA load, although, it had agreed to reduce the same from 8 MVA to 1.25 MVA with effect from 1st April, 2006.25. This case is an example of how a positive decision taken to help a struggling industry to find its feet can be scuttled by legalese, although, an agreement had been reached between the parties regarding payment of the arrears in instalments along with the dues, and despite the same being duly followed by one of the parties to the agreement. The threat to yet again disrupt its manufacturing operations looms large on the horizon on account of the inability of the Respondentto comply with the provisions of Clause 4.41 read with Clause 4.49 of the U.P. Electricity Code, 2005. On 31st March, 2006, the outstanding dues of thewas Rs.8.42 crores and when Clause 4.49 was amended, thewas asked to submit a Bank Guarantee/Bond to secure the amount of Rs.10.24 crores outstanding as arrears on that date. In compliance thereof, theduly furnished a Bond on 17th June, 2007, which was not accepted by the Petitioners on the ground that it did not secure the outstanding dues of the Petitioner No.1 and were not to its satisfaction. As a result of the above, although, the Petitioners were fully aware of the precarious financial condition of theand having agreed to reduce the contract load from 8 MVA to 1.25 MVA, it refused to do so on the ground that the Bond provided did not secure the outstanding dues, resulting in a vicious circle of events. On the one hand, the high MVA load continued to contribute to the raising of high electricity bills, which thewas not able to pay, and, on the other hand, thecontinued to suffer further financial losses on account thereof.26. An argument had been advanced on behalf of the Petitioners that in the unamended provisions of Clause 4.49, provision had been made for the defaulting Company to furnish a Bond and as an alternative, to furnish a Bank Guarantee, apparently to assuage the aggravated economic conditions. In the amended provisions of Clause 4.49 the furnishing of a Bond by way of security was excluded. However, the discretion not to accept such Bond always lay with the Petitioners, giving them the discretion not to accept the Bond furnished by theThat is exactly what has happened in the instant case. While agreeing to give thethe benefit of a reduced MVA, the Petitioners had prevented thefrom accessing such privilege by continuing to raise bills on the basis of the high MVA which theapparently was unable to bear on account of its financial conditions. As a result, instead of helping theto come out of its financial crisis, the Petitioners have prevented the Company from doing so by refusing to lower the load from 8 MVA to 1.25 MVA, as agreed upon. It is not the case of the Petitioners that the agreement which had been arrived at between the Managing Director of the Petitioners and the Executive Director of thehad been breached by theOn the other hand, it has been categorically contended by the Company that it had scrupulously given effect to the said agreement as also the order of the BIFR dated 22nd October, 2007 upon the Respondentbeing declared a Sick Industrial Company under Section 3(1)(o) of SICA on 8th May, 2007.27. It is apparent that while passing the impugned order, the High Court lost sight of the said order of the BIFR and confined itself to the provisions of Clauses 4.41 and 4.49 of the U.P. Electricity Supply Code, 2005 framed under Section 50 of the Electricity Code, 2003. If the Respondentis to revive, and, thereafter, survive, a certain amount of consideration has to be shown, which was fully realized by the Petitioners themselves, but they allowed themselves to be tied up in knots over compliance with the provisions of Clauses 4.41 and 4.49 which are Rules framed for application in special cases in order to help industries which had fallen on difficult days, to recoup its losses and to bring its finances on an even keel.28. There is no dispute that pursuant to an application made on 31st March, 2006 by the Respondentpraying for the reduction of the contract load from 8 MVA to 1.25 MVA with effect from 1st April, 2006, a Meeting had been held between the Managing Director of KESCO and the representatives of thein which a decision was taken for reduction of the load with certain conditions. There is also no dispute that on the said date itself KESCO conveyed its agreement for reduction of load to the U.P. Electricity Regulatory Commission and sought its formal approval and that no objection was raised by the Commission with regard to the said decision except to indicate that the said decision would have to be implemented strictly in accordance with the Electricity Supply Code, 2005. There is also no dispute that when the decision was taken on 19th April, 2006 to reduce the contract load, the unamended version of Clause 4.49 of the Code was in existence and that the same provided for submission of either a Bank Guarantee or a Bond or any other instrument to the satisfaction of the licensee of the equal amount of pending dues. The only problem which has arisen is KESCOs decision not to accept the Bond given by theon the ground that it did not provide sufficient security for the outstanding dues. In the totality of the existing circumstances, of which KESCO was fully aware, the decision not to accept the Bond was not in accordance with the decision arrived at on 19th April, 2006 to reduce the contract load from 8 MVA to 1.25 MVA. In fact, thehad been declared to be a Relief Undertaking by the State Government on an application dated 24th June, 2004. Furthermore, soon after the decision was arrived at to lower the contract load, thewas also declared as a Sick Company on 8th May, 2007 and the BIFR, while considering the revival of theby its order dated 22nd April, 2007, directed KESCO to continue to accept Rs.5 lakhs per month against the arrears apart from payment of the current electricity bills on actual consumption basis and also not to adopt coercive measures to disconnect the supply of electricity of theAs indicated hereinabove, the result of the continued insistence of KESCO that a Bank Guarantee should be provided by the Respondentin respect of its outstanding dues, had the effect of negating the decisions to revive the Company. | 0 | 6,037 | 1,527 | ### 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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of the Respondent-Company was Rs.8.42 crores and when Clause 4.49 was amended, the Respondent-Company was asked to submit a Bank Guarantee/Bond to secure the amount of Rs.10.24 crores outstanding as arrears on that date. In compliance thereof, the Respondent-Company duly furnished a Bond on 17th June, 2007, which was not accepted by the Petitioners on the ground that it did not secure the outstanding dues of the Petitioner No.1 and were not to its satisfaction. As a result of the above, although, the Petitioners were fully aware of the precarious financial condition of the Respondent-Company and having agreed to reduce the contract load from 8 MVA to 1.25 MVA, it refused to do so on the ground that the Bond provided did not secure the outstanding dues, resulting in a vicious circle of events. On the one hand, the high MVA load continued to contribute to the raising of high electricity bills, which the Respondent-Company was not able to pay, and, on the other hand, the Respondent-Company continued to suffer further financial losses on account thereof.26. An argument had been advanced on behalf of the Petitioners that in the unamended provisions of Clause 4.49, provision had been made for the defaulting Company to furnish a Bond and as an alternative, to furnish a Bank Guarantee, apparently to assuage the aggravated economic conditions. In the amended provisions of Clause 4.49 the furnishing of a Bond by way of security was excluded. However, the discretion not to accept such Bond always lay with the Petitioners, giving them the discretion not to accept the Bond furnished by the Respondent-Company. That is exactly what has happened in the instant case. While agreeing to give the Respondent-Company the benefit of a reduced MVA, the Petitioners had prevented the Respondent-Company from accessing such privilege by continuing to raise bills on the basis of the high MVA which the Respondent-Company apparently was unable to bear on account of its financial conditions. As a result, instead of helping the Respondent-Company to come out of its financial crisis, the Petitioners have prevented the Company from doing so by refusing to lower the load from 8 MVA to 1.25 MVA, as agreed upon. It is not the case of the Petitioners that the agreement which had been arrived at between the Managing Director of the Petitioners and the Executive Director of the Respondent-Company, had been breached by the Respondent-Company. On the other hand, it has been categorically contended by the Company that it had scrupulously given effect to the said agreement as also the order of the BIFR dated 22nd October, 2007 upon the Respondent No.1-Company being declared a Sick Industrial Company under Section 3(1)(o) of SICA on 8th May, 2007.27. It is apparent that while passing the impugned order, the High Court lost sight of the said order of the BIFR and confined itself to the provisions of Clauses 4.41 and 4.49 of the U.P. Electricity Supply Code, 2005 framed under Section 50 of the Electricity Code, 2003. If the Respondent No.1-Company is to revive, and, thereafter, survive, a certain amount of consideration has to be shown, which was fully realized by the Petitioners themselves, but they allowed themselves to be tied up in knots over compliance with the provisions of Clauses 4.41 and 4.49 which are Rules framed for application in special cases in order to help industries which had fallen on difficult days, to recoup its losses and to bring its finances on an even keel.28. There is no dispute that pursuant to an application made on 31st March, 2006 by the Respondent No.1-Company, praying for the reduction of the contract load from 8 MVA to 1.25 MVA with effect from 1st April, 2006, a Meeting had been held between the Managing Director of KESCO and the representatives of the Respondent-Company in which a decision was taken for reduction of the load with certain conditions. There is also no dispute that on the said date itself KESCO conveyed its agreement for reduction of load to the U.P. Electricity Regulatory Commission and sought its formal approval and that no objection was raised by the Commission with regard to the said decision except to indicate that the said decision would have to be implemented strictly in accordance with the Electricity Supply Code, 2005. There is also no dispute that when the decision was taken on 19th April, 2006 to reduce the contract load, the unamended version of Clause 4.49 of the Code was in existence and that the same provided for submission of either a Bank Guarantee or a Bond or any other instrument to the satisfaction of the licensee of the equal amount of pending dues. The only problem which has arisen is KESCOs decision not to accept the Bond given by the Respondent-Company on the ground that it did not provide sufficient security for the outstanding dues. In the totality of the existing circumstances, of which KESCO was fully aware, the decision not to accept the Bond was not in accordance with the decision arrived at on 19th April, 2006 to reduce the contract load from 8 MVA to 1.25 MVA. In fact, the Respondent-Company had been declared to be a Relief Undertaking by the State Government on an application dated 24th June, 2004. Furthermore, soon after the decision was arrived at to lower the contract load, the Respondent-Company was also declared as a Sick Company on 8th May, 2007 and the BIFR, while considering the revival of the Respondent-Company by its order dated 22nd April, 2007, directed KESCO to continue to accept Rs.5 lakhs per month against the arrears apart from payment of the current electricity bills on actual consumption basis and also not to adopt coercive measures to disconnect the supply of electricity of the Respondent-Company. As indicated hereinabove, the result of the continued insistence of KESCO that a Bank Guarantee should be provided by the Respondent No.1-Company in respect of its outstanding dues, had the effect of negating the decisions to revive the Company.
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### Explanation:
The threat to yet again disrupt its manufacturing operations looms large on the horizon on account of the inability of the Respondentto comply with the provisions of Clause 4.41 read with Clause 4.49 of the U.P. Electricity Code, 2005. On 31st March, 2006, the outstanding dues of thewas Rs.8.42 crores and when Clause 4.49 was amended, thewas asked to submit a Bank Guarantee/Bond to secure the amount of Rs.10.24 crores outstanding as arrears on that date. In compliance thereof, theduly furnished a Bond on 17th June, 2007, which was not accepted by the Petitioners on the ground that it did not secure the outstanding dues of the Petitioner No.1 and were not to its satisfaction. As a result of the above, although, the Petitioners were fully aware of the precarious financial condition of theand having agreed to reduce the contract load from 8 MVA to 1.25 MVA, it refused to do so on the ground that the Bond provided did not secure the outstanding dues, resulting in a vicious circle of events. On the one hand, the high MVA load continued to contribute to the raising of high electricity bills, which thewas not able to pay, and, on the other hand, thecontinued to suffer further financial losses on account thereof.26. An argument had been advanced on behalf of the Petitioners that in the unamended provisions of Clause 4.49, provision had been made for the defaulting Company to furnish a Bond and as an alternative, to furnish a Bank Guarantee, apparently to assuage the aggravated economic conditions. In the amended provisions of Clause 4.49 the furnishing of a Bond by way of security was excluded. However, the discretion not to accept such Bond always lay with the Petitioners, giving them the discretion not to accept the Bond furnished by theThat is exactly what has happened in the instant case. While agreeing to give thethe benefit of a reduced MVA, the Petitioners had prevented thefrom accessing such privilege by continuing to raise bills on the basis of the high MVA which theapparently was unable to bear on account of its financial conditions. As a result, instead of helping theto come out of its financial crisis, the Petitioners have prevented the Company from doing so by refusing to lower the load from 8 MVA to 1.25 MVA, as agreed upon. It is not the case of the Petitioners that the agreement which had been arrived at between the Managing Director of the Petitioners and the Executive Director of thehad been breached by theOn the other hand, it has been categorically contended by the Company that it had scrupulously given effect to the said agreement as also the order of the BIFR dated 22nd October, 2007 upon the Respondentbeing declared a Sick Industrial Company under Section 3(1)(o) of SICA on 8th May, 2007.27. It is apparent that while passing the impugned order, the High Court lost sight of the said order of the BIFR and confined itself to the provisions of Clauses 4.41 and 4.49 of the U.P. Electricity Supply Code, 2005 framed under Section 50 of the Electricity Code, 2003. If the Respondentis to revive, and, thereafter, survive, a certain amount of consideration has to be shown, which was fully realized by the Petitioners themselves, but they allowed themselves to be tied up in knots over compliance with the provisions of Clauses 4.41 and 4.49 which are Rules framed for application in special cases in order to help industries which had fallen on difficult days, to recoup its losses and to bring its finances on an even keel.28. There is no dispute that pursuant to an application made on 31st March, 2006 by the Respondentpraying for the reduction of the contract load from 8 MVA to 1.25 MVA with effect from 1st April, 2006, a Meeting had been held between the Managing Director of KESCO and the representatives of thein which a decision was taken for reduction of the load with certain conditions. There is also no dispute that on the said date itself KESCO conveyed its agreement for reduction of load to the U.P. Electricity Regulatory Commission and sought its formal approval and that no objection was raised by the Commission with regard to the said decision except to indicate that the said decision would have to be implemented strictly in accordance with the Electricity Supply Code, 2005. There is also no dispute that when the decision was taken on 19th April, 2006 to reduce the contract load, the unamended version of Clause 4.49 of the Code was in existence and that the same provided for submission of either a Bank Guarantee or a Bond or any other instrument to the satisfaction of the licensee of the equal amount of pending dues. The only problem which has arisen is KESCOs decision not to accept the Bond given by theon the ground that it did not provide sufficient security for the outstanding dues. In the totality of the existing circumstances, of which KESCO was fully aware, the decision not to accept the Bond was not in accordance with the decision arrived at on 19th April, 2006 to reduce the contract load from 8 MVA to 1.25 MVA. In fact, thehad been declared to be a Relief Undertaking by the State Government on an application dated 24th June, 2004. Furthermore, soon after the decision was arrived at to lower the contract load, thewas also declared as a Sick Company on 8th May, 2007 and the BIFR, while considering the revival of theby its order dated 22nd April, 2007, directed KESCO to continue to accept Rs.5 lakhs per month against the arrears apart from payment of the current electricity bills on actual consumption basis and also not to adopt coercive measures to disconnect the supply of electricity of theAs indicated hereinabove, the result of the continued insistence of KESCO that a Bank Guarantee should be provided by the Respondentin respect of its outstanding dues, had the effect of negating the decisions to revive the Company.
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Lakhmi Chand Khemani Vs. Smt. Kauran Devi | think he is not, for S. 2(1) of the Act of 1958 must be read by itself and its meaning cannot be affected by any consideration derived from S. 19 of the Slum Areas Act.12. We may now refer to Jyoti Pershad v. Administrator for the Union Territory of Delhi, 1962-2 SCR 125 : (AIR 1961 SC 1602 ) to which our attention was drawn. That case is, in our view, of no assistance. It deals with the contention whether the Slum Areas Act was unconstitutional as it affected fundamental rights of landlords. That is not a question that arises in this appeal. This Court in its judgment no doubt stated that to buildings in slum areas both the Slum Areas Act and the Act of 1958 would apply and also that the former Act afforded some protection to tenants against eviction. As we have earlier stated, we are not concerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, nor as to the result of the application of both the Acts to a particular case. This Court did not say that the result of applying both the Acts to a case was to make part of the definition of "tenant" in the Act of 1958 nugatory; that was not a question that arose. All that the Court said was that a tenant was entitled to all such benefits as each Act independently conferred on him. Again, when the judgment stated that the Slum Areas Act protected tenants, it did not purport to define the word "tenant" for the purpose of the Acts. This Court certainly did not say that notwithstanding the definition in S. 2(1) of the Act of 1958 a person would remain a tenant within the meaning of that Act in spite of the order of eviction. That question did not arise for decision. This case does not help the appellant at all.13. It was then pointed out that S. 50 of the Act of 1958 also provided that "no civil court shall entertain .... any proceeding in so far as it relates .... to any ....... matter which the Controller is empowered by or under this Act to decide ...... It was said that S. 25 of that Act provided that when an order has been made by the Controller for recovery of possession of premises from a tenant, he will give vacant possession of the premises to the landlord by removing all persons in possession thereof. It was contended that in view of these two provisions the learned Subordinate Judge had no jurisdiction to entertain the respondents suit. This argument seems to us to proceed on a misapprehension. First, we do not think that the argument correctly states the effect of S. 25. It seems to us that all that the section does is to state who shall be bound by an order of eviction passed by the Controller and how effect shall be given to it. It is unnecessary, however, to express a final opinion on the effect of S. 25, for, in any event, clearly S. 42 of the Act provides that the Controller shall have power to execute orders made under the Act. If the Controller has the power to execute orders made under the Act including orders for eviction - and that is all that learned counsel for the appellant now contends - all that will happen in view of that part of S. 50 of the Act of 1958 on which reliance is now placed is that a civil court will not be able to execute an order for eviction. This however has nothing to do with the point before us. The learned Subordinate Judge was not asked to execute any decree for eviction. He was asked to decide whether the appellant was a trespasser and so liable to eviction. It does not follow that because a civil court cannot execute a decree for eviction passed by the Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. The present contention, therefore, must be rejected.14. We are told that after the High Court had passed its order of May 12, 1964, remanding the case to the Subordinate Judge for trial on the merits, the Subordinate Judge heard the suit and passed a decree in favour of the respondent on August 12, 1964. This, if correct, must have happened because no order for stay of the proceedings pursuant to the order of remand had been obtained from the High Court. A plain copy of the judgment of the learned Subordinate Judge of August 12, 1964, was handed over to us by learned counsel for the appellant and from that it appears that he thought that since the High Court had held that the appellant was not a tenant within the meaning of the Act of 1958 after the decree in ejectment of October 11, 1956, it must be held that the respondents contention that the appellants possession of the rooms was unauthorised was correct. It is for this reason that the learned Subordinate Judge appears to have passed his decree for eviction of the appellant of August 12, 1964. We wish, however, to observe that we are not aware that the copy of the judgment is a correct copy. We have referred to it only to say that even if correct, it does not affect the question which we have to decide. We are also informed that the appellant has filed an appeal in the High Court from this judgment of the learned Subordinate Judge and that appeal is pending. It will be for the High Court now to decide the correctness of the decree of the learned Subordinate Judge of August 12, 1964, and it is not right that we should express any opinion on the question and we do not do so | 0[ds]11. We find no justification for changing the definition of tenant in the Act of 1958 by drawing upon the provisions of the Slum Areas Act as the learned Subordinate Judge did. The last mentioned Act is not concerned with relations between landlords and tenants as such; it does not purport to interfere directly with the ordinary contractual right of landlords and tenants either as to rent or as to recovery of possession. However that may be, we find nothing in S. 19 of the Slum Areas Act to which alone we were referred by learned counsel for the appellant for the purpose, to warrant the view suggested that a tenant within the Act of 1958 would include a tenant against whom a decree in ejectment has been passed. Section 19 only says that a person who has obtained a decree in ejectment against a tenant shall not be entitled to execute it without the previous permission of the prescribed authority. It does not say that a tenant suffering the decree still continues to be a tenant for any purpose. The section does not purport to define the word tenant in any way. It assumes that a decree of eviction has been passed against a tenant. The expression "decree or order for the eviction of a tenant" in S. 19 necessarily contemplates a person who was prior to the decree a tenant within the meaning of the Rent Act of 1958 or any of its predecessors. The section is not in any way concerned with the question whether the tenants suffering a decree in ejectment still continue to be such tenants within the meaning of the Rent Act. It is of some importance to point out in this connection that the Slum Areas Act making ejectment decrees against tenants inexecutable without the requisite permission came into existence before the Act of 1958.It is pertinent to observe that notwithstanding this, the latter Act excluded from the definition of "tenant" one who had suffered an ejectment decree. Obviously, the Act of 1958 did not contemplate that the Slum Areas Act would in any was affect the definition of tenant contained in it. No question as to what the rights of a tenant against whom a decree in ejectment has been passed in view of S. 19 of the Slum Areas Act are, arises in this appeal the only point being whether he is a tenant within the Act of 1958 so as to oust the jurisdiction of a Civil Court to entertain the suit. We think he is not, for S. 2(1) of the Act of 1958 must be read by itself and its meaning cannot be affected by any consideration derived from S. 19 of the Slum Areas Act.12. We may now refer to Jyoti Pershad v. Administrator for the Union Territory of Delhi, 1962-2 SCR 125 : (AIR 1961 SC 1602 ) to which our attention was drawn. That case is, in our view, of no assistance. It deals with the contention whether the Slum Areas Act was unconstitutional as it affected fundamental rights of landlords. That is not a question that arises in this appeal. This Court in its judgment no doubt stated that to buildings in slum areas both the Slum Areas Act and the Act of 1958 would apply and also that the former Act afforded some protection to tenants against eviction. As we have earlier stated, we are not concerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, nor as to the result of the application of both the Acts to a particular case. This Court did not say that the result of applying both the Acts to a case was to make part of the definition of "tenant" in the Act of 1958 nugatory; that was not a question that arose. All that the Court said was that a tenant was entitled to all such benefits as each Act independently conferred on him. Again, when the judgment stated that the Slum Areas Act protected tenants, it did not purport to define the word "tenant" for the purpose of the Acts. This Court certainly did not say that notwithstanding the definition in S. 2(1) of the Act of 1958 a person would remain a tenant within the meaning of that Act in spite of the order of eviction. That question did not arise for decision. This case does not help the appellant at all.13. It was then pointed out that S. 50 of the Act of 1958 also provided that "no civil court shall entertain .... any proceeding in so far as it relates .... to any ....... matter which the Controller is empowered by or under this Act to decide ...... It was said that S. 25 of that Act provided that when an order has been made by the Controller for recovery of possession of premises from a tenant, he will give vacant possession of the premises to the landlord by removing all persons in possession thereof. It was contended that in view of these two provisions the learned Subordinate Judge had no jurisdiction to entertain the respondents suit. This argument seems to us to proceed on a misapprehension. First, we do not think that the argument correctly states the effect of S. 25. It seems to us that all that the section does is to state who shall be bound by an order of eviction passed by the Controller and how effect shall be given to it. It is unnecessary, however, to express a final opinion on the effect of S. 25, for, in any event, clearly S. 42 of the Act provides that the Controller shall have power to execute orders made under the Act. If the Controller has the power to execute orders made under the Act including orders for eviction - and that is all that learned counsel for the appellant now contends - all that will happen in view of that part of S. 50 of the Act of 1958 on which reliance is now placed is that a civil court will not be able to execute an order for eviction. This however has nothing to do with the point before us. The learned Subordinate Judge was not asked to execute any decree for eviction. He was asked to decide whether the appellant was a trespasser and so liable to eviction. It does not follow that because a civil court cannot execute a decree for eviction passed by the Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. The present contention, therefore, must be rejected. | 0 | 3,769 | 1,211 | ### 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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think he is not, for S. 2(1) of the Act of 1958 must be read by itself and its meaning cannot be affected by any consideration derived from S. 19 of the Slum Areas Act.12. We may now refer to Jyoti Pershad v. Administrator for the Union Territory of Delhi, 1962-2 SCR 125 : (AIR 1961 SC 1602 ) to which our attention was drawn. That case is, in our view, of no assistance. It deals with the contention whether the Slum Areas Act was unconstitutional as it affected fundamental rights of landlords. That is not a question that arises in this appeal. This Court in its judgment no doubt stated that to buildings in slum areas both the Slum Areas Act and the Act of 1958 would apply and also that the former Act afforded some protection to tenants against eviction. As we have earlier stated, we are not concerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, nor as to the result of the application of both the Acts to a particular case. This Court did not say that the result of applying both the Acts to a case was to make part of the definition of "tenant" in the Act of 1958 nugatory; that was not a question that arose. All that the Court said was that a tenant was entitled to all such benefits as each Act independently conferred on him. Again, when the judgment stated that the Slum Areas Act protected tenants, it did not purport to define the word "tenant" for the purpose of the Acts. This Court certainly did not say that notwithstanding the definition in S. 2(1) of the Act of 1958 a person would remain a tenant within the meaning of that Act in spite of the order of eviction. That question did not arise for decision. This case does not help the appellant at all.13. It was then pointed out that S. 50 of the Act of 1958 also provided that "no civil court shall entertain .... any proceeding in so far as it relates .... to any ....... matter which the Controller is empowered by or under this Act to decide ...... It was said that S. 25 of that Act provided that when an order has been made by the Controller for recovery of possession of premises from a tenant, he will give vacant possession of the premises to the landlord by removing all persons in possession thereof. It was contended that in view of these two provisions the learned Subordinate Judge had no jurisdiction to entertain the respondents suit. This argument seems to us to proceed on a misapprehension. First, we do not think that the argument correctly states the effect of S. 25. It seems to us that all that the section does is to state who shall be bound by an order of eviction passed by the Controller and how effect shall be given to it. It is unnecessary, however, to express a final opinion on the effect of S. 25, for, in any event, clearly S. 42 of the Act provides that the Controller shall have power to execute orders made under the Act. If the Controller has the power to execute orders made under the Act including orders for eviction - and that is all that learned counsel for the appellant now contends - all that will happen in view of that part of S. 50 of the Act of 1958 on which reliance is now placed is that a civil court will not be able to execute an order for eviction. This however has nothing to do with the point before us. The learned Subordinate Judge was not asked to execute any decree for eviction. He was asked to decide whether the appellant was a trespasser and so liable to eviction. It does not follow that because a civil court cannot execute a decree for eviction passed by the Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. The present contention, therefore, must be rejected.14. We are told that after the High Court had passed its order of May 12, 1964, remanding the case to the Subordinate Judge for trial on the merits, the Subordinate Judge heard the suit and passed a decree in favour of the respondent on August 12, 1964. This, if correct, must have happened because no order for stay of the proceedings pursuant to the order of remand had been obtained from the High Court. A plain copy of the judgment of the learned Subordinate Judge of August 12, 1964, was handed over to us by learned counsel for the appellant and from that it appears that he thought that since the High Court had held that the appellant was not a tenant within the meaning of the Act of 1958 after the decree in ejectment of October 11, 1956, it must be held that the respondents contention that the appellants possession of the rooms was unauthorised was correct. It is for this reason that the learned Subordinate Judge appears to have passed his decree for eviction of the appellant of August 12, 1964. We wish, however, to observe that we are not aware that the copy of the judgment is a correct copy. We have referred to it only to say that even if correct, it does not affect the question which we have to decide. We are also informed that the appellant has filed an appeal in the High Court from this judgment of the learned Subordinate Judge and that appeal is pending. It will be for the High Court now to decide the correctness of the decree of the learned Subordinate Judge of August 12, 1964, and it is not right that we should express any opinion on the question and we do not do so
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ejectment has been passed. Section 19 only says that a person who has obtained a decree in ejectment against a tenant shall not be entitled to execute it without the previous permission of the prescribed authority. It does not say that a tenant suffering the decree still continues to be a tenant for any purpose. The section does not purport to define the word tenant in any way. It assumes that a decree of eviction has been passed against a tenant. The expression "decree or order for the eviction of a tenant" in S. 19 necessarily contemplates a person who was prior to the decree a tenant within the meaning of the Rent Act of 1958 or any of its predecessors. The section is not in any way concerned with the question whether the tenants suffering a decree in ejectment still continue to be such tenants within the meaning of the Rent Act. It is of some importance to point out in this connection that the Slum Areas Act making ejectment decrees against tenants inexecutable without the requisite permission came into existence before the Act of 1958.It is pertinent to observe that notwithstanding this, the latter Act excluded from the definition of "tenant" one who had suffered an ejectment decree. Obviously, the Act of 1958 did not contemplate that the Slum Areas Act would in any was affect the definition of tenant contained in it. No question as to what the rights of a tenant against whom a decree in ejectment has been passed in view of S. 19 of the Slum Areas Act are, arises in this appeal the only point being whether he is a tenant within the Act of 1958 so as to oust the jurisdiction of a Civil Court to entertain the suit. We think he is not, for S. 2(1) of the Act of 1958 must be read by itself and its meaning cannot be affected by any consideration derived from S. 19 of the Slum Areas Act.12. We may now refer to Jyoti Pershad v. Administrator for the Union Territory of Delhi, 1962-2 SCR 125 : (AIR 1961 SC 1602 ) to which our attention was drawn. That case is, in our view, of no assistance. It deals with the contention whether the Slum Areas Act was unconstitutional as it affected fundamental rights of landlords. That is not a question that arises in this appeal. This Court in its judgment no doubt stated that to buildings in slum areas both the Slum Areas Act and the Act of 1958 would apply and also that the former Act afforded some protection to tenants against eviction. As we have earlier stated, we are not concerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, nor as to the result of the application of both the Acts to a particular case. This Court did not say that the result of applying both the Acts to a case was to make part of the definition of "tenant" in the Act of 1958 nugatory; that was not a question that arose. All that the Court said was that a tenant was entitled to all such benefits as each Act independently conferred on him. Again, when the judgment stated that the Slum Areas Act protected tenants, it did not purport to define the word "tenant" for the purpose of the Acts. This Court certainly did not say that notwithstanding the definition in S. 2(1) of the Act of 1958 a person would remain a tenant within the meaning of that Act in spite of the order of eviction. That question did not arise for decision. This case does not help the appellant at all.13. It was then pointed out that S. 50 of the Act of 1958 also provided that "no civil court shall entertain .... any proceeding in so far as it relates .... to any ....... matter which the Controller is empowered by or under this Act to decide ...... It was said that S. 25 of that Act provided that when an order has been made by the Controller for recovery of possession of premises from a tenant, he will give vacant possession of the premises to the landlord by removing all persons in possession thereof. It was contended that in view of these two provisions the learned Subordinate Judge had no jurisdiction to entertain the respondents suit. This argument seems to us to proceed on a misapprehension. First, we do not think that the argument correctly states the effect of S. 25. It seems to us that all that the section does is to state who shall be bound by an order of eviction passed by the Controller and how effect shall be given to it. It is unnecessary, however, to express a final opinion on the effect of S. 25, for, in any event, clearly S. 42 of the Act provides that the Controller shall have power to execute orders made under the Act. If the Controller has the power to execute orders made under the Act including orders for eviction - and that is all that learned counsel for the appellant now contends - all that will happen in view of that part of S. 50 of the Act of 1958 on which reliance is now placed is that a civil court will not be able to execute an order for eviction. This however has nothing to do with the point before us. The learned Subordinate Judge was not asked to execute any decree for eviction. He was asked to decide whether the appellant was a trespasser and so liable to eviction. It does not follow that because a civil court cannot execute a decree for eviction passed by the Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. The present contention, therefore, must be rejected.
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Arnit Das Vs. State Of Bihar | K.T. Thomas, J. In an inquiry conducted under Section 32 of the Juvenile Justice Act, 1986 (hereinafter referred to as `the 1986 Act) the Trial Court recorded a finding to the effect that petitioner Arnit Das was not a juvenile on the date of occurrence. This finding was upheld by the learned Sessions Judge in an appeal filed by petitioner-Arnit Das. The High Court also dismissed revision petition filed by the petitioner against that finding. Order of the High Court was put in issue by the petition in SLP (Crl.) 729/2000. In an appeal (Criminal Appeal No. 469/2000) arising out of that special leave petition since reported as Arnit Das v. State of Bihar, (2000) 5 SCC 488 , dealing with that issue, it was observed : "24. So far as the finding regarding the age of the appellant is concerned it is based on appreciation of evidence and arrived at after taking into consideration the material available on record and valid reasons having been assigned for it. The finding arrived at by the learned ACJM has been maintained by the Sessions Court in appeal and the High Court in revision. We find no case having been made out for interfering therewith." 2. Thus, this Court also affirmed the concurrent findings regarding the age of the petitioner and that on the date of the offence, the petitioner was not a juvenile within the meaning of the provisions of the 1986 Act. 3. After the judgment in Crl. Appeal No. 469/2000 was delivered by this Court on 9th May, 2000, the petitioner filed a review petition seeking review of that judgment. In the memorandum of review petition, the only issue raised is to the effect that the two-Judge Bench deciding Arnit Das v. State of Bihar (supra) while holding that crucial date to determine whether an accused is a juvenile or not under the 1986 Act is the date on which the accused first appears in the Court in inquiry proceedings, has overlooked the earlier view of a three Judge Bench in the case of Umesh Chandra v. State of Rajasthan, 1992(2) SCC 202, wherein it had been held that crucial date in such cases is the date on which offence was committed and not when the accused first appears before the Court in inquiry proceedings. The correctness of the finding that petitioner was not a juvenile (under the 1986 Act) on the date of the offence, has not been put in issue in the memorandum of the review petition. 4. When the review petition came up for consideration on 19.1.2000, the Division Bench noticed that there appeared to be an apparent conflict of opinion on the question as to whether the date of commission of offence or the date on which the accused first appears in inquiry proceedings is relevant for the purposes of determining whether or not an accused was a juvenile under the 1986 Act. The review petition was, therefore, referred to a larger Bench to resolve the conflict between the two opinions. That is how, the matter is before us. 5. In view of the findings recorded in an inquiry conducted under Section 32 of the 1986 Act, that on the date of the offence the accused-petitioner was not a juvenile for the purposes of the 1986 Act, which finding has been affirmed right upto this Court, it is of no consequence, insofar as this petition is concerned, as to whether the crucial date for purposes of the 1986 Act is the date of commission of the offence or the date when the accused first appears in the Court in the inquiry proceedings. The reference, therefore, insofar as this petition is concerned, is only of an academic interest and we decline to answer an academic question only. 6. It is settled practice that this Court does not decide matters which are only of academic interest on the facts of a particular case. [See with advantage : Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. and Anr., (1983) 1 SCC 147 ; R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 , and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Supp. SCC 931]. | 0[ds]5. In view of the findings recorded in an inquiry conducted under Section 32 of the 1986 Act, that on the date of the offence thewas not a juvenile for the purposes of the 1986 Act, which finding has been affirmed right upto this Court, it is of no consequence, insofar as this petition is concerned, as to whether the crucial date for purposes of the 1986 Act is the date of commission of the offence or the date when the accused first appears in the Court in the inquiry proceedings. The reference, therefore, insofar as this petition is concerned, is only of an academic interest and we decline to answer an academic question only.It is settled practice that this Court does not decide matters which are only of academic interest on the facts of a particular case. | 0 | 786 | 153 | ### Instruction:
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K.T. Thomas, J. In an inquiry conducted under Section 32 of the Juvenile Justice Act, 1986 (hereinafter referred to as `the 1986 Act) the Trial Court recorded a finding to the effect that petitioner Arnit Das was not a juvenile on the date of occurrence. This finding was upheld by the learned Sessions Judge in an appeal filed by petitioner-Arnit Das. The High Court also dismissed revision petition filed by the petitioner against that finding. Order of the High Court was put in issue by the petition in SLP (Crl.) 729/2000. In an appeal (Criminal Appeal No. 469/2000) arising out of that special leave petition since reported as Arnit Das v. State of Bihar, (2000) 5 SCC 488 , dealing with that issue, it was observed : "24. So far as the finding regarding the age of the appellant is concerned it is based on appreciation of evidence and arrived at after taking into consideration the material available on record and valid reasons having been assigned for it. The finding arrived at by the learned ACJM has been maintained by the Sessions Court in appeal and the High Court in revision. We find no case having been made out for interfering therewith." 2. Thus, this Court also affirmed the concurrent findings regarding the age of the petitioner and that on the date of the offence, the petitioner was not a juvenile within the meaning of the provisions of the 1986 Act. 3. After the judgment in Crl. Appeal No. 469/2000 was delivered by this Court on 9th May, 2000, the petitioner filed a review petition seeking review of that judgment. In the memorandum of review petition, the only issue raised is to the effect that the two-Judge Bench deciding Arnit Das v. State of Bihar (supra) while holding that crucial date to determine whether an accused is a juvenile or not under the 1986 Act is the date on which the accused first appears in the Court in inquiry proceedings, has overlooked the earlier view of a three Judge Bench in the case of Umesh Chandra v. State of Rajasthan, 1992(2) SCC 202, wherein it had been held that crucial date in such cases is the date on which offence was committed and not when the accused first appears before the Court in inquiry proceedings. The correctness of the finding that petitioner was not a juvenile (under the 1986 Act) on the date of the offence, has not been put in issue in the memorandum of the review petition. 4. When the review petition came up for consideration on 19.1.2000, the Division Bench noticed that there appeared to be an apparent conflict of opinion on the question as to whether the date of commission of offence or the date on which the accused first appears in inquiry proceedings is relevant for the purposes of determining whether or not an accused was a juvenile under the 1986 Act. The review petition was, therefore, referred to a larger Bench to resolve the conflict between the two opinions. That is how, the matter is before us. 5. In view of the findings recorded in an inquiry conducted under Section 32 of the 1986 Act, that on the date of the offence the accused-petitioner was not a juvenile for the purposes of the 1986 Act, which finding has been affirmed right upto this Court, it is of no consequence, insofar as this petition is concerned, as to whether the crucial date for purposes of the 1986 Act is the date of commission of the offence or the date when the accused first appears in the Court in the inquiry proceedings. The reference, therefore, insofar as this petition is concerned, is only of an academic interest and we decline to answer an academic question only. 6. It is settled practice that this Court does not decide matters which are only of academic interest on the facts of a particular case. [See with advantage : Sanjeev Coke Manufacturing Company v. M/s. Bharat Coking Coal Ltd. and Anr., (1983) 1 SCC 147 ; R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 , and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Supp. SCC 931].
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5. In view of the findings recorded in an inquiry conducted under Section 32 of the 1986 Act, that on the date of the offence thewas not a juvenile for the purposes of the 1986 Act, which finding has been affirmed right upto this Court, it is of no consequence, insofar as this petition is concerned, as to whether the crucial date for purposes of the 1986 Act is the date of commission of the offence or the date when the accused first appears in the Court in the inquiry proceedings. The reference, therefore, insofar as this petition is concerned, is only of an academic interest and we decline to answer an academic question only.It is settled practice that this Court does not decide matters which are only of academic interest on the facts of a particular case.
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Valliamma Champaka Pillai Vs. Sivathanu Pillai and Others | legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of red emption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share..................while it can be readily conceded that the joint debtor who pays up and discharges the mortgage sta nds in the shoes of the mortgagee................ he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection ........"so far as it is necessary to enforce his equity of reimbursement". ........It is as regards the excess of the payment over his own share that the right can be said to exist........The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right, strictly speaking is a right of reimbursement or contribution". 22. It is note-worthy that Ganeshi Lal v. Joti Parshad (supra) was a case from Punjab where the Transfer of Property Act was not in force, and this Court had affirmed the judgment of the Punjab High Court determining the claim of the redeeming co-mortgagor for contribution against the non-redeeming co-mortgagors or principles of justice, equity and good conscience.From what has been said above it is clear that where the Transfer of Property Act is not in force an d a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct rights: Firstly, to be subrogated to the rights of the mortgagee discharged , vis-a-vis the non-redeeming co-mortgagor, including the right to get into possession of the latters portion or share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca, which belonged not to him but to the other co- mortgagor. It follows that where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the non-redeeming co-mortgagor, to pay his share of the liability an d get possession of his property from the redeeming co-mortgagor, subsists as long as the latters right to contribution subsists. This right of the non- redeeming co-mortgagor, as rightly pointed out by the learned Chief Justice o f the High Court in his leading judgment, is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor, has as against the other co-mortgagor, amounts to a mortgage or not. 23. The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the non-redeeming co-mortgagors against the redeeming co-mortgagor.Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mort gage and had been redeemed in entirety by one of the co-mortgagors. Indeed, in the courts below the claim in respect of these items has been fought by the parties as if it were one for redemption. 24. Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagors property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non- redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt, may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor. Article 136 of the Travancore Limitation Regulation (which correspond to Article 148 of Indian Limitation Act 1908) reads as under: "------------------------------------------------------------ Description of suit Period of Time from Limitation begins to run ------------------------------------------------------------ Art. 136 Against a mortgagee to redeem Fifty years When the right to or to recover possession of redeem or to immovable property mortgaged recover possession accrues ------------------------------- -----------------------------" 25. The original mortgages were made during the years 1881 to 1884. They were redeemed by the co-mortgagor in Sivathanus line between the years 1913 to 1918 by paying the entire common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in-interest of the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption of her half share on payment of her half share of the mortgage amount and expenses to the defendant respondents successors-in-interest of Sivathanu. The suit was thus filed more than 12 years after the expiry of the 50 years limitation prescribed for a suit for redemption under Article 136 of the Travancore Regulation, and more than 28 years after the redemption in 1918, of the last mortgage by the redeeming co-mortgagor. This being the situation, the non-redeeming mortgagors suit for his share of the property on payment of his proportionate share of the mortgage money would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Article 132 or 144 or any other Article of the Indian Limitation Act, 1 908. Therefore, as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running in 1913 or 1918, the suit was time-barred from every point of view. 26. | 0[ds]Be that as it may, the crucial part of the learned Judges observation, which has been underlined, is obviously correct. The fact remains that this plea about the family being joint in statue at the material time, was not agitated before the learned Single Judge, nor pressed into argument before the Full Bench in Letters Patent Appeal. The first and the second appellate courts below, therefore, proceeded on the assumption that the two brothers who created the mortgages in question, and their branches were, at all times material, not members of an undivided Hindu family, having a joint status. Nor was the alternative plea, that the two branches of the family were holding these properties as co-owners, and as such, the possession of the redeeming co-mortgagor would be deemed to be on behalf of the non-redeeming co-mortgagor also ever passed into argument before the courts below. Moreover, the material on the record is too meagre to furnish adequate factual foundation for this contention including its alternative limb. Indeed, the counsel requested that the case should be remanded to the trial court for determining this plea after giving the parties another opportunity to produce evidence thereon.For the aforesaid reasons we do not permit the appellant to reagitate this plea which in any of its aspects was not pressed into argument in the courts belowThis contention was raised before the appellate Bench of the High Court, also, and was rightly rejected. Under Sec. 18, Limitation Act, one of the essential requirements for a valid acknowledgement is that the writing concerned must contain an admission of a subsisting liability. A mere admission of a past liability is not sufficient to constitute such an acknowledgement. Hence a mere recital in a document as to the existence of a past liability, coupled with a statement of its discharge, does not constitute an acknowledgement within this section. Tested on this touchstone, the release-deeds, Exhibits IV, XIV, XXI and XXII pertaining to items 31 to 36, 39, 40 an d 44, executed by the original mortgagees stating, in effect, that the mortgages had been extinguished by payment of the mortgage debts in entirety, by the redeeming co-mortgagor, do not amount to acknowledgements of a subsisting liability, which could give a fresh starting point of limitation.If we may say so, with due deference, the view taken by the Travancore (or T.C.) High Court in the aforesaid decisions did not proceed on a correct interpretation of the corresponding provision s of the Travancore Regulation. We find ourselves in respectful agreement with the reasoning and the finding of the High Court (majority) on this point, in the judgment under appealSteering clear of the tangled web of conflicting and confusing decisions rendered on an interpretation of the relevant provisions ofthe Transfer of Property Act, 1882, as they stood before the amendment of 1929, we may say at once that even where the Transfer of Property Act was not in force, a redeeming co-mortgagor discharging the entire mortgage debt, which was the joint and several liability of himself and his co-mortgagor, was, in equity, entitled to be subrogated to the rights of the mortgagee redeemed and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of the latters portion or share in the hypotheca and to hold that portion or share as security for the excess payment made by him. This equitable right of the redeeming co-mortgagor stems from the doctrine that he was a principal debtor in respect of his own share only, and his liability in respect his co-debtors share of the mortgage debt was only that of a surety: and when the surety had discharged the entire mortgage debt, he was entitled to be subrogated to the securities held by the creditor, to the extent of getting himself reimbursed for the amount paid by him over and above his share to discharge the common mortgage debt.For the view we take, we derive support from certain observations of this Court in Ganeshi Lal v. Joti Parshad. While discussing the nature and extent of a redeeming co-mortgagors right to recover contribution from his co-debtor, this Court speaking through Chandrashekhara Aiyar J., made these incidental observations which, for our purpose, are apposite:"Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognized that where there are several joint debtors, the person making the payment is the principal debtor as regards the part of the liability, he is discharged and a surety in respect of the shares of the rest of the debtors. Such being the legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of red emption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share..................while it can be readily conceded that the joint debtor who pays up and discharges the mortgage sta nds in the shoes of the mortgagee................ he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection ........"so far as it is necessary to enforce his equity of reimbursement". ........It is as regards the excess of the payment over his own share that the right can be said to exist........The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right, strictly speaking is a right of reimbursement or contribution"The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the non-redeeming co-mortgagors against the redeeming co-mortgagor.Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mort gage and had been redeemed in entirety by one of the co-mortgagorsSince subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagors property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non- redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt, may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagorThe original mortgages were made during the years 1881 to 1884. They were redeemed by the co-mortgagor in Sivathanus line between the years 1913 to 1918 by paying the entire common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in-interest of the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption of her half share on payment of her half share of the mortgage amount and expenses to the defendant respondents successors-in-interest of Sivathanu. The suit was thus filed more than 12 years after the expiry of the 50 years limitation prescribed for a suit for redemption under Article 136 of the Travancore Regulation, and more than 28 years after the redemption in 1918, of the last mortgage by the redeeming co-mortgagor. This being the situation, the non-redeeming mortgagors suit for his share of the property on payment of his proportionate share of the mortgage money would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Article 132 or 144 or any other Article of the Indian Limitation Act, 1 908. Therefore, as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running in 1913 or 1918, the suit was time-barred from every point of view. | 0 | 5,098 | 1,490 | ### Instruction:
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legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of red emption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share..................while it can be readily conceded that the joint debtor who pays up and discharges the mortgage sta nds in the shoes of the mortgagee................ he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection ........"so far as it is necessary to enforce his equity of reimbursement". ........It is as regards the excess of the payment over his own share that the right can be said to exist........The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right, strictly speaking is a right of reimbursement or contribution". 22. It is note-worthy that Ganeshi Lal v. Joti Parshad (supra) was a case from Punjab where the Transfer of Property Act was not in force, and this Court had affirmed the judgment of the Punjab High Court determining the claim of the redeeming co-mortgagor for contribution against the non-redeeming co-mortgagors or principles of justice, equity and good conscience.From what has been said above it is clear that where the Transfer of Property Act is not in force an d a mortgage with possession is made by two persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct rights: Firstly, to be subrogated to the rights of the mortgagee discharged , vis-a-vis the non-redeeming co-mortgagor, including the right to get into possession of the latters portion or share of the hypotheca. Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca, which belonged not to him but to the other co- mortgagor. It follows that where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the non-redeeming co-mortgagor, to pay his share of the liability an d get possession of his property from the redeeming co-mortgagor, subsists as long as the latters right to contribution subsists. This right of the non- redeeming co-mortgagor, as rightly pointed out by the learned Chief Justice o f the High Court in his leading judgment, is purely an equitable right, which exists irrespective of whether the right of contribution which the redeeming co-mortgagor, has as against the other co-mortgagor, amounts to a mortgage or not. 23. The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the non-redeeming co-mortgagors against the redeeming co-mortgagor.Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mort gage and had been redeemed in entirety by one of the co-mortgagors. Indeed, in the courts below the claim in respect of these items has been fought by the parties as if it were one for redemption. 24. Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagors property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non- redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt, may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor. Article 136 of the Travancore Limitation Regulation (which correspond to Article 148 of Indian Limitation Act 1908) reads as under: "------------------------------------------------------------ Description of suit Period of Time from Limitation begins to run ------------------------------------------------------------ Art. 136 Against a mortgagee to redeem Fifty years When the right to or to recover possession of redeem or to immovable property mortgaged recover possession accrues ------------------------------- -----------------------------" 25. The original mortgages were made during the years 1881 to 1884. They were redeemed by the co-mortgagor in Sivathanus line between the years 1913 to 1918 by paying the entire common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in-interest of the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption of her half share on payment of her half share of the mortgage amount and expenses to the defendant respondents successors-in-interest of Sivathanu. The suit was thus filed more than 12 years after the expiry of the 50 years limitation prescribed for a suit for redemption under Article 136 of the Travancore Regulation, and more than 28 years after the redemption in 1918, of the last mortgage by the redeeming co-mortgagor. This being the situation, the non-redeeming mortgagors suit for his share of the property on payment of his proportionate share of the mortgage money would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Article 132 or 144 or any other Article of the Indian Limitation Act, 1 908. Therefore, as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running in 1913 or 1918, the suit was time-barred from every point of view. 26.
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not amount to acknowledgements of a subsisting liability, which could give a fresh starting point of limitation.If we may say so, with due deference, the view taken by the Travancore (or T.C.) High Court in the aforesaid decisions did not proceed on a correct interpretation of the corresponding provision s of the Travancore Regulation. We find ourselves in respectful agreement with the reasoning and the finding of the High Court (majority) on this point, in the judgment under appealSteering clear of the tangled web of conflicting and confusing decisions rendered on an interpretation of the relevant provisions ofthe Transfer of Property Act, 1882, as they stood before the amendment of 1929, we may say at once that even where the Transfer of Property Act was not in force, a redeeming co-mortgagor discharging the entire mortgage debt, which was the joint and several liability of himself and his co-mortgagor, was, in equity, entitled to be subrogated to the rights of the mortgagee redeemed and to treat the non-redeeming co-mortgagor as his mortgagor to the extent of the latters portion or share in the hypotheca and to hold that portion or share as security for the excess payment made by him. This equitable right of the redeeming co-mortgagor stems from the doctrine that he was a principal debtor in respect of his own share only, and his liability in respect his co-debtors share of the mortgage debt was only that of a surety: and when the surety had discharged the entire mortgage debt, he was entitled to be subrogated to the securities held by the creditor, to the extent of getting himself reimbursed for the amount paid by him over and above his share to discharge the common mortgage debt.For the view we take, we derive support from certain observations of this Court in Ganeshi Lal v. Joti Parshad. While discussing the nature and extent of a redeeming co-mortgagors right to recover contribution from his co-debtor, this Court speaking through Chandrashekhara Aiyar J., made these incidental observations which, for our purpose, are apposite:"Equity insists on the ultimate payment of a debt by one who in justice and good conscience is bound to pay it, and it is well recognized that where there are several joint debtors, the person making the payment is the principal debtor as regards the part of the liability, he is discharged and a surety in respect of the shares of the rest of the debtors. Such being the legal position as among the co-mortgagors, if one of them redeems a mortgage over the property which belongs jointly to himself and the rest, equity confers on him a right to reimburse himself for the amount spent in excess by him in the matter of red emption; he can call upon the co-mortgagors to contribute towards the excess which he has paid over his own share..................while it can be readily conceded that the joint debtor who pays up and discharges the mortgage sta nds in the shoes of the mortgagee................ he will be subrogated to the rights of the mortgagee only to the extent necessary for his own equitable protection ........"so far as it is necessary to enforce his equity of reimbursement". ........It is as regards the excess of the payment over his own share that the right can be said to exist........The redeeming co-mortgagor being only a surety for the other co-mortgagors, his right, strictly speaking is a right of reimbursement or contribution"The ground is now clear for ascertaining the appropriate provision of the relevant statute of limitation which prescribes limitation for a suit to enforce this correlated right of the non-redeeming co-mortgagors against the redeeming co-mortgagor.Be it noted, that the suit, out of which this appeal has arisen, though, in form, a simple suit for partition raises, in substance, a claim for redemption with regard to items 31 to 42 and 44 which were under mort gage and had been redeemed in entirety by one of the co-mortgagorsSince subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagors property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non- redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt, may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagorThe original mortgages were made during the years 1881 to 1884. They were redeemed by the co-mortgagor in Sivathanus line between the years 1913 to 1918 by paying the entire common mortgage debt and obtaining possession of the entire hypotheca. The plaintiff who is the successor-in-interest of the non-redeeming co-mortgagor, Madhavan, filed the suit in 1946, (which was renumbered as O.S. 135 of 1956) for redemption of her half share on payment of her half share of the mortgage amount and expenses to the defendant respondents successors-in-interest of Sivathanu. The suit was thus filed more than 12 years after the expiry of the 50 years limitation prescribed for a suit for redemption under Article 136 of the Travancore Regulation, and more than 28 years after the redemption in 1918, of the last mortgage by the redeeming co-mortgagor. This being the situation, the non-redeeming mortgagors suit for his share of the property on payment of his proportionate share of the mortgage money would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Article 132 or 144 or any other Article of the Indian Limitation Act, 1 908. Therefore, as at present advised, we do not feel the necessity of laying down the law with regard to this aspect of the case. Since the limitation started running in 1913 or 1918, the suit was time-barred from every point of view.
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General Manager, North East Frontier Railway and Others Vs. Dinabandhu Chakraborty | HEGDE, J. 1. This is an appeal by special leave. The respondent herein was an employee of the N.E.F. Railway belonging to the Union of India. At the time of his retirement he held the post of Station Master. While serving as Station Master at Dinhat station, it is said that in the remittances made by him on February 8, 1961, there was a shortage of Rs. 3, 000/-. The enquiry committee which went into the matter held that he was responsible for the loss in question. The respondent retired from service with effect from September 16, 1961. Thereafter he was entitled to receive provident fund standing to his credit. While paying the same, the appellant deducted a sum of Rs. 3, 000/-. This action is said to have been taken on the authority of Rule 1341 of the said Railway Provident Fund Rules. The question is whether the deduction made is authorised by law. The High Court held that the deduction in question is impermissible. It has accordingly issued a writ directing the appellant not to give effect to the order deducting the sum of Rs. 3, 000/-. Aggrieved by that decision, the appellant has come up in appeal to this Court. Rule 1341 reads thus : "Deduction. - (1) Subject to the condition that no deduction may be made which reduces the credit by more than the amount of any contribution made from railway revenues with interest thereon before the amount lying to the credit of the subscriber in the fund is paid out of the fund, deduction may be ordered therefrom : (i) By the President in the case of gazetted railway servants and the Controlling Officers, in other cases; (ii) By the Controlling Officer of any amount due under a liability incurred by the subscriber to the Government. In respect of non-gazetted railway servantas, the powers of the Controlling Officer may be exercised by Heads of Departments, Divisional/Regional Superintendents and Deputy Chief Mechancial Enineer, holding independent charge of workshops provided the deduction does not exceed 10 per cent. of the contribution made from railway revenues with interest thereon lying to the credit of the subscriber in the fund." 2. Under that rule the Controlling Officer is empowered to deduct any amount due under a liability incurred by the subscriber to the Government. Therefore before any deduction can be made, it must be established that under a liability incurred by the subscriber the amount in question is due to the Government. In the instant case, the respondent has disputed his liability. His contention is that he was nor responsible for the loss in question. Under the Provident Fund Rules, no authority is constituted for deciding any dispute that might arise between the subscriber and the Government as regards any alleged incurring of liability nor as regards its quantum. Therefore the only forum in which these disputes can be decided is the Civil Court. The Government cannot be a judge in its own cause in the absence of any statutory provision empowering it to act as such. Hence the High Court was right in its conclusion that the action taken by the Government is an arbitrary one. | 0[ds]2. Under that rule the Controlling Officer is empowered to deduct any amount due under a liability incurred by the subscriber to the Government. Therefore before any deduction can be made, it must be established that under a liability incurred by the subscriber the amount in question is due to the Government. In the instant case, the respondent has disputed his liability. His contention is that he was nor responsible for the loss in question. Under the Provident Fund Rules, no authority is constituted for deciding any dispute that might arise between the subscriber and the Government as regards any alleged incurring of liability nor as regards its quantum. Therefore the only forum in which these disputes can be decided is the Civil Court. The Government cannot be a judge in its own cause in the absence of any statutory provision empowering it to act as such. Hence the High Court was right in its conclusion that the action taken by the Government is an arbitrary one. | 0 | 589 | 184 | ### 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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HEGDE, J. 1. This is an appeal by special leave. The respondent herein was an employee of the N.E.F. Railway belonging to the Union of India. At the time of his retirement he held the post of Station Master. While serving as Station Master at Dinhat station, it is said that in the remittances made by him on February 8, 1961, there was a shortage of Rs. 3, 000/-. The enquiry committee which went into the matter held that he was responsible for the loss in question. The respondent retired from service with effect from September 16, 1961. Thereafter he was entitled to receive provident fund standing to his credit. While paying the same, the appellant deducted a sum of Rs. 3, 000/-. This action is said to have been taken on the authority of Rule 1341 of the said Railway Provident Fund Rules. The question is whether the deduction made is authorised by law. The High Court held that the deduction in question is impermissible. It has accordingly issued a writ directing the appellant not to give effect to the order deducting the sum of Rs. 3, 000/-. Aggrieved by that decision, the appellant has come up in appeal to this Court. Rule 1341 reads thus : "Deduction. - (1) Subject to the condition that no deduction may be made which reduces the credit by more than the amount of any contribution made from railway revenues with interest thereon before the amount lying to the credit of the subscriber in the fund is paid out of the fund, deduction may be ordered therefrom : (i) By the President in the case of gazetted railway servants and the Controlling Officers, in other cases; (ii) By the Controlling Officer of any amount due under a liability incurred by the subscriber to the Government. In respect of non-gazetted railway servantas, the powers of the Controlling Officer may be exercised by Heads of Departments, Divisional/Regional Superintendents and Deputy Chief Mechancial Enineer, holding independent charge of workshops provided the deduction does not exceed 10 per cent. of the contribution made from railway revenues with interest thereon lying to the credit of the subscriber in the fund." 2. Under that rule the Controlling Officer is empowered to deduct any amount due under a liability incurred by the subscriber to the Government. Therefore before any deduction can be made, it must be established that under a liability incurred by the subscriber the amount in question is due to the Government. In the instant case, the respondent has disputed his liability. His contention is that he was nor responsible for the loss in question. Under the Provident Fund Rules, no authority is constituted for deciding any dispute that might arise between the subscriber and the Government as regards any alleged incurring of liability nor as regards its quantum. Therefore the only forum in which these disputes can be decided is the Civil Court. The Government cannot be a judge in its own cause in the absence of any statutory provision empowering it to act as such. Hence the High Court was right in its conclusion that the action taken by the Government is an arbitrary one.
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2. Under that rule the Controlling Officer is empowered to deduct any amount due under a liability incurred by the subscriber to the Government. Therefore before any deduction can be made, it must be established that under a liability incurred by the subscriber the amount in question is due to the Government. In the instant case, the respondent has disputed his liability. His contention is that he was nor responsible for the loss in question. Under the Provident Fund Rules, no authority is constituted for deciding any dispute that might arise between the subscriber and the Government as regards any alleged incurring of liability nor as regards its quantum. Therefore the only forum in which these disputes can be decided is the Civil Court. The Government cannot be a judge in its own cause in the absence of any statutory provision empowering it to act as such. Hence the High Court was right in its conclusion that the action taken by the Government is an arbitrary one.
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MURTI BHAWANI MATA MANDIR REP. THROUGH PUJARI (D) THROUGH LR KAILASH Vs. RAJESH | Dr. Dhananjaya Y. Chandrachud, J. 1. Leave granted. 2. This appeal arises from a judgment of a learned Single Judge of the High Court of Madhya Pradesh at its Bench at Indore. A suit 1 was instituted in the Court of the Civil Judge, Class II, Sardarpur, Dist. Dhar (M.P.) by one Ganeshi Lal claiming as the next friend of the diety situated at Bhawani Mata Mandir, Gram Dasai, Tehsil Sardarpur. The suit was for a permanent injunction against Geetabai (since deceased) and respondent Nos. 1 and 2 restraining them from interfering with the possession of the plaintiff over the agricultural land in dispute. The issues which were framed in the suit for the conclusion were as follows: chart 3. The suit was dismissed by the Trial court on 11 April 1981 on the ground that the plaintiff had failed to prove possession over the land in dispute. Both the first appeal as well as the second appeal were dismissed on 23 March 1982 by the District Judge and on 5 May 1984 by the High Court. 4. After the disposal of the second appeal, Geetabai filed an application under Section 144 of the Code of Civil Procedure, 1908 ( CPC) for the restoration of possession of the disputed land and for awarding mesne profits, before the Judge, Civil Court, Class I, Sardarpur . 5. The application was dismissed on 24 August 1998 by the executing court. The appeal filed before the Additional District Judge by the first respondent was allowed and the case was remanded back to the executing court. The appellant filed a second appeal before the High Court which was dismissed in limine by the impugned order dated 3 December 2004 on the ground that no substantial question of law arose. 6. Assailing the judgment of the High Court, the appellant submits that the provisions of Section 144 of the CPC were not attracted. The Additional District Judge was, it was urged, not justified in remanding the proceedings back to the executing court. Learned counsel appearing on behalf of the appellant submits that the plaintiff was not placed in possession by the court under any decree or order which was ultimately reversed on the dismissal of the suit for permanent injunction. In the circumstances, Section 144 was not attracted. Learned counsel submitted that in order to attract the application of Section 144, three conditions must be satisfied: (i) Restitution sought must be in respect of a decree or order which has been varied or reversed; (ii) The party applying must be entitled to the benefit of restitution; (iii) The relief which is claimed must be consequential to the reversal or variation of the decree or order. 7. In the instant case, it has been urged that none of these conditions were satisfied. Moreover, even if it were to be assumed that the plaintiff had taken possession of the disputed land during the pendency of the suit, it was urged that an application under Section 144 would not lie. Moreover, it was urged that the Trial court did not decide the question as to whether the respondent was in possession of the disputed land as is evident from the fact that on issue No. 5 no finding was returned. 8. On the other hand, learned counsel appearing on behalf of the respondent supported the judgment of the first appellate court and the High Court by submitting that it was the case of the first respondent that the appellant had taken possession of the suit land after the order of injunction was passed at the interlocutory stage. Hence, it was urged that once the suit for injunction was dismissed, it was open to the defendant to apply for restitution under Section 144, CPC. 9. In evaluating the rival submissions, it would be necessary to advert to the provision of section 144 of the CPC: 144. Application for restitution – (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order……. 10. Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed. 11. In the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant. 12. | 1[ds]Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversedIn the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant. | 1 | 1,088 | 190 | ### Instruction:
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Dr. Dhananjaya Y. Chandrachud, J. 1. Leave granted. 2. This appeal arises from a judgment of a learned Single Judge of the High Court of Madhya Pradesh at its Bench at Indore. A suit 1 was instituted in the Court of the Civil Judge, Class II, Sardarpur, Dist. Dhar (M.P.) by one Ganeshi Lal claiming as the next friend of the diety situated at Bhawani Mata Mandir, Gram Dasai, Tehsil Sardarpur. The suit was for a permanent injunction against Geetabai (since deceased) and respondent Nos. 1 and 2 restraining them from interfering with the possession of the plaintiff over the agricultural land in dispute. The issues which were framed in the suit for the conclusion were as follows: chart 3. The suit was dismissed by the Trial court on 11 April 1981 on the ground that the plaintiff had failed to prove possession over the land in dispute. Both the first appeal as well as the second appeal were dismissed on 23 March 1982 by the District Judge and on 5 May 1984 by the High Court. 4. After the disposal of the second appeal, Geetabai filed an application under Section 144 of the Code of Civil Procedure, 1908 ( CPC) for the restoration of possession of the disputed land and for awarding mesne profits, before the Judge, Civil Court, Class I, Sardarpur . 5. The application was dismissed on 24 August 1998 by the executing court. The appeal filed before the Additional District Judge by the first respondent was allowed and the case was remanded back to the executing court. The appellant filed a second appeal before the High Court which was dismissed in limine by the impugned order dated 3 December 2004 on the ground that no substantial question of law arose. 6. Assailing the judgment of the High Court, the appellant submits that the provisions of Section 144 of the CPC were not attracted. The Additional District Judge was, it was urged, not justified in remanding the proceedings back to the executing court. Learned counsel appearing on behalf of the appellant submits that the plaintiff was not placed in possession by the court under any decree or order which was ultimately reversed on the dismissal of the suit for permanent injunction. In the circumstances, Section 144 was not attracted. Learned counsel submitted that in order to attract the application of Section 144, three conditions must be satisfied: (i) Restitution sought must be in respect of a decree or order which has been varied or reversed; (ii) The party applying must be entitled to the benefit of restitution; (iii) The relief which is claimed must be consequential to the reversal or variation of the decree or order. 7. In the instant case, it has been urged that none of these conditions were satisfied. Moreover, even if it were to be assumed that the plaintiff had taken possession of the disputed land during the pendency of the suit, it was urged that an application under Section 144 would not lie. Moreover, it was urged that the Trial court did not decide the question as to whether the respondent was in possession of the disputed land as is evident from the fact that on issue No. 5 no finding was returned. 8. On the other hand, learned counsel appearing on behalf of the respondent supported the judgment of the first appellate court and the High Court by submitting that it was the case of the first respondent that the appellant had taken possession of the suit land after the order of injunction was passed at the interlocutory stage. Hence, it was urged that once the suit for injunction was dismissed, it was open to the defendant to apply for restitution under Section 144, CPC. 9. In evaluating the rival submissions, it would be necessary to advert to the provision of section 144 of the CPC: 144. Application for restitution – (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order……. 10. Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed. 11. In the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant. 12.
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Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversedIn the present case, the interim order of the Trial court did not require the defendant to hand over the possession to the plaintiff. There was no decree or order of the Trial court by virtue of which the appellant was given possession of the property, nor did any decree or order mandate that the respondent hand over possession to the appellant.
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Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr Vs. C.B.I. through its Director | he has to kill someone. He further stated that as per the instructions, he went Madhuban building on his own motorcycle which was handed over to appellant No.A-10 and then he sat on the scooter which was with appellant No.A-6. He has also given minute details of Rauf Valiullah coming out of Madhuban building along with PW 28, his firing three shots at Rauf Valiullah in succession and then escaping with appellant No.A-6 on his scooter. Appellant Nos.A-4 to A-8 and A-10 have also given complete account of their going out of Ahmedabad, staying at different places before return to Ahmedabad and arrest by the police. It is thus clear that in their confessions, appellant Nos.A-4 to A-8 and A-10 have not only disclosed their acquaintance with Abdul Latif and gang and/or Rasool Party and his associates, but given the details of conspiracy hatched by Abdul Latif and gang to eliminate Rauf Valiullah, assignment of this task to Rasool Party, specific instructions given by Rasool Party to them and their individual roles in keeping track on the movement of Rauf Valiullah, pursuing him at different places with a view to kill him, as also the actual murder of Rauf Valiullah on 9.10.1992. Each of the confessing appellant has candidly acknowledged that he acted as per the instructions and directions given by the Rasool Party for achieving the object of killing Rauf Valiullah and how they get in collaboration with each other for accomplishment of the task. Although, appellant No.A-11 has not made confessional statement, his role as a collaborator of Rasool Party and his participation in the conspiracy to kill Rauf Valiullah and as also his role in the actual incident of killing Rauf Valiullah are proved from the confessions of appellant Nos.A-5, A-6, A-7 and A-8 which, as mentioned above are candid and unambiguous. Therefore, keeping in view the provisions of Section 15 of the Act as interpreted by this Court in Gurprit Singhs case, Nalinis case, S.N. Dubes case, Lal Singhs case, Devender Pauls case and Jameel Ahmads case, we hold that the appellants are guilty of offence under Section 302 read with Section 120B IPC and no independent corroboration is required for sustaining their conviction. 57. De-hors the above conclusion, we find that the prosecution has produced sufficient corroborative evidence and the trial Court did not commit any error in relying upon the same to support its conclusion that the appellants are guilty of offence under Section 302 read with Section 120B IPC and other offences. PW 58, Bhagwan Das Lalwani (proprietor of K.P. Auto Consultant), PW 50, Prakash Bhagwan Das Lalwani, PW 53, Naresh Chauhan (RTO Agent), PW 59, Raju Morandani (employee of the RTO agent, Naresh Chauhan), PW 44, Vijay Kumar More (Motor Vehicle Inspector in RTO Office, Ahmedabad) have given detailed account of the purchase of Bajaj Scooter bearing No.GJ-1C-2797 by Abdul Latif under fictitious name of Maksood Ahmed, its registration, which was used by appellant No.A-7 and A-8 as back up party on the date of incident. PW 72, Jayanti Hira Lal Panchal, Police Sub-Inspector had seized scooter No.GJ-1C-2797 on 14.10.1992 of which possession was taken by the CBI on 23.3.1993. PW 111, Mohd. Khan Pathan, who is related to appellant No.A-7, Amin Choteli, has given evidence regarding purchase of four tickets from S.K. Travels for Amin Choteli and his companions for going from Baroda to Bombay. PW 112, Sirajuddin Ajimuddin Sheikh is the owner of S.K. Travels from whom PW 111 had purchased four tickets on 10.11.1992. PW 100, S.K. Sakia, the then Deputy Inspector General of Police, CID, Gujarat State furnished details of 14 other cases registered against appellant No.A-4, 3 cases against appellant No.A-5, 1 case against appellant No.A-6, 18 cases against appellant No.A-7, 3 cases against appellant No.A-8, 1 case against appellant No.A-10 and 3 cases against appellant No.A-11. PW 35, Rajni Kant Ganpat Patel, who was employed as peon in Dairy Den India Private Ltd. having office at Madhuban building has stated that on 9.10.1992 he had seen appellant No.A-5 who fled after shooting Rauf Valiullah while the latter was about to sit in the car of PW 28. He has stated that appellant No.A-5, Mohd. Fighter fled away from the spot on the scooter driven by appellant No.A-6. He also identified appellant Nos.A-5 and A-6 in the Test Identification Parade. PW 28, Pradeep Nautamal Dave @ Baka Bhai is the complainant and the eye witness. He gave detailed account of his coming with Rauf Valiullah to the office of Dairy Den India Private Ltd. situated in Madhuban building, handing over of memorandum for the purpose of typing and shooting of Rauf Valiullah while he was sitting on the car. In the Test Identification Parade held on 19.8.1993, he identified appellant No.A-6. PW 29, Raju Bhai Nayak, who was working as a labour at construction site of Western Hotel opposite to Madhuban building stated that he saw firing of bullets by a person who was earlier sitting on the pillion of the scooter and then fleeing away of two persons on the scooter. He also saw that the person with bullet injuries fell down on the ground and was taken to the hospital. PW 11, Parijat N. Damania is the typist to whom Rauf Valiullah had given papers for typing in the office of Dairy Den India Private Ltd. PW-49, Govind Bhai Babu Bhai is the person who sold Bullet Motorcycle No.GAC-6005 to appellant No.A-5 in 1991. He identified appellant No.A-5 in the Court. PW 55, Rajender Singh Prem Singh Chawla, PW 88, Rajesh Rajender Nath Mehta, PW 116, Susharta Dutta, General Secretary of Union Power Lifting Federation have given evidence that appellant No.A-5 was not a member of the power lifting team which visited Durgapur and yet he came to the venue of championship on 14.10.1992. Learned counsel for the appellants could not point out any serious infirmity in the appreciation of the evidence of the afore-mentioned witnesses by the trial Court. 58. In the result, we | 0[ds]we find that the prosecution has produced sufficient corroborative evidence and the trial Court did not commit any error in relying upon the same to support its conclusion that the appellants are guilty of offence under Section 302 read with Section 120B IPC and other offences. PW 58, Bhagwan Das Lalwani (proprietor of K.P. Auto Consultant), PW 50, Prakash Bhagwan Das Lalwani, PW 53, Naresh Chauhan (RTO Agent), PW 59, Raju Morandani (employee of the RTO agent, Naresh Chauhan), PW 44, Vijay Kumar More (Motor Vehicle Inspector in RTO Office, Ahmedabad) have given detailed account of the purchase of Bajaj Scooter bearing No.GJ-1C-2797 by Abdul Latif under fictitious name of Maksood Ahmed, its registration, which was used by appellant No.A-7 and A-8 as back up party on the date of incident. PW 72, Jayanti Hira Lal Panchal, Police Sub-Inspector had seized scooter No.GJ-1C-2797 on 14.10.1992 of which possession was taken by the CBI on 23.3.1993. PW 111, Mohd. Khan Pathan, who is related to appellant No.A-7, Amin Choteli, has given evidence regarding purchase of four tickets from S.K. Travels for Amin Choteli and his companions for going from Baroda to Bombay. PW 112, Sirajuddin Ajimuddin Sheikh is the owner of S.K. Travels from whom PW 111 had purchased four tickets on 10.11.1992. PW 100, S.K. Sakia, the then Deputy Inspector General of Police, CID, Gujarat State furnished details of 14 other cases registered against appellant No.A-4, 3 cases against appellant No.A-5, 1 case against appellant No.A-6, 18 cases against appellant No.A-7, 3 cases against appellant No.A-8, 1 case against appellant No.A-10 and 3 cases against appellant No.A-11. PW 35, Rajni Kant Ganpat Patel, who was employed as peon in Dairy Den India Private Ltd. having office at Madhuban building has stated that on 9.10.1992 he had seen appellant No.A-5 who fled after shooting Rauf Valiullah while the latter was about to sit in the car of PW 28. He has stated that appellant No.A-5, Mohd. Fighter fled away from the spot on the scooter driven by appellant No.A-6. He also identified appellant Nos.A-5 and A-6 in the Test Identification Parade. PW 28, Pradeep Nautamal Dave @ Baka Bhai is the complainant and the eye witness. He gave detailed account of his coming with Rauf Valiullah to the office of Dairy Den India Private Ltd. situated in Madhuban building, handing over of memorandum for the purpose of typing and shooting of Rauf Valiullah while he was sitting on the car. In the Test Identification Parade held on 19.8.1993, he identified appellant No.A-6. PW 29, Raju Bhai Nayak, who was working as a labour at construction site of Western Hotel opposite to Madhuban building stated that he saw firing of bullets by a person who was earlier sitting on the pillion of the scooter and then fleeing away of two persons on the scooter. He also saw that the person with bullet injuries fell down on the ground and was taken to the hospital. PW 11, Parijat N. Damania is the typist to whom Rauf Valiullah had given papers for typing in the office of Dairy Den India Private Ltd. PW-49, Govind Bhai Babu Bhai is the person who sold Bullet Motorcycle No.GAC-6005 to appellant No.A-5 in 1991. He identified appellant No.A-5 in the Court. PW 55, Rajender Singh Prem Singh Chawla, PW 88, Rajesh Rajender Nath Mehta, PW 116, Susharta Dutta, General Secretary of Union Power Lifting Federation have given evidence that appellant No.A-5 was not a member of the power lifting team which visited Durgapur and yet he came to the venue of championship on 14.10.1992. Learned counsel for the appellants could not point out any serious infirmity in the appreciation of the evidence of the afore-mentioned witnesses by the trial | 0 | 25,531 | 701 | ### 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:
he has to kill someone. He further stated that as per the instructions, he went Madhuban building on his own motorcycle which was handed over to appellant No.A-10 and then he sat on the scooter which was with appellant No.A-6. He has also given minute details of Rauf Valiullah coming out of Madhuban building along with PW 28, his firing three shots at Rauf Valiullah in succession and then escaping with appellant No.A-6 on his scooter. Appellant Nos.A-4 to A-8 and A-10 have also given complete account of their going out of Ahmedabad, staying at different places before return to Ahmedabad and arrest by the police. It is thus clear that in their confessions, appellant Nos.A-4 to A-8 and A-10 have not only disclosed their acquaintance with Abdul Latif and gang and/or Rasool Party and his associates, but given the details of conspiracy hatched by Abdul Latif and gang to eliminate Rauf Valiullah, assignment of this task to Rasool Party, specific instructions given by Rasool Party to them and their individual roles in keeping track on the movement of Rauf Valiullah, pursuing him at different places with a view to kill him, as also the actual murder of Rauf Valiullah on 9.10.1992. Each of the confessing appellant has candidly acknowledged that he acted as per the instructions and directions given by the Rasool Party for achieving the object of killing Rauf Valiullah and how they get in collaboration with each other for accomplishment of the task. Although, appellant No.A-11 has not made confessional statement, his role as a collaborator of Rasool Party and his participation in the conspiracy to kill Rauf Valiullah and as also his role in the actual incident of killing Rauf Valiullah are proved from the confessions of appellant Nos.A-5, A-6, A-7 and A-8 which, as mentioned above are candid and unambiguous. Therefore, keeping in view the provisions of Section 15 of the Act as interpreted by this Court in Gurprit Singhs case, Nalinis case, S.N. Dubes case, Lal Singhs case, Devender Pauls case and Jameel Ahmads case, we hold that the appellants are guilty of offence under Section 302 read with Section 120B IPC and no independent corroboration is required for sustaining their conviction. 57. De-hors the above conclusion, we find that the prosecution has produced sufficient corroborative evidence and the trial Court did not commit any error in relying upon the same to support its conclusion that the appellants are guilty of offence under Section 302 read with Section 120B IPC and other offences. PW 58, Bhagwan Das Lalwani (proprietor of K.P. Auto Consultant), PW 50, Prakash Bhagwan Das Lalwani, PW 53, Naresh Chauhan (RTO Agent), PW 59, Raju Morandani (employee of the RTO agent, Naresh Chauhan), PW 44, Vijay Kumar More (Motor Vehicle Inspector in RTO Office, Ahmedabad) have given detailed account of the purchase of Bajaj Scooter bearing No.GJ-1C-2797 by Abdul Latif under fictitious name of Maksood Ahmed, its registration, which was used by appellant No.A-7 and A-8 as back up party on the date of incident. PW 72, Jayanti Hira Lal Panchal, Police Sub-Inspector had seized scooter No.GJ-1C-2797 on 14.10.1992 of which possession was taken by the CBI on 23.3.1993. PW 111, Mohd. Khan Pathan, who is related to appellant No.A-7, Amin Choteli, has given evidence regarding purchase of four tickets from S.K. Travels for Amin Choteli and his companions for going from Baroda to Bombay. PW 112, Sirajuddin Ajimuddin Sheikh is the owner of S.K. Travels from whom PW 111 had purchased four tickets on 10.11.1992. PW 100, S.K. Sakia, the then Deputy Inspector General of Police, CID, Gujarat State furnished details of 14 other cases registered against appellant No.A-4, 3 cases against appellant No.A-5, 1 case against appellant No.A-6, 18 cases against appellant No.A-7, 3 cases against appellant No.A-8, 1 case against appellant No.A-10 and 3 cases against appellant No.A-11. PW 35, Rajni Kant Ganpat Patel, who was employed as peon in Dairy Den India Private Ltd. having office at Madhuban building has stated that on 9.10.1992 he had seen appellant No.A-5 who fled after shooting Rauf Valiullah while the latter was about to sit in the car of PW 28. He has stated that appellant No.A-5, Mohd. Fighter fled away from the spot on the scooter driven by appellant No.A-6. He also identified appellant Nos.A-5 and A-6 in the Test Identification Parade. PW 28, Pradeep Nautamal Dave @ Baka Bhai is the complainant and the eye witness. He gave detailed account of his coming with Rauf Valiullah to the office of Dairy Den India Private Ltd. situated in Madhuban building, handing over of memorandum for the purpose of typing and shooting of Rauf Valiullah while he was sitting on the car. In the Test Identification Parade held on 19.8.1993, he identified appellant No.A-6. PW 29, Raju Bhai Nayak, who was working as a labour at construction site of Western Hotel opposite to Madhuban building stated that he saw firing of bullets by a person who was earlier sitting on the pillion of the scooter and then fleeing away of two persons on the scooter. He also saw that the person with bullet injuries fell down on the ground and was taken to the hospital. PW 11, Parijat N. Damania is the typist to whom Rauf Valiullah had given papers for typing in the office of Dairy Den India Private Ltd. PW-49, Govind Bhai Babu Bhai is the person who sold Bullet Motorcycle No.GAC-6005 to appellant No.A-5 in 1991. He identified appellant No.A-5 in the Court. PW 55, Rajender Singh Prem Singh Chawla, PW 88, Rajesh Rajender Nath Mehta, PW 116, Susharta Dutta, General Secretary of Union Power Lifting Federation have given evidence that appellant No.A-5 was not a member of the power lifting team which visited Durgapur and yet he came to the venue of championship on 14.10.1992. Learned counsel for the appellants could not point out any serious infirmity in the appreciation of the evidence of the afore-mentioned witnesses by the trial Court. 58. In the result, we
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0
### Explanation:
we find that the prosecution has produced sufficient corroborative evidence and the trial Court did not commit any error in relying upon the same to support its conclusion that the appellants are guilty of offence under Section 302 read with Section 120B IPC and other offences. PW 58, Bhagwan Das Lalwani (proprietor of K.P. Auto Consultant), PW 50, Prakash Bhagwan Das Lalwani, PW 53, Naresh Chauhan (RTO Agent), PW 59, Raju Morandani (employee of the RTO agent, Naresh Chauhan), PW 44, Vijay Kumar More (Motor Vehicle Inspector in RTO Office, Ahmedabad) have given detailed account of the purchase of Bajaj Scooter bearing No.GJ-1C-2797 by Abdul Latif under fictitious name of Maksood Ahmed, its registration, which was used by appellant No.A-7 and A-8 as back up party on the date of incident. PW 72, Jayanti Hira Lal Panchal, Police Sub-Inspector had seized scooter No.GJ-1C-2797 on 14.10.1992 of which possession was taken by the CBI on 23.3.1993. PW 111, Mohd. Khan Pathan, who is related to appellant No.A-7, Amin Choteli, has given evidence regarding purchase of four tickets from S.K. Travels for Amin Choteli and his companions for going from Baroda to Bombay. PW 112, Sirajuddin Ajimuddin Sheikh is the owner of S.K. Travels from whom PW 111 had purchased four tickets on 10.11.1992. PW 100, S.K. Sakia, the then Deputy Inspector General of Police, CID, Gujarat State furnished details of 14 other cases registered against appellant No.A-4, 3 cases against appellant No.A-5, 1 case against appellant No.A-6, 18 cases against appellant No.A-7, 3 cases against appellant No.A-8, 1 case against appellant No.A-10 and 3 cases against appellant No.A-11. PW 35, Rajni Kant Ganpat Patel, who was employed as peon in Dairy Den India Private Ltd. having office at Madhuban building has stated that on 9.10.1992 he had seen appellant No.A-5 who fled after shooting Rauf Valiullah while the latter was about to sit in the car of PW 28. He has stated that appellant No.A-5, Mohd. Fighter fled away from the spot on the scooter driven by appellant No.A-6. He also identified appellant Nos.A-5 and A-6 in the Test Identification Parade. PW 28, Pradeep Nautamal Dave @ Baka Bhai is the complainant and the eye witness. He gave detailed account of his coming with Rauf Valiullah to the office of Dairy Den India Private Ltd. situated in Madhuban building, handing over of memorandum for the purpose of typing and shooting of Rauf Valiullah while he was sitting on the car. In the Test Identification Parade held on 19.8.1993, he identified appellant No.A-6. PW 29, Raju Bhai Nayak, who was working as a labour at construction site of Western Hotel opposite to Madhuban building stated that he saw firing of bullets by a person who was earlier sitting on the pillion of the scooter and then fleeing away of two persons on the scooter. He also saw that the person with bullet injuries fell down on the ground and was taken to the hospital. PW 11, Parijat N. Damania is the typist to whom Rauf Valiullah had given papers for typing in the office of Dairy Den India Private Ltd. PW-49, Govind Bhai Babu Bhai is the person who sold Bullet Motorcycle No.GAC-6005 to appellant No.A-5 in 1991. He identified appellant No.A-5 in the Court. PW 55, Rajender Singh Prem Singh Chawla, PW 88, Rajesh Rajender Nath Mehta, PW 116, Susharta Dutta, General Secretary of Union Power Lifting Federation have given evidence that appellant No.A-5 was not a member of the power lifting team which visited Durgapur and yet he came to the venue of championship on 14.10.1992. Learned counsel for the appellants could not point out any serious infirmity in the appreciation of the evidence of the afore-mentioned witnesses by the trial
|
Pentapati Chinna Venkanna & Ors Vs. Pentapati Bengararaju & Ors | intention of the court in making an order "closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated. In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the court to ascertain, having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court.We have no hesitation, therefore, in agreeing with the High Court that E.P. 13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue the same.7. Even so, it is contended that E. P. No. 58 of 1953 is a fresh application. Learned counsel compared the recitals in E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that all the respondents in the former execution petition are not respondents in the present execution petition; that legal representatives of some of the defendants are added to the present execution petition; that the decree-holders did not seek to proceed against all the properties against which they sought to proceed in the former execution petition; and that one of the reliefs, namely, to attach the amount deposited in court, asked for in the present execution petition is a completely new one and that, therefore, the present execution petition is, both in form and in particulars, completely a different one. But a comparison of the two execution petitions shows that the parties are the same; the new parties added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent. In the present execution petition the decree-holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties. The decree-holders cannot be compelled to proceed against all the properties against which at one time they sought to proceed. The relief by way of attachment of the amount deposited in court had been asked for by the decree-holders by a separate petition, namely, E. A. No. 143 of 1952, and that was dismissed and, therefore, nothing turns upon it. The result is, therefore, in substance under both the execution petitions the decree-holders seek to proceed against the same parties and against the same properties.8. The law on the subject is well settled. In Bandhu Singh v. Kayastha Trading Bank, Ltd., ILR 53 All 419: (AIR 1931 All 134) where a decree-holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of S. 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained. In Venkata Lingama Nayanim v. Rajagopala Venkata Narasimha Rayanim, ILR (1947) Mad 525: (AIR 1947 Mad 216 ) where an application was made for amending a pending execution petition with a view to attach another property not included in the pending application, the court held that the application for amendment could not be allowed, as it was made beyond the period of 12 years from the date of the decree. In Lakshminarasinga Rao v. Balasubrahmanyam, AIR 1949 Mad 251 where the execution petition filed beyond 12 years of the decree asked for a new relief not asked for in the earlier execution petition, it was held that the subsequent application having been filed beyond 12 years, was hit by S. 48 of the Code. In Gajanand Shah v. Dayanand Thakur, ILR 21 Pat 838: (AIR 1943 Pat 251) the decree-holder was not allowed to substitute a new property different from the one against which he wished to proceed in the earlier application on the ground that 12 years had expired from the date of the passing of the decree.9. The result of the decisions may be summarized thus: An application made after 12 years from the date of the decree would be a fresh application within the meaning of S. 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.10. In this case, as we have pointed out, the parties are substantially the same in both the proceedings, and the decree-holders are only proceeding against properties included in the previous application. It cannot, therefore, be treated as a fresh application within the meaning of S. 48 of the Code. It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court.11. That apart, the decree-holders filed E. A. No. 142 of 1952 in E. P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it. As we have held that the earlier execution petition is still pending on the file of the Court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition. | 0[ds]From the narration of facts given by us earlier it is clear that the said execution petition was "closed" for statistical purposes. As the High Court stayed the execution pending the appeal filed by the judgment-debtors, the decree-holders were not in a position to proceed with the execution petition, and, therefore, it was closed. Some argument was raised on the question whether the said execution petition was closed for statistical purposes or was dismissed and it was contended that under theCode of Civil Procedure there was no power conferred upon a court to close execution proceedings for statistical purposes, and that even if such an order was made, it must be deemed to be an order dismissing the execution petition. The actual order dated December 28, 1948 has not been placed before us. But in E.P. 58 of 1953 in Col. 6 thereof it is mentioned that E.P. No. 13 of 1939 was closed on December 28, 1948. In the counter-affidavit filed by one of the judgment-debtors it is stated that E.P. 13 of 1939 was dismissed on December 28, 1948 and not merely closed. After the disposal of the appeal by the High Court and before the filing of E.P. No. 58 of 1953, the decree-holders filed E.A. No. 142 of 1952 for reopening E.P. No. 13 of 1939. On that petition the learned Subordinate Judge made the following order:"The previous E.P. was merely closed. Petitioner may file a regular E.P. on which proceedings will continue from the stage at which they were left in E. P. 13 of 1939." This order discloses that the previous execution petition was only closed. The Subordinate Judge must have presumably looked into the previous record. The learned Subordinate Judge proceeded on the assumption that the previous execution petition was pending, though he dismissed the present execution petition on another ground. This factual position was not contested even in the High Court, for the High Court stated that the previous application was merely closed for statistical purposes. In the circumstances we must proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statisticalthat the order was made by reason of the decree-holders default within the meaning of O. XXI, R. 57 of the Code, we find it difficult to attribute something to the court which it never intended to do. It is true courts have condemned the practice of executing courts using expressions like "closed", "closed for statistical purposes", "struck off", "recorded" etc., and they also pointed out that there was no provision in theCode of Civil Procedure for making such orders: see Biswa Sonan Chunder Gossamy v. Binanda Chunder Dibingar Adhikar, ILR 10 Cal 416 at p. 422; V. Damodara Rao v. Official Receiver, Kistna, ILR (1946) Mad 527 : (AIR 1946 Mad 170 ); Moidin Kutty v. Doraiswami, AIR 1952 Mad 51 . It is not necessary to express our opinion on the question whether such procedure is sanctioned by theCode of Civil Procedure or not; but assuming that the court has no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the court in making an order "closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated. In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the court to ascertain, having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court.We have no hesitation, therefore, in agreeing with the High Court that E.P. 13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue thea comparison of the two execution petitions shows that the parties are the same; the new parties added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent. In the present execution petition the decree-holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties. The decree-holders cannot be compelled to proceed against all the properties against which at one time they sought to proceed. The relief by way of attachment of the amount deposited in court had been asked for by the decree-holders by a separate petition, namely, E. A. No. 143 of 1952, and that was dismissed and, therefore, nothing turns upon it. The result is, therefore, in substance under both the execution petitions the decree-holders seek to proceed against the same parties and against the same properties.8. The law on the subject is well settled. In Bandhu Singh v. Kayastha Trading Bank, Ltd., ILR 53 All 419: (AIR 1931 All 134) where a decree-holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of S. 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained.The result of the decisions may be summarized thus: An application made after 12 years from the date of the decree would be a fresh application within the meaning of S. 48 of theCode of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.10. In this case, as we have pointed out, the parties are substantially the same in both the proceedings, and the decree-holders are only proceeding against properties included in the previous application. It cannot, therefore, be treated as a fresh application within the meaning of S. 48 of the Code. It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court.11. That apart, the decree-holders filed E. A. No. 142 of 1952 in E. P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it. As we have held that the earlier execution petition is still pending on the file of the Court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition. | 0 | 3,478 | 1,353 | ### 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:
intention of the court in making an order "closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated. In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the court to ascertain, having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court.We have no hesitation, therefore, in agreeing with the High Court that E.P. 13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue the same.7. Even so, it is contended that E. P. No. 58 of 1953 is a fresh application. Learned counsel compared the recitals in E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that all the respondents in the former execution petition are not respondents in the present execution petition; that legal representatives of some of the defendants are added to the present execution petition; that the decree-holders did not seek to proceed against all the properties against which they sought to proceed in the former execution petition; and that one of the reliefs, namely, to attach the amount deposited in court, asked for in the present execution petition is a completely new one and that, therefore, the present execution petition is, both in form and in particulars, completely a different one. But a comparison of the two execution petitions shows that the parties are the same; the new parties added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent. In the present execution petition the decree-holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties. The decree-holders cannot be compelled to proceed against all the properties against which at one time they sought to proceed. The relief by way of attachment of the amount deposited in court had been asked for by the decree-holders by a separate petition, namely, E. A. No. 143 of 1952, and that was dismissed and, therefore, nothing turns upon it. The result is, therefore, in substance under both the execution petitions the decree-holders seek to proceed against the same parties and against the same properties.8. The law on the subject is well settled. In Bandhu Singh v. Kayastha Trading Bank, Ltd., ILR 53 All 419: (AIR 1931 All 134) where a decree-holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of S. 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained. In Venkata Lingama Nayanim v. Rajagopala Venkata Narasimha Rayanim, ILR (1947) Mad 525: (AIR 1947 Mad 216 ) where an application was made for amending a pending execution petition with a view to attach another property not included in the pending application, the court held that the application for amendment could not be allowed, as it was made beyond the period of 12 years from the date of the decree. In Lakshminarasinga Rao v. Balasubrahmanyam, AIR 1949 Mad 251 where the execution petition filed beyond 12 years of the decree asked for a new relief not asked for in the earlier execution petition, it was held that the subsequent application having been filed beyond 12 years, was hit by S. 48 of the Code. In Gajanand Shah v. Dayanand Thakur, ILR 21 Pat 838: (AIR 1943 Pat 251) the decree-holder was not allowed to substitute a new property different from the one against which he wished to proceed in the earlier application on the ground that 12 years had expired from the date of the passing of the decree.9. The result of the decisions may be summarized thus: An application made after 12 years from the date of the decree would be a fresh application within the meaning of S. 48 of the Code of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.10. In this case, as we have pointed out, the parties are substantially the same in both the proceedings, and the decree-holders are only proceeding against properties included in the previous application. It cannot, therefore, be treated as a fresh application within the meaning of S. 48 of the Code. It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court.11. That apart, the decree-holders filed E. A. No. 142 of 1952 in E. P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it. As we have held that the earlier execution petition is still pending on the file of the Court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition.
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of 1952 for reopening E.P. No. 13 of 1939. On that petition the learned Subordinate Judge made the following order:"The previous E.P. was merely closed. Petitioner may file a regular E.P. on which proceedings will continue from the stage at which they were left in E. P. 13 of 1939." This order discloses that the previous execution petition was only closed. The Subordinate Judge must have presumably looked into the previous record. The learned Subordinate Judge proceeded on the assumption that the previous execution petition was pending, though he dismissed the present execution petition on another ground. This factual position was not contested even in the High Court, for the High Court stated that the previous application was merely closed for statistical purposes. In the circumstances we must proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statisticalthat the order was made by reason of the decree-holders default within the meaning of O. XXI, R. 57 of the Code, we find it difficult to attribute something to the court which it never intended to do. It is true courts have condemned the practice of executing courts using expressions like "closed", "closed for statistical purposes", "struck off", "recorded" etc., and they also pointed out that there was no provision in theCode of Civil Procedure for making such orders: see Biswa Sonan Chunder Gossamy v. Binanda Chunder Dibingar Adhikar, ILR 10 Cal 416 at p. 422; V. Damodara Rao v. Official Receiver, Kistna, ILR (1946) Mad 527 : (AIR 1946 Mad 170 ); Moidin Kutty v. Doraiswami, AIR 1952 Mad 51 . It is not necessary to express our opinion on the question whether such procedure is sanctioned by theCode of Civil Procedure or not; but assuming that the court has no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the court in making an order "closed" for statistical purposes is manifest. It is intended not to finally dispose of the application, but to keep it pending. Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated. In either case the execution petition would be pending on the file of the court. That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material. Whatever terminology may be used, it is for the court to ascertain, having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings. If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the court.We have no hesitation, therefore, in agreeing with the High Court that E.P. 13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue thea comparison of the two execution petitions shows that the parties are the same; the new parties added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent. In the present execution petition the decree-holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties. The decree-holders cannot be compelled to proceed against all the properties against which at one time they sought to proceed. The relief by way of attachment of the amount deposited in court had been asked for by the decree-holders by a separate petition, namely, E. A. No. 143 of 1952, and that was dismissed and, therefore, nothing turns upon it. The result is, therefore, in substance under both the execution petitions the decree-holders seek to proceed against the same parties and against the same properties.8. The law on the subject is well settled. In Bandhu Singh v. Kayastha Trading Bank, Ltd., ILR 53 All 419: (AIR 1931 All 134) where a decree-holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of S. 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained.The result of the decisions may be summarized thus: An application made after 12 years from the date of the decree would be a fresh application within the meaning of S. 48 of theCode of Civil Procedure, if the previous application was finally disposed of. It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.10. In this case, as we have pointed out, the parties are substantially the same in both the proceedings, and the decree-holders are only proceeding against properties included in the previous application. It cannot, therefore, be treated as a fresh application within the meaning of S. 48 of the Code. It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court.11. That apart, the decree-holders filed E. A. No. 142 of 1952 in E. P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it. As we have held that the earlier execution petition is still pending on the file of the Court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition.
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Government of Andhra Pradesh Vs. Messrs Anabeshahi Wine and Distilleries Private Limited | and Nashirwar case [Nashirwar v. State of M.P., (1975) 1 SCC 29 ]. There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. In "American Jurisprudence", Volume 30 it is stated that while engaging liquor traffic is not inherently lawful, nevertheless it is a privilege and not a right, subject to governmental control (p, 538). This power of control is an incident of the societys right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime (pp. 539, 540, 541) Since rights in regard to intoxicants belong to the State, it is open to the government to part with those rights for a consideration. By Article 298 of the Constitution, the executive power of the Constitution, the executive power of the State extends to the carrying on of any trade or business and to the making contracts for any purpose. As observed in Harinarayan Jaiswal case, [State of Orissa v. Harinarayan Jaiswal, [(1972) 2 SCC 36] (SCC p. 44, para 13)if the Government is the exclusive owner of those privileges, reliance on Article 19(1)(g) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the government, nor can there by any infringement of Article 14, if the government tries to get the best available price for its valuable rights Section 27 of the Act recognises the right of the government to grant a lease of its right to manufacture, supply or sell intoxicants. Section 34 of the Act read with Section 59(d) empowers the Financial Commissioner to direct that a licence, permit or pass be granted under the Act on payment of such fees and subject to such restrictions and on such conditions as he may prescribe. In such a scheme, it is not of the essence whether the amount charged to the licensees is predetermined as in the appeals of Northern India Caterers and of Green Hotel or whether it is left to be determined by bids offered in actions held for granting those rights to licensees. The power of the government to charge a price for parting with its rights and not the mode of fixing that price is what constitutes the essence of the matter. Nor indeed does the label affixed to the price determine either the true nature of the charge levied by the government or its right to levy the same The principle of law enunciated in the case of Har Shankar [(1975) 3 SCR 254 : (1975) 1 SCC 737 ] was reiterated in State of Haryana v. Jage Ram [(1980) 3 SCR 746 : (1980) 4 SCC 599]. wherein Chandrachud, C.J. speaking for the court said : (SCC p. 607, para 22) The amount which the respondents agreed to pay to the State Government under the terms of the auction is neither a fee properly so called which would required the existence of a quid pro quo, nor indeed is the amount in the nature of excise duty, which by reason of the constitutional constraints has to be primarily a duty on the production or manufacture of goods produced or manufactured within the country. The respondents cannot therefore complain that they are being asked to pay "excise duty" or "still-head duty" on quota of liquor not taken, lifted or purchased by them. The respondents agreed to pay a certain sum under the terms of the auction and the rules only prescribe a convenient mode whereby their liability was spread over the entire year by splitting it up into fortnightly installments. The rules might as well have provided for payment of a lump sum and the very issuance of the licence could have been made to depend on the payment of such sum. If it could not be argued in that event the lump sum payment represented excise duty, it cannot be so argued in the present event merely because the quota for which the respondents gave their bid is required to be multiplied by a certain figure per proof litre and further because the respondents were given the facility of paying the amount by installments while lifting the quota from time to time. What the respondents agreed to pay was the price of a privilege which the State parted with in their favour. They cannot therefore avoid their liability by contending that the payment which they were called upon to make is truly in the nature of excise duty and that no such duty can be imposed on liquor not lifted or purchased by them 6. The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make no difference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence could have been demand in a lump sum as price for parting with the privilege and it could not have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid case. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as contemplated by the relevant provisions of the Act and the Rules, it would not become illegal and vulnerable | 1[ds]4. Having considered the respective submissions made by learned counsel for the parties, we find substance in the submission made by learned counsel for the appellant. It has not been disputed, and in our opinion rightly, by learned counsel for the respondent that the business which the respondent has been carrying could not have been carried on by it unless licence had been granted to it under the Act and the Rules6. The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make no difference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence could have been demand in a lump sum as price for parting with the privilege and it could not have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid case. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as contemplated by the relevant provisions of the Act and the Rules, it would not become illegal and vulnerable | 1 | 2,406 | 249 | ### 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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and Nashirwar case [Nashirwar v. State of M.P., (1975) 1 SCC 29 ]. There is no fundamental right to do trade or business in intoxicants. The State, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. In "American Jurisprudence", Volume 30 it is stated that while engaging liquor traffic is not inherently lawful, nevertheless it is a privilege and not a right, subject to governmental control (p, 538). This power of control is an incident of the societys right to self-protection and it rests upon the right of the State to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime (pp. 539, 540, 541) Since rights in regard to intoxicants belong to the State, it is open to the government to part with those rights for a consideration. By Article 298 of the Constitution, the executive power of the Constitution, the executive power of the State extends to the carrying on of any trade or business and to the making contracts for any purpose. As observed in Harinarayan Jaiswal case, [State of Orissa v. Harinarayan Jaiswal, [(1972) 2 SCC 36] (SCC p. 44, para 13)if the Government is the exclusive owner of those privileges, reliance on Article 19(1)(g) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the government, nor can there by any infringement of Article 14, if the government tries to get the best available price for its valuable rights Section 27 of the Act recognises the right of the government to grant a lease of its right to manufacture, supply or sell intoxicants. Section 34 of the Act read with Section 59(d) empowers the Financial Commissioner to direct that a licence, permit or pass be granted under the Act on payment of such fees and subject to such restrictions and on such conditions as he may prescribe. In such a scheme, it is not of the essence whether the amount charged to the licensees is predetermined as in the appeals of Northern India Caterers and of Green Hotel or whether it is left to be determined by bids offered in actions held for granting those rights to licensees. The power of the government to charge a price for parting with its rights and not the mode of fixing that price is what constitutes the essence of the matter. Nor indeed does the label affixed to the price determine either the true nature of the charge levied by the government or its right to levy the same The principle of law enunciated in the case of Har Shankar [(1975) 3 SCR 254 : (1975) 1 SCC 737 ] was reiterated in State of Haryana v. Jage Ram [(1980) 3 SCR 746 : (1980) 4 SCC 599]. wherein Chandrachud, C.J. speaking for the court said : (SCC p. 607, para 22) The amount which the respondents agreed to pay to the State Government under the terms of the auction is neither a fee properly so called which would required the existence of a quid pro quo, nor indeed is the amount in the nature of excise duty, which by reason of the constitutional constraints has to be primarily a duty on the production or manufacture of goods produced or manufactured within the country. The respondents cannot therefore complain that they are being asked to pay "excise duty" or "still-head duty" on quota of liquor not taken, lifted or purchased by them. The respondents agreed to pay a certain sum under the terms of the auction and the rules only prescribe a convenient mode whereby their liability was spread over the entire year by splitting it up into fortnightly installments. The rules might as well have provided for payment of a lump sum and the very issuance of the licence could have been made to depend on the payment of such sum. If it could not be argued in that event the lump sum payment represented excise duty, it cannot be so argued in the present event merely because the quota for which the respondents gave their bid is required to be multiplied by a certain figure per proof litre and further because the respondents were given the facility of paying the amount by installments while lifting the quota from time to time. What the respondents agreed to pay was the price of a privilege which the State parted with in their favour. They cannot therefore avoid their liability by contending that the payment which they were called upon to make is truly in the nature of excise duty and that no such duty can be imposed on liquor not lifted or purchased by them 6. The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make no difference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence could have been demand in a lump sum as price for parting with the privilege and it could not have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid case. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as contemplated by the relevant provisions of the Act and the Rules, it would not become illegal and vulnerable
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4. Having considered the respective submissions made by learned counsel for the parties, we find substance in the submission made by learned counsel for the appellant. It has not been disputed, and in our opinion rightly, by learned counsel for the respondent that the business which the respondent has been carrying could not have been carried on by it unless licence had been granted to it under the Act and the Rules6. The principles laid down in the aforementioned cases will, in our opinion, apply to the instant case also. The fact of the demand being with regard to establishment charges will make no difference. A predetermined amount equivalent to or even higher than the amount which is sought to be recovered by the appellant from the respondent calculated for the entire period of the licence could have been demand in a lump sum as price for parting with the privilege and it could not have been challenged by the respondent in view of the principle enunciated by this Court in the aforesaid case. Simply because the demand was spread over with a view to making it just and reasonable so as to represent the actual expenditure incurred by the government to maintain the requisite excise staff at the factory premises of the respondent as contemplated by the relevant provisions of the Act and the Rules, it would not become illegal and vulnerable
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The Hyderabad Co-Operative Commercial Corpn. Ltd. and Ors Vs. Syed Mohiuddin Khadir (Dead) By L.Rs. and Ors | Society is registered. Section 5B of the 1942 Act which speaks of delegation of any power or authority exercisable by Central Registrar to be exercisable by Registrar of Co-operative Societies of a State is contended by the decree holder to exclude the State Registrar from acquiring any power by delegation. The decree-holder contended that the power of delegation contemplated in section SB was confined only to matters mentioned in section 5A of the 1942 Act. 19. Under the 1942 Act Multi-unit Co-operative Societies whether registered before or after the coming into force of the Act were governed by the Co-operative Societies Act of the States in which they were registered. Under the 1942 Act and in particular sections 2 and 3 thereof, some powers like those of inspection, audit were given to Registrars of other States where such Societies had branches. 20. Under section 4(1) of the 1942 Act, the Central Government may, if it thinks fit, appoint a Central Registrar of the Co-operative Societies. Section 4(2) of the 1942 Act provides that the Central Registrar of Co-operative Societies, if appointed, shall exercise in respect of any co-operative society to which the 1942 Act applies, to the exclusion of State Registrars, the powers and functions exercisable by the Registrar of Co-operative Societies of a State in which such Society is actually registered. The powers which the Central Registrar is to exercise under the 1942 Act are powers under the Co-operative Societies Act of the State where a particular Society is registered. The power s exercisable by the State Registrar under the Co-operative Societies Act are by reference under section 4(2) of the 1942 Act incorporated into the 1942 Act and exercisable by the Central Registrar where the Central Registrar is appointed by the Central Government. 21. The State Registrar was admittedly competent to exercise in respect of the Co-operative Society all powers under the Hyderabad Co-operative Societies Act, 1952 referred to as the 1952 State Act. Under the 1952 State Act, the State Registrar had the power to dissolve the Cooperative Society and appoint a liquidator. 22. The Central Government appointed a Central Registrar of Co operative Societies for the first time on 29 December, 1956. If the matters had rested there, the State Registrar would have been divested of his powers over the Society under the State Act as from that date. The matters, however, did not rest there. Section 5B of the 1942 Act empowers the Central Government to delegate any power or authority exercisable by the Central Registrar under the Act to State Registrars and certain other officers by a Notification published in the official Gazette. Simultaneously with the appointment of the Central Registrar, the Central Government published a Notification on 29 December, 1956 delegating the powers or authority under the 1942 Act in relation to certain, matters including dissolution to the State Registrars and other officers mentioned in the Notification in respect of Societies registered in their respective States. The Registrar of Societies, Andhra Pradesh was specifically mentioned in the Notifications. 23. The result of the Notification was that the powers under the State Act of 1952 of which the State Registrar was divested by the appointment of the Central Registrar were immediately restored to him. [It is in exercise of these powers under the State Act of 1952 which were restored to the State Registrar that he passed the order of dissolution of the Society and appointed a liquidator on 6 September, 1960. 24. Section 5B of the 1942 Act empowers the Central Government to Delegate any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act (meaning thereby the 1942 Act) to the State Registrars and other officers. The language in section 5B of the 1942 Act is plain. There are no words of limitation or reservation. The expression any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act takes in all powers under the 1942 Act including those under section 4(2) which are the powers under the State Act embodied by reference in that section. 25. The simultaneous introduction of section 5A and section 5B into the 1942 Act in the year 1956 with effect from 1 November, 1956 point to the fact that section 5B follows section SA but does not confine section SB only to matters mentioned in section 5A of the 1942 Act. The contention on behalf of the decree-holder that the expression any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act in section SB means only powers o r authority under section 5A of the Act is unsound. Section 5A of the 1942 act is a transitional provision regarding certain Cooperative Societies affected by the Re-organisation of States. The provisions contained in section 5B of the 1942 Act do not have any words of restriction in their application only to Section 5A of the 1942 Act. on the contrary, the provisions in section 5B of the 1942 Act speak of delegation of power or authority exercisable by the Central Registrar under the 1942 Act. Whatever powers are exercisable by the Central Registrar by reason of section 4(2) of the 1942 Act are capable of being delegated by reason of provisions contained in section SB of the 1942 Act. The delegation by the Central Government of the powers exercisable by the Central Registrar to be exercised by the State Registrar is supported by the provision of the 1942 Art. The order of delegation being valid, the State Registrar was competent to dissolve the Co-operative Society by the order dated 6 September, 1960. 26. It is, therefore, not necessary to express any opinion as to whether the contention of the decree-holder challenging the validity of the order of dissolution of the Co-operative Society and appointment of liquidator is barred by reason of constructive resjudicata on account of the dismissal of the Writ Petition No. 763 of 1960 filed by the decree holder in the High Court. | 1[ds]10. The documents in the present case and in particular the letter dated 12 June, 1959 and the letter dated 2 December, 1959 written by the Accountant General to the Court establish that there was a debt due to the Co-operative Society and the attachment was validly made. The letter dated 12 June, 1959 provided for payment and the payment was approved by the Commissioner. The officers disbursing the amount were to pay in accordance with the rules and inform the Department about the expenditure incurred in that behalf. There is intrinsic evidence in the letter dated 12 June, 1959 that the approval by the Commissioner is not only sanction of the payment but also approval of the same. Payment in accordance with rules means that documents are to be vouched and there should be particulars of payment and identification of the persons to whom payment is to be made.11. The letter dated 2 December, 1959 written by the Accountant General to the Court is tantamount to the money being nationally brought to the Court. The Accountant General said that the payment was not to be made except with the concurrence of the Court. Thus it came into the control of and was held on behalf of the Court. The amount of Rs. 4, 50, 000/- was not a mere budget provision but the documents show that the amount had ripened into a debt and an order for payment to the Co-operative Society. The sum of Rs. 4,50,000/- was impressed with the character of a debt due to the Co-operative Society and it was validly attached12. The contention on behalf of the State that the amount was not brought into Court and there fore, the provision lapsed is devoid of substance13. The letter dated 12 June, 1959 provided for payment of the sum of Rs. 4, 50, 000/-. The letter of the Accountant General dated December 2, 1959 indicated that the Accountant General pursuant to the order of the Court dated 27 November, 1959 brought the money to the CourtIn the present case, the letter dated 12 June, 1959 proves that there is an obligation to pay the specified sum of Rs. 4, 50, 000/- to the Co-operative Society. The budget provision fastened on to the claim of the Co-operative Society against the State and it ripened into a debt payable t o the Co-operative Society. Therefore, in the circumstances, the attachment levied by he City Civil Court was perfected by bringing money to the Court.16. Though the High Court dismissed the writ petition, the High Court had to deal with the question of liquidation of the Co-operative Society in C.M.A. No. 210 of 1967 and C.M.A. No. 374 of 1967 . These two out of the order of the City Civil Court dated 11 July, 1967 in the decree-holders Execution Petition No. 95 of 1959. The City Civil Court held that the judgment of the High Court upholding the validity of the order of dissolution and appointment of the liquidator in Writ Petition No. 763 of 1960 did not prevent the decree-holder from contending that the State Registrar had no jurisdiction to pass the order of liquidation. The High Court in the appeal in C.M.A. No. 210 of 1967 and C.M.A. No. 374 of 1967 held that though the High Court had decided in Writ Petition No. 763 of 1960 upholding the validity of the liquidation yet the order of liquidation could not be sustained because the delegation made under section SB of the Multiunit Co-operative Societies Act, 1942 was incompetentThe Co-operative Society was a Society registered before the Re-organisation of the States in 1956. As such the Society is a Multi-unit Society governed by the 1942 Act. The decree-holder did not challenge this position21. The State Registrar was admittedly competent to exercise in respect of the Co-operative Society all powers under the Hyderabad Co-operative Societies Act, 1952 referred to as the 1952 State Act. Under the 1952 State Act, the State Registrar had the power to dissolve the Cooperative Society and appoint a liquidator22. The Central Government appointed a Central Registrar of Co operative Societies for the first time on 29 December, 1956. If the matters had rested there, the State Registrar would have been divested of his powers over the Society under the State Act as from that date. The matters, however, did not rest there. Section 5B of the 1942 Act empowers the Central Government to delegate any power or authority exercisable by the Central Registrar under the Act to State Registrars and certain other officers by a Notification published in the official Gazette. Simultaneously with the appointment of the Central Registrar, the Central Government published a Notification on 29 December, 1956 delegating the powers or authority under the 1942 Act in relation to certain, matters including dissolution to the State Registrars and other officers mentioned in the Notification in respect of Societies registered in their respective States. The Registrar of Societies, Andhra Pradesh was specifically mentioned in the Notifications.23. The result of the Notification was that the powers under the State Act of 1952 of which the State Registrar was divested by the appointment of the Central Registrar were immediately restored to him. [It is in exercise of these powers under the State Act of 1952 which were restored to the State Registrar that he passed the order of dissolution of the Society and appointed a liquidator on 6 September, 196025. The simultaneous introduction of section 5A and section 5B into the 1942 Act in the year 1956 with effect from 1 November, 1956 point to the fact that section 5B follows section SA but does not confine section SB only to matters mentioned in section 5A of the 1942 Act. The contention on behalf of the decree-holder that the expression any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act in section SB means only powers o r authority under section 5A of the Act is unsound. Section 5A of the 1942 act is a transitional provision regarding certain Cooperative Societies affected by the Re-organisation of States. The provisions contained in section 5B of the 1942 Act do not have any words of restriction in their application only to Section 5A of the 1942 Act. on the contrary, the provisions in section 5B of the 1942 Act speak of delegation of power or authority exercisable by the Central Registrar under the 1942 Act. Whatever powers are exercisable by the Central Registrar by reason of section 4(2) of the 1942 Act are capable of being delegated by reason of provisions contained in section SB of the 1942 Act. The delegation by the Central Government of the powers exercisable by the Central Registrar to be exercised by the State Registrar is supported by the provision of the 1942 Art. The order of delegation being valid, the State Registrar was competent to dissolve the Co-operative Society by the order dated 6 September, 1960.26. It is, therefore, not necessary to express any opinion as to whether the contention of the decree-holder challenging the validity of the order of dissolution of the Co-operative Society and appointment of liquidator is barred by reason of constructive resjudicata on account of the dismissal of the Writ Petition No. 763 of 1960 filed by the decree holder in the High Court. | 1 | 3,283 | 1,326 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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Society is registered. Section 5B of the 1942 Act which speaks of delegation of any power or authority exercisable by Central Registrar to be exercisable by Registrar of Co-operative Societies of a State is contended by the decree holder to exclude the State Registrar from acquiring any power by delegation. The decree-holder contended that the power of delegation contemplated in section SB was confined only to matters mentioned in section 5A of the 1942 Act. 19. Under the 1942 Act Multi-unit Co-operative Societies whether registered before or after the coming into force of the Act were governed by the Co-operative Societies Act of the States in which they were registered. Under the 1942 Act and in particular sections 2 and 3 thereof, some powers like those of inspection, audit were given to Registrars of other States where such Societies had branches. 20. Under section 4(1) of the 1942 Act, the Central Government may, if it thinks fit, appoint a Central Registrar of the Co-operative Societies. Section 4(2) of the 1942 Act provides that the Central Registrar of Co-operative Societies, if appointed, shall exercise in respect of any co-operative society to which the 1942 Act applies, to the exclusion of State Registrars, the powers and functions exercisable by the Registrar of Co-operative Societies of a State in which such Society is actually registered. The powers which the Central Registrar is to exercise under the 1942 Act are powers under the Co-operative Societies Act of the State where a particular Society is registered. The power s exercisable by the State Registrar under the Co-operative Societies Act are by reference under section 4(2) of the 1942 Act incorporated into the 1942 Act and exercisable by the Central Registrar where the Central Registrar is appointed by the Central Government. 21. The State Registrar was admittedly competent to exercise in respect of the Co-operative Society all powers under the Hyderabad Co-operative Societies Act, 1952 referred to as the 1952 State Act. Under the 1952 State Act, the State Registrar had the power to dissolve the Cooperative Society and appoint a liquidator. 22. The Central Government appointed a Central Registrar of Co operative Societies for the first time on 29 December, 1956. If the matters had rested there, the State Registrar would have been divested of his powers over the Society under the State Act as from that date. The matters, however, did not rest there. Section 5B of the 1942 Act empowers the Central Government to delegate any power or authority exercisable by the Central Registrar under the Act to State Registrars and certain other officers by a Notification published in the official Gazette. Simultaneously with the appointment of the Central Registrar, the Central Government published a Notification on 29 December, 1956 delegating the powers or authority under the 1942 Act in relation to certain, matters including dissolution to the State Registrars and other officers mentioned in the Notification in respect of Societies registered in their respective States. The Registrar of Societies, Andhra Pradesh was specifically mentioned in the Notifications. 23. The result of the Notification was that the powers under the State Act of 1952 of which the State Registrar was divested by the appointment of the Central Registrar were immediately restored to him. [It is in exercise of these powers under the State Act of 1952 which were restored to the State Registrar that he passed the order of dissolution of the Society and appointed a liquidator on 6 September, 1960. 24. Section 5B of the 1942 Act empowers the Central Government to Delegate any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act (meaning thereby the 1942 Act) to the State Registrars and other officers. The language in section 5B of the 1942 Act is plain. There are no words of limitation or reservation. The expression any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act takes in all powers under the 1942 Act including those under section 4(2) which are the powers under the State Act embodied by reference in that section. 25. The simultaneous introduction of section 5A and section 5B into the 1942 Act in the year 1956 with effect from 1 November, 1956 point to the fact that section 5B follows section SA but does not confine section SB only to matters mentioned in section 5A of the 1942 Act. The contention on behalf of the decree-holder that the expression any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act in section SB means only powers o r authority under section 5A of the Act is unsound. Section 5A of the 1942 act is a transitional provision regarding certain Cooperative Societies affected by the Re-organisation of States. The provisions contained in section 5B of the 1942 Act do not have any words of restriction in their application only to Section 5A of the 1942 Act. on the contrary, the provisions in section 5B of the 1942 Act speak of delegation of power or authority exercisable by the Central Registrar under the 1942 Act. Whatever powers are exercisable by the Central Registrar by reason of section 4(2) of the 1942 Act are capable of being delegated by reason of provisions contained in section SB of the 1942 Act. The delegation by the Central Government of the powers exercisable by the Central Registrar to be exercised by the State Registrar is supported by the provision of the 1942 Art. The order of delegation being valid, the State Registrar was competent to dissolve the Co-operative Society by the order dated 6 September, 1960. 26. It is, therefore, not necessary to express any opinion as to whether the contention of the decree-holder challenging the validity of the order of dissolution of the Co-operative Society and appointment of liquidator is barred by reason of constructive resjudicata on account of the dismissal of the Writ Petition No. 763 of 1960 filed by the decree holder in the High Court.
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1
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the documents show that the amount had ripened into a debt and an order for payment to the Co-operative Society. The sum of Rs. 4,50,000/- was impressed with the character of a debt due to the Co-operative Society and it was validly attached12. The contention on behalf of the State that the amount was not brought into Court and there fore, the provision lapsed is devoid of substance13. The letter dated 12 June, 1959 provided for payment of the sum of Rs. 4, 50, 000/-. The letter of the Accountant General dated December 2, 1959 indicated that the Accountant General pursuant to the order of the Court dated 27 November, 1959 brought the money to the CourtIn the present case, the letter dated 12 June, 1959 proves that there is an obligation to pay the specified sum of Rs. 4, 50, 000/- to the Co-operative Society. The budget provision fastened on to the claim of the Co-operative Society against the State and it ripened into a debt payable t o the Co-operative Society. Therefore, in the circumstances, the attachment levied by he City Civil Court was perfected by bringing money to the Court.16. Though the High Court dismissed the writ petition, the High Court had to deal with the question of liquidation of the Co-operative Society in C.M.A. No. 210 of 1967 and C.M.A. No. 374 of 1967 . These two out of the order of the City Civil Court dated 11 July, 1967 in the decree-holders Execution Petition No. 95 of 1959. The City Civil Court held that the judgment of the High Court upholding the validity of the order of dissolution and appointment of the liquidator in Writ Petition No. 763 of 1960 did not prevent the decree-holder from contending that the State Registrar had no jurisdiction to pass the order of liquidation. The High Court in the appeal in C.M.A. No. 210 of 1967 and C.M.A. No. 374 of 1967 held that though the High Court had decided in Writ Petition No. 763 of 1960 upholding the validity of the liquidation yet the order of liquidation could not be sustained because the delegation made under section SB of the Multiunit Co-operative Societies Act, 1942 was incompetentThe Co-operative Society was a Society registered before the Re-organisation of the States in 1956. As such the Society is a Multi-unit Society governed by the 1942 Act. The decree-holder did not challenge this position21. The State Registrar was admittedly competent to exercise in respect of the Co-operative Society all powers under the Hyderabad Co-operative Societies Act, 1952 referred to as the 1952 State Act. Under the 1952 State Act, the State Registrar had the power to dissolve the Cooperative Society and appoint a liquidator22. The Central Government appointed a Central Registrar of Co operative Societies for the first time on 29 December, 1956. If the matters had rested there, the State Registrar would have been divested of his powers over the Society under the State Act as from that date. The matters, however, did not rest there. Section 5B of the 1942 Act empowers the Central Government to delegate any power or authority exercisable by the Central Registrar under the Act to State Registrars and certain other officers by a Notification published in the official Gazette. Simultaneously with the appointment of the Central Registrar, the Central Government published a Notification on 29 December, 1956 delegating the powers or authority under the 1942 Act in relation to certain, matters including dissolution to the State Registrars and other officers mentioned in the Notification in respect of Societies registered in their respective States. The Registrar of Societies, Andhra Pradesh was specifically mentioned in the Notifications.23. The result of the Notification was that the powers under the State Act of 1952 of which the State Registrar was divested by the appointment of the Central Registrar were immediately restored to him. [It is in exercise of these powers under the State Act of 1952 which were restored to the State Registrar that he passed the order of dissolution of the Society and appointed a liquidator on 6 September, 196025. The simultaneous introduction of section 5A and section 5B into the 1942 Act in the year 1956 with effect from 1 November, 1956 point to the fact that section 5B follows section SA but does not confine section SB only to matters mentioned in section 5A of the 1942 Act. The contention on behalf of the decree-holder that the expression any power or authority exercisable by the Central Registrar of Co-operative Societies under this Act in section SB means only powers o r authority under section 5A of the Act is unsound. Section 5A of the 1942 act is a transitional provision regarding certain Cooperative Societies affected by the Re-organisation of States. The provisions contained in section 5B of the 1942 Act do not have any words of restriction in their application only to Section 5A of the 1942 Act. on the contrary, the provisions in section 5B of the 1942 Act speak of delegation of power or authority exercisable by the Central Registrar under the 1942 Act. Whatever powers are exercisable by the Central Registrar by reason of section 4(2) of the 1942 Act are capable of being delegated by reason of provisions contained in section SB of the 1942 Act. The delegation by the Central Government of the powers exercisable by the Central Registrar to be exercised by the State Registrar is supported by the provision of the 1942 Art. The order of delegation being valid, the State Registrar was competent to dissolve the Co-operative Society by the order dated 6 September, 1960.26. It is, therefore, not necessary to express any opinion as to whether the contention of the decree-holder challenging the validity of the order of dissolution of the Co-operative Society and appointment of liquidator is barred by reason of constructive resjudicata on account of the dismissal of the Writ Petition No. 763 of 1960 filed by the decree holder in the High Court.
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New India Assurance Co.Ltd Vs. Gopali | under Section 163-A of the Motor Vehicles Act,1988 (the MV Act, for short). But, such percentage of deduction is not an inflexible rule and offers merely a guideline. 15. The Bench then referred to the judgments in Kerala State Road Transport Corporation v. Susamma Thomas (1994) 2 SCC 176 , U.P.SRTC v. Trilok Chandra (1996) 4 SCC 362 and Fakeerappa v. Karnataka Cement Pipe Factory (2004) 2 SCC 473 and held: Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 16. The issue was recently considered in Santosh Devi v. National Insurance Company Ltd. and others (Civil Appeal No.3723 of 2012 decided on 23.3.2012) and it was observed: It is also not possible to approve the view taken by the Tribunal which has been reiterated by the High Court albeit without assigning reasons that the deceased would have spent 1/3rd of his total earning, i.e., Rs. 500/-, towards personal expenses. It seems that the Presiding Officer of the Tribunal and the learned Single Judge of the High Court were totally oblivious of the hard realities of the life. It will be impossible for a person whose monthly income is Rs.1,500/- to spend 1/3rd on himself leaving 2/3rd for the family consisting of five persons. Ordinarily, such a person would, at best, spend 1/10th of his income on himself or use that amount as personal expenses and leave the rest for his family. 17. National Sample Survey Report No. 527 on Household Consumer Expenditure in India 2006-07, which has been prepared after conducting thorough research on the subject contains the figures of monthly per capita expenditure (MPCE) for various classes. These are extracted below: Table 18. Here, we are dealing with a case in which the deceased had 8 dependents including four sons and one daughter. The question which arises for our consideration is whether in 1992 a person having an income of less than Rs.3,000/- and a family of 9 could think of spending 1/3rd of his income on himself. On a conservative estimate, it is possible to say, he would have spent at least 50% of the income on the purchase of foodgrains, milk, etc., and for payment of water, electricity and other bills. 25% of the income would have been spent on the education of children which would have included school/college fee, cost of books, etc. 15% of the income would have been used for meeting other family necessities, like, clothes, medical expenses, etc. He would have then been left with 10% of his income, a portion of which could be used to meet unforeseen contingencies and on the occasion of festivals. In this scenario, any deduction towards personal expenses would be unrealistic. In any case, where the family of the deceased comprised of 5 persons or more having an income of Rs.3,000/- to Rs.5,000/-, it is virtually impossible for him to spend more than 1/10th of the total income upon himself. 19. What we have observed hereinabove may not apply to rich people living in urban areas who can afford to spend a substantial amount of their income in clubs, hotels and on drinks parties. In those cases, there may be a semblance of justification in applying the rule of 1/3rd deduction but it would be wholly unrealistic to universally apply that rule in all cases. 20. On the basis of the above discussion, we hold that the learned Single Judge of the High Court did not commit any error by not following the rule of 1/3rd deduction towards the personal expenses of the deceased. 21. We are also of the view that the High Court was justified in determining the amount of compensation by granting 100% increase in the income of the deceased. In the normal course, the deceased would have served for 22 years and during that period his salary would have certainly doubled because the employer was paying 20% of his salary as bonus per year. 22. The issue which remains to be considered is whether the Tribunal and the High Court committed an error by applying the multiplier of 10. 23. In Sarla Verma v. Delhi Transport Corporation (supra), this Court considered the question relating to selection of multiplier, referred to the judgments in Kerala State Road Transport Corporation v. Susamma Thomas (supra), U.P.SRTC v. Trilok Chandra (supra) and the Second Schedule appended to the Act and held : We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M- 13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. 24. It is not in dispute that at the time of accident, the age of the deceased was 36 years. Therefore, the Tribunal and the High Court were not right in applying the multiplier of 10. They should have adopted the multiplier of 15 for the purpose of determining the amount of compensation. | 0[ds]12. In our view, the appellants challenge to the impugned order is meritless and the appeal is liable to be dismissed. We are also convinced that this is a fit case in which the Court should exercise power under Article 142 of the Constitution and enhance the compensation determined by the High Court by applying appropriate multiplierhold that the learned Single Judge of the High Court did not commit any error by not following the rule of 1/3rd deduction towards the personal expenses of the deceased21. We are also of the view that the High Court was justified in determining the amount of compensation by granting 100% increase in the income of the deceased. In the normal course, the deceased would have served for 22 years and during that period his salary would have certainly doubled because the employer was paying 20% of his salary as bonus per year22. The issue which remains to be considered is whether the Tribunal and the High Court committed an error by applying the multiplier of 1024. It is not in dispute that at the time of accident, the age of the deceased was 36 years. Therefore, the Tribunal and the High Court were not right in applying the multiplier of 10. They should have adopted the multiplier of 15 for the purpose of determining the amount of compensation | 0 | 3,205 | 243 | ### 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:
under Section 163-A of the Motor Vehicles Act,1988 (the MV Act, for short). But, such percentage of deduction is not an inflexible rule and offers merely a guideline. 15. The Bench then referred to the judgments in Kerala State Road Transport Corporation v. Susamma Thomas (1994) 2 SCC 176 , U.P.SRTC v. Trilok Chandra (1996) 4 SCC 362 and Fakeerappa v. Karnataka Cement Pipe Factory (2004) 2 SCC 473 and held: Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six. 16. The issue was recently considered in Santosh Devi v. National Insurance Company Ltd. and others (Civil Appeal No.3723 of 2012 decided on 23.3.2012) and it was observed: It is also not possible to approve the view taken by the Tribunal which has been reiterated by the High Court albeit without assigning reasons that the deceased would have spent 1/3rd of his total earning, i.e., Rs. 500/-, towards personal expenses. It seems that the Presiding Officer of the Tribunal and the learned Single Judge of the High Court were totally oblivious of the hard realities of the life. It will be impossible for a person whose monthly income is Rs.1,500/- to spend 1/3rd on himself leaving 2/3rd for the family consisting of five persons. Ordinarily, such a person would, at best, spend 1/10th of his income on himself or use that amount as personal expenses and leave the rest for his family. 17. National Sample Survey Report No. 527 on Household Consumer Expenditure in India 2006-07, which has been prepared after conducting thorough research on the subject contains the figures of monthly per capita expenditure (MPCE) for various classes. These are extracted below: Table 18. Here, we are dealing with a case in which the deceased had 8 dependents including four sons and one daughter. The question which arises for our consideration is whether in 1992 a person having an income of less than Rs.3,000/- and a family of 9 could think of spending 1/3rd of his income on himself. On a conservative estimate, it is possible to say, he would have spent at least 50% of the income on the purchase of foodgrains, milk, etc., and for payment of water, electricity and other bills. 25% of the income would have been spent on the education of children which would have included school/college fee, cost of books, etc. 15% of the income would have been used for meeting other family necessities, like, clothes, medical expenses, etc. He would have then been left with 10% of his income, a portion of which could be used to meet unforeseen contingencies and on the occasion of festivals. In this scenario, any deduction towards personal expenses would be unrealistic. In any case, where the family of the deceased comprised of 5 persons or more having an income of Rs.3,000/- to Rs.5,000/-, it is virtually impossible for him to spend more than 1/10th of the total income upon himself. 19. What we have observed hereinabove may not apply to rich people living in urban areas who can afford to spend a substantial amount of their income in clubs, hotels and on drinks parties. In those cases, there may be a semblance of justification in applying the rule of 1/3rd deduction but it would be wholly unrealistic to universally apply that rule in all cases. 20. On the basis of the above discussion, we hold that the learned Single Judge of the High Court did not commit any error by not following the rule of 1/3rd deduction towards the personal expenses of the deceased. 21. We are also of the view that the High Court was justified in determining the amount of compensation by granting 100% increase in the income of the deceased. In the normal course, the deceased would have served for 22 years and during that period his salary would have certainly doubled because the employer was paying 20% of his salary as bonus per year. 22. The issue which remains to be considered is whether the Tribunal and the High Court committed an error by applying the multiplier of 10. 23. In Sarla Verma v. Delhi Transport Corporation (supra), this Court considered the question relating to selection of multiplier, referred to the judgments in Kerala State Road Transport Corporation v. Susamma Thomas (supra), U.P.SRTC v. Trilok Chandra (supra) and the Second Schedule appended to the Act and held : We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M- 13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years. 24. It is not in dispute that at the time of accident, the age of the deceased was 36 years. Therefore, the Tribunal and the High Court were not right in applying the multiplier of 10. They should have adopted the multiplier of 15 for the purpose of determining the amount of compensation.
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0
### Explanation:
12. In our view, the appellants challenge to the impugned order is meritless and the appeal is liable to be dismissed. We are also convinced that this is a fit case in which the Court should exercise power under Article 142 of the Constitution and enhance the compensation determined by the High Court by applying appropriate multiplierhold that the learned Single Judge of the High Court did not commit any error by not following the rule of 1/3rd deduction towards the personal expenses of the deceased21. We are also of the view that the High Court was justified in determining the amount of compensation by granting 100% increase in the income of the deceased. In the normal course, the deceased would have served for 22 years and during that period his salary would have certainly doubled because the employer was paying 20% of his salary as bonus per year22. The issue which remains to be considered is whether the Tribunal and the High Court committed an error by applying the multiplier of 1024. It is not in dispute that at the time of accident, the age of the deceased was 36 years. Therefore, the Tribunal and the High Court were not right in applying the multiplier of 10. They should have adopted the multiplier of 15 for the purpose of determining the amount of compensation
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M/s. Dalmia Cement (Bharat) Limited, New Delhi Vs. Their Workmen & Another | the employees and their dependents, additions and alterations in buildings purchase of lands, payment of private tuition fee; purchase of sewing machines, and for purposes of litigation in which employees may get involved."3. On the question of leave the Tribunal held that there was no. reason for discrimination between members of the clerical staff and the subordinate staff and the workmen belonging to the subordinate staff are also entitled to privilege, casual and sick leave in the same way as the clerical staff. Against these orders the employer has preferred this appeal.4. The question whether encashment of leave was being allowed since 1948 in the manner as alleged is really a question of tact and we find nothing that would justify US in interfering with the decision of the Tribunal on a consideration of all the materials that there has been a continued and uninterrupted practice ever since 1948, of allowing encashment for certain purposes as set out in the award. There is first the oral testimony of A. L. Talwar, workmens witness No. 1 that there was such a practice. The management was asked to produce the applications for encashment of leave and the orders passed thereon for the years to 1948 to 1957. The management did not produce the applications for the years 1948 to 1953 on the ground that it was difficult to trace them and produced documents only for the period 1954 to 1957. Ex. W-4 is the statement showing the summary of orders made on such applications for encashment of privilege leave during the years 1954, 1955 and 1956. It shows the number of applications for encashment which were allowed for different periods - 21 in 1954, 28 in 1955 and 30 in 1956. There is nothing to show that any application for encashment made for any of the periods set out in W-4 was ever refused during these years. In Ex. M-1 (W. W. 1) we have these several applications for encashment with the orders thereupon. The orders show that in all these cases encashment was permitted. The appellant relies on the fact that in several of these applications the workmen-respondents mentioned that the prayer was being made not as a matter of right but only as a request.5. If this be an admission by the workmen that they had acquired no. right to obtain such encashment of privilege leave it is abundantly clear that this admission was made under pressure as otherwise the encashment might not have been granted. It is reasonable to think "that during all this period from 1948 to 1955 no. such statement that the prayer was being made not as of right appeared in any of the applications. If any such statement had appeared in a single application during those years the management would have produced that before the Tribunal. In this state of the evidence the Tribunal was right in its conclusion that there had been a continued and uninterrupted practice from 1948 for the encashment of privilege leave for the purposes mentioned in Ex W- 4. In view of such long and continued practice the Tribunal was also right in holding that such encashment of privilege leave had ripened into a condition of service and when in 1957 the management refused some of such applications this was without lawful reasons. The Tribunals award on the dispute as regards encashment of privilege leave is therefore correct.6. As regards leave the position undoubtedly is that the clerical staff enjoys better leave facilities than the subordinate staff. The clerical staff gets 30 days privilege leave, 12 days sick leave and 12 days casual leave in a year. The subordinate staff was getting 15 days privilege leave and 12 days sick and casual leave in a year. The Tribunal has accepted the workmens contention that this discrimination is unjustified. We have to consider however in this connection the provisions of S. 22 of Delhi Shops and Establishments Act, 1954. That section is in these words : -Leave- (1) Every person employed in an establishment shall be entitled : -(a) after twelve months of continuous employment to privilege leave with full wages for a total of not less than fifteen days;(b) in every year, to sickness or casual leave with wages for a total period not exceeding twelve days, provided that(i) Privilege leave admissible under Cl. (a) may be accumulated;Provided that where an employee has completed a continuous period of four months, he shall be enticed to not less than five days for every such completed period;Provided further that a watchman or caretaker who has been in continuous employment for a period of one year shall be entitled to not less than thirty days of privilege leave.2. If an employee entitled to leave under Cl. (a) of sub-s (1) of this section is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him full wage for the period of leave due to him."7. As regards privilege leave the section prescribes a minimum of 15 days. That does not stand in the way of the Tribunals conclusion that they should get 30 days leave as enjoyed by the clerks. We are unable to see anything that would justify our interference with the Tribunals decision on this point.8. As regards sick leave and casual leave however the position is that S. 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal. The fact that clerks are allowed sick and casual leave more than maximum mentioned in S. 22 does not entitle the Tribunal to disregard these provisions. In our opinion the Tribunal has acted illegally in directing the grant of sick and casual leave more than the maximum fixed by S. 22. | 1[ds]4. The question whether encashment of leave was being allowed since 1948 in the manner as alleged is really a question of tact and we find nothing that would justify US in interfering with the decision of the Tribunal on a consideration of all the materials that there has been a continued and uninterrupted practice ever since 1948, of allowing encashment for certain purposes as set out in the(W. W. 1) we have these several applications for encashment with the orders thereupon. The orders show that in all these cases encashment was permitted. The appellant relies on the fact that in several of these applications thementioned that the prayer was being made not as a matter of right but only as a request.5. If this be an admission by the workmen that they had acquired no. right to obtain such encashment of privilege leave it is abundantly clear that this admission was made under pressure as otherwise the encashment might not have been granted. It is reasonable to think "that during all this period from 1948 to 1955 no. such statement that the prayer was being made not as of right appeared in any of the applications. If any such statement had appeared in a single application during those years the management would have produced that before the Tribunal. In this state of the evidence the Tribunal was right in its conclusion that there had been a continued and uninterrupted practice from 1948 for the encashment of privilege leave for the purposes mentioned in Ex W4. In view of such long and continued practice the Tribunal was also right in holding that such encashment of privilege leave had ripened into a condition of service and when in 1957 the management refused some of such applications this was without lawful reasons. The Tribunals award on the dispute as regards encashment of privilege leave is therefore correct.As regards privilege leave the section prescribes a minimum of 15 days. That does not stand in the way of the Tribunals conclusion that they should get 30 days leave as enjoyed by the clerks. We are unable to see anything that would justify our interference with the Tribunals decision on this point.8. As regards sick leave and casual leave however the position is that S. 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal. The fact that clerks are allowed sick and casual leave more than maximum mentioned in S. 22 does not entitle the Tribunal to disregard these provisions. In our opinion the Tribunal has acted illegally in directing the grant of sick and casual leave more than the maximum fixed by S. 22. | 1 | 1,568 | 492 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the employees and their dependents, additions and alterations in buildings purchase of lands, payment of private tuition fee; purchase of sewing machines, and for purposes of litigation in which employees may get involved."3. On the question of leave the Tribunal held that there was no. reason for discrimination between members of the clerical staff and the subordinate staff and the workmen belonging to the subordinate staff are also entitled to privilege, casual and sick leave in the same way as the clerical staff. Against these orders the employer has preferred this appeal.4. The question whether encashment of leave was being allowed since 1948 in the manner as alleged is really a question of tact and we find nothing that would justify US in interfering with the decision of the Tribunal on a consideration of all the materials that there has been a continued and uninterrupted practice ever since 1948, of allowing encashment for certain purposes as set out in the award. There is first the oral testimony of A. L. Talwar, workmens witness No. 1 that there was such a practice. The management was asked to produce the applications for encashment of leave and the orders passed thereon for the years to 1948 to 1957. The management did not produce the applications for the years 1948 to 1953 on the ground that it was difficult to trace them and produced documents only for the period 1954 to 1957. Ex. W-4 is the statement showing the summary of orders made on such applications for encashment of privilege leave during the years 1954, 1955 and 1956. It shows the number of applications for encashment which were allowed for different periods - 21 in 1954, 28 in 1955 and 30 in 1956. There is nothing to show that any application for encashment made for any of the periods set out in W-4 was ever refused during these years. In Ex. M-1 (W. W. 1) we have these several applications for encashment with the orders thereupon. The orders show that in all these cases encashment was permitted. The appellant relies on the fact that in several of these applications the workmen-respondents mentioned that the prayer was being made not as a matter of right but only as a request.5. If this be an admission by the workmen that they had acquired no. right to obtain such encashment of privilege leave it is abundantly clear that this admission was made under pressure as otherwise the encashment might not have been granted. It is reasonable to think "that during all this period from 1948 to 1955 no. such statement that the prayer was being made not as of right appeared in any of the applications. If any such statement had appeared in a single application during those years the management would have produced that before the Tribunal. In this state of the evidence the Tribunal was right in its conclusion that there had been a continued and uninterrupted practice from 1948 for the encashment of privilege leave for the purposes mentioned in Ex W- 4. In view of such long and continued practice the Tribunal was also right in holding that such encashment of privilege leave had ripened into a condition of service and when in 1957 the management refused some of such applications this was without lawful reasons. The Tribunals award on the dispute as regards encashment of privilege leave is therefore correct.6. As regards leave the position undoubtedly is that the clerical staff enjoys better leave facilities than the subordinate staff. The clerical staff gets 30 days privilege leave, 12 days sick leave and 12 days casual leave in a year. The subordinate staff was getting 15 days privilege leave and 12 days sick and casual leave in a year. The Tribunal has accepted the workmens contention that this discrimination is unjustified. We have to consider however in this connection the provisions of S. 22 of Delhi Shops and Establishments Act, 1954. That section is in these words : -Leave- (1) Every person employed in an establishment shall be entitled : -(a) after twelve months of continuous employment to privilege leave with full wages for a total of not less than fifteen days;(b) in every year, to sickness or casual leave with wages for a total period not exceeding twelve days, provided that(i) Privilege leave admissible under Cl. (a) may be accumulated;Provided that where an employee has completed a continuous period of four months, he shall be enticed to not less than five days for every such completed period;Provided further that a watchman or caretaker who has been in continuous employment for a period of one year shall be entitled to not less than thirty days of privilege leave.2. If an employee entitled to leave under Cl. (a) of sub-s (1) of this section is discharged by his employer before he has been allowed the leave, or if, having applied for and having been refused the leave, he quits his employment before he has been allowed the leave, the employer shall pay him full wage for the period of leave due to him."7. As regards privilege leave the section prescribes a minimum of 15 days. That does not stand in the way of the Tribunals conclusion that they should get 30 days leave as enjoyed by the clerks. We are unable to see anything that would justify our interference with the Tribunals decision on this point.8. As regards sick leave and casual leave however the position is that S. 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal. The fact that clerks are allowed sick and casual leave more than maximum mentioned in S. 22 does not entitle the Tribunal to disregard these provisions. In our opinion the Tribunal has acted illegally in directing the grant of sick and casual leave more than the maximum fixed by S. 22.
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### Explanation:
4. The question whether encashment of leave was being allowed since 1948 in the manner as alleged is really a question of tact and we find nothing that would justify US in interfering with the decision of the Tribunal on a consideration of all the materials that there has been a continued and uninterrupted practice ever since 1948, of allowing encashment for certain purposes as set out in the(W. W. 1) we have these several applications for encashment with the orders thereupon. The orders show that in all these cases encashment was permitted. The appellant relies on the fact that in several of these applications thementioned that the prayer was being made not as a matter of right but only as a request.5. If this be an admission by the workmen that they had acquired no. right to obtain such encashment of privilege leave it is abundantly clear that this admission was made under pressure as otherwise the encashment might not have been granted. It is reasonable to think "that during all this period from 1948 to 1955 no. such statement that the prayer was being made not as of right appeared in any of the applications. If any such statement had appeared in a single application during those years the management would have produced that before the Tribunal. In this state of the evidence the Tribunal was right in its conclusion that there had been a continued and uninterrupted practice from 1948 for the encashment of privilege leave for the purposes mentioned in Ex W4. In view of such long and continued practice the Tribunal was also right in holding that such encashment of privilege leave had ripened into a condition of service and when in 1957 the management refused some of such applications this was without lawful reasons. The Tribunals award on the dispute as regards encashment of privilege leave is therefore correct.As regards privilege leave the section prescribes a minimum of 15 days. That does not stand in the way of the Tribunals conclusion that they should get 30 days leave as enjoyed by the clerks. We are unable to see anything that would justify our interference with the Tribunals decision on this point.8. As regards sick leave and casual leave however the position is that S. 22 fixed a maximum of 12 days total leave for sickness or casual leave with full wages. We do not see how this peremptory direction of the Legislature can be disregarded by a Tribunal. The fact that clerks are allowed sick and casual leave more than maximum mentioned in S. 22 does not entitle the Tribunal to disregard these provisions. In our opinion the Tribunal has acted illegally in directing the grant of sick and casual leave more than the maximum fixed by S. 22.
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The Fazilka Electric Supply Co. Ltd Vs. The Commissioner Of Income-Tax, Delhi | and such advertisement shall include inter alia the draft license. Where any person desires to have any amendment made in the draft license, he shall deliver a statement of the same. The rules further provide for a local enquiry if any person locally interested objects to the grant; if and when Government has approved of a drain license, either in its original form or in a modified form, a duty is cast on Government to inform the applicant of a such approval and of the form in which it is proposed to grant the license and if the applicant is willing to accept the license in the form proposed then Government shall on receipt of an intimation in writing of such acceptance publish the license and notify that it has been granted.7. If, therefore, the provisions of the Electricity Act are read along with the rules made thereunder, it becomes manifest that the condition as to the option of purchase either by the local authority or Government, is the result of an agreement between the applicant who has applied for the license and Government who grants the license. Section 7 of the Electricity Act is merely an enabling provision which allows the parties to specify in the license the periods on the expiration of which the right of option shall be exercised, subject to the maximum periods mentioned therein. The true scope and effect of S. 7 is not what the appellant suggests. It merely provides for an option of purchase to be exercised on the expiration of certain periods agreed to between the parties and S. 10 further provides that in an appropriate case Government may even forego the option. This section does not provide for a compulsory purchase or compulsory acquisition without reference to and independent of any agreement by the licensee. Our attention has been drawn to the use of the expression "compulsory purchase" in the second proviso to sub-sec. (1) of S. 7 and it has been argued that the use of that expression indicates the intention of the Legislature. The second proviso is another enabling provision which enables the parties to specify in the license such percentage, if any, not exceeding twenty per centum, as should be added to the value of the building, plant, machinery etc. when the option of purchase is exercised. No doubt, the expression used in the proviso is "compulsory purchase"; but in substance what it provides for is that the parties may agree to increase the market value of the building, plant etc. by a certain percentage when the option of purchase is exercised and the price has to be paid. The use of the expression "if any" after the word "percentage" shows that the parties may agree not to increase the market value at all. If the whole scheme of the Electricity Act and the rules made thereunder, is kept in mind, it becomes obvious that notwithstanding the Use of the expression "compulsory purchase" in the second proviso to sub-section (1) of S. 7, there is no compulsory purchase or compulsory acquisitions in the sense in which that expression is ordinarily understood. The High Court has rightly pointed out that the scheme of the Electricity Act as indicated by the relevant provisions thereof and the rules made thereunder, shows beyond any doubt that the option of purchase is the result of a mutual agreement between the parties, the applicant for the licence on one hand and Government on the other. The High Court rightly observed :"The rules show that a draft license has to be sent by an applicant for licence containing definite and specific terms on which the license is sought. This amounts to an offer. The Government accepts it or rejects it. If it modifies it in any way, then the applicant or offerer must accept the modification. If the government accepts the offer with or without modification, then it grants a license. In my view a licence granted by the Government in such circumstances amounts to a contract between the parties."8. On behalf of the appellant it has been contended, some what faintly, that all the elements necessary to constitute a contract are not present here. We are unable to agree. There was an undertaking on the part of the applicant for the license to sell the undertaking to the local authority or Government upon certain terms set out in the license, and the time at which the option was to be exercised and the price which was to be paid for the property were specified. There was consideration for the contract as the license was granted on those terms. Therefore, all the elements necessary for a contract were present, and the sale in pursuance thereof was not a compulsory purchase or acquisition. (see Sakalaguna Nayudu v. Chinna Munuswamy Nayakar, 55 Ind App 243: (AIR 1928 PC 174 ).9. We are, therefore, of the opinion that the High Court correctly answered the question referred to it. There was a sale in the present case of the building, machinery and plant within the meaning of cl. (vii) of S. 10(2) of the Income-tax Act. In view of this conclusion it is unnecessary to deal with a somewhat larger question which was canvassed before us on behalf of the respondent that S. 10(2) (vii) of the Income-tax Act is attracted even to a compulsory sale. Nor do we consider it necessary to examine the decisions bearing upon the question whether a compulsory transfer to and vesting of property in Government, constitute a sale within the meaning of the relevant provisions of the Indian or English Statute. It is sufficient to point out that Calcutta Electric Supply Corporation v. Commissioner of Income-tax, West Bengal, (1951) 19 ITR 406 : (AIR 1951 Cal; 151) related to a transaction by which government acquired the plant etc. and it was held that such acquisition could not be regarded as a sale within the meaning of S. 10(2) (vii) of the Income-tax Act. | 0[ds]This section does not provide for a compulsory purchase or compulsory acquisition without reference to and independent of any agreement by thethe whole scheme of the Electricity Act and the rules made thereunder, is kept in mind, it becomes obvious that notwithstanding the Use of the expression "compulsory purchase" in the second proviso to sub-section (1) of S. 7, there is no compulsory purchase or compulsory acquisitions in the sense in which that expression is ordinarily understood. The High Court has rightly pointed out that the scheme of the Electricity Act as indicated by the relevant provisions thereof and the rules made thereunder, shows beyond any doubt that the option of purchase is the result of a mutual agreement between the parties, the applicant for the licence on one hand and Government on theare unable to agree. There was an undertaking on the part of the applicant for the license to sell the undertaking to the local authority or Government upon certain terms set out in the license, and the time at which the option was to be exercised and the price which was to be paid for the property were specified. There was consideration for the contract as the license was granted on those terms. Therefore, all the elements necessary for a contract were present, and the sale in pursuance thereof was not a compulsory purchase or acquisition. (see Sakalaguna Nayudu v. Chinna Munuswamy Nayakar, 55 Ind App 243: (AIR 1928 PC 174 ).9. We are, therefore, of the opinion that the High Court correctly answered the question referred to it. There was a sale in the present case of the building, machinery and plant within the meaning of cl. (vii) of S. 10(2) of the Income-tax Act. In view of this conclusion it is unnecessary to deal with a somewhat larger question which was canvassed before us on behalf of the respondent that S. 10(2) (vii) of the Income-tax Act is attracted even to a compulsory sale. Nor do we consider it necessary to examine the decisions bearing upon the question whether a compulsory transfer to and vesting of property in Government, constitute a sale within the meaning of the relevant provisions of the Indian or English Statute. It is sufficient to point out that Calcutta Electric Supply Corporation v. Commissioner of Income-tax, West Bengal, (1951) 19 ITR 406 : (AIR 1951 Cal; 151) related to a transaction by which government acquired the plant etc. and it was held that such acquisition could not be regarded as a sale within the meaning of S. 10(2) (vii) of the Income-tax Act. | 0 | 3,460 | 492 | ### 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:
and such advertisement shall include inter alia the draft license. Where any person desires to have any amendment made in the draft license, he shall deliver a statement of the same. The rules further provide for a local enquiry if any person locally interested objects to the grant; if and when Government has approved of a drain license, either in its original form or in a modified form, a duty is cast on Government to inform the applicant of a such approval and of the form in which it is proposed to grant the license and if the applicant is willing to accept the license in the form proposed then Government shall on receipt of an intimation in writing of such acceptance publish the license and notify that it has been granted.7. If, therefore, the provisions of the Electricity Act are read along with the rules made thereunder, it becomes manifest that the condition as to the option of purchase either by the local authority or Government, is the result of an agreement between the applicant who has applied for the license and Government who grants the license. Section 7 of the Electricity Act is merely an enabling provision which allows the parties to specify in the license the periods on the expiration of which the right of option shall be exercised, subject to the maximum periods mentioned therein. The true scope and effect of S. 7 is not what the appellant suggests. It merely provides for an option of purchase to be exercised on the expiration of certain periods agreed to between the parties and S. 10 further provides that in an appropriate case Government may even forego the option. This section does not provide for a compulsory purchase or compulsory acquisition without reference to and independent of any agreement by the licensee. Our attention has been drawn to the use of the expression "compulsory purchase" in the second proviso to sub-sec. (1) of S. 7 and it has been argued that the use of that expression indicates the intention of the Legislature. The second proviso is another enabling provision which enables the parties to specify in the license such percentage, if any, not exceeding twenty per centum, as should be added to the value of the building, plant, machinery etc. when the option of purchase is exercised. No doubt, the expression used in the proviso is "compulsory purchase"; but in substance what it provides for is that the parties may agree to increase the market value of the building, plant etc. by a certain percentage when the option of purchase is exercised and the price has to be paid. The use of the expression "if any" after the word "percentage" shows that the parties may agree not to increase the market value at all. If the whole scheme of the Electricity Act and the rules made thereunder, is kept in mind, it becomes obvious that notwithstanding the Use of the expression "compulsory purchase" in the second proviso to sub-section (1) of S. 7, there is no compulsory purchase or compulsory acquisitions in the sense in which that expression is ordinarily understood. The High Court has rightly pointed out that the scheme of the Electricity Act as indicated by the relevant provisions thereof and the rules made thereunder, shows beyond any doubt that the option of purchase is the result of a mutual agreement between the parties, the applicant for the licence on one hand and Government on the other. The High Court rightly observed :"The rules show that a draft license has to be sent by an applicant for licence containing definite and specific terms on which the license is sought. This amounts to an offer. The Government accepts it or rejects it. If it modifies it in any way, then the applicant or offerer must accept the modification. If the government accepts the offer with or without modification, then it grants a license. In my view a licence granted by the Government in such circumstances amounts to a contract between the parties."8. On behalf of the appellant it has been contended, some what faintly, that all the elements necessary to constitute a contract are not present here. We are unable to agree. There was an undertaking on the part of the applicant for the license to sell the undertaking to the local authority or Government upon certain terms set out in the license, and the time at which the option was to be exercised and the price which was to be paid for the property were specified. There was consideration for the contract as the license was granted on those terms. Therefore, all the elements necessary for a contract were present, and the sale in pursuance thereof was not a compulsory purchase or acquisition. (see Sakalaguna Nayudu v. Chinna Munuswamy Nayakar, 55 Ind App 243: (AIR 1928 PC 174 ).9. We are, therefore, of the opinion that the High Court correctly answered the question referred to it. There was a sale in the present case of the building, machinery and plant within the meaning of cl. (vii) of S. 10(2) of the Income-tax Act. In view of this conclusion it is unnecessary to deal with a somewhat larger question which was canvassed before us on behalf of the respondent that S. 10(2) (vii) of the Income-tax Act is attracted even to a compulsory sale. Nor do we consider it necessary to examine the decisions bearing upon the question whether a compulsory transfer to and vesting of property in Government, constitute a sale within the meaning of the relevant provisions of the Indian or English Statute. It is sufficient to point out that Calcutta Electric Supply Corporation v. Commissioner of Income-tax, West Bengal, (1951) 19 ITR 406 : (AIR 1951 Cal; 151) related to a transaction by which government acquired the plant etc. and it was held that such acquisition could not be regarded as a sale within the meaning of S. 10(2) (vii) of the Income-tax Act.
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0
### Explanation:
This section does not provide for a compulsory purchase or compulsory acquisition without reference to and independent of any agreement by thethe whole scheme of the Electricity Act and the rules made thereunder, is kept in mind, it becomes obvious that notwithstanding the Use of the expression "compulsory purchase" in the second proviso to sub-section (1) of S. 7, there is no compulsory purchase or compulsory acquisitions in the sense in which that expression is ordinarily understood. The High Court has rightly pointed out that the scheme of the Electricity Act as indicated by the relevant provisions thereof and the rules made thereunder, shows beyond any doubt that the option of purchase is the result of a mutual agreement between the parties, the applicant for the licence on one hand and Government on theare unable to agree. There was an undertaking on the part of the applicant for the license to sell the undertaking to the local authority or Government upon certain terms set out in the license, and the time at which the option was to be exercised and the price which was to be paid for the property were specified. There was consideration for the contract as the license was granted on those terms. Therefore, all the elements necessary for a contract were present, and the sale in pursuance thereof was not a compulsory purchase or acquisition. (see Sakalaguna Nayudu v. Chinna Munuswamy Nayakar, 55 Ind App 243: (AIR 1928 PC 174 ).9. We are, therefore, of the opinion that the High Court correctly answered the question referred to it. There was a sale in the present case of the building, machinery and plant within the meaning of cl. (vii) of S. 10(2) of the Income-tax Act. In view of this conclusion it is unnecessary to deal with a somewhat larger question which was canvassed before us on behalf of the respondent that S. 10(2) (vii) of the Income-tax Act is attracted even to a compulsory sale. Nor do we consider it necessary to examine the decisions bearing upon the question whether a compulsory transfer to and vesting of property in Government, constitute a sale within the meaning of the relevant provisions of the Indian or English Statute. It is sufficient to point out that Calcutta Electric Supply Corporation v. Commissioner of Income-tax, West Bengal, (1951) 19 ITR 406 : (AIR 1951 Cal; 151) related to a transaction by which government acquired the plant etc. and it was held that such acquisition could not be regarded as a sale within the meaning of S. 10(2) (vii) of the Income-tax Act.
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S.SAROJINI AMMA Vs. VELAYUDHAN PILLAI SREEKUMAR | 10. The respondent filed Regular Second Appeal against the judgment and decree in A.S. No. 30/2007. By the judgment and order dated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 and set aside the judgment and decree in A.S. No. 30/2007. 11. On behalf of the appellant, it was contended that the document styled as gift deed was to come into effect only after the death of the appellant and her husband. The question was whether a document in terms whereof the executant of the document retained possession and reserved her right over the property being the subject matter of the document could be a deed of gift or whether such a document was a document in the nature of a will. 12. Section 122 of the Transfer of Property Act 1882 defines gift as hereunder:- 122. Gift defined. – Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee. 13. Some of the relevant provisions of the Transfer of Property Act, 1882 with regard to a gift are set out herein-below:- 123. Transfer how effected. - For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. 124. Gift of existing and future property. – A gift comprising both existing and future property is void as to the latter. 125. Gift to several of whom one does not accept.-A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted. 126. When gift may be suspended or revoked.- The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. Illustrations (a) A gives a field to B, reserving to himself, with Bs assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in As lifetime. A may take back the field. (b) A gives a lakh of rupees to B, reserving to himself, with Bs assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A. 14. Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker Vs. Pranivandas Maganlal Thakker and Others (1997) 2 SCC 255 . As further held by this Court in Naramadaben Maganlal Thakker (supra) It would be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property. 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled. 16. In Reninkuntla Rajamma Vs. K. Sarwanamma (2014) 9 SCC 445 a Hindu woman executed a registered gift deed of immovable property reserving to herself the right to retain possession and to receive rent of the property during her lifetime. The gift was accepted by the donee but later revoked. 17. In Reninkuntla Rajamma (supra), this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance. 18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed. 19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. | 1[ds]14. Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker Vs. Pranivandas Maganlal Thakker and Others (1997) 2 SCC 255 . 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled17. In Reninkuntla Rajamma (supra), this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument dulyexecuted by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor. | 1 | 1,661 | 367 | ### 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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10. The respondent filed Regular Second Appeal against the judgment and decree in A.S. No. 30/2007. By the judgment and order dated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 and set aside the judgment and decree in A.S. No. 30/2007. 11. On behalf of the appellant, it was contended that the document styled as gift deed was to come into effect only after the death of the appellant and her husband. The question was whether a document in terms whereof the executant of the document retained possession and reserved her right over the property being the subject matter of the document could be a deed of gift or whether such a document was a document in the nature of a will. 12. Section 122 of the Transfer of Property Act 1882 defines gift as hereunder:- 122. Gift defined. – Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee. 13. Some of the relevant provisions of the Transfer of Property Act, 1882 with regard to a gift are set out herein-below:- 123. Transfer how effected. - For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered. 124. Gift of existing and future property. – A gift comprising both existing and future property is void as to the latter. 125. Gift to several of whom one does not accept.-A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted. 126. When gift may be suspended or revoked.- The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. Illustrations (a) A gives a field to B, reserving to himself, with Bs assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in As lifetime. A may take back the field. (b) A gives a lakh of rupees to B, reserving to himself, with Bs assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A. 14. Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker Vs. Pranivandas Maganlal Thakker and Others (1997) 2 SCC 255 . As further held by this Court in Naramadaben Maganlal Thakker (supra) It would be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property. 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled. 16. In Reninkuntla Rajamma Vs. K. Sarwanamma (2014) 9 SCC 445 a Hindu woman executed a registered gift deed of immovable property reserving to herself the right to retain possession and to receive rent of the property during her lifetime. The gift was accepted by the donee but later revoked. 17. In Reninkuntla Rajamma (supra), this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument duly executed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance. 18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed. 19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor.
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14. Gift means to transfer certain existing moveable or immoveable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee as held by the Supreme Court in Naramadaben Maganlal Thakker Vs. Pranivandas Maganlal Thakker and Others (1997) 2 SCC 255 . 15. A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled17. In Reninkuntla Rajamma (supra), this Court held that the fact that the donor had reserved the right to enjoy the property during her lifetime did not affect the validity of the deed. The Court held that a gift made by registered instrument dulyexecuted by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Such acceptance must, however, be made during the lifetime of the donor and while he is still capable of making an acceptance18. We are in agreement with the decision of this Court in Reninkuntla Rajamma (supra) that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent of a gift as defined in Section 122 of the Transfer of Property Act must be satisfied. A gift is transfer of property without consideration. Moreover, a conditional gift only becomes complete on compliance of the conditions in the deed19. In the instant case, admittedly, the deed of transfer was executed for consideration and was in any case conditional subject to the condition that the donee would look after the petitioner and her husband and subject to the condition that the gift would take effect after the death of the donor.
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Waman Rao and Ors Vs. Union of India (UOI) and Ors | Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a farther period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved On January 18, 1977 and both the emergencies were revoked on March 21, 1977. 63. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted Clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added Clause (3), the President cannot issue a proclamation under Clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under Clause (4), every proclamation issued under Article 352 has to be laid before each House of parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation. 64. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non-judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent. 65. Thus, in the first place, we are not disposed to decide the question as to whether the issuance, of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce. 66. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, Section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation. The second Act of Extension continues to contain the same provision. It is contended by the petitioners that the proclamation of December 3, 1971 should have been revoked long before February 16, 1976 and that the proclamation of June 25, 1975 wholly uncalled for and was mala fide. Since the precondition on which the life of the Parliament was extended is not satisfied, the Act, it is contended, is ineffective to extend the life of the Parliament. We find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non-est. | 0[ds]Thus, the main question arising before us has to be decided by applying the ratio of Kesavananda Bharati (supra), in its pristine formAs stated earlier, Article 31A was inserted in the Constitution by Section 4 of the Constitution (First Amendment) Act, 1951 with retrospective effect from the commencement of the Constitution12. By Section 7 of the Constitution (Forty-fourth Amendment) Act, 1978 the reference to Article 31 was deleted from the concluding portion of Article 31A(1) with effect from June 20, 1979, as a consequence of the deletion, by Section 2 of the 44th Amendment, of Clause (f) of Article 19(1) which gave to the citizens the right to acquire, hold and dispose of property. The deletion of the right to property from the array of fundamental rights will not deprive the petitioners of the arguments which were available to them prior to the coming into force of the 44th Amendment, since the impugned Acts were passed before June 20, 1979 on which date Article 19(1)(f) was deleted. It is tautologous to say so but, if we may so put it, the obliteration of the rights conferred by these Articles, which Article 31A(1)(a) brings about, is total and complete because, as the clear and unequivocal language of that Article shows, the application of these three articles stands totally withdrawn in so far as laws falling within the ambit of Clause (a) are concerned. It is no argument to say that the withdrawal of the application of certain articles in Part III in respect of laws of a defined category is not total abrogation of the articles because they will continue to apply to other situations and other laws. In any given case, what is decisive is whether, in so far as the impugned law is concerned, the rights available to persons affected by that law under any of the articles in Part III is totally or substantially withdrawn and not whether the articles, the application of which stands withdrawn in regard to a defined category of laws, continue to be on the Statute Book so as to be available in respect of laws of other categories. We must therefore conclude that the withdrawal of the application of Articles 14, 19 and 31 in respect of laws which fall under Clause (a) is total and complete, that is to say, the application of those articles stands abrogated, not merely abridged, in respect of the impugned enactments which indubitably fall within the ambit of Clause (a). We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quint-essential to the basic structure of the Constitution16. The judgment of this Court in Kesavananda Bharati (supra) provoked in its wake a multi-storied controversy, which is quite understandable. The judgment of the majority to which seven out of the thirteen Judges were parties, struck a bridle path by holding that in the exercise of the power conferred by Article 368, the Parliament cannot amend the Constitution so as to damage or destroy the basic structure of the Constitution26. Conscious as we are that though extraneous aids to constitutional interpretation are permissible the views of the mover of a Bill are not conclusive on the question of its objects and purposes, we will consider for ourselves the question, independently, whether the 1st and the 4th Amendments damage or destroy the basic structure of the Constitution in any manner. But before doing that, we desire only to state that these amendments, especially the 1st were made so closely on the heels of the Constitution that they ought indeed to be considered as a part and parcel of the Constitution itself. These Amendments are not born of second thoughts and they do not reflect a fresh look at the Constitution in order to deprive the people of the gains of the Constitution. They are, in the truest sense of the phrase, a contemporary practical exposition of the Constitution31. The First Amendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution. It is impossible for any Government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law. Thus, the adoption of family unit as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters. That cannot, in our opinion, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality. It seems to us ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings32. The Note of the Panel set up by the Planning Commission in May 1959 on the adoption of family unit as the unit of application for the revised ceilings and the counter affidavit of Shri J.G. Karandikar, Deputy Secretary to the Government of Maharashtra show the relevance and efficacy of the family being treated as the real operative unit in the movement for agrarian reform. Considering the Indian social milieu, the Panel came to the conclusion that agricultural ceiling can be most equitably applied if the base of application is taken as the family unit consisting of husband, wife and three minor children. In view of this expert data, we are unable to appreciate how any law passed truly for implementing the objective of Article 31A(1)(a) can be open to challenge on the ground that it infringes Articles 14, 19 or 3133. For these reasons, we are of the view that the Amendment introduced by Section 4 of the Constitution (First Amendment) Act, 1951 does not damage or destroy the basic structure of the Constitution. That Amendment must, therefore, be upheld on its own merits34. This makes it unnecessary to consider whether Article 31A can be upheld by applying the rule of stare decisis. We have, however, heard long and studied arguments on that question also, in deference to which we must consider the alternate submission as to whether the doctrine of stare decisis can save Article 31A, if it is otherwise violative of the basic structure of the Constitution35. Thus, the constitutional validity of Article 31A has been recognised in these four decisions, sometimes directly, sometimes indirectly and sometimes incidentally. We may mention in passing, though it has no relevance on the applicability of the rule of stare decisis, that in none of the three earlier decisions was the validity of Article 31A tested on the ground that it damaged or destroyed the basic structure of the Constitution. That theory was elaborated for the first time in Kesavananda Bharati (supra) and it was in the majority judgment delivered in that case that the doctrine found its first acceptance36. Though Article 31A has thus continued to be recognised as valid ever since it was introduced into the Constitution, we find it somewhat difficult to apply the doctrine of stare decisis for upholding that Article42. These decisions and texts are of high authority and cannot be overlooked. In fact, these decisions are themselves precedents on the binding nature of precedents43. It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of long standing should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. therefore, the reason why Article 31A was upheld in the earlier decisions, if indeed it was, are not germane for the purpose of deciding whether this is a fit and proper case in which to apply that rule44. But, there are four principal reasons why we are not disposed to invoke the rule of stare decisis for deciding upon the constitutionality of Article 31A. In the first place, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution. Its unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the ideals which inspired the framing of the Constitution45. The second reason why we do not want to resort to the principle of stare decisis while determining the validity of Article 31A is that neither in Shankari Prasad (Supra) nor in Sajjan Singh (Supra), nor in Golak Nath (Supra) and evidently not in Kesavananda Bharati (Supra) was the question as regards the validity as such of Article 31A raised or decided. As stated earlier, Shankari Prasad (Supra) involved the larger question as to whether constitutional amendments fall within the purview of Article 13(2) of the Constitution. It was held that they did not. In Sajjan Singh (Supra), the demand for reconsideration of the decision in Shankari Prasad (Supra) was rejected, that is to say, the Court was not inclined to consider once again whether constitutional amendments are also comprehended within the terms of Article 13(2). Golak Nath (Supra) raised the question as to where the amending power was located and not whether this or that particular amendment was valid. In none of these decisions was the validity of Article 31A put in issue. Nor indeed was that question considered and decided in any of those cases. A deliberate judicial decision made after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, and the precedent by long recognition may mature into stare decisis. But these cases cannot be considered as having decided, reasons apart, that the 1st Amendment which introduced Article 31A into the Constitution is valid46. Thirdly, the history of the Worlds constitutional law shows that the principle of stare decisis is treated as having a limited application only. Justice William Douglas said in New York v. United States 326 U.S.572 590 [1946] that it is a wise policy to restrict the principle of stare decisis to those areas of the law where correction can be had by legislation. Otherwise, the Constitution loses the flexibility which is necessary if it is to serve the needs of successive generations. It is for that reason again that Justice Frankfurter said in U.S. v. International Boxing Club 348 U.S.[1955] that the doctrine of stare decisis is not an imprisonment of reason. Older the standing of a decision, greater the provocation to apply the rule of stare decisis. A possible mischief arising out of this position was pointed out by Justice Benjamin Cardozo in MacPherson v. Buick Motor Co. N.Y. 382 [1916] by saying that precedents drawn from the days of travel by stage-coach do not fit the conditions of travel today. And alive to that possibility, Justice Brandeis said in State of Washington v. W.C. Dawson & Co.[1924] 264 U.S. 219 that stare decisis is merely a wise rule of action and is not a universal, inexorable command. The instances in which the court has disregarded its admonition are many. In fact, the full form of the principle, stare decisis et non quieta movere which means to stand by decisions and not to disturb what is settled, was put by Coke in its classic English version as : Those things which have been so often adjudged ought to rest in peace. Such being the justification of the rule, it was said in James Monore v. Frank Pape 5 L. Ed. 2nd U.S. 492that the relevant demands of stare decisis do not preclude consideration of an interpretation which started as an unexamined assumption. We have already pointed out how the constitutional validity of Article 31A has to be deemed to have been upheld in Shankari Prasad (supra) by a process of inferential reasoning, the real question therein being whether the expression law in Article 13(2) includes law made in the exercise of constituent power47. The fourth reason is the one cited by Shri Tarkunde that on principle, rules like stare decisis should not be invoked for upholding constitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but future laws also. Supposing Article 31A were invalid on the ground that it violates the Constitutions basic structure, the fact that its validly has been recognised for a long time cannot justify its protection being extended to future laws or to laws which have been recently passed by the legislature. The principle of stare decisis can apply, if at all, to laws protected by these articles, if those laws have enjoyed the protection of these articles for a long time, but the principle cannot apply to the articles themselves. The principle of stare decisis permits the saving of laws the validity of which has been accepted or recognised over the years. It does not require or sanction that, in future too, laws may be passed even though they are invalid or unconstitutional. Future perpetration of illegality is no part of the doctrine of stare decisis48. Our disinclination to invoke the rule of stare decisis for saving Article 31A does not really matter because e have upheld the constitutional validity of that Article independently on its own merits51. While dealing with the validity of Article 31A we have expressed the view that it would not be proper to invoke the doctrine of stare decisis for upholding the validity of that article. Though the same considerations must govern the question of the validity of Article 31B, we would like to point out that just as there are significant similarities between Articles 31A and 31B, there is a significant dissimilarity too. Article 31A enables the passing of laws of the description mentioned in Clauses (a) to (e), in violation of the guarantees afforded by Article 14 and 19. The Parliament is not required, in the exercise of its constituent power or otherwise, to undertake an examination of the laws which are to receive the protection of Article 31A. In other words, when a competent legislature passes a law within the purview of Clauses (a) to (e), it automatically receives the protection of Article 31A, with the result that the law cannot be challenged on the ground of its violation of Articles 14 and 19. In so far as Article 31B is concerned, it does not define the category of laws which are to receive its protection, and secondly, going a little further than Article 31A, it affords protection to Schedule-laws against all the provisions of Part III of the Constitution. No act can be placed in the Ninth Schedule except by the Parliament and since the Ninth Schedule is a part of the Constitution, no additions or alterations can be made therein without complying with the restrictive provisions governing amendments to the Constitution. Thus, Article 31B read with the Ninth Schedule provides what is generally described as, a protective umbrella to all Acts which are included in the schedule, no matter of what character, kind or category they may be. Putting it briefly, whereas Article 31A protects laws of a defined category, Article 31B empowers the Parliament to include in the Ninth Schedule such laws as it considers fit and proper to include therein. The 39th Amendment which was passed on August 10, 1975 undertook an incredibly massive programme to include items 87 to 124 while the 40th Amendment, 1976 added items 125 to 188 to the Ninth Schedule in one stroke52. The necessity for pointing out this distinction between Articles 31A and 31B is the difficulty which may apparently arise in the application of the principle of stare decisis in regard to Article 31B read with the Ninth schedule, since that doctrine has been held by us not to apply to Article 31A. The fourth reason given by us for not applying the rule of stare decisis to Article 31A is that any particular law passed under Clauses (a) to (e) can be accepted as good if it has been treated as valid for a long number of years but the device in the form of the Article cannot be upheld by the application of that rule. We propose to apply to Article 31B read with the Ninth Schedule the selfsame test53. We propose to draw a line, treating the decision in Kesavananda Bharati (supra) as the landmark. Several Acts were put in the Ninth schedule prior to that decision on the supposition that the power of the Parliament to amend the Constitution was wide and untrammelled. The theory that the parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati (supra). This is one reason for upholding the laws incorporated into the Ninth schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati (Supra) was rendered. A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society54. The second reason for drawing a line at a convenient and relevant point of time is that the first 66 items in the Ninth Schedule, which were inserted prior to the decision in Kesavananda Bharati, (Supra) mostly pertain to laws of agrarian reforms. There are a few exceptions amongst those 66 items, like items 17, 18, 19 which relate to Insurance, Railways and Industries. But almost all other items would fall within the purview of Article 31A(1)(a). In fact, items 65 and 66, which were inserted by the 29th Amendment, are the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 respectively, which were specifically challenged in Kesavananda Bharati (supra). That challenge was repelled55. Thus, in so far as the validity of Article 31B read with the Ninth schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution. Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31B for the plain reason that in the face of the judgment in Kesavananda Bharati (supra) there was no justification for making additions to the Ninth schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution56. That leaves for consideration the challenge to the constitutional validity of the unamended Article 31C. As we have stated at the beginning of this judgment, Article 31C was introduced by the Constitution (Twenty-fifth Amendment) Act, 1971. Initially, it sought to give protection to those laws only which gave effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 of the Constitution. No such law could be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Articles 14, 19 and 31. The concluding portion of the unamended article which gave conclusiveness to certain declarations was struck down in Kesavananda Bharati, (supra)But, with respect to the learned counsel, the effort is fruitless because the question as regards the validity of Article 31C is no longer res integra. The opening clause of Article 31C was upheld by the majority in Kesavananda Bharati (Supra) and we do not quite see how the petitioners can be permitted to go behind that decisionIt is well-known that six learned Judges who were in minority in Kesavananda Bharti (Supra) upheld the first part of Article 31C, which was a logical and inevitable consequence of their view that there were no inherent or implied limitations on the Parliaments power to amend the Constitution. Khanna,, J. did not subscribe to that view but, all the same he upheld the first part of Article 31C for different reasons. The question of validity of the Twenty-fifth Amendment by which the unamended Article 31C was introduced into the Constitution was specifically raised before the Court and the arguments in that behalf were specifically considered by all the six minority Judges and by Khanna, J. It seems to us difficult, in these circumstances, to hold that no common ratio can be culled out from the decision of the majority of the seven Judges who upheld the validity of Article 31C. Putting it simply, and there is no reason why simple matters should be made complicated, the ratio of the majority judgments in Kesavananda Bharati (Supra) is that the first part of Article 31C is valid58. Apart from this, if we are right in upholding the validity of Article 31A on its own merits, it must follow logically that the unamended Article 31C is also valid. The unamended portion of Article 31C is not like an unchartered ship. It gives protection to a defined and limited category of laws which are passed for giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39. These clauses of Article 39 contain directive principles which are vital to the well-being of the country and the welfare of its people. Whatever we have said in respect of the defined category of laws envisaged by Article 31A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to Clauses (b) and (c) of Article 39. It is impossible to conceive that any law passed for such a purpose can at all violate Article 14 or Article 19. Article 31 is now out of harms way. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in Clauses (b) and (c) of Article 39 will fortify that structure. We do hope that the Parliament will utilise to the maximum its potential to pass laws, genuinely and truly related to the principles contained in Clauses (b) and (c) of Article 39. The challenge made to the validity of the first part of the unamended Article 31C therefore fails59. A small, though practically important, clarification seems called for at the end of this discussion of the validity of Article 31A, 31B and 31C. We have held that laws included in the Ninth Schedule on or after April 24, 1973, will not receive the protection of Article 31B ipso facto. Those laws shall have to be examined individually for determining whether the constitutional amendments by which they were put in the Ninth Schedule, damage or destroy the basic structure of the Constitution in any manner. The clarification which we desire to make is that such an exercise will become otiose if the laws included in the Ninth Schedule on or after April 24, 1973 fall within the scope and purview of Article 31A or the unamended Article 31C. If those laws are saved by these Articles, it would be unnecessary to determine whether they also receive the protection of Article 31B read with the Ninth Schedule. The fact that Article 31B confers protection on the schedule laws against any provisions of Part III and the other two Articles confer protection as against Articles 14 and 19 only, will make no real difference to this position since, after the deletion of Article 31, the two provisions of Part III, which would generally come into play on the question of validity of the relevant laws, are Articles 14 and 19Apart from these challenges to the various constitutional amendments, the petitioners have also challenged the validity of the Constitution (fortieth Amendment) Act, 1976, by which the Amending Acts 21 of 1975, 41 of 1975 and 2 of 1976 were placed in the Ninthmay be recalled that the Principal Act was amended by these Amending Acts. The normal term of five years of the Lok Sabha was due to expire on March 18, 1976 but, its life was extended for one year by the House of the People (Extension of Duration) Act, 1976. Yet another Act was passed by the Parliament, The House of the People (Extension of Duration) Amendment Act, 1976, by which the term of the Lok Sabha was further extended by another year. The 40th Amendment was passed by the Lok Sabha on April 2, 1976 during its extended term. Since by the aforesaid two Acts, the life of the Lok Sabha was extended while both the proclamations of emergency were in operation, the petitioners challenge the proclamations of the state of Emergency, dated December 3, 1971 and June 25, 1975 as also the two Acts by which the term of the Lok Sabha was extended. The 42nd Amendment inserted Clauses 4 and 5 in Article 368 with effect from January 3, 1975. Which was also during the extended term of the Lok Sabha. That Amendment too is challenged for that reason. We have struck down that amendment unanimously by our judgment in Minerva Mills (supra) for the reason that it damages the basic structure of the Constitution. Thus, we are now left to consider the validity of :(1) The Promulgation of the state of Emergency by the proclamations dated December 3, 1971 and June 25, 1975;(2) The House of the People (Extension of Duration) Act, 1976;(3) The House of People (Extension of Duration) Amendment Act, 1976, and(4) The Constitution (Fortieth Amendment) Act, 1976The validity of all these is inter-connected and the focus of the challenge is the aforesaid proclamations of Emergency62. A list of dates has been furnished to us by counsel in support of their argument that the emergency declared on December 3, 1971, could not legitimately be continued in operation for a period of more than six years. On December 3, 1971 the President issued the proclamation of emergency in face of the aggression by Pakistan, stating that a grave emergency existed whereby the security of the country was threatened by external aggression. Both the Houses of Parliament approved the proclamation on the 4th, on which date the Defence of India Act, 1971, came into force. The Defence of India Rules, 1971, framed under Section 22 of the Defence of India Act, came into force on the 5th. On December 16, 1971; the Pakistani forces made an unconditional surrender in Bangladesh and on the 17th the hostilities between India and Pakistan came to an end. In February 1972, General Elections were held to the State Assemblies. On August 28, 1972 the two countries entered into an agreement for the exchange of prisoners of war, and by April 30, 1974 the repatriation of the prisoners of war was completed. On August 16, 1974 the Presidential Election was held in India. On June 25, 1975 came the second proclamation of emergency; in the wake of which a notification was issued under Article 359 on June 27 suspending the enforcement of the fundamental rights under Articles 14, 21 and 22. On February 16, 1976 the House of People (Extension of Duration) Act was passed. The normal term of the Lok Sabha expired on March 18, 1976. On April 2, 1976, the Lok Sabha passed the 40th Amendment Act by which the Maharashtra Land Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a farther period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved On January 18, 1977 and both the emergencies were revoked on March 21, 197763. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted Clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added Clause (3), the President cannot issue a proclamation under Clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under Clause (4), every proclamation issued under Article 352 has to be laid before each House of parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation64. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non-judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent65. Thus, in the first place, we are not disposed to decide the question as to whether the issuance, of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce66. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, Section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation. The second Act of Extension continues to contain the same provisionWe find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non-est.67. These then are our reasons for the order which we passed on May 9, 1980 to the following effect :(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and Section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new Clause (1), Sub-clause (a) to (e), for the original Clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus :31B: X X X X X68. In Keshvananda Bharati 1973. Suppl .SCR 1 decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure. | 0 | 16,925 | 6,761 | ### Instruction:
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Ceiling Amendment Acts were put in the Ninth Schedule as Items 157, 159 and 160. On November 24, 1976 the House of People (Extension of Duration) Amendment Act was passed extending the term of the Parliament for a farther period of one year. The 42nd Amendment Act was passed on November 12, 1976. The Lok Sabha was dissolved On January 18, 1977 and both the emergencies were revoked on March 21, 1977. 63. The question as to whether a proclamation of emergency issued by the President under Article 352(1) of the Constitution raises a justiciable issue has been argued in this Court from time to time but, for some reason or the other, though the question has been discussed briefly and occasionally, there is no authoritative pronouncement upon it. We do not propose to enter into that question in this case also partly because, there is good reason to hope that in future, there will be no occasion to bring before the Court the kind of grievance which is now made in regard to the circumstances in which the proclamation of emergency was issued on June 25, 1975. Section 48 of the Constitution (Forty-second Amendment) Act, 1976, which came into force on January 3, 1977, has inserted Clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added Clause (3), the President cannot issue a proclamation under Clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under Clause (4), every proclamation issued under Article 352 has to be laid before each House of parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation. 64. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non-judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent. 65. Thus, in the first place, we are not disposed to decide the question as to whether the issuance, of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce. 66. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, Section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation. The second Act of Extension continues to contain the same provision. It is contended by the petitioners that the proclamation of December 3, 1971 should have been revoked long before February 16, 1976 and that the proclamation of June 25, 1975 wholly uncalled for and was mala fide. Since the precondition on which the life of the Parliament was extended is not satisfied, the Act, it is contended, is ineffective to extend the life of the Parliament. We find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non-est.
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inserted Clauses (2) to (8) in Article 352 which afford adequate insurance against the misuse of power to issue a proclamation of emergency. By the newly added Clause (3), the President cannot issue a proclamation under Clause (1) unless the decision of the Union Cabinet of Ministers that such a proclamation may be issued has been communicated to him in writing. Under Clause (4), every proclamation issued under Article 352 has to be laid before each House of parliament, and it ceases to operate at the expiration of one month, unless before the expiration of that period, it has been approved by a resolution of both the Houses of Parliament. Clause (4) provides that the proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation64. The question as to whether the issuance of a proclamation of emergency is justiciable raises issues which are not easy to answer. In any event, that question can more appropriately and squarely be dealt with when it arises directly and not incidentally as here. In so far as the proclamation of December 3, 1971 is concerned, it is not disputed, and indeed it cannot be disputed, that there was manifest justification for that course of action. The danger to the security of the country was clear and present. therefore, the attempt of the petitioners has been to assail the continuance of the state of emergency under that proclamation. From the various dates and events mentioned and furnished to us, it may be possible for a layman to conclude that there was no reason to continue the state of emergency at least after the formality of exchanging the prisoners of war was completed. But we are doubtful whether, on the material furnished to us, it is safe to conclude by way of a judicial verdict that the continuance of the emergency after a certain date became unjustified and unlawful. That inference is somewhat non-judicious to draw. Newspapers and public men are entitled to prepare public opinion on the need to revoke a proclamation of emergency. They have diverse sources for gathering information which they may not disclose and they are neither bound by rules of evidence nor to observe the elementary rule of judicial business that facts on which a conclusion is to be based have to be established by a preponderance of probabilities. But Courts have severe constraints which deter them from undertaking a task which cannot judicially be performed. It was suggested that the proclamation of June 25, 1975 was actuated by mala fides. But there too, evidence placed before us of mala fides is neither clear nor cogent65. Thus, in the first place, we are not disposed to decide the question as to whether the issuance, of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce66. Coming to the two Acts of 1976 by which the life of the Lok Sabha was extended, Section 2 of the first of these Acts, 30 of 1976, which was passed on February 16, 1976, provided that the period of five years in relation to the then House of the People shall be extended for a period of one year while the Proclamation of Emergency issued on the 3rd day of December, 1971 and on the 25th day of June, 1975, are both in operation. The second Act of Extension continues to contain the same provisionWe find it difficult to accept this contention. Both the proclamations of emergency were in fact in operation on February 16, 1976 when the first Act was passed as also on November 24, 1976 when the second Act, 109 of 1976, was passed. It is not possible for us to accept the submission of the petitioners that for the various reasons assigned by them, the first proclamation must be deemed not be in existence and that the second proclamation must be held to have been issued mala fide and therefore non-est.67. These then are our reasons for the order which we passed on May 9, 1980 to the following effect :(1) The Constitution (First Amendment) Act, 1951 which introduced Article 31A into the Constitution with retrospective effect, and Section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a new Clause (1), Sub-clause (a) to (e), for the original Clause (1) with retrospective effect, do not damage any of the basic or essential features of the Constitution or its basic structure and are valid and constitutional, being within the constituent power of the Parliament(2) Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 31B into the Constitution which reads thus :31B: X X X X X68. In Keshvananda Bharati 1973. Suppl .SCR 1 decided on April 24, 1973 it was held by the majority that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure. We hold that all amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are valid and constitutional. Amendments to the Constitution made on or after April 24, 1973 by which the 9th Schedule to the Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or its basic structure.
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Management Of Aurofood Pvt. Ltd Vs. S. Rajulu | charges. The management accepted the findings of the enquiry officer and took a tentative decision to impose the punishment of dismissal under the Standing Orders. A show-cause dated 13th October 1981 (Annexure P-3) was also issued to him calling upon to show cause as to why the aforesaid punishment should not be imposed on him. The respondent furnished his reply which was found unsatisfactory and vide order dated 5th November 1981 he was dismissed from service on account of the gravity of misconduct and for having used abusive language, vide order appended as Annexure P-4. The respondent thereafter raised an industrial dispute. The Government declined to refer the dispute for further adjudication by its order dated 23rd August 1982. The respondent thereafter moved a representation before the Government on 1st September 1986 and the matter was referred to the Labour Court vide order dated 10th August 1987. The Labour Court rendered its award on 30th March 1993 holding that the disciplinary action initiated against the respondent was not an act of victimization, that the charges raised against the respondent stood proved and that the finding of the enquiry officer was justified (a copy of the award has been appended as Annexure P-5). The respondent thereupon filed a writ petition in the High Court. The learned Single Judge in his judgment and order dated 9th February 2001 observed that the misconduct even if held to be proved really amounted to the use of "unparliamentary language" and was trivial in nature and as the punishment of dismissal had shocked "the conscience of the Court" and as the punishing authority had without notice to the respondent workman, taken his antecedents into account, he directed the reinstatement of the respondent with full back wages (a copy of this order has been appended as Annexure P-7). An appeal filed by the appellant-management to the Division Bench was also dismissed vide order dated 18th April 2005. The present appeal has been filed as a consequence thereof. 3. While issuing notice in this matter on 19th October 2005, an ad-interim stay was also granted to the appellant. Mr. R.Sundravardhan, the learned senior counsel for the appellant has raised three basic arguments before us in the course of the hearing - (1) the learned Single Judge having found that the domestic enquiry against the workman was properly conducted and that the workman indeed was guilty of misbehaviour, there was no justification in interfering with the quantum of the punishment in the writ jurisdiction under Article 226 of the Constitution of India, (2) that the High Court was wrong in its finding that the punishing authority was not justified in taking into account the antecedents of the workman respondent as he had not been given the opportunity to rebut these allegations, and (3) very grave charges had been leveled against the respondent which included the use of filthy language in the presence of a lady supervisor and no interference ought to have been made in the writ jurisdiction. In support of the various pleas raised by him, Mr. Sundravardhan has relied upon (2005) 3 SCC 134 Mahindra and Mahindra Ltd. v. N.B.Narawade, (2006) 7 SCC 212 State Bank of India & Ors. v. Ramesh Dinkar Punde and (1963) (S) 1 SCR 648 State of Orissa v. Bidyabhushan Mohapatra. 4. Mr. S.Guru Krishna Kumar, the learned counsel for the respondent has, however, supported the judgment of the High Court and has pointed out that the enquiry conducted against the respondent was a biased one as the observation of the enquiry officer that the evidence given by the supervisor was to be preferred vis-à-vis the evidence given by respondent workman was, on the face of it, unacceptable as each piece of evidence had to be examined as per its merit. He has accordingly urged that the observation clearly pointed to the fact that the respondent had not been given a fair hearing and in this view of the matter, no interference was called for. 5. We have heard the learned counsel for the parties and gone through the record. The Division Bench has held that the workman had not been given the requisite material that was required by him to prepare his defence more particular as his antecedents had been taken into account depicting him as incorrigible, though he had not been given any opportunity to rebut these charges. The High Court has also found that the allegations against the workman even if taken to be true were trivial and could not justify an order of dismissal from service. The judgments cited by the learned counsel do not adequately meet the issues raised by the High Court. The questions of fact which have been decided by the High Court call for no interference by this Court under Article 136 of the Constitution. We also find that the workman has been out of employment since the year 1981 and despite succeeding before the single bench of the High Court on 9th February 2001 he has not yet been reinstated in service because of the interim order passed in this litigation. We had accordingly and at the very outset, suggested to Mr. Sundravardhan that on account of the situation as now existed, it would, perhaps, be appropriate that the respondent be given a compensation package rather than an order of reinstatement. The learned counsel stated that the management was willing to give no more than Rs.5,00,000/- towards that package. The respondent, on the other hand who was present in Court, insisted that he was not interested in the compensation and would prefer that the orders of the High Court be implemented in letter and spirit. We are of the opinion that consequent upon the bitter relations between the parties and as even the High Court has found the charges proved though trivial and the fact that the respondent has not been on duty with the appellant-management since the year 1981, it would be inappropriate to foist a cantankerous and abrasive workman on it. | 0[ds]5. We have heard the learned counsel for the parties and gone through the record. The Division Bench has held that the workman had not been given the requisite material that was required by him to prepare his defence more particular as his antecedents had been taken into account depicting him as incorrigible, though he had not been given any opportunity to rebut these charges. The High Court has also found that the allegations against the workman even if taken to be true were trivial and could not justify an order of dismissal from service. The judgments cited by the learned counsel do not adequately meet the issues raised by the High Court. The questions of fact which have been decided by the High Court call for no interference by this Court under Article 136 of the Constitution. We also find that the workman has been out of employment since the year 1981 and despite succeeding before the single bench of the High Court on 9th February 2001 he has not yet been reinstated in service because of the interim order passed in this litigation. We had accordingly and at the very outset, suggested to Mr. Sundravardhan that on account of the situation as now existed, it would, perhaps, be appropriate that the respondent be given a compensation package rather than an order of reinstatement. The learned counsel stated that the management was willing to give no more than Rs.5,00,000/- towards that package. The respondent, on the other hand who was present in Court, insisted that he was not interested in the compensation and would prefer that the orders of the High Court be implemented in letter and spirit. We are of the opinion that consequent upon the bitter relations between the parties and as even the High Court has found the charges proved though trivial and the fact that the respondent has not been on duty with the appellant-management since the year 1981, it would be inappropriate to foist a cantankerous and abrasive workman on it. | 0 | 1,278 | 360 | ### Instruction:
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charges. The management accepted the findings of the enquiry officer and took a tentative decision to impose the punishment of dismissal under the Standing Orders. A show-cause dated 13th October 1981 (Annexure P-3) was also issued to him calling upon to show cause as to why the aforesaid punishment should not be imposed on him. The respondent furnished his reply which was found unsatisfactory and vide order dated 5th November 1981 he was dismissed from service on account of the gravity of misconduct and for having used abusive language, vide order appended as Annexure P-4. The respondent thereafter raised an industrial dispute. The Government declined to refer the dispute for further adjudication by its order dated 23rd August 1982. The respondent thereafter moved a representation before the Government on 1st September 1986 and the matter was referred to the Labour Court vide order dated 10th August 1987. The Labour Court rendered its award on 30th March 1993 holding that the disciplinary action initiated against the respondent was not an act of victimization, that the charges raised against the respondent stood proved and that the finding of the enquiry officer was justified (a copy of the award has been appended as Annexure P-5). The respondent thereupon filed a writ petition in the High Court. The learned Single Judge in his judgment and order dated 9th February 2001 observed that the misconduct even if held to be proved really amounted to the use of "unparliamentary language" and was trivial in nature and as the punishment of dismissal had shocked "the conscience of the Court" and as the punishing authority had without notice to the respondent workman, taken his antecedents into account, he directed the reinstatement of the respondent with full back wages (a copy of this order has been appended as Annexure P-7). An appeal filed by the appellant-management to the Division Bench was also dismissed vide order dated 18th April 2005. The present appeal has been filed as a consequence thereof. 3. While issuing notice in this matter on 19th October 2005, an ad-interim stay was also granted to the appellant. Mr. R.Sundravardhan, the learned senior counsel for the appellant has raised three basic arguments before us in the course of the hearing - (1) the learned Single Judge having found that the domestic enquiry against the workman was properly conducted and that the workman indeed was guilty of misbehaviour, there was no justification in interfering with the quantum of the punishment in the writ jurisdiction under Article 226 of the Constitution of India, (2) that the High Court was wrong in its finding that the punishing authority was not justified in taking into account the antecedents of the workman respondent as he had not been given the opportunity to rebut these allegations, and (3) very grave charges had been leveled against the respondent which included the use of filthy language in the presence of a lady supervisor and no interference ought to have been made in the writ jurisdiction. In support of the various pleas raised by him, Mr. Sundravardhan has relied upon (2005) 3 SCC 134 Mahindra and Mahindra Ltd. v. N.B.Narawade, (2006) 7 SCC 212 State Bank of India & Ors. v. Ramesh Dinkar Punde and (1963) (S) 1 SCR 648 State of Orissa v. Bidyabhushan Mohapatra. 4. Mr. S.Guru Krishna Kumar, the learned counsel for the respondent has, however, supported the judgment of the High Court and has pointed out that the enquiry conducted against the respondent was a biased one as the observation of the enquiry officer that the evidence given by the supervisor was to be preferred vis-à-vis the evidence given by respondent workman was, on the face of it, unacceptable as each piece of evidence had to be examined as per its merit. He has accordingly urged that the observation clearly pointed to the fact that the respondent had not been given a fair hearing and in this view of the matter, no interference was called for. 5. We have heard the learned counsel for the parties and gone through the record. The Division Bench has held that the workman had not been given the requisite material that was required by him to prepare his defence more particular as his antecedents had been taken into account depicting him as incorrigible, though he had not been given any opportunity to rebut these charges. The High Court has also found that the allegations against the workman even if taken to be true were trivial and could not justify an order of dismissal from service. The judgments cited by the learned counsel do not adequately meet the issues raised by the High Court. The questions of fact which have been decided by the High Court call for no interference by this Court under Article 136 of the Constitution. We also find that the workman has been out of employment since the year 1981 and despite succeeding before the single bench of the High Court on 9th February 2001 he has not yet been reinstated in service because of the interim order passed in this litigation. We had accordingly and at the very outset, suggested to Mr. Sundravardhan that on account of the situation as now existed, it would, perhaps, be appropriate that the respondent be given a compensation package rather than an order of reinstatement. The learned counsel stated that the management was willing to give no more than Rs.5,00,000/- towards that package. The respondent, on the other hand who was present in Court, insisted that he was not interested in the compensation and would prefer that the orders of the High Court be implemented in letter and spirit. We are of the opinion that consequent upon the bitter relations between the parties and as even the High Court has found the charges proved though trivial and the fact that the respondent has not been on duty with the appellant-management since the year 1981, it would be inappropriate to foist a cantankerous and abrasive workman on it.
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5. We have heard the learned counsel for the parties and gone through the record. The Division Bench has held that the workman had not been given the requisite material that was required by him to prepare his defence more particular as his antecedents had been taken into account depicting him as incorrigible, though he had not been given any opportunity to rebut these charges. The High Court has also found that the allegations against the workman even if taken to be true were trivial and could not justify an order of dismissal from service. The judgments cited by the learned counsel do not adequately meet the issues raised by the High Court. The questions of fact which have been decided by the High Court call for no interference by this Court under Article 136 of the Constitution. We also find that the workman has been out of employment since the year 1981 and despite succeeding before the single bench of the High Court on 9th February 2001 he has not yet been reinstated in service because of the interim order passed in this litigation. We had accordingly and at the very outset, suggested to Mr. Sundravardhan that on account of the situation as now existed, it would, perhaps, be appropriate that the respondent be given a compensation package rather than an order of reinstatement. The learned counsel stated that the management was willing to give no more than Rs.5,00,000/- towards that package. The respondent, on the other hand who was present in Court, insisted that he was not interested in the compensation and would prefer that the orders of the High Court be implemented in letter and spirit. We are of the opinion that consequent upon the bitter relations between the parties and as even the High Court has found the charges proved though trivial and the fact that the respondent has not been on duty with the appellant-management since the year 1981, it would be inappropriate to foist a cantankerous and abrasive workman on it.
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Cyrus Rustom Patel Vs. The Charity Commissioner, Maharashtra, State & Others | valuable property of the trust, which was derogatory to its interest and would have defeated the very object of the creation of the trust for the preservation and protection of religion and Parsi culture. 29. The joint venture development was not an intended transaction; sale option was mentioned dubiously in the agreement; same indicated that transaction was not bonafide. It was a cloak or a device adopted by the Trust so as to sell the property, and the transaction could not be said to be in the interest and benefit of the trust at all. Unfortunately, Joint Charity Commissioner totally failed in observance of statutory duties and did not look into the various aspects, neither conducted an enquiry envisaged under Section 36 of the Act. Thus, we find that the transaction could not have been sanctioned, considering the spirit of the provisions of Section 36 of the Act. Though the aforesaid Full Bench decision of High Court has come later on, however, intendment of the statutory provision, even for a moment, could not be to sanction such a derogatory transaction. The decisions of this court were available, even in the absence of exposition of the ambit of Section 36 of the Act by the high court; they had been conveniently ignored. The sanction at a glance had been granted in flagrant violation of basic principles of the law; it cannot withstand judicial scrutiny. 30. Apart from that, it is also apparent that prayer was made in the application to dispense with public notice in a newspaper on the pretext that it was joint venture agreement and development was to be made by trustees, whereas it was, in fact, not the actual factual situation. There was a clause for sale, and lease of 999 years would also tantamount to a sale, and admittedly sale option had been exercised. In the application, that was filed under Section 36 before Charity Commissioner, supported by the affidavit of Mr.Hoshang N. Wania, one of the trustees of B.C. Batliwala Trust, it was mentioned in para 6 thus:?EXEMPTION FROM INSERTING PUBLIC NOTICE IN NEWSPAPER? (a) xxx that the arrangement contemplated in the said MOU is that of joint venture and the development is being done by the Trustees themselves with the active support and financial resources of Astral and hence the question of inserting public notice in newspaper does not arise. In any event, the Trustees pray that this procedural formality may please be waived in this case. (b) Further, no useful purpose will be achieved by inserting Public Notice, as the said property is totally encumbered and not easily marketable in its present form. (c) Also, some of the disgruntled occupants may find it convenient to stop the proposal and may embroil the trust in wasteful litigation."31. It is apparent from aforesaid averment that there was a necessity of publishing a public notice in a newspaper, which requirement was sought to be waived on the ground that it was a joint venture and that development was being done by the trustees themselves, due to that, a public notice was not necessary. However, as a matter of fact, in Joint venture itself, the sale was contemplated and in fact it had taken place. The issuance of public notice could not have been waived. Inviting an offer by public notice would have disclosed actual worth of property; the aforesaid averments had been made designedly to evade the public notice, and it was not in the interest or for the benefit of the Trust to act in such a clandestine manner. It is clear that the application under Section 36 of the Act was not filed with clean hands, and it illegally aimed to get rid of public notice and unfortunately trustees succeeded in it. There was misrepresentation made as to the actual transaction that was intended and had ultimately taken place, in as much as it was stated in the application that no purpose would have been served by issuance of the public notice, as it was joint development venture, however, the property was totally unencumbered and easily marketable in its present form. The Joint Charity Commissioner also omitted to take into account actual nature of transaction how such property has to be sold and conveniently overlooked the provisions of the Act and decisions of this court. 32. As a matter of fact, the trust could not have entered into such negotiations with M/s. Astral Builders without public notice, which was admittedly not given in the instant case and, thus, the joint venture-cum-sale and lease for 999 years amounted to a sale. In such a manner and method, the application could not have been entertained at all, much less allowed, by the Joint Charity Commissioner. 33. The High Court has also failed to consider the various aspects, and has rejected the petition mainly on the basis of the delay, that was not very material in the facts, as no development had taken place. When such a prime and valuable public property was involved, the aforesaid delay could not be said to be fatal in the facts and circumstances of the case. The High Court has also not looked into the market value of the property and has dismissed the writ application on untenable and flimsy grounds. 34. We refrain from making any further remarks in the matter. Suffice it to say that such a frivolous prayer could not have been entertained, and the order of the Joint Charity Commissioner is absolutely illegal. Learned counsel for the trust stated that it would be difficult to repay the money. When trust has obtained money, obviously it has to repay. Let trust repay the amount of Rs.2,95,00,000/- to the developer. Considering the value of the property and the arguments made on behalf of the trustees, we are of the view that the trustees were not up to the task of protecting the interest of the trust, and clearly colluded with the developer while entering into such an agreement for development-cum-sale. | 1[ds]9. It has not been disputed that so far the Municipal Corporation of Mumbai has not granted the permission for the aforesaid development, as such no development has taken place.The power to grant sanction has to be exercised by the Charity Commissioner, taking into consideration three classic requirements i.e. ?the interest, benefit, and protection? of the Trust. The expression that sanction may be accorded subject to such conditions as Charity Commissioner may think fit under section 31(1)(b) and Section 36 (1)(c). The Charity Commissioner has to be objectively satisfied that property should be disposed of in the interest of public trust; in doing so, he has right to impose such conditions as he may think fit, taking into account aforesaid triple classic requirements. It is also open to the Charity Commissioner, in exercise of power of Section 36(2) of the Act, to revoke the sanction, given under clauses (a) and (b) of Section 36 of the Act, on the ground that the sanction had been obtained by fraud or misrepresentation or those material facts have been suppressed while obtaining sanction. The intendment of the revocation provision is also to sub-serve the interest, benefit, and protection of the Trust and its property.In the instant case, the Joint Charity Commissioner was required to consider the interest and benefit of the Trust. We are compelled to observe that Joint Charity Commissioner has totally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint Charity Commissioner in its Order clearly reflect that Charity Commissioner has failed to exercise the duties enjoined upon to protect trust under Section 36 of the Act. It has not considered the interest, benefit, and protection of the trust at all. The order is wholly perverse. Joint Commissioner abdicated its responsibilities, in as much as it observed that it was the outlook of the Trust as to whom it wanted to sell the property, and as certain development was to be made; as such market value of the property was not a relevant consideration. There is the sale made in the form of Joint Venture development cum sell agreement and lease was for 999 years. Right from the beginning, it was to be a joint venture agreement coupled with a sale option, as apparent from the minutes of the meeting of the trust. The trustees had been acting in collusion with developer even before resolution had been passed. Negotiations were going on with M/s. Astral Enterprises- developer.It was not disputed at Bar, by the trust or the developer, that it was a case of the sale, and right from beginning an option for sale was made. No effort has been made by the Trust, in case the sale was necessary, to ascertain the real market value of the property, nor has it been ascertained by the Joint Charity Commissioner. The property is located in a prime location of the city of Mumbai, at Malabar Hill Division near Central Mumbai Railway Station, and that the market value was, obviously, sky high as compared to paltry sum offered.This is a prestigious locality, where one would cherish to own a property, and in the true sense, it would be like a treasure house. We unhesitatingly take judicial notice of the fact, that such a huge area could not have been sold for a paltry sum of Rs.2,95,00,000/-. Trustees, as well as Joint Commissioner, have failed to act in the interest, benefit and to protect the Trust, and the same could not have been sold by such private negotiations. In our opinion, the value was many a time more at the time of entering into the agreement. The paltry sum that was reserved by the Trust could not be said to be in the interest and benefit of the trust. Merely obtaining a valuation report, from a person of choice, without making any serious effort to ascertain the market value by way of any method known to law, and fixing its reserve price, was an eyewash; such a dubious transaction was not at all acceptable, and it shocks conscience as to how such a valuable property could have been sold at such a throw-away price. Thus, we find, on the basis of the principles laid down in aforesaid decisions, and even on the basis of the decision relied upon by the learned counsel appearing on behalf of the developer, in Vedica Procon Private Limited (supra), that the respondents have no case at all. In the later decision, this court unequivocally held that sale should be at market price. In this case, no such effort had been made; it has not been considered as to why trust should sell such a valuable property at all, and as to what was the compelling necessity. Ordinarily, the trust property is to be protected, such property is held in trust; in case its condition was not good, there could be several other ways to improve it; it could not have been achieved by virtually throwing away the property.The joint venture development was not an intended transaction; sale option was mentioned dubiously in the agreement; same indicated that transaction was not bonafide. It was a cloak or a device adopted by the Trust so as to sell the property, and the transaction could not be said to be in the interest and benefit of the trust at all. Unfortunately, Joint Charity Commissioner totally failed in observance of statutory duties and did not look into the various aspects, neither conducted an enquiry envisaged under Section 36 of the Act. Thus, we find that the transaction could not have been sanctioned, considering the spirit of the provisions of Section 36 of the Act. Though the aforesaid Full Bench decision of High Court has come later on, however, intendment of the statutory provision, even for a moment, could not be to sanction such a derogatory transaction. The decisions of this court were available, even in the absence of exposition of the ambit of Section 36 of the Act by the high court; they had been conveniently ignored. The sanction at a glance had been granted in flagrant violation of basic principles of the law; it cannot withstand judicial scrutiny.Apart from that, it is also apparent that prayer was made in the application to dispense with public notice in a newspaper on the pretext that it was joint venture agreement and development was to be made by trustees, whereas it was, in fact, not the actual factual situation. There was a clause for sale, and lease of 999 years would also tantamount to a sale, and admittedly sale option had been exercised.It is apparent from aforesaid averment that there was a necessity of publishing a public notice in a newspaper, which requirement was sought to be waived on the ground that it was a joint venture and that development was being done by the trustees themselves, due to that, a public notice was not necessary. However, as a matter of fact, in Joint venture itself, the sale was contemplated and in fact it had taken place. The issuance of public notice could not have been waived. Inviting an offer by public notice would have disclosed actual worth of property; the aforesaid averments had been made designedly to evade the public notice, and it was not in the interest or for the benefit of the Trust to act in such a clandestine manner. It is clear that the application under Section 36 of the Act was not filed with clean hands, and it illegally aimed to get rid of public notice and unfortunately trustees succeeded in it. There was misrepresentation made as to the actual transaction that was intended and had ultimately taken place, in as much as it was stated in the application that no purpose would have been served by issuance of the public notice, as it was joint development venture, however, the property was totally unencumbered and easily marketable in its present form. The Joint Charity Commissioner also omitted to take into account actual nature of transaction how such property has to be sold and conveniently overlooked the provisions of the Act and decisions of this court.As a matter of fact, the trust could not have entered into such negotiations with M/s. Astral Builders without public notice, which was admittedly not given in the instant case and, thus, the joint venture-cum-sale and lease for 999 years amounted to a sale. In such a manner and method, the application could not have been entertained at all, much less allowed, by the Joint Charity Commissioner.The High Court has also failed to consider the various aspects, and has rejected the petition mainly on the basis of the delay, that was not very material in the facts, as no development had taken place. When such a prime and valuable public property was involved, the aforesaid delay could not be said to be fatal in the facts and circumstances of the case. The High Court has also not looked into the market value of the property and has dismissed the writ application on untenable and flimsy grounds.We refrain from making any further remarks in the matter. Suffice it to say that such a frivolous prayer could not have been entertained, and the order of the Joint Charity Commissioner is absolutely illegal. Learned counsel for the trust stated that it would be difficult to repay the money. When trust has obtained money, obviously it has to repay. Let trust repay the amount of Rs.2,95,00,000/- to the developer. Considering the value of the property and the arguments made on behalf of the trustees, we are of the view that the trustees were not up to the task of protecting the interest of the trust, and clearly colluded with the developer while entering into such an agreement for development-cum-sale. | 1 | 9,051 | 1,825 | ### 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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valuable property of the trust, which was derogatory to its interest and would have defeated the very object of the creation of the trust for the preservation and protection of religion and Parsi culture. 29. The joint venture development was not an intended transaction; sale option was mentioned dubiously in the agreement; same indicated that transaction was not bonafide. It was a cloak or a device adopted by the Trust so as to sell the property, and the transaction could not be said to be in the interest and benefit of the trust at all. Unfortunately, Joint Charity Commissioner totally failed in observance of statutory duties and did not look into the various aspects, neither conducted an enquiry envisaged under Section 36 of the Act. Thus, we find that the transaction could not have been sanctioned, considering the spirit of the provisions of Section 36 of the Act. Though the aforesaid Full Bench decision of High Court has come later on, however, intendment of the statutory provision, even for a moment, could not be to sanction such a derogatory transaction. The decisions of this court were available, even in the absence of exposition of the ambit of Section 36 of the Act by the high court; they had been conveniently ignored. The sanction at a glance had been granted in flagrant violation of basic principles of the law; it cannot withstand judicial scrutiny. 30. Apart from that, it is also apparent that prayer was made in the application to dispense with public notice in a newspaper on the pretext that it was joint venture agreement and development was to be made by trustees, whereas it was, in fact, not the actual factual situation. There was a clause for sale, and lease of 999 years would also tantamount to a sale, and admittedly sale option had been exercised. In the application, that was filed under Section 36 before Charity Commissioner, supported by the affidavit of Mr.Hoshang N. Wania, one of the trustees of B.C. Batliwala Trust, it was mentioned in para 6 thus:?EXEMPTION FROM INSERTING PUBLIC NOTICE IN NEWSPAPER? (a) xxx that the arrangement contemplated in the said MOU is that of joint venture and the development is being done by the Trustees themselves with the active support and financial resources of Astral and hence the question of inserting public notice in newspaper does not arise. In any event, the Trustees pray that this procedural formality may please be waived in this case. (b) Further, no useful purpose will be achieved by inserting Public Notice, as the said property is totally encumbered and not easily marketable in its present form. (c) Also, some of the disgruntled occupants may find it convenient to stop the proposal and may embroil the trust in wasteful litigation."31. It is apparent from aforesaid averment that there was a necessity of publishing a public notice in a newspaper, which requirement was sought to be waived on the ground that it was a joint venture and that development was being done by the trustees themselves, due to that, a public notice was not necessary. However, as a matter of fact, in Joint venture itself, the sale was contemplated and in fact it had taken place. The issuance of public notice could not have been waived. Inviting an offer by public notice would have disclosed actual worth of property; the aforesaid averments had been made designedly to evade the public notice, and it was not in the interest or for the benefit of the Trust to act in such a clandestine manner. It is clear that the application under Section 36 of the Act was not filed with clean hands, and it illegally aimed to get rid of public notice and unfortunately trustees succeeded in it. There was misrepresentation made as to the actual transaction that was intended and had ultimately taken place, in as much as it was stated in the application that no purpose would have been served by issuance of the public notice, as it was joint development venture, however, the property was totally unencumbered and easily marketable in its present form. The Joint Charity Commissioner also omitted to take into account actual nature of transaction how such property has to be sold and conveniently overlooked the provisions of the Act and decisions of this court. 32. As a matter of fact, the trust could not have entered into such negotiations with M/s. Astral Builders without public notice, which was admittedly not given in the instant case and, thus, the joint venture-cum-sale and lease for 999 years amounted to a sale. In such a manner and method, the application could not have been entertained at all, much less allowed, by the Joint Charity Commissioner. 33. The High Court has also failed to consider the various aspects, and has rejected the petition mainly on the basis of the delay, that was not very material in the facts, as no development had taken place. When such a prime and valuable public property was involved, the aforesaid delay could not be said to be fatal in the facts and circumstances of the case. The High Court has also not looked into the market value of the property and has dismissed the writ application on untenable and flimsy grounds. 34. We refrain from making any further remarks in the matter. Suffice it to say that such a frivolous prayer could not have been entertained, and the order of the Joint Charity Commissioner is absolutely illegal. Learned counsel for the trust stated that it would be difficult to repay the money. When trust has obtained money, obviously it has to repay. Let trust repay the amount of Rs.2,95,00,000/- to the developer. Considering the value of the property and the arguments made on behalf of the trustees, we are of the view that the trustees were not up to the task of protecting the interest of the trust, and clearly colluded with the developer while entering into such an agreement for development-cum-sale.
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report, from a person of choice, without making any serious effort to ascertain the market value by way of any method known to law, and fixing its reserve price, was an eyewash; such a dubious transaction was not at all acceptable, and it shocks conscience as to how such a valuable property could have been sold at such a throw-away price. Thus, we find, on the basis of the principles laid down in aforesaid decisions, and even on the basis of the decision relied upon by the learned counsel appearing on behalf of the developer, in Vedica Procon Private Limited (supra), that the respondents have no case at all. In the later decision, this court unequivocally held that sale should be at market price. In this case, no such effort had been made; it has not been considered as to why trust should sell such a valuable property at all, and as to what was the compelling necessity. Ordinarily, the trust property is to be protected, such property is held in trust; in case its condition was not good, there could be several other ways to improve it; it could not have been achieved by virtually throwing away the property.The joint venture development was not an intended transaction; sale option was mentioned dubiously in the agreement; same indicated that transaction was not bonafide. It was a cloak or a device adopted by the Trust so as to sell the property, and the transaction could not be said to be in the interest and benefit of the trust at all. Unfortunately, Joint Charity Commissioner totally failed in observance of statutory duties and did not look into the various aspects, neither conducted an enquiry envisaged under Section 36 of the Act. Thus, we find that the transaction could not have been sanctioned, considering the spirit of the provisions of Section 36 of the Act. Though the aforesaid Full Bench decision of High Court has come later on, however, intendment of the statutory provision, even for a moment, could not be to sanction such a derogatory transaction. The decisions of this court were available, even in the absence of exposition of the ambit of Section 36 of the Act by the high court; they had been conveniently ignored. The sanction at a glance had been granted in flagrant violation of basic principles of the law; it cannot withstand judicial scrutiny.Apart from that, it is also apparent that prayer was made in the application to dispense with public notice in a newspaper on the pretext that it was joint venture agreement and development was to be made by trustees, whereas it was, in fact, not the actual factual situation. There was a clause for sale, and lease of 999 years would also tantamount to a sale, and admittedly sale option had been exercised.It is apparent from aforesaid averment that there was a necessity of publishing a public notice in a newspaper, which requirement was sought to be waived on the ground that it was a joint venture and that development was being done by the trustees themselves, due to that, a public notice was not necessary. However, as a matter of fact, in Joint venture itself, the sale was contemplated and in fact it had taken place. The issuance of public notice could not have been waived. Inviting an offer by public notice would have disclosed actual worth of property; the aforesaid averments had been made designedly to evade the public notice, and it was not in the interest or for the benefit of the Trust to act in such a clandestine manner. It is clear that the application under Section 36 of the Act was not filed with clean hands, and it illegally aimed to get rid of public notice and unfortunately trustees succeeded in it. There was misrepresentation made as to the actual transaction that was intended and had ultimately taken place, in as much as it was stated in the application that no purpose would have been served by issuance of the public notice, as it was joint development venture, however, the property was totally unencumbered and easily marketable in its present form. The Joint Charity Commissioner also omitted to take into account actual nature of transaction how such property has to be sold and conveniently overlooked the provisions of the Act and decisions of this court.As a matter of fact, the trust could not have entered into such negotiations with M/s. Astral Builders without public notice, which was admittedly not given in the instant case and, thus, the joint venture-cum-sale and lease for 999 years amounted to a sale. In such a manner and method, the application could not have been entertained at all, much less allowed, by the Joint Charity Commissioner.The High Court has also failed to consider the various aspects, and has rejected the petition mainly on the basis of the delay, that was not very material in the facts, as no development had taken place. When such a prime and valuable public property was involved, the aforesaid delay could not be said to be fatal in the facts and circumstances of the case. The High Court has also not looked into the market value of the property and has dismissed the writ application on untenable and flimsy grounds.We refrain from making any further remarks in the matter. Suffice it to say that such a frivolous prayer could not have been entertained, and the order of the Joint Charity Commissioner is absolutely illegal. Learned counsel for the trust stated that it would be difficult to repay the money. When trust has obtained money, obviously it has to repay. Let trust repay the amount of Rs.2,95,00,000/- to the developer. Considering the value of the property and the arguments made on behalf of the trustees, we are of the view that the trustees were not up to the task of protecting the interest of the trust, and clearly colluded with the developer while entering into such an agreement for development-cum-sale.
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Raman Vs. Uttar Haryana Bijli Vitran Nigam Lt | wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimants left lower limb was amputated.In para 9 of the judgment, the Court held as under: (Kant LJ p. 415)9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below the knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%.43. Lord Reid in Baker v. Willoughby has said: (AC p. 492A)"... A man is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned...." 19. In view of the law laid down by this Court in the above referred cases which are extensively considered and granted just and reasonable compensation, in our considered view, the compensation awarded at Rs. 60 lakhs in the judgment of the learned Single Judge of the High Court, out of which 30 lakhs were to be deposited jointly in the name of the appellant represented by his parents as natural guardian and the Chief Engineer or his nominee representing the respondent-Nigam in a nationalised Bank in a fixed deposit till he attains the age of majority, is just and proper but we have to set aside that portion of the judgment of the learned Single Judge directing that if he survives, he is permitted to withdraw the amount, otherwise the deposit amount shall be reverted back to the respondents as the same is not legal and valid for the reason that once compensation amount is awarded by the court, it should go to the claimant/appellant. Therefore, the victims/claimants are legally entitled for compensation to be awarded in their favour as per the principles/guiding factors laid down by this Court in catena of cases, particularly, in Kunal Sahas case referred to supra. Therefore, the compensation awarded by the Motor Vehicle Tribunals/Consumer Forums/State Consumer Disputes Redressal Commissions/National Consumer Disputes Redressal Commission or the High Courts would absolutely belong to such victims/claimants. If the claimants die, then the Succession Act of their respective religion would apply to succeed to such estate by the legal heirs of victims/ claimants or legal representatives as per the testamentary document if they choose to execute the will indicating their desire as to whom such estate shall go after their death. For the aforesaid reasons, we hold that portion of the direction the of the learned Single Judge contained in sub-para (v), to the effect of Rs. 30 lakhs compensation to be awarded in favour of the appellant, if he is not alive at the time he attains majority, the same shall revert back to the respondent-Nigam after paying Rs.5 lakhs to the parents of the appellant, is wholly unsustainable and is liable to be set aside. Accordingly, we set aside the same and modify the same as indicated in the operative portion of the order. 20. The remaining compensation amount of Rs. 30 lakhs to be deposited in a fixed deposit account in the name of the petitioner (minor) under joint guardianship of the parents of Raman and the Engineer-in-Chief or his nominee representing the respondent-Nigam, in the Nationalised Bank as corpus fund, out of which an interest of Rs.20,000/- p.m. towards the expenses as indicated in sub-para (vi) of the order passed by the learned Single Judge, cannot be said to be on the higher side, but in our view, the said amount of compensation awarded is less and not reasonable and having regard to the nature of 100% permanent disability suffered by the appellant, it should have been much higher as the appellant requires permanent assistance of an attendant, treatment charges as he is suffering from agony and loss of marital life, which cannot be compensated by the amount of compensation awarded by the learned Singh Judge of the High Court. Hence, having regard to the facts and circumstances of the case, it would be just and proper for this Court to restore the judgment of the learned Single Judge on this count and we hold that the directions contained in the said judgment are justifiable to the extent indicated above. The Division Bench while exercising its appellate jurisdiction should not have accepted the alleged requisite instructions received by the counsel on behalf of the appellant and treated as ad idem and modified the amount as provided under sub-para (vi) of the order of the learned Single Judge and substituted the para 4 in its judgment as indicated in the aforesaid portion of the judgment which is wholly unreasonable and therefore, it is unsustainable in law as it would affect the right of the appellant for getting his legal entitlement of just and reasonable compensation for the negligence on the part of the respondents.21. In view of the foregoing reasons, after considering rival legal contentions and noticing the 100% permanent disability suffered by the appellant in the electrocution accident on account of which he lost all the amenities and become a deadwood throughout his life, and after adverting the law laid down by this Court in catena of cases in relation to the guiding principles to be followed to award just and reasonable compensation in favour of the appellant, we pass the following order:- | 1[ds]In view of the law laid down by this Court in the above referred cases which are extensively considered and granted just and reasonable compensation, in our considered view, the compensation awarded at Rs. 60 lakhs in the judgment of the learned Single Judge of the High Court, out of which 30 lakhs were to be deposited jointly in the name of the appellant represented by his parents as natural guardian and the Chief Engineer or his nominee representing the respondent-Nigam in a nationalised Bank in a fixed deposit till he attains the age of majority, is just and proper but we have to set aside that portion of the judgment of the learned Single Judge directing that if he survives, he is permitted to withdraw the amount, otherwise the deposit amount shall be reverted back to the respondents as the same is not legal and valid for the reason that once compensation amount is awarded by the court, it should go to the claimant/appellant. Therefore, the victims/claimants are legally entitled for compensation to be awarded in their favour as per the principles/guiding factors laid down by this Court in catena of cases, particularly, in Kunal Sahas case referred to supra. Therefore, the compensation awarded by the Motor Vehicle Tribunals/Consumer Forums/State Consumer Disputes Redressal Commissions/National Consumer Disputes Redressal Commission or the High Courts would absolutely belong to such victims/claimants. If the claimants die, then the Succession Act of their respective religion would apply to succeed to such estate by the legal heirs of victims/ claimants or legal representatives as per the testamentary document if they choose to execute the will indicating their desire as to whom such estate shall go after their death. For the aforesaid reasons, we hold that portion of the direction the of the learned Single Judge contained in sub-para (v), to the effect of Rs. 30 lakhs compensation to be awarded in favour of the appellant, if he is not alive at the time he attains majority, the same shall revert back to the respondent-Nigam after paying Rs.5 lakhs to the parents of the appellant, is wholly unsustainable and is liable to be set aside. Accordingly, we set aside the same and modify the same as indicated in the operative portion of theremaining compensation amount of Rs. 30 lakhs to be deposited in a fixed deposit account in the name of the petitioner (minor) under joint guardianship of the parents of Raman and the Engineer-in-Chief or his nominee representing the respondent-Nigam, in the Nationalised Bank as corpus fund, out of which an interest of Rs.20,000/- p.m. towards the expenses as indicated in sub-para (vi) of the order passed by the learned Single Judge, cannot be said to be on the higher side, but in our view, the said amount of compensation awarded is less and not reasonable and having regard to the nature of 100% permanent disability suffered by the appellant, it should have been much higher as the appellant requires permanent assistance of an attendant, treatment charges as he is suffering from agony and loss of marital life, which cannot be compensated by the amount of compensation awarded by the learned Singh Judge of the High Court. Hence, having regard to the facts and circumstances of the case, it would be just and proper for this Court to restore the judgment of the learned Single Judge on this count and we hold that the directions contained in the said judgment are justifiable to the extent indicated above. The Division Bench while exercising its appellate jurisdiction should not have accepted the alleged requisite instructions received by the counsel on behalf of the appellant and treated as ad idem and modified the amount as provided under sub-para (vi) of the order of the learned Single Judge and substituted the para 4 in its judgment as indicated in the aforesaid portion of the judgment which is wholly unreasonable and therefore, it is unsustainable in law as it would affect the right of the appellant for getting his legal entitlement of just and reasonable compensation for the negligence on the part of the respondents.21. In view of the foregoing reasons, after considering rival legal contentions and noticing the 100% permanent disability suffered by the appellant in the electrocution accident on account of which he lost all the amenities and become a deadwood throughout his life, and after adverting the law laid down by this Court in catena of cases in relation to the guiding principles to be followed to award just and reasonable compensation in favour of the appellant | 1 | 6,811 | 818 | ### 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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wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimants left lower limb was amputated.In para 9 of the judgment, the Court held as under: (Kant LJ p. 415)9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below the knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%.43. Lord Reid in Baker v. Willoughby has said: (AC p. 492A)"... A man is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned...." 19. In view of the law laid down by this Court in the above referred cases which are extensively considered and granted just and reasonable compensation, in our considered view, the compensation awarded at Rs. 60 lakhs in the judgment of the learned Single Judge of the High Court, out of which 30 lakhs were to be deposited jointly in the name of the appellant represented by his parents as natural guardian and the Chief Engineer or his nominee representing the respondent-Nigam in a nationalised Bank in a fixed deposit till he attains the age of majority, is just and proper but we have to set aside that portion of the judgment of the learned Single Judge directing that if he survives, he is permitted to withdraw the amount, otherwise the deposit amount shall be reverted back to the respondents as the same is not legal and valid for the reason that once compensation amount is awarded by the court, it should go to the claimant/appellant. Therefore, the victims/claimants are legally entitled for compensation to be awarded in their favour as per the principles/guiding factors laid down by this Court in catena of cases, particularly, in Kunal Sahas case referred to supra. Therefore, the compensation awarded by the Motor Vehicle Tribunals/Consumer Forums/State Consumer Disputes Redressal Commissions/National Consumer Disputes Redressal Commission or the High Courts would absolutely belong to such victims/claimants. If the claimants die, then the Succession Act of their respective religion would apply to succeed to such estate by the legal heirs of victims/ claimants or legal representatives as per the testamentary document if they choose to execute the will indicating their desire as to whom such estate shall go after their death. For the aforesaid reasons, we hold that portion of the direction the of the learned Single Judge contained in sub-para (v), to the effect of Rs. 30 lakhs compensation to be awarded in favour of the appellant, if he is not alive at the time he attains majority, the same shall revert back to the respondent-Nigam after paying Rs.5 lakhs to the parents of the appellant, is wholly unsustainable and is liable to be set aside. Accordingly, we set aside the same and modify the same as indicated in the operative portion of the order. 20. The remaining compensation amount of Rs. 30 lakhs to be deposited in a fixed deposit account in the name of the petitioner (minor) under joint guardianship of the parents of Raman and the Engineer-in-Chief or his nominee representing the respondent-Nigam, in the Nationalised Bank as corpus fund, out of which an interest of Rs.20,000/- p.m. towards the expenses as indicated in sub-para (vi) of the order passed by the learned Single Judge, cannot be said to be on the higher side, but in our view, the said amount of compensation awarded is less and not reasonable and having regard to the nature of 100% permanent disability suffered by the appellant, it should have been much higher as the appellant requires permanent assistance of an attendant, treatment charges as he is suffering from agony and loss of marital life, which cannot be compensated by the amount of compensation awarded by the learned Singh Judge of the High Court. Hence, having regard to the facts and circumstances of the case, it would be just and proper for this Court to restore the judgment of the learned Single Judge on this count and we hold that the directions contained in the said judgment are justifiable to the extent indicated above. The Division Bench while exercising its appellate jurisdiction should not have accepted the alleged requisite instructions received by the counsel on behalf of the appellant and treated as ad idem and modified the amount as provided under sub-para (vi) of the order of the learned Single Judge and substituted the para 4 in its judgment as indicated in the aforesaid portion of the judgment which is wholly unreasonable and therefore, it is unsustainable in law as it would affect the right of the appellant for getting his legal entitlement of just and reasonable compensation for the negligence on the part of the respondents.21. In view of the foregoing reasons, after considering rival legal contentions and noticing the 100% permanent disability suffered by the appellant in the electrocution accident on account of which he lost all the amenities and become a deadwood throughout his life, and after adverting the law laid down by this Court in catena of cases in relation to the guiding principles to be followed to award just and reasonable compensation in favour of the appellant, we pass the following order:-
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In view of the law laid down by this Court in the above referred cases which are extensively considered and granted just and reasonable compensation, in our considered view, the compensation awarded at Rs. 60 lakhs in the judgment of the learned Single Judge of the High Court, out of which 30 lakhs were to be deposited jointly in the name of the appellant represented by his parents as natural guardian and the Chief Engineer or his nominee representing the respondent-Nigam in a nationalised Bank in a fixed deposit till he attains the age of majority, is just and proper but we have to set aside that portion of the judgment of the learned Single Judge directing that if he survives, he is permitted to withdraw the amount, otherwise the deposit amount shall be reverted back to the respondents as the same is not legal and valid for the reason that once compensation amount is awarded by the court, it should go to the claimant/appellant. Therefore, the victims/claimants are legally entitled for compensation to be awarded in their favour as per the principles/guiding factors laid down by this Court in catena of cases, particularly, in Kunal Sahas case referred to supra. Therefore, the compensation awarded by the Motor Vehicle Tribunals/Consumer Forums/State Consumer Disputes Redressal Commissions/National Consumer Disputes Redressal Commission or the High Courts would absolutely belong to such victims/claimants. If the claimants die, then the Succession Act of their respective religion would apply to succeed to such estate by the legal heirs of victims/ claimants or legal representatives as per the testamentary document if they choose to execute the will indicating their desire as to whom such estate shall go after their death. For the aforesaid reasons, we hold that portion of the direction the of the learned Single Judge contained in sub-para (v), to the effect of Rs. 30 lakhs compensation to be awarded in favour of the appellant, if he is not alive at the time he attains majority, the same shall revert back to the respondent-Nigam after paying Rs.5 lakhs to the parents of the appellant, is wholly unsustainable and is liable to be set aside. Accordingly, we set aside the same and modify the same as indicated in the operative portion of theremaining compensation amount of Rs. 30 lakhs to be deposited in a fixed deposit account in the name of the petitioner (minor) under joint guardianship of the parents of Raman and the Engineer-in-Chief or his nominee representing the respondent-Nigam, in the Nationalised Bank as corpus fund, out of which an interest of Rs.20,000/- p.m. towards the expenses as indicated in sub-para (vi) of the order passed by the learned Single Judge, cannot be said to be on the higher side, but in our view, the said amount of compensation awarded is less and not reasonable and having regard to the nature of 100% permanent disability suffered by the appellant, it should have been much higher as the appellant requires permanent assistance of an attendant, treatment charges as he is suffering from agony and loss of marital life, which cannot be compensated by the amount of compensation awarded by the learned Singh Judge of the High Court. Hence, having regard to the facts and circumstances of the case, it would be just and proper for this Court to restore the judgment of the learned Single Judge on this count and we hold that the directions contained in the said judgment are justifiable to the extent indicated above. The Division Bench while exercising its appellate jurisdiction should not have accepted the alleged requisite instructions received by the counsel on behalf of the appellant and treated as ad idem and modified the amount as provided under sub-para (vi) of the order of the learned Single Judge and substituted the para 4 in its judgment as indicated in the aforesaid portion of the judgment which is wholly unreasonable and therefore, it is unsustainable in law as it would affect the right of the appellant for getting his legal entitlement of just and reasonable compensation for the negligence on the part of the respondents.21. In view of the foregoing reasons, after considering rival legal contentions and noticing the 100% permanent disability suffered by the appellant in the electrocution accident on account of which he lost all the amenities and become a deadwood throughout his life, and after adverting the law laid down by this Court in catena of cases in relation to the guiding principles to be followed to award just and reasonable compensation in favour of the appellant
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M/S. New Horizon Sugar Mills Vs. Gov.Of Pondicherry Tr.Addl.Sec | repealing the law so made by the Legislature of the State.” 44. As will be evident from the above, clause (1) of Article 254 provides that when there are two laws enacted by the Parliament and the State Legislature in which certain inconsistencies occur, then subject to the provisions of clause (2), the law made by the Parliament would prevail and the law made by the State Legislature to the extent it is repugnant to the Central law, shall be void. Clause (2), however, also provides that in a given situation where a law of a State is in conflict with the law made by Parliament, the law so made by the State Legislature shall, if it has received the assent of the President, prevail in that State. In the instant case, the Pondicherry Act had received the assent of the President attracting the provisions of Article 254(2) of the Constitution. 45. At this stage, it may also be worthwhile to consider Mr. Venkataramani’s submissions that the power to enact the Pondicherry Act could be traced to Entries 1, 8, 13 and 21 of the Concurrent List. Entry 1 of List III deals with criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. Entry 8 deals with actionable wrongs. Entry 13 deals with civil procedure while Entry 21 deals with Commercial and Industrial monopolies, combines and trusts. Such submission has been advanced by Mr. Venkataramani in view of the provisions of Section 58A, 58AA and 58AAA of the Companies Act, 1956, which all deal with deposits invited and accepted by Companies. The said submission is, however, subject to the condition that the provisions of the Companies Act are also attracted to the provisions of the Pondicherry Act. Although, it has been argued by Mr. Ganguli that the provisions of the Companies Act would not be attracted, we cannot overlook the amendment to the definition of “financial establishment” included in the Tamil Nadu Act and as defined in the Pondicherry Act. The definition of the expression “financial establishment” in Section 2(d) of the Pondicherry Act, which has been extracted in paragraph 14 hereinbefore, includes any person or group of individuals or a firm carrying on business of accepting deposits under any scheme or arrangement or in any other manner, but does not include a Corporation or a cooperative society owned or controlled by either the Central Government or the State Government or a banking company as defined under Section 5 of the Banking Regulation Act, 1949. In our view, the expression “any person” is wide enough to cover both a natural person as also a juristic person, which would also include a Company incorporated under the Companies Act, 1956. In that view of the matter, the definition in Section 2(d) of the Pondicherry Act would also include a Company such as the Appellant Mill, which accepts deposits from investors, not as shareholders of such Company, but merely as investors for the purpose of making profit. In this regard, reference may also be made to Section 11 of the Indian Penal Code which defines a “person” to include a Company or Association or body of persons, whether incorporated or not. Accordingly, we are inclined to accept Mr. Venkataramani’s submissions that the expression “person” in the Pondicherry Act includes both incorporated as well as unincorporated companies.46. The decision in K.K. Baskaran’s case (supra) so far as it relates to protection of interests of depositors, cannot be ignored. In our view the decision rendered by the Madras High Court in K.K. Baskaran’s case (supra) would be equally applicable to the facts of this case. We have to bear in mind that the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld by the Madras High Court and this Court. The objects of the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act being the same and/or similar in nature, and since the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld, the decision of the Madras High Court in upholding the validity of the Pondicherry Act must also be affirmed. We have to keep in mind the beneficial nature of the three legislations which is to protect the interests of small depositors, who invest their life’s earnings and savings in schemes for making profit floated by unscrupulous individuals and companies, both incorporated and unincorporated. More often than not, the investors end up losing their entire deposits. We cannot help but observe that in the instant case although an attempt has been made on behalf of the Appellant to state that it was not the Appellant Company which had accepted the deposits, but M/s PNL Nidhi Ltd., which had changed its name five times, such an argument is one of desperation and cannot prima facie be accepted. This appears to be one of such cases where funds have been collected from the gullible public to invest in projects other than those indicated by the front company. It is in fact the specific case of the Respondents that the funds collected by way of deposits were diverted to create the assets of the Appellant Mill.47. In such circumstances, we are not inclined to accept the submissions made by Mr. Ganguli, since in our view there is little difference between the provisions of the Tamil Nadu Act and the Pondicherry Act, which is to protect the interests of depositors who stand to lose their investments on account of the diversion of the funds collected by M/s PNL Nidhi Ltd. for the benefit of the Appellant Mill, which is privately owned by Shri V. Kannan and Shri V. Baskaran, who are also Directors of M/s PNL Nidhi Ltd. | 0[ds]45. At this stage, it may also be worthwhile to consider Mr.submissions that the power to enact the Pondicherry Act could be traced to Entries 1, 8, 13 and 21 of the Concurrent List. Entry 1 of List III deals with criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. Entry 8 deals with actionable wrongs. Entry 13 deals with civil procedure while Entry 21 deals with Commercial and Industrial monopolies, combines and trusts. Such submission has been advanced by Mr. Venkataramani in view of the provisions of Section 58A, 58AA and 58AAA of the Companies Act, 1956, which all deal with deposits invited and accepted by Companies. The said submission is, however, subject to the condition that the provisions of the Companies Act are also attracted to the provisions of the Pondicherry Act. Although, it has been argued by Mr. Ganguli that the provisions of the Companies Act would not be attracted, we cannot overlook the amendment to the definition ofed in the Tamil Nadu Act and as defined in the Pondicherry Act. The definition of the expressionin Section 2(d) of the Pondicherry Act, which has been extracted in paragraph 14 hereinbefore, includes any person or group of individuals or a firm carrying on business of accepting deposits under any scheme or arrangement or in any other manner, but does not include a Corporation or a cooperative society owned or controlled by either the Central Government or the State Government or a banking company as defined under Section 5 of the Banking Regulation Act, 1949. In our view, the expressionis wide enough to cover both a natural person as also a juristic person, which would also include a Company incorporated under the Companies Act, 1956. In that view of the matter, the definition in Section 2(d) of the Pondicherry Act would also include a Company such as the Appellant Mill, which accepts deposits from investors, not as shareholders of such Company, but merely as investors for the purpose of making profit. In this regard, reference may also be made to Section 11 of the Indian Penal Code which defines ato include a Company or Association or body of persons, whether incorporated or not. Accordingly, we are inclined to accept Mr.submissions that the expressionin the Pondicherry Act includes both incorporated as well as unincorporated companies.46. The decision in K.K.case (supra) so far as it relates to protection of interests of depositors, cannot be ignored. In our view the decision rendered by the Madras High Court in K.K.case (supra) would be equally applicable to the facts of this case. We have to bear in mind that the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld by the Madras High Court and this Court. The objects of the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act being the same and/or similar in nature, and since the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld, the decision of the Madras High Court in upholding the validity of the Pondicherry Act must also be affirmed. We have to keep in mind the beneficial nature of the three legislations which is to protect the interests of small depositors, who invest theirearnings and savings in schemes for making profit floated by unscrupulous individuals and companies, both incorporated and unincorporated. More often than not, the investors end up losing their entire deposits. We cannot help but observe that in the instant case although an attempt has been made on behalf of the Appellant to state that it was not the Appellant Company which had accepted the deposits, but M/s PNL Nidhi Ltd., which had changed its name five times, such an argument is one of desperation and cannot prima facie be accepted. This appears to be one of such cases where funds have been collected from the gullible public to invest in projects other than those indicated by the front company. It is in fact the specific case of the Respondents that the funds collected by way of deposits were diverted to create the assets of the Appellant Mill.47. In such circumstances, we are not inclined to accept the submissions made by Mr. Ganguli, since in our view there is little difference between the provisions of the Tamil Nadu Act and the Pondicherry Act, which is to protect the interests of depositors who stand to lose their investments on account of the diversion of the funds collected by M/s PNL Nidhi Ltd. for the benefit of the Appellant Mill, which is privately owned by Shri V. Kannan and Shri V. Baskaran, who are also Directors of M/s PNL Nidhi Ltd. | 0 | 10,481 | 910 | ### 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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repealing the law so made by the Legislature of the State.” 44. As will be evident from the above, clause (1) of Article 254 provides that when there are two laws enacted by the Parliament and the State Legislature in which certain inconsistencies occur, then subject to the provisions of clause (2), the law made by the Parliament would prevail and the law made by the State Legislature to the extent it is repugnant to the Central law, shall be void. Clause (2), however, also provides that in a given situation where a law of a State is in conflict with the law made by Parliament, the law so made by the State Legislature shall, if it has received the assent of the President, prevail in that State. In the instant case, the Pondicherry Act had received the assent of the President attracting the provisions of Article 254(2) of the Constitution. 45. At this stage, it may also be worthwhile to consider Mr. Venkataramani’s submissions that the power to enact the Pondicherry Act could be traced to Entries 1, 8, 13 and 21 of the Concurrent List. Entry 1 of List III deals with criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. Entry 8 deals with actionable wrongs. Entry 13 deals with civil procedure while Entry 21 deals with Commercial and Industrial monopolies, combines and trusts. Such submission has been advanced by Mr. Venkataramani in view of the provisions of Section 58A, 58AA and 58AAA of the Companies Act, 1956, which all deal with deposits invited and accepted by Companies. The said submission is, however, subject to the condition that the provisions of the Companies Act are also attracted to the provisions of the Pondicherry Act. Although, it has been argued by Mr. Ganguli that the provisions of the Companies Act would not be attracted, we cannot overlook the amendment to the definition of “financial establishment” included in the Tamil Nadu Act and as defined in the Pondicherry Act. The definition of the expression “financial establishment” in Section 2(d) of the Pondicherry Act, which has been extracted in paragraph 14 hereinbefore, includes any person or group of individuals or a firm carrying on business of accepting deposits under any scheme or arrangement or in any other manner, but does not include a Corporation or a cooperative society owned or controlled by either the Central Government or the State Government or a banking company as defined under Section 5 of the Banking Regulation Act, 1949. In our view, the expression “any person” is wide enough to cover both a natural person as also a juristic person, which would also include a Company incorporated under the Companies Act, 1956. In that view of the matter, the definition in Section 2(d) of the Pondicherry Act would also include a Company such as the Appellant Mill, which accepts deposits from investors, not as shareholders of such Company, but merely as investors for the purpose of making profit. In this regard, reference may also be made to Section 11 of the Indian Penal Code which defines a “person” to include a Company or Association or body of persons, whether incorporated or not. Accordingly, we are inclined to accept Mr. Venkataramani’s submissions that the expression “person” in the Pondicherry Act includes both incorporated as well as unincorporated companies.46. The decision in K.K. Baskaran’s case (supra) so far as it relates to protection of interests of depositors, cannot be ignored. In our view the decision rendered by the Madras High Court in K.K. Baskaran’s case (supra) would be equally applicable to the facts of this case. We have to bear in mind that the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld by the Madras High Court and this Court. The objects of the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act being the same and/or similar in nature, and since the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld, the decision of the Madras High Court in upholding the validity of the Pondicherry Act must also be affirmed. We have to keep in mind the beneficial nature of the three legislations which is to protect the interests of small depositors, who invest their life’s earnings and savings in schemes for making profit floated by unscrupulous individuals and companies, both incorporated and unincorporated. More often than not, the investors end up losing their entire deposits. We cannot help but observe that in the instant case although an attempt has been made on behalf of the Appellant to state that it was not the Appellant Company which had accepted the deposits, but M/s PNL Nidhi Ltd., which had changed its name five times, such an argument is one of desperation and cannot prima facie be accepted. This appears to be one of such cases where funds have been collected from the gullible public to invest in projects other than those indicated by the front company. It is in fact the specific case of the Respondents that the funds collected by way of deposits were diverted to create the assets of the Appellant Mill.47. In such circumstances, we are not inclined to accept the submissions made by Mr. Ganguli, since in our view there is little difference between the provisions of the Tamil Nadu Act and the Pondicherry Act, which is to protect the interests of depositors who stand to lose their investments on account of the diversion of the funds collected by M/s PNL Nidhi Ltd. for the benefit of the Appellant Mill, which is privately owned by Shri V. Kannan and Shri V. Baskaran, who are also Directors of M/s PNL Nidhi Ltd.
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45. At this stage, it may also be worthwhile to consider Mr.submissions that the power to enact the Pondicherry Act could be traced to Entries 1, 8, 13 and 21 of the Concurrent List. Entry 1 of List III deals with criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. Entry 8 deals with actionable wrongs. Entry 13 deals with civil procedure while Entry 21 deals with Commercial and Industrial monopolies, combines and trusts. Such submission has been advanced by Mr. Venkataramani in view of the provisions of Section 58A, 58AA and 58AAA of the Companies Act, 1956, which all deal with deposits invited and accepted by Companies. The said submission is, however, subject to the condition that the provisions of the Companies Act are also attracted to the provisions of the Pondicherry Act. Although, it has been argued by Mr. Ganguli that the provisions of the Companies Act would not be attracted, we cannot overlook the amendment to the definition ofed in the Tamil Nadu Act and as defined in the Pondicherry Act. The definition of the expressionin Section 2(d) of the Pondicherry Act, which has been extracted in paragraph 14 hereinbefore, includes any person or group of individuals or a firm carrying on business of accepting deposits under any scheme or arrangement or in any other manner, but does not include a Corporation or a cooperative society owned or controlled by either the Central Government or the State Government or a banking company as defined under Section 5 of the Banking Regulation Act, 1949. In our view, the expressionis wide enough to cover both a natural person as also a juristic person, which would also include a Company incorporated under the Companies Act, 1956. In that view of the matter, the definition in Section 2(d) of the Pondicherry Act would also include a Company such as the Appellant Mill, which accepts deposits from investors, not as shareholders of such Company, but merely as investors for the purpose of making profit. In this regard, reference may also be made to Section 11 of the Indian Penal Code which defines ato include a Company or Association or body of persons, whether incorporated or not. Accordingly, we are inclined to accept Mr.submissions that the expressionin the Pondicherry Act includes both incorporated as well as unincorporated companies.46. The decision in K.K.case (supra) so far as it relates to protection of interests of depositors, cannot be ignored. In our view the decision rendered by the Madras High Court in K.K.case (supra) would be equally applicable to the facts of this case. We have to bear in mind that the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld by the Madras High Court and this Court. The objects of the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act being the same and/or similar in nature, and since the validity of the Tamil Nadu Act and the Maharashtra Act have been upheld, the decision of the Madras High Court in upholding the validity of the Pondicherry Act must also be affirmed. We have to keep in mind the beneficial nature of the three legislations which is to protect the interests of small depositors, who invest theirearnings and savings in schemes for making profit floated by unscrupulous individuals and companies, both incorporated and unincorporated. More often than not, the investors end up losing their entire deposits. We cannot help but observe that in the instant case although an attempt has been made on behalf of the Appellant to state that it was not the Appellant Company which had accepted the deposits, but M/s PNL Nidhi Ltd., which had changed its name five times, such an argument is one of desperation and cannot prima facie be accepted. This appears to be one of such cases where funds have been collected from the gullible public to invest in projects other than those indicated by the front company. It is in fact the specific case of the Respondents that the funds collected by way of deposits were diverted to create the assets of the Appellant Mill.47. In such circumstances, we are not inclined to accept the submissions made by Mr. Ganguli, since in our view there is little difference between the provisions of the Tamil Nadu Act and the Pondicherry Act, which is to protect the interests of depositors who stand to lose their investments on account of the diversion of the funds collected by M/s PNL Nidhi Ltd. for the benefit of the Appellant Mill, which is privately owned by Shri V. Kannan and Shri V. Baskaran, who are also Directors of M/s PNL Nidhi Ltd.
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GOVT. OF ANDHRA PRADESH Vs. GEN. MG. DIST. CO-OP. CENTRAL BANK LTD | specified co-operative societies, and does not include other employees of such societies, the general provision contained in Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act shall have no application. It is argued that the special provision in Sub-clause (ix) shall exclude the general provision in Sub-clause (iii). 6. After hearing the Learned Counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-clause (ix) and overlooking Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act for quashing the proceedings on the ground that the Respondent/accused is not covered by the definition of public servant. 7. From the above quoted Sub-clause (ix) of Clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of public servant, elected office-bearers with president and Secretary of a registered cooperative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government, are included although such elected office bearers are not servants in employment of the co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the Government, are covered by Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. Merely because such employees of co-operative societies are not covered by subclause (ix) along with holders of elective officers, High Court ought not to have overlooked that the Respondent, who is admittedly an employee of a cooperative bank which is controlled and aided by the government, is covered within the comprehensive definition of public servant as contained in subclause (iii) of Clause (c) of Section 2 of the 1988 Act. It is not disputed that the Respondent/accused is in service of a co-operative Central Bank which is an authority or body controlled and aided by the government. 8. It cannot be lost sight of that the 1988 Act, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of public servant in Clause (c) of Section 2 of the 1988 Act. The Statement of Objects and Reasons contained in the Bill by which the Act was introduced in the Legislature throws light on the intention of the legislature in providing a very comprehensive definition of word public servant, Paragraph 3 of the Statement of Objects and Reasons reads: 3. The bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of offences under Sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included. 9. Clause 2 of the Notes on Clauses in Gazette of India Extraordinary, Part II, Section 2, further clarifies the legislative intent thus: Clause 2. The clause defines the expressions used in the Bill, Clause 2 (c) defines public servant. In the existing definition the emphasis is on the authority employing and the authority remunerating. In the proposed definition the emphasis is on public duty. The definition of election is based on the definition of this expression in the Indian Penal Code. 10. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in other semi-governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of public servant has been given in Clause (c) of Section 2 of the 1988 Act. 11. In constructing definition of pubic servant in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of Madhya Pradesh v. Shri Ram Singh AIR 2000 SC 575. 12. As a matter of fact, we find that the point arising before us on the definition of public servant that it does include employee of a banking co-operative society which is controlled or aided by the government is clearly covered against the Respondent/accused by the judgment in the case of State of Maharashtra and Anr. v. Prabhakarrao and Anr. 2002 (1) JT (Suppl. 1) (SC) 5 13. The other decision relied on behalf of the Respondent in the case of State of Maharashtra Vs. Laljit Rajshi Shah and Others, is distinguishable as it was based on interpretation of the definition of public servant as was contained in the repealed Act of 1947 which restricted it to cover only such public servants as are included in Section 21 of Indian Penal Code. | 1[ds]6. After hearing the Learned Counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-clause (ix) and overlooking Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act for quashing the proceedings on the ground that the Respondent/accused is not covered by the definition of public servant.7. From the above quoted Sub-clause (ix) of Clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of public servant, elected office-bearers with president and Secretary of a registered cooperative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government, are included although such elected office bearers are not servants in employment of the co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the Government, are covered by Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. Merely because such employees of co-operative societies are not covered by subclause (ix) along with holders of elective officers, High Court ought not to have overlooked that the Respondent, who is admittedly an employee of a cooperative bank which is controlled and aided by the government, is covered within the comprehensive definition of public servant as contained in subclause (iii) of Clause (c) of Section 2 of the 1988 Act. It is not disputed that the Respondent/accused is in service of a co-operative Central Bank which is an authority or body controlled and aided by the government.8. It cannot be lost sight of that the 1988 Act, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of public servant in Clause (c) of Section 2 of the 1988 Act. The Statement of Objects and Reasons contained in the Bill by which the Act was introduced in the Legislature throws light on the intention of the legislature in providing a very comprehensive definition of word public servant, Paragraph 3 of the Statement of Objects and Reasons reads:11. In constructing definition of pubic servant in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of Madhya Pradesh v. Shri Ram Singh AIR 2000 SC 575.12. As a matter of fact, we find that the point arising before us on the definition of public servant that it does include employee of a banking co-operative society which is controlled or aided by the government is clearly covered against the Respondent/accused by the judgment in the case of State of Maharashtra and Anr. v. Prabhakarrao and Anr. 2002 (1) JT (Suppl. 1) (SC) 513. The other decision relied on behalf of the Respondent in the case of State of Maharashtra Vs. Laljit Rajshi Shah and Others, is distinguishable as it was based on interpretation of the definition of public servant as was contained in the repealed Act of 1947 which restricted it to cover only such public servants as are included in Section 21 of Indian Penal Code. | 1 | 1,817 | 744 | ### Instruction:
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specified co-operative societies, and does not include other employees of such societies, the general provision contained in Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act shall have no application. It is argued that the special provision in Sub-clause (ix) shall exclude the general provision in Sub-clause (iii). 6. After hearing the Learned Counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-clause (ix) and overlooking Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act for quashing the proceedings on the ground that the Respondent/accused is not covered by the definition of public servant. 7. From the above quoted Sub-clause (ix) of Clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of public servant, elected office-bearers with president and Secretary of a registered cooperative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government, are included although such elected office bearers are not servants in employment of the co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the Government, are covered by Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. Merely because such employees of co-operative societies are not covered by subclause (ix) along with holders of elective officers, High Court ought not to have overlooked that the Respondent, who is admittedly an employee of a cooperative bank which is controlled and aided by the government, is covered within the comprehensive definition of public servant as contained in subclause (iii) of Clause (c) of Section 2 of the 1988 Act. It is not disputed that the Respondent/accused is in service of a co-operative Central Bank which is an authority or body controlled and aided by the government. 8. It cannot be lost sight of that the 1988 Act, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of public servant in Clause (c) of Section 2 of the 1988 Act. The Statement of Objects and Reasons contained in the Bill by which the Act was introduced in the Legislature throws light on the intention of the legislature in providing a very comprehensive definition of word public servant, Paragraph 3 of the Statement of Objects and Reasons reads: 3. The bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of offences under Sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included. 9. Clause 2 of the Notes on Clauses in Gazette of India Extraordinary, Part II, Section 2, further clarifies the legislative intent thus: Clause 2. The clause defines the expressions used in the Bill, Clause 2 (c) defines public servant. In the existing definition the emphasis is on the authority employing and the authority remunerating. In the proposed definition the emphasis is on public duty. The definition of election is based on the definition of this expression in the Indian Penal Code. 10. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in other semi-governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of public servant has been given in Clause (c) of Section 2 of the 1988 Act. 11. In constructing definition of pubic servant in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of Madhya Pradesh v. Shri Ram Singh AIR 2000 SC 575. 12. As a matter of fact, we find that the point arising before us on the definition of public servant that it does include employee of a banking co-operative society which is controlled or aided by the government is clearly covered against the Respondent/accused by the judgment in the case of State of Maharashtra and Anr. v. Prabhakarrao and Anr. 2002 (1) JT (Suppl. 1) (SC) 5 13. The other decision relied on behalf of the Respondent in the case of State of Maharashtra Vs. Laljit Rajshi Shah and Others, is distinguishable as it was based on interpretation of the definition of public servant as was contained in the repealed Act of 1947 which restricted it to cover only such public servants as are included in Section 21 of Indian Penal Code.
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6. After hearing the Learned Counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-clause (ix) and overlooking Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act for quashing the proceedings on the ground that the Respondent/accused is not covered by the definition of public servant.7. From the above quoted Sub-clause (ix) of Clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of public servant, elected office-bearers with president and Secretary of a registered cooperative society which is engaged in trade among others in banking and receiving or having received any financial aid from the Central or State Government, are included although such elected office bearers are not servants in employment of the co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the Government, are covered by Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. Merely because such employees of co-operative societies are not covered by subclause (ix) along with holders of elective officers, High Court ought not to have overlooked that the Respondent, who is admittedly an employee of a cooperative bank which is controlled and aided by the government, is covered within the comprehensive definition of public servant as contained in subclause (iii) of Clause (c) of Section 2 of the 1988 Act. It is not disputed that the Respondent/accused is in service of a co-operative Central Bank which is an authority or body controlled and aided by the government.8. It cannot be lost sight of that the 1988 Act, as its predecessor that is the repealed Act of 1947 on the same subject, was brought into force with avowed purpose of effective prevention of bribery and corruption. The Act of 1988 which repeals and replaces the Act of 1947 contains a very wide definition of public servant in Clause (c) of Section 2 of the 1988 Act. The Statement of Objects and Reasons contained in the Bill by which the Act was introduced in the Legislature throws light on the intention of the legislature in providing a very comprehensive definition of word public servant, Paragraph 3 of the Statement of Objects and Reasons reads:11. In constructing definition of pubic servant in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of public servant, was brought in force to purify public administration. When the legislature has used such comprehensive definition of public servant to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of public servant, therefore, deserves a wide construction. (See State of Madhya Pradesh v. Shri Ram Singh AIR 2000 SC 575.12. As a matter of fact, we find that the point arising before us on the definition of public servant that it does include employee of a banking co-operative society which is controlled or aided by the government is clearly covered against the Respondent/accused by the judgment in the case of State of Maharashtra and Anr. v. Prabhakarrao and Anr. 2002 (1) JT (Suppl. 1) (SC) 513. The other decision relied on behalf of the Respondent in the case of State of Maharashtra Vs. Laljit Rajshi Shah and Others, is distinguishable as it was based on interpretation of the definition of public servant as was contained in the repealed Act of 1947 which restricted it to cover only such public servants as are included in Section 21 of Indian Penal Code.
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ALL INDIA HAJ UMRAH TOUR ORGANIZER ASSOCIATION MUMBAI Vs. UNION OF INDIA & ORS | levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation. It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney-General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney-General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation. Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long accepted. 14. It is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evident that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered into by them with foreign sellers before 2-12- 1978. 15. We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favour. (emphasis added) 64. We are tempted to quote what the majority view in the case of R. K. Garg v. Union of India & Ors. 1981 (4) SCC 675 on the approach of the Court in such matters. We quote paragraph 8: 8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait- jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud [351 US 457 : 1 L Ed 2d 1485 (1957)] where Frankfurter, J., said in his inimitable style: In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events — self- limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry. (emphasis added) In the matter of grant of exemptions in tax matters, latitude has to be given to the decision making. Ultimately, it is also a matter of policy. We have already held that there is a rational basis for classifying specified organisations as a class and keeping out the Private Tour Operators from exemption under Clause 5A. We will have to show judicial self-restraint in this case. 65. Hence, we are of the considered view that the arguments based on discrimination have no substance at all, as HGOs and the Haj Committees do not stand on par and in fact, the Haj Committees constitute a separate class by themselves, which is based on a rational classification which has a nexus with the object sought to be achieved. | 0[ds]36. In these petitions, we are concerned with HGOs or PTOs. It is, therefore, necessary to understand the nature of services provided by HGOs/ PTOs. Haj pilgrimage is a five-day religious pilgrimage to Mecca and nearby Holy places in Saudi Arabia. As per the Holy Quran, all Muslims who are physically and financially sound must perform the Haj pilgrimage at least once in their lives. As provided in Holy Quran, the Haj pilgrimage is one of the five pillars or duties of Islam. Haj takes place only once a year in the twelfth and final month of Islamic lunar calendar. Pilgrimage undertaken to Mecca at other times is known as Umrah. During the five days of Haj, the pilgrims are required to perform a series of rituals, the details of which are not relevant for deciding the issues involved in these petitions.37. To enable Haj pilgrims of India to undertake Haj pilgrimage, there is a bilateral agreement executed every year between the Kingdom of Saudi Arabia and the Government of India. As per the bilateral agreement, a quota of number of pilgrims is assigned to India. Out of the said quota, normally only 30% is allocated to HGOs. The rest of the quota is made available to the Haj Committee.38. HGOs render services to Haj pilgrims by purchasing flight tickets, arranging and making payments for accommodation in Saudi Arabia, arranging and making available food during their stay in Saudi Arabia, arranging and making payments for transportation in Saudi Arabia and providing foreign exchange in the form of Saudi Riyals. As stated in the written submissions filed by Shri Arvind P. Datar, the learned senior counsel, all Muslim devotees who wish to undertake the Haj pilgrimage have to register themselves with Tawafa establishment in Saudi Arabia. As soon as Haj pilgrims land in Kingdom of Saudi Arabia, their entire movement is controlled by Tawafa establishment and its agents known as Maollims. Similar kinds of services are provided by Haj Committee to those pilgrims who undertake Haj pilgrimage through Haj Committee. As pointed out by Shri Gopal Sankaranarayanan, the learned senior counsel, HGOs provide better accommodation at a place near Kabah and also arrange for food. However, the Haj Committee provides accommodation at far away places without the facility of catering. The 2012 Rules have a direct connection with liability to pay service tax as the said Rules decide the place of provision of a service. Apart from the definitions of location of the service provider and location of the service receiver under Clauses (h) and (i) of Rule 2, Rules 3, 4, 7, 8 and Rule 9 of the said Rules of 2012 are also relevant.39. The provisions of the 2012 Rules and the relevant provisions of IGST Act are to a great extent pari materia. As far as the location of service provider in this case (HGOs) is concerned, there is no dispute that all of them have to be registered under Rule 4 of the Service Tax Rules, 1994 and therefore, as per sub-clause (a) of clause (h) of Rule 2, the location of HGO will be the premises for which registration has been granted to HGO. Such premises are necessarily in India. Even assuming that any other sub-clauses of clause (h) are applicable, the location of the service provider, in this case, will be in India. As far as the location of service receiver under clause (i) of Rule 2 is concerned, in this case, the service receiver is the Haj pilgrim who is obviously not registered. Therefore, sub- clause (a) of clause (i) will have no application. There are four categories listed in sub-clause (b) of clause (i) of Rule 2. The first category is of business establishments. The second category is of services which are used at a place other than the business establishment. The third category is where services are used at more than one establishment. On the face of it, the cases of Haj pilgrims undertaking the Haj pilgrimage through HGOs will not be covered by these three categories. What is applicable to them is the fourth category which is the usual place of residence of the recipient of service. It is not the place where the service recipient receives service or is rendered service. It is the place of ordinary residence of the service recipient which, in this case, will be in taxable territory. As provided in Rule 3, the place of provision of service is the location of the recipient of service. In this case, the recipients of service from HGOs are Indian residents and accordingly, their place of residence in India will be the place of provision of service. Rule 8 provides that where the location of the provider of service as well as that of the recipient of service is in the taxable territory, the place of provision of service is the location of the recipient of service. Hence, in this case, the place of provision of service is the location of the service receiver in accordance with clause (i) of Rule 2 which will be in taxable territory.40. However, reliance was sought to be placed by the petitioners on Rule 4, in particular Clause (b) thereof. Rule 4 is applicable to performance based service which provides that the place of provision of two services set out in the said Rule shall be the location where services are actually performed. Clause (a) of Rule 4 is applicable to services provided in respect of goods which obviously will not apply in the present case. The petitioners are relying upon clause (b) of Rule 4. The title of Rule 4 suggests that it is applicable to performance based services. HGOs do not render performance based services looking to the nature of the services they render, which we have discussed above in detail. Therefore, Clause (b) of Rule 4 will not apply to HGOs. What will apply is Rule 3 which will mean that the place of provision of the service shall be the location of the recipient of service in accordance with Rule 2(i)(b)(iv). Thus, service is rendered by HGOs to the Haj pilgrims within taxable territory. That is how the charging section will apply.Religious ceremonies and religious functions are not covered by Rule 6. The words similar events will have to be construed ejusdem generis. Hence, the Haj pilgrimage cannot be an event.42. Even if we assume that the service rendered by HGOs to Haj pilgrims is transportation service, by virtue of Rule 9 of the 2012 Rules, the place of provision of service will be the location of service provider. In view of sub-Section (10) of Section 12 of the IGST Act, the place of supply of service will be the place where the passenger embarks.43. As per Item (iv) of sub-clause (b) of Clause (i) of Rule 2 of the said Rules of 2012, the location of the service receiver will be the usual place of residence of the Haj pilgrim in India. Therefore, the service rendered by the HGOs to Haj Pilgrims is taxable for service tax as the service to Haj pilgrims is provided or agreed to be provided in taxable territory. The service is rendered by providing or agreeing to provide Haj pilgrimage tour package.44. We may reiterate here that as prayed by the parties during arguments, we are not going into the issue of extra-territorial operations of the laws relating to service tax and the said issue is left open. Even the issue of the validity of the 2012 Rules has not been seriously canvassed at the time of oral submissions. In one of the writ petitions, the ground of violation of Article 25 of the Constitution of India has been taken without making even an attempt to substantiate the same.The said decisions apply to the fact situation before 1st July, 2012 when negative tax regime was not in force. We are concerned in these cases with the negative service tax regime which commenced from 1st July 2012. Therefore, the same will not apply to these cases.As mentioned earlier, the Exemption Notifications under the IGST and the GST Acts so far as the Haj pilgrimage is concerned, are pari materia with the Mega Exemption Notification. It is, therefore, necessary to advert to the Mega Exemption Notification. The Mega Exemption Notification contains a list of services which are exempted from service tax leviable under Section 66B.47. Ex facie, Clause 5A will have no application as it is applicable to services by specified organisations in respect of a religious pilgrimage facilitated by the Ministry of External affairs of the Government of India under bilateral arrangement. The specified organisations have been defined in paragraph 1(1)(a)(zfa) of the Mega Exemption Notification. Specified organisations, as stated therein, are only two categories of organisations. The first one is Kumaon Mandal Vikas Nigam Limited, a Government of Uttarakhand Undertaking and Haj Committee or State Committee under the said Act of 2002. The Haj Committee renders services in relation to the Haj pilgrimage which is facilitated by the Ministry of External Affairs of the Government of India under the bilateral arrangement with the Kingdom of Saudi Arabia.In the case of Government of Kerala & Anr. v. Mother Superior Adoration Convent 2021 (5) SCC 602 relied upon by Shri Datar, this Court referred to its decision in the case of Commissioner of Customs (Preventive) Mumbai v. M. Ambalal and Company 2011 (2) SCC 74 and held that the law laid down in the case of M. Ambalal and Company 2011 (2) SCC 74 has not been disturbed by the Constitution Bench in the case of Dilip Kumar and Company 2018 (9) SCC 1 . In paragraph 23, this Court in the case of Mother Superior Adoration Convent 2021 (5) SCC 602 held thus:23. Likewise, even under the Customs Act, this Court in Commr. of Customs v. M. Ambalal & Co. [Commr. of Customs v. M. Ambalal & Co., (2011) 2 SCC 74] made a clear distinction between exemptions which are to be strictly interpreted as opposed to beneficial exemptions having as their purpose—encouragement or promotion of certain activities. This case felicitously put the law thus follows : (SCC p. 80, para 16)16. It is settled law that the notification has to be read as a whole. If any of the conditions laid down in the notification is not fulfilled, the party is not entitled to the benefit of that notification.The rule regarding exemptions is that exemptions should generally be strictly interpreted but beneficial exemptions having their purpose as encouragement or promotion of certain activities should be liberally interpreted. This composite rule is not stated in any particular judgment in so many words. In fact, majority of judgments emphasise that exemptions are to be strictly interpreted while some of them insist that exemptions in fiscal statutes are to be liberally interpreted giving an apparent impression that they are contradictory to each other. But this is only apparent. A close scrutiny will reveal that there is no real contradiction amongst the judgments at all. The synthesis of the views is quite clearly that the general rule is strict interpretation while special rule in the case of beneficial and promotional exemption is liberal interpretation. The two go very well with each other because they relate to two different sets of circumstances.Thereafter, in paragraph 25, this Court referred to and quoted the relevant portion of the Constitution Bench decision in the case of Dilip Kumar and Company 2018 (9) SCC 1 . In paragraphs 26 and 27, this Court proceeded to hold thus:26. It may be noticed that the five-Judge Bench judgment [Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1] did not refer to the line of authority which made a distinction between exemption provisions generally and exemption provisions which have a beneficial purpose. We cannot agree with Shri Guptas contention that sub silentio the line of judgments qua beneficial exemptions has been done away with by this five-Judge Bench. It is well settled that a decision is only an authority for what it decides and not what may logically follow from it (see Quinn v. Leathem [Quinn v. Leathem, 1901 AC 495 (HL)] as followed in State of Orissa v. Sudhansu Sekhar Misra [State of Orissa v. Sudhansu Sekhar Misra, (1968) 2 SCR 154 : AIR 1968 SC 647 ] , SCR at pp. 162- 63 : AIR at pp. 651-52, para 13).27. This being the case, it is obvious that the beneficial purpose of the exemption contained in Section 3(1)(b) must be given full effect to, the line of authority being applicable to the facts of these cases being the line of authority which deals with beneficial exemptions as opposed to exemptions generally in tax statutes. This being the case, a literal formalistic interpretation of the statute at hand is to be eschewed. We must first ask ourselves what is the object sought to be achieved by the provision, and construe the statute in accord with such object. And on the assumption that if any ambiguity arises in such construction, such ambiguity must be in favour of that which is exempted. Consequently, for the reasons given by us, we agree with the conclusions reached by the impugned judgments [Mother Superior v. State of Kerala, 2007 SCC OnLine Ker 578] , [Unity Hospital (P) Ltd. v. State of Kerala, 2010 SCC OnLine Ker 4679] of the Division Bench and the Full Bench.51. Now, adverting to sub-clause (b) of Section 5, we find that the exemption has been granted in respect of services by a person by way of conduct of any religious ceremony. Thus, it refers to a person who is naturally the service provider. The sub- Clause (b) applies when the service provider renders service by way of conduct of any religious ceremony. The notification does not say that service provided to the service receiver to enable him to conduct religious ceremony, has been exempted. It only exempts service provided by way of conduct of any religious ceremony.52. It must be noted here that Clause 5A of the same Mega Exemption Notification grants exemption to the service rendered by Haj Committees in respect of a religious pilgrimage. Thus, the same Mega Exemption Notification makes a clear distinction between religious ceremony and religious pilgrimage. As Haj Committees render services only in respect of Haj pilgrimage, the religious pilgrimage referred to in Clause 5A as regards the Haj Committee, is Haj pilgrimage. Thus, the Mega Exemption Notification exempts the two specified organisations that render services in respect of a religious pilgrimage. This exemption under Clause 5A is not applicable to HGOs as the HGOs are not the specified organizations. If the intention and object was to provide service tax exemption to services provided by HGOs in respect of religious pilgrimage, the notification would have specifically provided so. However, the exemption as regards religious pilgrimage has been confined only to the services rendered by the specified organisations in respect of a religious pilgrimage facilitated by the Ministry of External Affairs of the Government of India under a bilateral arrangement. An exemption has not been provided to any other service provider rendering service in respect of a religious pilgrimage. Whereas, sub-Clause (b) of Clause 5 is applicable to services rendered by way of conduct of any religious ceremony. A clear distinction has been made between a service provided in respect of religious pilgrimage and a service rendered by way of conduct of any religious ceremony. We may give an example of a person engaging a priest to perform certain religious ceremonies or ritual or puja on his behalf. In such a case, the priest renders service by way of conducting a religious ceremony. The service rendered by HGOs to Haj pilgrims is to facilitate them to reach at the destination to perform rituals/religious ceremonies. No religious ceremony is performed or conducted by the HGOs. The religious ceremony is conducted by Haj pilgrims or by someone else in the Kingdom of Saudi Arabia. According to us, there is absolutely no ambiguity in sub-clause (b) of clause 5 and therefore, there is no occasion to apply the test laid down by this Court in the case of Mother Superior Adoration Convent 2021 (5) SCC 602 .According to us, this submission is completely fallacious. The word person used in Clause 5 refers to a service provider and not to the receiver of service. Even assuming that some services are provided by the Kingdom of Saudi Arabia, the Government of India, Tawafa establishments or Maollims to Haj pilgrims from India, it may be noted here that they are not subjected to payment of service tax. The service tax is levied on HGOs being service providers. The real question is whether HGOs are rendering service by way of conduct of any religious ceremony. As held earlier, HGOs have no role to play in actual conduct of religious ceremonies which are a part of Haj pilgrimage. The service rendered by HGOs is by way of providing air bookings, arranging for the stay of Haj pilgrims in Saudi Arabia, arranging for food while they are in Saudi Arabia, arranging for foreign exchange and arranging registration with Tawafa establishment in the Kingdom of Saudi Arabia.HGOs render service to Haj pilgrims in respect of the Haj pilgrimage by providing a single package which consists of several parts such as making air booking, providing foreign exchange and making arrangements for stay and catering in Saudi Arabia, etc. HGOs offer a comprehensive package of services relating to Haj pilgrimage. They receive charges from Haj pilgrims for the entire package. It is not the case of the HGOs that they charge separately for different services forming a part of the comprehensive package. Only a part of the package cannot be picked up for invoking exemption. A particular service rendered cannot be divided into parts. For the purposes of levy of service tax, the service rendered cannot be dissected like this. The service rendered as a whole by the HGOs to the Haj pilgrims will have to be taken into account. This is apart from the fact that no part of the package offered by HGOs involves a service by way of conduct of any religious ceremony. Therefore, in our considered view, sub-clause (b) of clause 5 of the Mega Exemption Notification cannot be invoked by the HGOs. We may also note here that the exemption under sub-clause (b) of clause 5 is to the service provider. We are noting this as one of the petitions has been filed by a service recipient.55. Before we go to the argument regarding discrimination, we may note here that with effect from 1st July 2017, service tax became payable under the IGST Act. Even GST Act came into force from the same date. Under both the enactments, tax is payable on the supply of goods or services. Sub-Section (2) of Section 13 of IGST Act provides that the place of supply of services except services specified in Sub-Sections (3) to (13) shall be the location of the recipient of services. Under sub- Section (1) of Section 5 of the IGST Act, service tax is payable on services supplied inter-state. Under sub-Section (1) of Section 9 of the GST Act, service tax is leviable on services supplied intra-state. None of the sub-sections (3) to (13) of Section 13 of the IGST Act is applicable in this case. Clause (14) of Section 2 of the IGST Act defines the location of the recipient of service. This provision is pari materia with the same definition under the 2012 Rules. As in case of 2012 Rules, there are four categories. The service received from HGOs in connection with the Haj pilgrimage falls in the fourth category which lays down that the location of the recipient of service will be the location of usual place of residence of the recipient. Similar are the provisions in GST Act except that the service tax is leviable on services supplied intra-State. Therefore, as far as the services rendered by HGOs are concerned, there is no material change brought about by the GST and the IGST Acts except for the fact that the service tax is chargeable under these two statutes and not under the Finance Act. Thus, the HGOs supply service to the service recipient having location in India. The service is rendered by providing a package for the Haj Pilgrimage to the service recipient who is located in the taxable territory. That is how the service provided by HGOs is taxable for service tax.Article 14 does not prohibit the classification of persons or class of persons provided it is not arbitrary. The classification has to be reasonable. The classification is permissible provided it is founded on an intelligible differentia which must distinguish the persons grouped together from those who are left out. Moreover, the classification must have a rational nexus to the objects sought to be achieved by it. While we examine this question in the context of the infringement of Article 14 of the Constitution of India, it must be remembered that only on the ground that both HGOs and the Haj Committee render service to the same class of persons, the classification made by treating the Haj Committee as a separate class, cannot be questioned. In a given case, different classes of service providers may be rendering the same service to the same class of service recipients. That, per se, does not amount to discrimination. The attack on the ground of discrimination will have to be considered in the context of taxable persons namely, the Haj Committee and HGOs. Under Section 3 of the said Act of 2002, the Haj Committee of India was constituted. Similarly, under Section 17, the State Haj Committees were constituted. Both the categories of Haj Committees are body corporate, having perpetual succession and a common seal with the power to acquire, hold and dispose of movable and immovable properties. Section 4 determines the composition of the Haj Committee of India and Section 18 determines the composition of State Haj Committees.58. Under Section 27 of the 2002 Act, it is the duty of the State Committees to implement the policies and directions of the Haj Committee and perform prescribed duties. The functions and duties assigned to the Haj Committee need to be considered in the context of the preamble of the 2002 Act. The object is to establish Committees for making arrangements for the Muslims for the pilgrimage of Haj. The HGOs are otherwise the tour operators carrying on business of arranging tours. They get themselves registered as HGOs. As can be noticed from Section 9, the functions of the Haj Committee are not confined only to making arrangements for enabling the pilgrims to undertake the Haj pilgrimage. Its first duty is to collect and disseminate the information useful to the pilgrims and to arrange orientation and training programmes for the pilgrims. It is the duty of the Haj Committee to give relief to pilgrims and visitors. It is its duty to generally look after the welfare of the pilgrims. The Haj Committee has an important duty to assist the pilgrims in distress. One of the duties is to finalize the Annual Haj Plan with the approval of the Central Government and to execute the same. The Haj Committee is under an obligation to publish proceedings of the Committee. Under Section 30, it is the duty of the Committee to create Central Haj Fund. Similarly, under Section 32, the State Committees are under an obligation to create State Haj Funds. The Central Government has the power to reconstitute the Haj Committee and to remove the Chairperson, the Vice-Chairperson and the Members of the Committee. There is a similar power vesting in the State Government in respect of the State Committees. Thus, the Haj Committees are statutory bodies working under the control and supervision of the Government. The Haj Committees are the agencies and instrumentalities of the State. Apart from arranging visits of Haj pilgrims for the purposes of Haj pilgrimage, there are important statutory duties assigned to the Haj Committee which we have set out above. As per clause (b) of Section 30, money collected from pilgrims for the performance of the Haj pilgrimage becomes a part of the Central Haj Fund, which can be utilized only for the purposes specified under Section 31. The funds can be used only for the purposes of paying salary and allowances to the officers and employees of the Committee and for payment of charges and expenses incidental to the objects specified in Section 9. Other expenditure can be made only with the approval of the Central Government. Therefore, when the Haj Committee facilitates the Haj pilgrims by making arrangements for their visit to the Kingdom of Saudi Arabia for undertaking the Haj pilgrimage, there is a complete absence of profit motive. On the contrary, the money received by the Haj Committee from the Haj pilgrims goes to the statutory fund, which in turn, has to be used inter alia for the benefit of Haj pilgrims. Even the budget of the Haj Committee is required to be submitted to the Central Government. Thus, the Central Government has all pervasive control over the Haj Committee. The State Governments have the same control over the State Committee. On the other hand, there are no onerous duties attached to HGOs. They earn profit by rendering service to Haj pilgrims. Except for the stringent conditions for the registration, the Government has no control over HGOs.In fact, what is observed in paragraph 12 is in the context of the controversy before this Court. It can be seen from paragraph 17 of the said decision that the controversy was about the stringent conditions imposed for the registration of PTOs. The observations in paragraph 12 are in that context. This Court held that the object of putting such stringent conditions is to ensure that proper service is rendered to the Haj pilgrims. In this context, the aforesaid observation has been made that the reasonable profit to PTOs is incidental. It is not the case of the HGOs in these petitions that they are doing any kind of charitable work by providing service to Haj pilgrims. It is not their case that they are not earning any profit while providing a package to Haj pilgrims. They are rendering the services with the object of earning profit.60. Thus, the Haj Committee is a statutory committee which is entrusted with various functions for the welfare of Haj pilgrims. Moreover, the profit motive is completely absent in the case of the Haj Committee. The money received by the Haj Committee from the pilgrims for rendering service goes to a statutory fund created under the 2002 Act which is to be used only for the purposes specified in the 2002 Act. That is the reason why the Haj Committee constitutes a class in itself when it comes to rendering service to Haj pilgrims. It is a separate class as distinguished from HGOs. There is an intelligible differentia for this classification. The object of exemption in paragraph 5A of the Mega Exemption Notification is to promote the activity of the specified organisations of rendering service for the religious pilgrimage. Both the organisations which are specified in the notification are statutory organisations over which the Government has an effective control. Moreover, the service rendered by the specified organisations to the devotees is not with the object of making profit. Therefore, there is a nexus between the classification made and the object sought to be achieved by granting exemptions.61. The learned senior counsel relied upon the decision of this Court in the case of S. K. Dutta 1968 (2) SCR 165. Certain provisions of the Income Tax Act, 1961 granting exemption to the members of the Scheduled Tribes were the subject matter of challenge before the High Court. While granting exemption to the members of the Scheduled Tribes, the class of the government servants who were the members of Scheduled Tribes was excluded from the benefits. It is in this context that the Apex Court observed that the classification made on the basis of imaginary distinction cannot be a valid classification. There has to be a reasonable and substantial distinction for the purposes of making a valid classification. On facts, the said decision will not help the petitioners.63. Strong reliance was placed by the Revenue on the decision of this Court in the Case of M. Jhangir Bhatusha & Ors 1989 Suppl. (2) SCC 201 . The subject of this petition was an order passed by the Government under sub-Section (2) of Section 25 of the Customs Act, 1962. By the said order, import of the specified oils by the State Trading Corporation was made liable to customs duty at the rate of 5% only and total exemption from auxiliary and additional duty was granted. On the other hand, import of the same specified oils by private importers was made liable to customs duty at the rate of 12.5% ad velorem. Discrimination was alleged in this case by contending that there is no rational basis for treating State Trading Corporation differently. In paragraphs 13 to 15 of the said decision, this Court held thus:13. First, as to the contention that both the reasons set forth in the exemption notifications under Section 25(2) of the Act are without foundation. It seems to us that the two reasons set forth in the exemption notifications can constitute a reasonable basis for those notifications. It does appear from the material before us that international prices were fluctuating, and although they may have shown a perceptible fall there was the apprehension that because of the history of fluctuations there was a possibility of their rising in the future. The need to protect the domestic market is always present, and therefore encouragement had to be given to the imports effected by the State Trading Corporation by reducing the rate of customs duty levied on them. This involved a long term perspective, since the exclusive monopoly to import these edible oils was now entrusted to the State Trading Corporation. What appears to have dominated the policy of the government in issuing the exemption notifications was the consideration that the domestic prices of vanaspati should be maintained at reasonable levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation. It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney-General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney-General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation. Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long accepted.14. It is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evident that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered into by them with foreign sellers before 2-12- 1978.15. We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favour.64. We are tempted to quote what the majority view in the case of R. K. Garg v. Union of India & Ors. 1981 (4) SCC 675 on the approach of the Court in such matters. We quote paragraph 8:8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait- jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud [351 US 457 : 1 L Ed 2d 1485 (1957)] where Frankfurter, J., said in his inimitable style:In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events — self- limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry.In the matter of grant of exemptions in tax matters, latitude has to be given to the decision making. Ultimately, it is also a matter of policy. We have already held that there is a rational basis for classifying specified organisations as a class and keeping out the Private Tour Operators from exemption under Clause 5A. We will have to show judicial self-restraint in this case.65. Hence, we are of the considered view that the arguments based on discrimination have no substance at all, as HGOs and the Haj Committees do not stand on par and in fact, the Haj Committees constitute a separate class by themselves, which is based on a rational classification which has a nexus with the object sought to be achieved. | 0 | 20,057 | 6,679 | ### Instruction:
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levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation. It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney-General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney-General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation. Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long accepted. 14. It is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evident that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered into by them with foreign sellers before 2-12- 1978. 15. We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favour. (emphasis added) 64. We are tempted to quote what the majority view in the case of R. K. Garg v. Union of India & Ors. 1981 (4) SCC 675 on the approach of the Court in such matters. We quote paragraph 8: 8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait- jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud [351 US 457 : 1 L Ed 2d 1485 (1957)] where Frankfurter, J., said in his inimitable style: In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events — self- limitation can be seen to be the path to judicial wisdom and institutional prestige and stability. The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry. (emphasis added) In the matter of grant of exemptions in tax matters, latitude has to be given to the decision making. Ultimately, it is also a matter of policy. We have already held that there is a rational basis for classifying specified organisations as a class and keeping out the Private Tour Operators from exemption under Clause 5A. We will have to show judicial self-restraint in this case. 65. Hence, we are of the considered view that the arguments based on discrimination have no substance at all, as HGOs and the Haj Committees do not stand on par and in fact, the Haj Committees constitute a separate class by themselves, which is based on a rational classification which has a nexus with the object sought to be achieved.
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that the domestic prices of vanaspati should be maintained at reasonable levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation. It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney-General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney-General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation. Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long accepted.14. It is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evident that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered into by them with foreign sellers before 2-12- 1978.15. We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favour.64. We are tempted to quote what the majority view in the case of R. K. Garg v. Union of India & Ors. 1981 (4) SCC 675 on the approach of the Court in such matters. We quote paragraph 8:8. Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait- jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud [351 US 457 : 1 L Ed 2d 1485 (1957)] where Frankfurter, J., said in his inimitable style:In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events — self- limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry.In the matter of grant of exemptions in tax matters, latitude has to be given to the decision making. Ultimately, it is also a matter of policy. We have already held that there is a rational basis for classifying specified organisations as a class and keeping out the Private Tour Operators from exemption under Clause 5A. We will have to show judicial self-restraint in this case.65. Hence, we are of the considered view that the arguments based on discrimination have no substance at all, as HGOs and the Haj Committees do not stand on par and in fact, the Haj Committees constitute a separate class by themselves, which is based on a rational classification which has a nexus with the object sought to be achieved.
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Hitechi Jewellery Industries Limited Vs. Choksi Arvind Jewellers | it was competent to Mr. Justice Shelat at this stage to have dismissed the petition and not to have acted under Rule 751. In the Hirjee Mills case, 57 Bom.L.R. 378: ((S) AIR 1955 Bom 355 ) the petitioner was entitled to have an order of winding up. In this case the company was entitled to have an order of dismissal. In that case the petitioner was aggrieved because he did not get the order of winding up. In this case the company is aggrieved because the learned Judge did not dismiss the petition but proceeded to give directions under Rule 751.5. Mr. Gupte contends that there is a distinction between an order of dismissal and an order directing advertisements under Rule 751. He concedes, as indeed he must, that if the petition had been dismissed, that order undoubtedly would have been subject to appeal. But there, according to him, the learned Judge would have decided something. But as the matter stands today, the learned Judge has not decided anything. Mr. Gupte would have been right if all that the learned Judge could do at this stage was to order advertisements. If he could neither dismiss the petition nor pass any other effective order, then undoubtedly it could be said that the learned Judge has not decided anything. But surely in this case the learned Judge has decided something and his decision is that the petition should not be dismissed, that the petition discloses a prima facie case, and that the case should be tried. Let us take an extreme case. If the petition was on the face of it not maintainable, if it was a creditor s petition and the petitioner was clearly not a creditor, and yet the learned Judge and given directions under Rule 751 and not dismissed the petition, is it suggested that the company could not come in appeal and draw the attention of the Court of appeal to the fact that the petition was not clearly maintainable and should be dismissed. The position to-day is not to extreme as the illustration we have just given, but even so the case of the appellant is that on the face of the petition no case for winding up has been made out and the learned Judge should have dismissed the petition and not passed an order which is fraught with serious consequences to the company. In our opinion, looking to the wide language used in Sec.202 and looking to the interpretation we have placed upon that section in 57 Bom LR 378: ((S) AIR 1955 Bom 355 ), the order made by the learned Judge is appealable.6. Now, we wish to make this position clear. It is one thing to say that an order is appealable; it is another thing to say that the Court of appeal would ordinarily interfere with the discretionary order passed by the learned Judge under R. 751. It would seem to us that except in a very gross case where the petition was not clearly maintainable, the Court of appeal would be loath to interfere with the discretion exercised by the learned Judge, because all that the learned Judge says at this stage is that he has considered the matter and it appears to him that there is a prima facie case and it requires further inquiry and investigation. In that sense it may be said that the learned Judge has not made up his mind. He has taken a prima facie view of the petition and the materials before him and he has felt that the materials before him would not justify him summarily dismissing the petition but that more materials, more inquiry and more investigations was necessary before he ultimately made up his mind whether the petition should be allowed or should be dismissed. Therefore as we were just saying it would require a very strong case indeed to induce the Court of appeal to interfere with the discretion exercised by the Company Judge in ordering advertisements under R.751.10. The issue before the Division Bench in the Western India Theatres was whether an order directing advertisement of company petition is appealable. The arguments was that even though the order of advertisement of company petition could affect the company and to which the company can be legitimately aggrieved, but for making such order appealable, the order must be a decision and the order advertising the company petition is not a decision. Not accepting this contention, the Division Bench, through Chagla, C.J., held that when the Company Judge order advertisement, it has decided that the petition should not be dismissed, and that the petition discloses prima facie case and that the case should be tried. When the Division Bench of this Court observed that while admitting the company petition the Company Judge has decided something that the petition should not be dismissed, the expression decision has been used in its widest sense but that does not mean in our view that such decision determines the rights of the parties. As already noted by us above, the company petition if admitted may be a decision in the widest sense but surely it is not determination of the rights of the parties. By admitting winding up petition what follows is that the matter is worth consideration on further material and that it is not liable to be dismissed summarily, We accordingly, over-rule the first contention of the learned Counsel for the Appellant.11. Having considered the available material, we are satisfied that, prima facie, it cannot be said that the company has been able to raise bonafide dispute. It is not in dispute that the seven cheques aggregating sum of Rs.31,36,200/- were issued by the Company. It is also not in dispute that the said cheques were dishonoured. It is also a matter of record that Company Petition No. 540 of 2000 has been admitted against the Company. We are informed that few other winding up petitions against the company have also been admitted. | 0[ds]8. The question before the Apex Court was whether the Court while hearing the writ petition is under an obligation to pass a speakingorder recording in brief at least the reasons which weighed with the court in determining the salient questions raised by the parties to the action while dismissing or rejecting the petition. The observation made by the Apex Court in paragraph 14 of the report with reference to the question afore noted, we are afraid, cannot be made applicable as it is to a case such as this where a Company Judge admits the Company Petition. Needless to say a writ Court or for that matter any other Court while disposing of the writ petition or proceeding, at the final stage or threshold, needs to state reasons, briefly or elaborately, in support of the order, so that aggrieved party knows the basis on which the Court determined the matter. The determination of any question of facts or law has to be supported by reasons. The order admitting the company petition does not determine the facts and/or law. In the widest connotation of the term decision , an order admitting the company petition may be deemed to be decision to the extent that on prima facie consideration of the matter, the Company Judge forms the opinion that the matter requires consideration and is not liable to be summarily dismissed but that does not mean that by admission of Company Petition, the rights of the parties on facts or law are determined. An order admitting the company petition for winding up is not an order determining the rights of the parties, Prima facie, or finally.The issue before the Division Bench in the Western India Theatres was whether an order directing advertisement of company petition is appealable. The arguments was that even though the order of advertisement of company petition could affect the company and to which the company can be legitimately aggrieved, but for making such order appealable, the order must be a decision and the order advertising the company petition is not a decision. Not accepting this contention, the Division Bench, through Chagla, C.J., held that when the Company Judge order advertisement, it has decided that the petition should not be dismissed, and that the petition discloses prima facie case and that the case should be tried. When the Division Bench of this Court observed that while admitting the company petition the Company Judge has decided something that the petition should not be dismissed, the expression decision has been used in its widest sense but that does not mean in our view that such decision determines the rights of the parties. As already noted by us above, the company petition if admitted may be a decision in the widest sense but surely it is not determination of the rights of the parties. By admitting winding up petition what follows is that the matter is worth consideration on further material and that it is not liable to be dismissed summarily, We accordingly,the first contention of the learned Counsel for the Appellant.11. Having considered the available material, we are satisfied that, prima facie, it cannot be said that the company has been able to raise bonafide dispute. It is not in dispute that the seven cheques aggregating sum of Rs.31,36,200/were issued by the Company. It is also not in dispute that the said cheques were dishonoured. It is also a matter of record that Company Petition No. 540 of 2000 has been admitted against the Company. We are informed that few other winding up petitions against the company have also been admitted. In the backdrop of these facts, prima facie, it may be inferred that the Company is unable to pay its debts. | 0 | 3,048 | 677 | ### 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:
it was competent to Mr. Justice Shelat at this stage to have dismissed the petition and not to have acted under Rule 751. In the Hirjee Mills case, 57 Bom.L.R. 378: ((S) AIR 1955 Bom 355 ) the petitioner was entitled to have an order of winding up. In this case the company was entitled to have an order of dismissal. In that case the petitioner was aggrieved because he did not get the order of winding up. In this case the company is aggrieved because the learned Judge did not dismiss the petition but proceeded to give directions under Rule 751.5. Mr. Gupte contends that there is a distinction between an order of dismissal and an order directing advertisements under Rule 751. He concedes, as indeed he must, that if the petition had been dismissed, that order undoubtedly would have been subject to appeal. But there, according to him, the learned Judge would have decided something. But as the matter stands today, the learned Judge has not decided anything. Mr. Gupte would have been right if all that the learned Judge could do at this stage was to order advertisements. If he could neither dismiss the petition nor pass any other effective order, then undoubtedly it could be said that the learned Judge has not decided anything. But surely in this case the learned Judge has decided something and his decision is that the petition should not be dismissed, that the petition discloses a prima facie case, and that the case should be tried. Let us take an extreme case. If the petition was on the face of it not maintainable, if it was a creditor s petition and the petitioner was clearly not a creditor, and yet the learned Judge and given directions under Rule 751 and not dismissed the petition, is it suggested that the company could not come in appeal and draw the attention of the Court of appeal to the fact that the petition was not clearly maintainable and should be dismissed. The position to-day is not to extreme as the illustration we have just given, but even so the case of the appellant is that on the face of the petition no case for winding up has been made out and the learned Judge should have dismissed the petition and not passed an order which is fraught with serious consequences to the company. In our opinion, looking to the wide language used in Sec.202 and looking to the interpretation we have placed upon that section in 57 Bom LR 378: ((S) AIR 1955 Bom 355 ), the order made by the learned Judge is appealable.6. Now, we wish to make this position clear. It is one thing to say that an order is appealable; it is another thing to say that the Court of appeal would ordinarily interfere with the discretionary order passed by the learned Judge under R. 751. It would seem to us that except in a very gross case where the petition was not clearly maintainable, the Court of appeal would be loath to interfere with the discretion exercised by the learned Judge, because all that the learned Judge says at this stage is that he has considered the matter and it appears to him that there is a prima facie case and it requires further inquiry and investigation. In that sense it may be said that the learned Judge has not made up his mind. He has taken a prima facie view of the petition and the materials before him and he has felt that the materials before him would not justify him summarily dismissing the petition but that more materials, more inquiry and more investigations was necessary before he ultimately made up his mind whether the petition should be allowed or should be dismissed. Therefore as we were just saying it would require a very strong case indeed to induce the Court of appeal to interfere with the discretion exercised by the Company Judge in ordering advertisements under R.751.10. The issue before the Division Bench in the Western India Theatres was whether an order directing advertisement of company petition is appealable. The arguments was that even though the order of advertisement of company petition could affect the company and to which the company can be legitimately aggrieved, but for making such order appealable, the order must be a decision and the order advertising the company petition is not a decision. Not accepting this contention, the Division Bench, through Chagla, C.J., held that when the Company Judge order advertisement, it has decided that the petition should not be dismissed, and that the petition discloses prima facie case and that the case should be tried. When the Division Bench of this Court observed that while admitting the company petition the Company Judge has decided something that the petition should not be dismissed, the expression decision has been used in its widest sense but that does not mean in our view that such decision determines the rights of the parties. As already noted by us above, the company petition if admitted may be a decision in the widest sense but surely it is not determination of the rights of the parties. By admitting winding up petition what follows is that the matter is worth consideration on further material and that it is not liable to be dismissed summarily, We accordingly, over-rule the first contention of the learned Counsel for the Appellant.11. Having considered the available material, we are satisfied that, prima facie, it cannot be said that the company has been able to raise bonafide dispute. It is not in dispute that the seven cheques aggregating sum of Rs.31,36,200/- were issued by the Company. It is also not in dispute that the said cheques were dishonoured. It is also a matter of record that Company Petition No. 540 of 2000 has been admitted against the Company. We are informed that few other winding up petitions against the company have also been admitted.
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### Explanation:
8. The question before the Apex Court was whether the Court while hearing the writ petition is under an obligation to pass a speakingorder recording in brief at least the reasons which weighed with the court in determining the salient questions raised by the parties to the action while dismissing or rejecting the petition. The observation made by the Apex Court in paragraph 14 of the report with reference to the question afore noted, we are afraid, cannot be made applicable as it is to a case such as this where a Company Judge admits the Company Petition. Needless to say a writ Court or for that matter any other Court while disposing of the writ petition or proceeding, at the final stage or threshold, needs to state reasons, briefly or elaborately, in support of the order, so that aggrieved party knows the basis on which the Court determined the matter. The determination of any question of facts or law has to be supported by reasons. The order admitting the company petition does not determine the facts and/or law. In the widest connotation of the term decision , an order admitting the company petition may be deemed to be decision to the extent that on prima facie consideration of the matter, the Company Judge forms the opinion that the matter requires consideration and is not liable to be summarily dismissed but that does not mean that by admission of Company Petition, the rights of the parties on facts or law are determined. An order admitting the company petition for winding up is not an order determining the rights of the parties, Prima facie, or finally.The issue before the Division Bench in the Western India Theatres was whether an order directing advertisement of company petition is appealable. The arguments was that even though the order of advertisement of company petition could affect the company and to which the company can be legitimately aggrieved, but for making such order appealable, the order must be a decision and the order advertising the company petition is not a decision. Not accepting this contention, the Division Bench, through Chagla, C.J., held that when the Company Judge order advertisement, it has decided that the petition should not be dismissed, and that the petition discloses prima facie case and that the case should be tried. When the Division Bench of this Court observed that while admitting the company petition the Company Judge has decided something that the petition should not be dismissed, the expression decision has been used in its widest sense but that does not mean in our view that such decision determines the rights of the parties. As already noted by us above, the company petition if admitted may be a decision in the widest sense but surely it is not determination of the rights of the parties. By admitting winding up petition what follows is that the matter is worth consideration on further material and that it is not liable to be dismissed summarily, We accordingly,the first contention of the learned Counsel for the Appellant.11. Having considered the available material, we are satisfied that, prima facie, it cannot be said that the company has been able to raise bonafide dispute. It is not in dispute that the seven cheques aggregating sum of Rs.31,36,200/were issued by the Company. It is also not in dispute that the said cheques were dishonoured. It is also a matter of record that Company Petition No. 540 of 2000 has been admitted against the Company. We are informed that few other winding up petitions against the company have also been admitted. In the backdrop of these facts, prima facie, it may be inferred that the Company is unable to pay its debts.
|
Saygo Bai Vs. Chueeru Bajrangi | marriage till the children were born, her relationship was cordial with her husband. Thereafter, the respondent brought a second wife, namely, Gulab Bai at village Chalani where she was residing in her matrimonial home. She was very specific in stating that when the husband brought the second wife, he declared that he would not keep the appellant and started ill- treating her and threw her along with children out of the house. In her cross-examination, she admitted that on her husbands request she was not prepared to go to his house. This question was put to her in a very tricky manner. It was not stated as to at what point of time the husband came to take her back. She has also stated in her cross-examination that her children were with her but for the last one year they were with the respondent. She also admitted very fairly that the respondent was educating the children. She also asserted that for the last 4 years her entry to the house of her husband was stopped. It is true that in paragraph 13 of the cross-examination she had stated that she had not been to the house of the non-applicant (respondent herein) for 4-5 years and then the non-applicant i.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on this so-called admission to hold that she had abandoned her husband for 4-5 years and it is as a result of her refusal to come to the house of her husband that the husband took the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife. All the Courts below have ignored all her evidence and chosen to rely on two lines in paragraph 13 of her cross-examination. In our opinion, this was wholly perverse appreciation of evidence. The Courts have also made a point that she did not call for a Panchayat and, therefore, have held against her. We do not understand the implication of this. Even if she did not call a Panchayat, it did not mean that the respondent was justified in throwing her out of the house and getting married second time.11. The finding of the Courts that initially she had left the company and desisted from joining the husband for 4-5 years and, therefore, she would always be dis-entitled to claim maintenance is clearly erroneous and incorrect. In the wake of the admitted second marriage of the respondent, the appellant would be entitled to claim maintenance and her earlier refusal to join the company of the respondent would be of no consequence whatsoever. In fact from the evidence we find that she had not forsaken the company of her husband without any reason. She was very clear in her evidence that the respondent stopped visiting the matrimonial house after his second marriage. She may not have filed the maintenance application immediately on her being thrown out but she asserted that she had taken such action barely within two years after she was thrown out. She was very clear that she was thrown out on account of the respondent having contracted the second marriage. It is nowhere brought on record that she had left the house without any rhyme or reason. In fact, it would be completely unnatural for her to leave the house leaving her children as is claimed by the respondent. In that backdrop, the claim of the appellant appears to be correct that she was thrown out along with children and it was thereafter that the children were brought by the husband. She was candid enough in admitting that at the time of entering the witness box, it was the second wife who was taking care of the children. This suggested honesty on the part of the appellant. All this evidence was completely ignored. We are quite aware that this Court does not go into the evidence where the Courts below have recorded concurrent findings of fact. However, where we find that the appreciation of evidence by the Courts below is totally perverse, faulty and unconscionable findings have been arrived at, this Court would certainly go to appreciate the evidence on record and that is precisely what we have done.12. We hold that the orders of the Courts below are wholly incorrect. Firstly, the Courts erred in holding that she left the matrimonial house for 4-5 years and refused to join the company of her husband and, secondly, the Courts are totally in error in holding that on that count she has lost the right of maintenance. In our opinion, the application, at least insofar as the appellant was concerned, was liable to be allowed. We allow that application.13. Ordinarily, we would have remanded the matter for deciding the amount of maintenance. However, considering that the appellant is in the state of penury and not getting even the interim maintenance, we proceed to decide that issue ourselves. The appellant in her evidence has claimed that the respondent-husband drew a monthly salary of Rs.2,000/- in the year 1993. Besides, he also had 20 acres of land and grew 40 quintals of Paddy crop, 10 quintals of Wheat crop, 4 quintals of Urad and Rawa crops and Corns etc. There is not even a word of cross-examination on these claims and these claims have gone unchallenged. Even in his own evidence, the respondent has not uttered even a word regarding his salary and has merely claimed that Saygo Bai was maintaining herself by working as a labourer and earned Rs.45 per day. He made a bald statement that there was no immovable property in his name. He had also categorically admitted that after coming out of the matrimonial house he never maintained Saygo Bai. | 1[ds]9. In our opinion, all the Courts below have shown scant disregard for the second proviso to Section 125 (3) and the Explanation. It was an admitted position that the respondent had taken a second wife, namely, Gulab Bai. The respondent not only admitted this position in his written statement and evidence but also tried to justify his second marriage on the ground that the appellant had left his company and had refused to come back to him and had also not cared for the children. He had to keep the children with his parents at village Chalani. He has, in hisitself, stated that he waited foryears in the hope that his wife would come back and take care of his children and his parents but he took the second wife since she did not come back. In fact, with this specific admission in theitself, there was no question of a finding that the appellant was not justified in claiming the maintenance. All the Courts have committed a very serious error of law in holding that since the appellant had left the house foryears, therefore, thewas justified in getting married again. Things did not stop here. The Courts have gone ahead to suggest that since the appellant had left the house without any rhyme or reason, therefore, even if the second marriage had been contracted, the petitioner (appellant herein) would still not be entitled to the maintenance merely because she had left the matrimonial house earlier. This is completely erroneous.10. We are not satisfied on the appreciation of evidence by the lower Courts. We have gone through the evidence of the appellant and the other witnesses. She has very specifically stated that after the marriage till the children were born, her relationship was cordial with her husband. Thereafter, the respondent brought a second wife, namely, Gulab Bai at village Chalani where she was residing in her matrimonial home. She was very specific in stating that when the husband brought the second wife, he declared that he would not keep the appellant and started illtreating her and threw her along with children out of the house. In hershe admitted that on her husbands request she was not prepared to go to his house. This question was put to her in a very tricky manner. It was not stated as to at what point of time the husband came to take her back. She has also stated in herthat her children were with her but for the last one year they were with the respondent. She also admitted very fairly that the respondent was educating the children. She also asserted that for the last 4 years her entry to the house of her husband was stopped. It is true that in paragraph 13 of theshe had stated that she had not been to the house of the(respondent herein) foryears and then thei.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on thisadmission to hold that she had abandoned her husband foryears and it is as a result of her refusal to come to the house of her husband that the husband took the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife. All the Courts below have ignored all her evidence and chosen to rely on two lines in paragraph 13 of herIn our opinion, this was wholly perverse appreciation of evidence. The Courts have also made a point that she did not call for a Panchayat and, therefore, have held against her. We do not understand the implication of this. Even if she did not call a Panchayat, it did not mean that the respondent was justified in throwing her out of the house and getting married second time.11. The finding of the Courts that initially she had left the company and desisted from joining the husband foryears and, therefore, she would always beto claim maintenance is clearly erroneous and incorrect. In the wake of the admitted second marriage of the respondent, the appellant would be entitled to claim maintenance and her earlier refusal to join the company of the respondent would be of no consequence whatsoever. In fact from the evidence we find that she had not forsaken the company of her husband without any reason. She was very clear in her evidence that the respondent stopped visiting the matrimonial house after his second marriage. She may not have filed the maintenance application immediately on her being thrown out but she asserted that she had taken such action barely within two years after she was thrown out. She was very clear that she was thrown out on account of the respondent having contracted the second marriage. It is nowhere brought on record that she had left the house without any rhyme or reason. In fact, it would be completely unnatural for her to leave the house leaving her children as is claimed by the respondent. In that backdrop, the claim of the appellant appears to be correct that she was thrown out along with children and it was thereafter that the children were brought by the husband. She was candid enough in admitting that at the time of entering the witness box, it was the second wife who was taking care of the children. This suggested honesty on the part of the appellant. All this evidence was completely ignored. We are quite aware that this Court does not go into the evidence where the Courts below have recorded concurrent findings of fact. However, where we find that the appreciation of evidence by the Courts below is totally perverse, faulty and unconscionable findings have been arrived at, this Court would certainly go to appreciate the evidence on record and that is precisely what we have done.12. We hold that the orders of the Courts below are wholly incorrect. Firstly, the Courts erred in holding that she left the matrimonial house foryears and refused to join the company of her husband and, secondly, the Courts are totally in error in holding that on that count she has lost the right of maintenance. In our opinion, the application, at least insofar as the appellant was concerned, was liable to be allowed. We allow that application.13. Ordinarily, we would have remanded the matter for deciding the amount of maintenance. However, considering that the appellant is in the state of penury and not getting even the interim maintenance, we proceed to decide that issue ourselves. The appellant in her evidence has claimed that thedrew a monthly salary of Rs.2,000/in the year 1993. Besides, he also had 20 acres of land and grew 40 quintals of Paddy crop, 10 quintals of Wheat crop, 4 quintals of Urad and Rawa crops and Corns etc. There is not even a word ofon these claims and these claims have gone unchallenged. Even in his own evidence, the respondent has not uttered even a word regarding his salary and has merely claimed that Saygo Bai was maintaining herself by working as a labourer and earned Rs.45 per day. He made a bald statement that there was no immovable property in his name. He had also categorically admitted that after coming out of the matrimonial house he never maintained Saygo Bai. | 1 | 3,114 | 1,369 | ### 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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marriage till the children were born, her relationship was cordial with her husband. Thereafter, the respondent brought a second wife, namely, Gulab Bai at village Chalani where she was residing in her matrimonial home. She was very specific in stating that when the husband brought the second wife, he declared that he would not keep the appellant and started ill- treating her and threw her along with children out of the house. In her cross-examination, she admitted that on her husbands request she was not prepared to go to his house. This question was put to her in a very tricky manner. It was not stated as to at what point of time the husband came to take her back. She has also stated in her cross-examination that her children were with her but for the last one year they were with the respondent. She also admitted very fairly that the respondent was educating the children. She also asserted that for the last 4 years her entry to the house of her husband was stopped. It is true that in paragraph 13 of the cross-examination she had stated that she had not been to the house of the non-applicant (respondent herein) for 4-5 years and then the non-applicant i.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on this so-called admission to hold that she had abandoned her husband for 4-5 years and it is as a result of her refusal to come to the house of her husband that the husband took the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife. All the Courts below have ignored all her evidence and chosen to rely on two lines in paragraph 13 of her cross-examination. In our opinion, this was wholly perverse appreciation of evidence. The Courts have also made a point that she did not call for a Panchayat and, therefore, have held against her. We do not understand the implication of this. Even if she did not call a Panchayat, it did not mean that the respondent was justified in throwing her out of the house and getting married second time.11. The finding of the Courts that initially she had left the company and desisted from joining the husband for 4-5 years and, therefore, she would always be dis-entitled to claim maintenance is clearly erroneous and incorrect. In the wake of the admitted second marriage of the respondent, the appellant would be entitled to claim maintenance and her earlier refusal to join the company of the respondent would be of no consequence whatsoever. In fact from the evidence we find that she had not forsaken the company of her husband without any reason. She was very clear in her evidence that the respondent stopped visiting the matrimonial house after his second marriage. She may not have filed the maintenance application immediately on her being thrown out but she asserted that she had taken such action barely within two years after she was thrown out. She was very clear that she was thrown out on account of the respondent having contracted the second marriage. It is nowhere brought on record that she had left the house without any rhyme or reason. In fact, it would be completely unnatural for her to leave the house leaving her children as is claimed by the respondent. In that backdrop, the claim of the appellant appears to be correct that she was thrown out along with children and it was thereafter that the children were brought by the husband. She was candid enough in admitting that at the time of entering the witness box, it was the second wife who was taking care of the children. This suggested honesty on the part of the appellant. All this evidence was completely ignored. We are quite aware that this Court does not go into the evidence where the Courts below have recorded concurrent findings of fact. However, where we find that the appreciation of evidence by the Courts below is totally perverse, faulty and unconscionable findings have been arrived at, this Court would certainly go to appreciate the evidence on record and that is precisely what we have done.12. We hold that the orders of the Courts below are wholly incorrect. Firstly, the Courts erred in holding that she left the matrimonial house for 4-5 years and refused to join the company of her husband and, secondly, the Courts are totally in error in holding that on that count she has lost the right of maintenance. In our opinion, the application, at least insofar as the appellant was concerned, was liable to be allowed. We allow that application.13. Ordinarily, we would have remanded the matter for deciding the amount of maintenance. However, considering that the appellant is in the state of penury and not getting even the interim maintenance, we proceed to decide that issue ourselves. The appellant in her evidence has claimed that the respondent-husband drew a monthly salary of Rs.2,000/- in the year 1993. Besides, he also had 20 acres of land and grew 40 quintals of Paddy crop, 10 quintals of Wheat crop, 4 quintals of Urad and Rawa crops and Corns etc. There is not even a word of cross-examination on these claims and these claims have gone unchallenged. Even in his own evidence, the respondent has not uttered even a word regarding his salary and has merely claimed that Saygo Bai was maintaining herself by working as a labourer and earned Rs.45 per day. He made a bald statement that there was no immovable property in his name. He had also categorically admitted that after coming out of the matrimonial house he never maintained Saygo Bai.
### Response:
1
### Explanation:
on the appreciation of evidence by the lower Courts. We have gone through the evidence of the appellant and the other witnesses. She has very specifically stated that after the marriage till the children were born, her relationship was cordial with her husband. Thereafter, the respondent brought a second wife, namely, Gulab Bai at village Chalani where she was residing in her matrimonial home. She was very specific in stating that when the husband brought the second wife, he declared that he would not keep the appellant and started illtreating her and threw her along with children out of the house. In hershe admitted that on her husbands request she was not prepared to go to his house. This question was put to her in a very tricky manner. It was not stated as to at what point of time the husband came to take her back. She has also stated in herthat her children were with her but for the last one year they were with the respondent. She also admitted very fairly that the respondent was educating the children. She also asserted that for the last 4 years her entry to the house of her husband was stopped. It is true that in paragraph 13 of theshe had stated that she had not been to the house of the(respondent herein) foryears and then thei.e. the respondent herein entered into the second marriage with Gulab Bai. All the Courts below have relied only on thisadmission to hold that she had abandoned her husband foryears and it is as a result of her refusal to come to the house of her husband that the husband took the second wife. In fact, this is a totally incorrect and perverse appreciation of the evidence. The Court must read whole evidence. One stray admission cannot be read in isolation with the other evidence. She has very specifically stated that she was thrown out of the matrimonial house on account of the second wife. All the Courts below have ignored all her evidence and chosen to rely on two lines in paragraph 13 of herIn our opinion, this was wholly perverse appreciation of evidence. The Courts have also made a point that she did not call for a Panchayat and, therefore, have held against her. We do not understand the implication of this. Even if she did not call a Panchayat, it did not mean that the respondent was justified in throwing her out of the house and getting married second time.11. The finding of the Courts that initially she had left the company and desisted from joining the husband foryears and, therefore, she would always beto claim maintenance is clearly erroneous and incorrect. In the wake of the admitted second marriage of the respondent, the appellant would be entitled to claim maintenance and her earlier refusal to join the company of the respondent would be of no consequence whatsoever. In fact from the evidence we find that she had not forsaken the company of her husband without any reason. She was very clear in her evidence that the respondent stopped visiting the matrimonial house after his second marriage. She may not have filed the maintenance application immediately on her being thrown out but she asserted that she had taken such action barely within two years after she was thrown out. She was very clear that she was thrown out on account of the respondent having contracted the second marriage. It is nowhere brought on record that she had left the house without any rhyme or reason. In fact, it would be completely unnatural for her to leave the house leaving her children as is claimed by the respondent. In that backdrop, the claim of the appellant appears to be correct that she was thrown out along with children and it was thereafter that the children were brought by the husband. She was candid enough in admitting that at the time of entering the witness box, it was the second wife who was taking care of the children. This suggested honesty on the part of the appellant. All this evidence was completely ignored. We are quite aware that this Court does not go into the evidence where the Courts below have recorded concurrent findings of fact. However, where we find that the appreciation of evidence by the Courts below is totally perverse, faulty and unconscionable findings have been arrived at, this Court would certainly go to appreciate the evidence on record and that is precisely what we have done.12. We hold that the orders of the Courts below are wholly incorrect. Firstly, the Courts erred in holding that she left the matrimonial house foryears and refused to join the company of her husband and, secondly, the Courts are totally in error in holding that on that count she has lost the right of maintenance. In our opinion, the application, at least insofar as the appellant was concerned, was liable to be allowed. We allow that application.13. Ordinarily, we would have remanded the matter for deciding the amount of maintenance. However, considering that the appellant is in the state of penury and not getting even the interim maintenance, we proceed to decide that issue ourselves. The appellant in her evidence has claimed that thedrew a monthly salary of Rs.2,000/in the year 1993. Besides, he also had 20 acres of land and grew 40 quintals of Paddy crop, 10 quintals of Wheat crop, 4 quintals of Urad and Rawa crops and Corns etc. There is not even a word ofon these claims and these claims have gone unchallenged. Even in his own evidence, the respondent has not uttered even a word regarding his salary and has merely claimed that Saygo Bai was maintaining herself by working as a labourer and earned Rs.45 per day. He made a bald statement that there was no immovable property in his name. He had also categorically admitted that after coming out of the matrimonial house he never maintained Saygo Bai.
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Ben Gorm Nilgiri Plantations Company, Coonoor And Ors Vs. Sales Tax Officer, Special Circle, Ernakulam And Ors | circumstances : (1) that it was not part of the contract between the assessees and their buyers that the goods shall only be exported and not sold in the local market. In other words, it was urged that in the absence of such a specific term of contract it would have been open to the buyers to have diverted the goods from being exported and to have sold them locally. This was so far as the contractual relationship between the assessee-sellers and the buyers from them under the sale was concerned. (2) Dealing next with the effect of the provisions of the Tea Act, 1953 and the rules framed thereunder on the sales effected by the assessees the submission was that S. 21 and other provisions of the Tea Act, 1953 merely enabled an export to be effected and did not require the goods in regard to which they were issued to be exported. In other words, it was stressed that the Tea Act did not impose any obligation on the quota holder or his transferee to export the goods covered by the quota and that consequently the buyer-even after taking a transfer of the export quota rights along with his purchase was not compelled by law to export and was not precluded from failing to export and was selling the goods locally. On this reasoning the argument was that here was a purchase under which the purchaser was free to export or not to export and the mere fact that he chose to export would not render the sale to him one which occasioned the export or one in the course of export. 34. We consider that these arguments do not sufficiently take into account the actualities of the situation, but proceed on investing on formal requirements a significance which is not warranted. 35. When learned Counsel says that there was no term in the contract between the seller and the buyer that the goods purchased were not to be sold locally but have to be exported, he is right only in the sense that it is not any express term of the contract. But could it be said that that was not implicit common understanding on which the entire transaction was concluded. The buyer was not interested in the purchase except on terms of the export quota rights being transferred to him and that was why the transfer of the export right was affected or contracted to be effected as part and parcel of the sale of the goods. Again, the buyer was an agent, who as we have stated earlier was not free to deal with the tea purchased by effecting a local sale, but was under an obligation to his foreign principal to export the goods purchased to a foreign destination. It was with such a buyer that the assessee entered into the transaction of sale. On these facts we are satisfied that it was part of the understanding between the seller and the buyer, inferable from all the circumstances attendant on the transaction that the buyer was bound to export. Pausing here, we would add that, we understand that importance is attached in this context to the need of a term in the sale contract laying an obligation on the part of the buyer to export only for the purpose of demonstrating the intimate connection between the sale and the support for establishing that it was the sale that occasioned the export. If we are right, then what is of significance is the real and common intention of the two parties to the transaction-whether they contemplated the goods purchased being sold locally, or whether they intended the goods sold being only exported and not whether there is such a term in the contract between the parties. 36. Coming next to the contention that the Tea Act does not compel export of goods covered by the quotas granted we might mention that no evidence was led as to the prices prevailing in the local market as compared to that in the foreign countries where the principals of the resident buyers resided, which would have disclosed whether a local sale of the tea bought ostensibly for export was in a commercial sense within the bounds of possibility, though if one went by the rationale underlying the provisions of the Tea Act and in particular Ss. 17, 21 and 22, one gets the impression that export quota rights were considered to have a considerable value in the market which would be some indication that a buyer with an export quota would never sell in the local market. Thus it might be that even though the statute does not in terms prohibit internal sale of tea purchased alongwith export quota rights, this could be explained by the circumstance that the right to export tea is considered a privilege which secures economic advantages to the exporter and hence there was no need for any statutory compulsion to do so. We are making this observation because Parliament and the Central Government are keen on promoting exports and in the case of some commodities like sugar where the external price is lower than the local price, the regulations framed in that behalf require exports to be effected under compulsion. We consider, therefore, that the absence of a compulsive provision in the Tea Act requiring export of the quantity allotted to the estates, is not very material and that Parliament might well have left it optional with the estate owners to export seeing that economic factors provided the requisite compulsion. 37. If there was a contract or understanding between the buyer and seller by which the latter was to export the goods bought, it is conceded the sale of the assessee did occasion the export and in our view on the facts established, we consider this condition satisfied. 38. We would, therefore, allow the appeals and set aside the assessment in so far as they included the sales involved in these appeals. ORDER | 0[ds]We are not concerned to decide whether there was evidence in that case on which the High Court could come to the conclusion that the sale occasioned the export. But Mr. Setalvad relied upon the observation in support of the proposition that in all cases where there is a contract for purchase of goods in the taxing territory, between a local merchant and a foreign buyer Acting through his agent, and the goods are after purchasing the same exported by the agent, transaction must be deemed to be one in the course of export. We are unable to accept the contention. We do not read the judgment as laying down any such proposition, and none such is legitimately deducible. The second transaction in favour of Gordon Woodroffe and Co. was found to be one in which property in the goods passed beyond the customs frontier. Such a transaction would indisputably be a sale in the course of export17. In our view the transaction of sale in the present case did not occasion the export of the goods, even though the appellants knew that the buyers in offering the bids for chests of tea and the export quotas were acting on behalf of foreign principals, and that the buyers intended to export the goods. There was between the sale and the export no such bond as would justify the inference that the sale and the export formed parts of a singe transaction or that the sale and export were integrally connected . The appellants were not concerned with the actual exportation of the goods, and the sales were intended to be complete without the export, and as such it cannot be said that the said sales occasioned export. The sales were therefore for export, and not in the course of export. | 0 | 7,947 | 323 | ### 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:
circumstances : (1) that it was not part of the contract between the assessees and their buyers that the goods shall only be exported and not sold in the local market. In other words, it was urged that in the absence of such a specific term of contract it would have been open to the buyers to have diverted the goods from being exported and to have sold them locally. This was so far as the contractual relationship between the assessee-sellers and the buyers from them under the sale was concerned. (2) Dealing next with the effect of the provisions of the Tea Act, 1953 and the rules framed thereunder on the sales effected by the assessees the submission was that S. 21 and other provisions of the Tea Act, 1953 merely enabled an export to be effected and did not require the goods in regard to which they were issued to be exported. In other words, it was stressed that the Tea Act did not impose any obligation on the quota holder or his transferee to export the goods covered by the quota and that consequently the buyer-even after taking a transfer of the export quota rights along with his purchase was not compelled by law to export and was not precluded from failing to export and was selling the goods locally. On this reasoning the argument was that here was a purchase under which the purchaser was free to export or not to export and the mere fact that he chose to export would not render the sale to him one which occasioned the export or one in the course of export. 34. We consider that these arguments do not sufficiently take into account the actualities of the situation, but proceed on investing on formal requirements a significance which is not warranted. 35. When learned Counsel says that there was no term in the contract between the seller and the buyer that the goods purchased were not to be sold locally but have to be exported, he is right only in the sense that it is not any express term of the contract. But could it be said that that was not implicit common understanding on which the entire transaction was concluded. The buyer was not interested in the purchase except on terms of the export quota rights being transferred to him and that was why the transfer of the export right was affected or contracted to be effected as part and parcel of the sale of the goods. Again, the buyer was an agent, who as we have stated earlier was not free to deal with the tea purchased by effecting a local sale, but was under an obligation to his foreign principal to export the goods purchased to a foreign destination. It was with such a buyer that the assessee entered into the transaction of sale. On these facts we are satisfied that it was part of the understanding between the seller and the buyer, inferable from all the circumstances attendant on the transaction that the buyer was bound to export. Pausing here, we would add that, we understand that importance is attached in this context to the need of a term in the sale contract laying an obligation on the part of the buyer to export only for the purpose of demonstrating the intimate connection between the sale and the support for establishing that it was the sale that occasioned the export. If we are right, then what is of significance is the real and common intention of the two parties to the transaction-whether they contemplated the goods purchased being sold locally, or whether they intended the goods sold being only exported and not whether there is such a term in the contract between the parties. 36. Coming next to the contention that the Tea Act does not compel export of goods covered by the quotas granted we might mention that no evidence was led as to the prices prevailing in the local market as compared to that in the foreign countries where the principals of the resident buyers resided, which would have disclosed whether a local sale of the tea bought ostensibly for export was in a commercial sense within the bounds of possibility, though if one went by the rationale underlying the provisions of the Tea Act and in particular Ss. 17, 21 and 22, one gets the impression that export quota rights were considered to have a considerable value in the market which would be some indication that a buyer with an export quota would never sell in the local market. Thus it might be that even though the statute does not in terms prohibit internal sale of tea purchased alongwith export quota rights, this could be explained by the circumstance that the right to export tea is considered a privilege which secures economic advantages to the exporter and hence there was no need for any statutory compulsion to do so. We are making this observation because Parliament and the Central Government are keen on promoting exports and in the case of some commodities like sugar where the external price is lower than the local price, the regulations framed in that behalf require exports to be effected under compulsion. We consider, therefore, that the absence of a compulsive provision in the Tea Act requiring export of the quantity allotted to the estates, is not very material and that Parliament might well have left it optional with the estate owners to export seeing that economic factors provided the requisite compulsion. 37. If there was a contract or understanding between the buyer and seller by which the latter was to export the goods bought, it is conceded the sale of the assessee did occasion the export and in our view on the facts established, we consider this condition satisfied. 38. We would, therefore, allow the appeals and set aside the assessment in so far as they included the sales involved in these appeals. ORDER
### Response:
0
### Explanation:
We are not concerned to decide whether there was evidence in that case on which the High Court could come to the conclusion that the sale occasioned the export. But Mr. Setalvad relied upon the observation in support of the proposition that in all cases where there is a contract for purchase of goods in the taxing territory, between a local merchant and a foreign buyer Acting through his agent, and the goods are after purchasing the same exported by the agent, transaction must be deemed to be one in the course of export. We are unable to accept the contention. We do not read the judgment as laying down any such proposition, and none such is legitimately deducible. The second transaction in favour of Gordon Woodroffe and Co. was found to be one in which property in the goods passed beyond the customs frontier. Such a transaction would indisputably be a sale in the course of export17. In our view the transaction of sale in the present case did not occasion the export of the goods, even though the appellants knew that the buyers in offering the bids for chests of tea and the export quotas were acting on behalf of foreign principals, and that the buyers intended to export the goods. There was between the sale and the export no such bond as would justify the inference that the sale and the export formed parts of a singe transaction or that the sale and export were integrally connected . The appellants were not concerned with the actual exportation of the goods, and the sales were intended to be complete without the export, and as such it cannot be said that the said sales occasioned export. The sales were therefore for export, and not in the course of export.
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UNION OF INDIA Vs. LT. COL. KULDEEP YADAV | respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April, 2007, which reads thus: ?5. Cases which are not a minor nature and yet do not involve moral turpitude, fraud, theft or dishonesty and where trial by a Court Martial is not practicable being time barred or is expedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Govt.? 28. The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined. | 1[ds]22. It is no more res integra that the Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to the misconduct proved against the delinquent officer. However, exercise of that power is circumscribed. It can be invoked only in exceptional and rare cases, when the punishment awarded by the disciplinary authority shocks the conscience of the Tribunal or is so unreasonable that no reasonable person would have taken such an action. The Tribunal, ordinarily, is not expected to examine the quantum and nature of punishment awarded by the disciplinary authority as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record.23. Indeed, it is open to the Tribunal to direct the disciplinary authority to reconsider the penalty imposed by it; and in exceptional and rare cases, may itself impose appropriate punishment to shorten the litigation by recording cogent reasons therefor. The reported decisions pressed into service by the appellants have consistently taken this view. In the present case, the Tribunal has adopted the former option, of relegating the respondent before the competent authority for reconsideration of the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.Indeed, the past service records of the delinquent officer may be germane for awarding punishment. But in the present case, the same had been duly noticed by the competent authority as also by the authority considering the statutory complaint filed by the respondent. That becomes evident from the decisions of both the authorities. For, the competent authority was very much conscious about the said position, as is reflected from paragraph No.4 of his order dated 10 th May, 2013 (reproduced at paragraph No.6 hereinabove). In the same way, the higher authority whilst rejecting the statutory complaint filed by the respondent vide order dated 26 th February, 2014 took note of this aspect as is clear from the extract reproduced in paragraph No.7 hereinabove.26. The Tribunal also erroneously assumed that the competent authority opted to resort to administrative action by awarding censure instead of Court Martial, because it had condoned the misconduct of respondent being of a minor nature and not being a case involving moral turpitude, fraud, theft, dishonesty and misappropriation. This basis is plainly misdirected and not in conformity with the applicable policy regarding award of censure to Officers and JCO?s circulated vide communication dated 23 rd April, 2007. In fact, the Tribunal has extracted the relevant portion of the said policy, which clearly predicates that in cases, which are not of a minor nature and not an act involving moral turpitude, fraud, theft, dishonesty, financial irregularities or misappropriation where trial by a Court Martial is not practicable or is inexpedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Government. The case of the respondent would certainly fall within the purview of the said clause. Indubitably, just because the competent authority chose to dispense with the disciplinary action of Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal. Notably, the Tribunal has taken such erroneous approach despite having noticed that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April,The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined. | 1 | 6,932 | 1,689 | ### 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:
respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April, 2007, which reads thus: ?5. Cases which are not a minor nature and yet do not involve moral turpitude, fraud, theft or dishonesty and where trial by a Court Martial is not practicable being time barred or is expedient due to other reasons, may if found appropriate, be forwarded to Integrated HQ of MoD (Army) (DV Dte) at the discretion of the GOC-in-C for consideration of the award of censure by the COAS/Govt.? 28. The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined.
### Response:
1
### Explanation:
the COAS/Government. The case of the respondent would certainly fall within the purview of the said clause. Indubitably, just because the competent authority chose to dispense with the disciplinary action of Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal. Notably, the Tribunal has taken such erroneous approach despite having noticed that the respondent had admitted all the allegations made against him in the show cause notice.27. The Tribunal was then impressed by the fact that the respondent had admitted the allegations made against him in the show cause notice. That conduct of the respondent, according to the Tribunal, unravelled the fair and candid intention of the respondent - to not conceal anything from the authority. The Tribunal completely glossed over the seriousness of the allegations articulated in the show cause notice - that the respondent continued to remain in contact with the foreign national for over two years including facilitated her to visit India and then also stayed with her in the official mess at Goa by not disclosing her real identity. If that misconduct of the respondent had not come to the notice of the appropriate authority, the respondent would have continued to indulge in the same manner. Concededly, it is not a case of an aberration or a one time indiscretion of the respondent as pleaded by him. Realising the seriousness of the situation, the respondent was well advised to admit the allegations and invite a lenient action of awarding of censure only, instead of facing Court Martial. Initiating Staff Court of Inquiry against the respondent, therefore, in no way, tantamount to condoning his lapses by the authority concerned as such. Whereas, it is a just exercise of power in terms of clause 5 of the Censure Policy dated 23 rd April,The Tribunal also committed a palpable error in opining that the show cause notice does not contain allegation against the respondent, regarding furnishing wrong information in the guest list of the Army Guest House. The show cause notice vividly describes the serious lapses committed by the respondent such as in clause 2(a) (iv), namely, ?unauthorisedly? bringing and staying with Ms. Sueli, a foreign national, in the Army premises in Goa from 12 th October, 2011 to 15 th October, 2011. This allegation was sufficient to include the misdemeanour of the respondent of having furnished wrong information in the guest list of the guest house. This allegation has been admitted by the respondent.29. The Tribunal also got swayed away by the fact that the allegation made in the show cause notice did not mention about ?classified? documents on the laptop. It was of the view that only if reference was to be made to ?classified? documents, it would have been a case of sensitive nature touching upon the security of the nation. What has been glossed over by the Tribunal, is that, the allegation against the respondent in the show cause notice is about unauthorisedly keeping ?official? documents in his laptop including the crucial information regarding his rank, name and unit location, and further the laptop containing such official documents/information was routinely connected to the internet and made easily accessible to a foreign national. This allegation has been admitted by the respondent in his response to the show cause notice. The respondent merely wanted the competent authority to take a lenient view, being momentary loss of indiscretion.30. The Tribunal then adverted to the fact that the award of censure coincided with all the three chances of No.3 Selection Board. That may be the effect of censure on promotion. As per the Censure Policy, the intended punishment being permissible and the competent authority being satisfied that the same is commensurate with the seriousness of the uncontroverted allegations against the respondent, for the reasons recorded in that regard by it, such satisfaction cannot be lightly brushed aside as being excessive or unjust. Accordingly, even this reason weighed with the Tribunal is unstatable and tenuous.31. Having carefully analysed the erroneous basis on which the Tribunal came to hold that the punishment of Severe Displeasure (Recordable) is not commensurate with the lapses of the respondent, we have no hesitation in concluding that the Tribunal committed manifest error in interfering with the award of censure of Severe Displeasure (Recordable), in the facts of this case. In our opinion, the basis on which the Tribunal chose to interfere being indefensible, the conclusion reached by the Tribunal on such edifice must fall to the ground.32. We are of the considered opinion that in the backdrop of the incontroverted allegations, as articulated in the show cause notice issued to the respondent, reproduced in paragraph No.5 hitherto, the same may warrant a stern action against the respondent; and, thus, the discretion exercised by the competent authority in terms of the stated policy to deal with the respondent administratively cannot be faulted with and must be upheld, including the award of censure of Severe Displeasure (Recordable) being commensurate thereto.33. We are conscious of the argument of the respondent that if this Court was to overturn the conclusion of the Tribunal, may permit the respondent to challenge the decision of the competent authority on merits. In our opinion, the Tribunal has already dealt with the grounds on which challenge thereto was founded; and rightly rejected the same, taking into account the admission of the respondent in his written response to the show cause notice. Once, the respondent chose not to controvert the allegations made against him in the show cause notice and pursued the matter with the competent authority only for taking a lenient view, he cannot be permitted to resile from that position. It would result in allowing the respondent to approbate and reprobate. That cannot be countenanced. Therefore, the prayer of the respondent to permit him to challenge the adverse findings of the Tribunal qua him on merits of the admitted allegations, is declined.
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Pioneer Rubber Plantation, Nilambur Vs. State of Kerala and Ors. | the proposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify for exemption a reasonable area meant to supply fuel to the employees living in the estate quarters. 12. We agree with the learned Judges of the larger Bench of the Kerala High Court that it would not be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. Bearing in mind that, in granting the exemption it was the legislative intent not to disregard the legitimate interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section. 13. A perusal of the definition of Private Forests contained in Clause (f) of Section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market are excluded from the definition. The observations of the five learned Judges of the Kerala High Court in State of Kerala v. Moosa Haji show that all the Judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. This view was taken particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes. 14. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as viable commercial enterprises. In these circumstances, it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded from the definition of the term private forest. We must, however, emphasise that the burden is on the appellants to show that it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smokehouses in the estates, there seems to be no doubt about the claim of the appellants. 15. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary. 16. In our view Section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under Section 2(f)(1)(i)(B) of the Act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. This principle, in our view, much hold good in relation to all crops mentioned under the aforesaid provision. The Tribunal shall merely ascertain as to what is the minimum reasonable area of and required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purposes, if such supply to the latter is proved, and to exclude such area in demarcating private forest. 17. What exactly is the area which can be reasonably regarded as required for growing firewood trees for the aforesaid purposes so as to qualify for exemption from vesting under the Act is a question of fact which has to be determined with reference to various factOrs. Some of these factors are mentioned by the larger Bench of the High Court in the following words:- 32. The next point is what area of the jungle land could be excluded on the above basis? A precise assessment will almost be impossible, because the quantum of fire-wood needed for smoking purposes will depend on the volume of rubber to be processed, the yield of the trees, the quality of the wood and other factOrs. The best solution seems to be to make an approximate assessment as was made by the Taluk Land Board in Ammads case (supra). 18. We do not express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. That/is a matter for consideration by the concerned forest tribunals. | 1[ds]9. We have referred to the decision of the larger Bench of the High Court at some length to show that the final view which the High Court has taken subsequent to the impugned judgments supports the contentions of the appellants counsel as regards fuel for the smokehouses and factories.10. We shall now refer to the observation of this Court in Ammad [1979]3SCR839 . It is important to remember that the question regarding fuel was not one of the main points which arose for consideration in Ammad. The main points of controversy in that case are correctly summarised in the head notes as follows:-1. Whether lands converted into plantations between April 1, 1964 and January 1, 1970 qualified for exemption under Section 81(1)(e) of the Act.2. Whether a certificate of purchase issued by the Land Tribunal under S.72K of the Act was binding on the Taluk Land Board in proceedings under Chapter III of the Act.3. Whether the validity or invalidity of transfers effected by persons owning or holding lands exceeding the ceiling limit could be determined with reference to the ceiling area in force on the date of the transfer or in accordance with the ceiling area prescribed by Act 35 of 1969 - whether Sub-section (3) of s.84 was retrospective in operation.11. These three points are in no way connected with the point in issue in the present cases. That judgment was rendered in a batch of cases and one of the questions which incidentally arose was as regards firewood trees grown in the estates. That question arose in C.A. No. 227 of 1978, and it has been discussed at page 870 of the judgment: [1979]3SCR839 . This Court held that the fuel area claimed for the manufacture of tea was exorbitant. The High Court had allowed the entire claim of 924.01 acres as fuel area. Setting aside the High Court order, this Court restored the original order of the Land Board and thus limited the exemption to 200 acres as fuel area for the requirement of the factory. Ammad is thus an authority for the proposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify for exemption a reasonable area meant to supply fuel to the employees living in the estate quarters.12. We agree with the learned Judges of the larger Bench of the Kerala High Court that it would not be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. Bearing in mind that, in granting the exemption it was the legislative intent not to disregard the legitimate interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section.13. A perusal of the definition of Private Forests contained in Clause (f) of Section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market are excluded from the definition. The observations of the five learned Judges of the Kerala High Court in State of Kerala v. Moosa Haji show that all the Judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. This view was taken particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes.14. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as viable commercial enterprises. In these circumstances, it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded from the definition of the term private forest. We must, however, emphasise that the burden is on the appellants to show that it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smokehouses in the estates, there seems to be no doubt about the claim of the appellants.15. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary.16. In our view Section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under Section 2(f)(1)(i)(B) of the Act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. This principle, in our view, much hold good in relation to all crops mentioned under the aforesaid provision. The Tribunal shall merely ascertain as to what is the minimum reasonable area of and required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purposes, if such supply to the latter is proved, and to exclude such area in demarcating private forest.Some of these factors are mentioned by the larger Bench of the High Court in the following words:-32. The next point is what area of the jungle land could be excluded on the above basis? A precise assessment will almost be impossible, because the quantum of fire-wood needed for smoking purposes will depend on the volume of rubber to be processed, the yield of the trees, the quality of the wood and other factOrs. The best solution seems to be to make an approximate assessment as was made by the Taluk Land Board in Ammads case (supra).18. We do not express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. That/is a matter for consideration by the concerned forest tribunals. | 1 | 2,801 | 1,445 | ### 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 proposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify for exemption a reasonable area meant to supply fuel to the employees living in the estate quarters. 12. We agree with the learned Judges of the larger Bench of the Kerala High Court that it would not be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. Bearing in mind that, in granting the exemption it was the legislative intent not to disregard the legitimate interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section. 13. A perusal of the definition of Private Forests contained in Clause (f) of Section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market are excluded from the definition. The observations of the five learned Judges of the Kerala High Court in State of Kerala v. Moosa Haji show that all the Judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. This view was taken particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes. 14. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as viable commercial enterprises. In these circumstances, it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded from the definition of the term private forest. We must, however, emphasise that the burden is on the appellants to show that it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smokehouses in the estates, there seems to be no doubt about the claim of the appellants. 15. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary. 16. In our view Section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under Section 2(f)(1)(i)(B) of the Act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. This principle, in our view, much hold good in relation to all crops mentioned under the aforesaid provision. The Tribunal shall merely ascertain as to what is the minimum reasonable area of and required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purposes, if such supply to the latter is proved, and to exclude such area in demarcating private forest. 17. What exactly is the area which can be reasonably regarded as required for growing firewood trees for the aforesaid purposes so as to qualify for exemption from vesting under the Act is a question of fact which has to be determined with reference to various factOrs. Some of these factors are mentioned by the larger Bench of the High Court in the following words:- 32. The next point is what area of the jungle land could be excluded on the above basis? A precise assessment will almost be impossible, because the quantum of fire-wood needed for smoking purposes will depend on the volume of rubber to be processed, the yield of the trees, the quality of the wood and other factOrs. The best solution seems to be to make an approximate assessment as was made by the Taluk Land Board in Ammads case (supra). 18. We do not express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. That/is a matter for consideration by the concerned forest tribunals.
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1
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was exorbitant. The High Court had allowed the entire claim of 924.01 acres as fuel area. Setting aside the High Court order, this Court restored the original order of the Land Board and thus limited the exemption to 200 acres as fuel area for the requirement of the factory. Ammad is thus an authority for the proposition that a reasonable extent of land can be set apart as fuel area for the purpose of smoke-houses and factories in the estates and such area qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. At the same time, the incidental observation of this Court in Ammad cannot be taken as an authority to disqualify for exemption a reasonable area meant to supply fuel to the employees living in the estate quarters.12. We agree with the learned Judges of the larger Bench of the Kerala High Court that it would not be in accordance with the legislative intent to read the provisions in question without regard to the purpose for which exemption is specially provided for lands principally used for the cultivation of certain cash-crops or for the preparation of such crops for the market. Bearing in mind that, in granting the exemption it was the legislative intent not to disregard the legitimate interests of the estates, namely, their efficient functioning as an industry engaged in the production of cash-crops and the welfare of the concerned employees, it is necessary that a liberal and purposive construction should be put on the section.13. A perusal of the definition of Private Forests contained in Clause (f) of Section 2 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 shows that lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market are excluded from the definition. The observations of the five learned Judges of the Kerala High Court in State of Kerala v. Moosa Haji show that all the Judges considered that it was essential for an estate to grow firewood trees for the purpose of fuel for the employees as well as for the smoke-houses and factories. This view was taken particularly in the light of the fact that the estates concerned were at a considerable height where it was cold and it would not be feasible for the employees to secure heating material to keep warm and for domestic purposes.14. The entire purpose of exclusion of the items set out in the foregoing paragraph from the scope of the definition of Private Forest seems to be not to hinder or create any difficulty in the functioning of plantations of tea, coffee, cocoa, rubber, cardamom and cinnamon as viable commercial enterprises. In these circumstances, it appears reasonable that the minimum area required for the purpose of growing firewood trees for fuel in the factories and smoke-houses as well as for supply to the employees of the estates for their domestic use should be excluded from the definition of the term private forest. We must, however, emphasise that the burden is on the appellants to show that it has been their practice to supply firewood to the employees of the estates for their domestic use. As for the firewood required for the factories and smokehouses in the estates, there seems to be no doubt about the claim of the appellants.15. However, where evidence had been led to show that firewood was steadily and adequately available in the market at reasonable rates for use of the factories or smoke-houses as well as for supply to the workers of a particular plantation, in such a case no land could be excluded from the definition of the private forest on the ground that it was required for growing firewood trees for the purpose of the estate as well as for the workers. That, however, is not the position in the case before us. On the pleadings and evidence before us, we do not consider that any further inquiry on the point is necessary.16. In our view Section 2(f)(1)(i)(B) should be so understood as to grant exemption in respect of lands on which firewood trees are necessary to be grown for steady supply of a reasonable quantity of fuel to the employees as well as to the smoke-houses or factories in the estates. In the absence of satisfactory evidence to show that firewood is adequately and steadily available in the market at reasonable prices, such lands, in our view, qualify for exemption under Section 2(f)(1)(i)(B) of the Act as lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. This principle, in our view, much hold good in relation to all crops mentioned under the aforesaid provision. The Tribunal shall merely ascertain as to what is the minimum reasonable area of and required for growing firewood trees to be used as fuel in the factories or smoke-houses and for supply to the employees for their domestic purposes, if such supply to the latter is proved, and to exclude such area in demarcating private forest.Some of these factors are mentioned by the larger Bench of the High Court in the following words:-32. The next point is what area of the jungle land could be excluded on the above basis? A precise assessment will almost be impossible, because the quantum of fire-wood needed for smoking purposes will depend on the volume of rubber to be processed, the yield of the trees, the quality of the wood and other factOrs. The best solution seems to be to make an approximate assessment as was made by the Taluk Land Board in Ammads case (supra).18. We do not express any final view as to what factors are relevant in determining the reasonable area that qualifies for exemption under Section 2(f)(1)(i)(B) of the Act. That/is a matter for consideration by the concerned forest tribunals.
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Kalyan Singh Vs. State Of U. P | person affected by the scheme published under section 68C may, within thirty days from the date of the publication of the scheme in the Official Gazette, file objections thereto before the State Government.(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme." 6. Section 68E provides for the cancellation or modification of the scheme by the State transport undertaking and in that event the same procedure prescribed for framing a scheme is to be followed. 7. The effect of the said provisions, in so far as they are relevant to the present inquiry, may be stated thus: The State transport undertaking is an undertaking providing road transport service which is carried on by the State or any other corporation or authority mentioned in s. 68A. The definition creates a statutory authority distinct from authorities which run it. This is made clear by s. 68C whereunder it is the State transport undertaking that will have to form the requisite opinion. This is further elucidated by the fact that under s. 68C of the Act the state transport undertaking is required to publish the proposed scheme in the Official Gazette and also in such other manner as the State Government may direct. This distinction between the two entities is further made clear by s. 68D(2) whereunder the State Government has to hear the representatives of the State Transport undertaking. Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own cause, and that, therefore, it was incumbent upon the Government to form a separate and distinct, authority to enable it to initiate a scheme in accordance with law.Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and, therefore, the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertaking. 8. It is true that the provisions maintain a distinction between a State transport undertaking and the State Government. It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme, indicating thereby that the State Government has to decide the dispute that may arise between the two contestants. Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlapping in the case of an undertaking run by a State Government. This may lead to anomalous position, but in practice it can be avoided, if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justice. 9. A State transport undertaking means, inter alia, an undertaking run by a State. The statutory authority created is an undertaking run by a State. The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking. The statutory authority, namely, the State transport undertaking, has to form an opinion within the meaning of s. 68C of the Act, and the opinion must necessarily be that of the State Government which runs it. If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i. e., the State transport undertaking, has formed the opinion.In Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation (1) before the State of Andhra was formed in November, 1956, the Motor Vehicles (Hyderabad Amendment) Act, 1956 was in force in Telengana area. Under the said Act the State transport undertaking was defined to mean the road transport department of the State providing road service. After the Andhra Pradesh State was formed, that department initiated the scheme and this Court held that the said department clearly fell within the definition of state transport undertaking. This Court observed in that case: "The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking." 10. If a state directly runs an undertaking, it can only be through a department. In law there cannot be any difference between an undertaking run by a department of a State Government and that run by the State Government. In either undertaking is run by the State and that undertaking is a State transport undertaking within the meaning of s. 68C of the Act. 11. The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government. It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the notification was issued. It is not denied that the Secretary of the said Department has power under the rules of business to act for the State Government in that behalf. | 0[ds]Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own cause, and that, therefore, it was incumbent upon the Government to form a separate and distinct, authority to enable it to initiate a scheme in accordance with law.Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and, therefore, the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertakingIt is true that the provisions maintain a distinction between a State transport undertaking and the State Government. It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme, indicating thereby that the State Government has to decide the dispute that may arise between the two contestants. Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlapping in the case of an undertaking run by a State Government. This may lead to anomalous position, but in practice it can be avoided, if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justiceA State transport undertaking means, inter alia, an undertaking run by a State. The statutory authority created is an undertaking run by a State. The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking. The statutory authority, namely, the State transport undertaking, has to form an opinion within the meaning of s. 68C of the Act, and the opinion must necessarily be that of the State Government which runs it. If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i. e., the State transport undertaking, has formed the opinion.We are not called upon to consider whether the State owned buses are being validly plied without obtaining permits under s. 68F(1) of the Act. If the right of the appellant to ply his buses is lawfully extinguished, he is not entitled to maintain an appeal challenging the right of the State Transport undertaking to ply their buses with or without permits. Nor is any fundamental right of the appellant infringed by the State Transport undertaking plying its buses without permits, and a petition under Art. 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is infringed. Nor is there any substance in the last contention. The orders passed under. ss. 68F(2)(a) and (b) flow from the publication of the scheme duly approved and the issue of an order, which is not quasi-judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is not open to challenge. It is not the case of the Petitioner in W. P. 209/61 in which alone this contention is raised that the order unauthorised. what is contended above this contention is raised that the order is being quasi-judicial, power to make it cannot be delegated. But for reasons already set out the order is not quasi-judicial; it is purely administrativeThe Regional Transport Authority was by the terms of the scheme left no discretion in the matter. It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles. The order passed by the Regional Transport Authority was purely consequential on the scheme, and if the scheme is not open to challenge, orders consequential thereon will not also be open to challenge | 0 | 3,058 | 827 | ### 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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person affected by the scheme published under section 68C may, within thirty days from the date of the publication of the scheme in the Official Gazette, file objections thereto before the State Government.(2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme." 6. Section 68E provides for the cancellation or modification of the scheme by the State transport undertaking and in that event the same procedure prescribed for framing a scheme is to be followed. 7. The effect of the said provisions, in so far as they are relevant to the present inquiry, may be stated thus: The State transport undertaking is an undertaking providing road transport service which is carried on by the State or any other corporation or authority mentioned in s. 68A. The definition creates a statutory authority distinct from authorities which run it. This is made clear by s. 68C whereunder it is the State transport undertaking that will have to form the requisite opinion. This is further elucidated by the fact that under s. 68C of the Act the state transport undertaking is required to publish the proposed scheme in the Official Gazette and also in such other manner as the State Government may direct. This distinction between the two entities is further made clear by s. 68D(2) whereunder the State Government has to hear the representatives of the State Transport undertaking. Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own cause, and that, therefore, it was incumbent upon the Government to form a separate and distinct, authority to enable it to initiate a scheme in accordance with law.Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and, therefore, the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertaking. 8. It is true that the provisions maintain a distinction between a State transport undertaking and the State Government. It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme, indicating thereby that the State Government has to decide the dispute that may arise between the two contestants. Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlapping in the case of an undertaking run by a State Government. This may lead to anomalous position, but in practice it can be avoided, if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justice. 9. A State transport undertaking means, inter alia, an undertaking run by a State. The statutory authority created is an undertaking run by a State. The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking. The statutory authority, namely, the State transport undertaking, has to form an opinion within the meaning of s. 68C of the Act, and the opinion must necessarily be that of the State Government which runs it. If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i. e., the State transport undertaking, has formed the opinion.In Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation (1) before the State of Andhra was formed in November, 1956, the Motor Vehicles (Hyderabad Amendment) Act, 1956 was in force in Telengana area. Under the said Act the State transport undertaking was defined to mean the road transport department of the State providing road service. After the Andhra Pradesh State was formed, that department initiated the scheme and this Court held that the said department clearly fell within the definition of state transport undertaking. This Court observed in that case: "The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking." 10. If a state directly runs an undertaking, it can only be through a department. In law there cannot be any difference between an undertaking run by a department of a State Government and that run by the State Government. In either undertaking is run by the State and that undertaking is a State transport undertaking within the meaning of s. 68C of the Act. 11. The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government. It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the notification was issued. It is not denied that the Secretary of the said Department has power under the rules of business to act for the State Government in that behalf.
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### Explanation:
Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own cause, and that, therefore, it was incumbent upon the Government to form a separate and distinct, authority to enable it to initiate a scheme in accordance with law.Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and, therefore, the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertakingIt is true that the provisions maintain a distinction between a State transport undertaking and the State Government. It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme, indicating thereby that the State Government has to decide the dispute that may arise between the two contestants. Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlapping in the case of an undertaking run by a State Government. This may lead to anomalous position, but in practice it can be avoided, if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justiceA State transport undertaking means, inter alia, an undertaking run by a State. The statutory authority created is an undertaking run by a State. The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking. The statutory authority, namely, the State transport undertaking, has to form an opinion within the meaning of s. 68C of the Act, and the opinion must necessarily be that of the State Government which runs it. If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i. e., the State transport undertaking, has formed the opinion.We are not called upon to consider whether the State owned buses are being validly plied without obtaining permits under s. 68F(1) of the Act. If the right of the appellant to ply his buses is lawfully extinguished, he is not entitled to maintain an appeal challenging the right of the State Transport undertaking to ply their buses with or without permits. Nor is any fundamental right of the appellant infringed by the State Transport undertaking plying its buses without permits, and a petition under Art. 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is infringed. Nor is there any substance in the last contention. The orders passed under. ss. 68F(2)(a) and (b) flow from the publication of the scheme duly approved and the issue of an order, which is not quasi-judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is not open to challenge. It is not the case of the Petitioner in W. P. 209/61 in which alone this contention is raised that the order unauthorised. what is contended above this contention is raised that the order is being quasi-judicial, power to make it cannot be delegated. But for reasons already set out the order is not quasi-judicial; it is purely administrativeThe Regional Transport Authority was by the terms of the scheme left no discretion in the matter. It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles. The order passed by the Regional Transport Authority was purely consequential on the scheme, and if the scheme is not open to challenge, orders consequential thereon will not also be open to challenge
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MANOJ SURYAVANSHI Vs. STATE OF CHHATTISGARH | has been condemned or who has been sentenced to death has a ray of hope. It, therefore, could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the doomsday. Therefore, the appellant cannot draw any support from the fact that from the day of the crime till the final verdict, a long time has elapsed. It must be remembered that fair trial is the right of an accused. Fair trial involves following the correct procedure and giving opportunity to the accused to probabilise his defence. In a matter such as this, hurried decision may not be in the interest of the appellant. 25.3 In the case of Absar Alam v. State of Bihar (2012) 2 SCC 728 , it is observed and held by this Court that the mental condition of the accused, which led to assault, cannot be lost sight of. It is further observed that the mental condition or state of mind of accused is one of the factors that can be taken into account in considering the question of sentence. 25.4 Thus, from the catena of decisions of this Court, more particularly, the decisions referred to hereinabove, for deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. What can be said to be the mitigating circumstances has been dealt with and considered by this Court in the case of Bachan Singh (supra). As observed by this Court in the case of Bachan Singh (supra), the following can be said to be the mitigating circumstances which are required to be considered while deciding on the issue of death sentence. (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 25.5 In light of the above judgments, we would now ascertain the factors which we need to take into consideration while deciding on the question of sentence. We must locate the aggravating and mitigating circumstances in this case and strike a right balance. In the present case, the following are the mitigating factors/circumstances: (i) That the offence was committed under the influence of extreme mental or emotional disturbance. The accused was emotionally disturbed due to the elopement of his wife with the uncle of the deceased and that his children were suffering in absence of their mother with them. The accused was so much disturbed and troubled is also born out from the deposition of one of the witnesses that on mobile the accused told how Shivlal is feeling without his children. (ii) There are no criminal antecedents. (iii) At the time of commission of the offence the accused was 28 years of age and his conduct in prison is reported to be good. (iv) That he belongs to a poor family and is the only son of his parents, and (v) That he has got an old aged mother who is taking care of two daughters of the accused, out of which one is married now. 25.6 On the other hand, the only aggravating circumstance pointed out by the State is that the manner in which the incident took place and three minors were brutally killed. Except the above, no other aggravating circumstances are pointed out on behalf of the State. Therefore, striking the balance between aggravating circumstances and mitigating circumstances, we are of the opinion that in the facts and circumstances of the case, more particularly, the mental condition of the accused at the time of the commission of the offence and that the accused was under extreme mental disturbance due to his wife eloped with the uncle of the deceased and his children were deprived of the company of their mother, the mitigating circumstances are in favour of the accused to convert the death sentence to life imprisonment. It is true that the court must respond to the cry of the society and to settle what would be the deterrent punishment for an abominable crime. It is also equally true that a larger number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. .It is also true that the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal get encouraged. Sometimes it is stated that only rights of criminals are kept in mind, the victims are forgotten. However, at the same time, while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. The mitigating circumstances as observed by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance because of the reasons stated hereinabove, we are of the opinion that, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment. | 1[ds]13.1 The appellant-accused has been held guilty for having committed the murder/killing of three minor children aged about 8 years, 6 years and 4 years respectively and has been convicted by both the Courts below for the offences punishable under Sections 302 and 364 IPC. The learned Trial Court, after having held the appellant-accused guilty for the aforesaid offences, has imposed the death sentence, which has been confirmed by the High Court by the impugned judgment and order14. We are conscious of the fact that it is a case of circumstantial evidence and therefore before convicting the accused on the basis of circumstantial evidence, the prosecution has to prove beyond doubt and complete the chain of events which lead to the conclusion that it is the accused alone who has committed the offence15. Having gone through the impugned judgment and order passed by the High Court as well as the judgment and order of conviction passed by the learned Trial Court and the case of the prosecution, the appellant-accused has been convicted mainly based on three sets of circumstances: (i) last seen evidence; (ii) recovery of bodies pursuant to a disclosure memo and (iii) alleged calls made to the appellant during the search for the missing childrenThe prosecution has been successful in establishing and proving that the accused was having enmity with Shivlal-father of the three deceased minor children. The same has been established and proved by the prosecution by examining Shivlal-P.W.18, Manisha- P.W.20 and Rameshwar-P.W.11. The prosecution has been successful in proving that on 11.02.2011 all the minors deceased Ajay, Vijay and Kumari Sakshi went to the school from their house. The prosecution has also been successful in establishing and proving that on 11.02.2011 at about 11.30 hours the deceased minors left for home on foot; that the minors did not return to their home. On 11.02.2011 at about 12.00 noon – 1.00 pm, the deceased were seen going with the accused in school uniform with their school bags. Therefore, the accused was last seen together with the deceased minors. That, after the incident, the accused was not found at his house and was missing even from the village. During the search by Shivlal-P.W.18 and others and after the accused was not found in the village, there were phone calls on the mobile of the accused. That, thereafter, the accused was found from the house of his relative Ashok Kumar Madhukar-P.W.13. Immediately after his arrest, the dead bodies were recovered/found along with the school bags etc. from the place shown by the accused himself. The aforesaid are the chain of events which led to the conclusion that the accused first kidnapped the three minor children and thereafter killed all of them. The phone-calls made to the accused has been established and proved by the prosecution by examining the Investigating Officer and by producing the call details from the mobile company as Ex.P.3017. Now, so far as the evidence of the accused having last seen together with the deceased is concerned, the prosecution has heavily relied upon the depositions of P.W.1 and P.W.8. So far as the reliance placed upon the deposition of P.W.1 is concerned, it is the case on behalf of the accused that while recording his statement under Section 313 Cr.P.C., the incriminating material on the basis of the deposition of P.W.1 that he saw the accused with the deceased minors at around 1.00 pm on the afternoon of 11.02.2011, was not put to him and therefore, to that extent, the deposition of P.W.1 cannot be relied upon. However, it is required to be noted that while recording the statement of the accused under Section 313 Cr.PC., the deposition of P.W.1 was specifically referred to. Therefore, not asking a specific question arising out of the deposition of P.W.1, in the facts and circumstances of the case, cannot be said to be fatal to the case of the prosecution. Even otherwise, the accused was last seen together with the deceased minors has been established and proved by the prosecution by examining P.W.8-Ashok Patel. P.W.8-Ashok Patel in his deposition has specifically stated that he saw the accused with all the three minors deceased at around 12.00 hours on 11.02.2011. He has identified/recognized the accused present in the court. He has also stated that he knew the complainant Shivlal and he recognized all the three minor children of Shivlal. The said witness has been thoroughly cross-examined by the defence. However, from the cross-examination, the defence has failed to make out any case which may doubt either the credibility and/or what the said witness has stated in his examination-in-chief. He is an independent witness on the evidence of last seen together. We see no reason to doubt the same. There may be some contradictions, but according to us, those contradictions are not material contradictions, which may doubt the credibility of the said witness and/or may be fatal to the case of the prosecution. Thus, the prosecution has been successful in establishing and proving that the accused was last seen together with all the three minor children at about 12.00 noon on 11.02.2011 after they left the school17.1 At this stage, it is required to be noted that the prosecution has proved beyond doubt that all the three minors went to the school in the morning of 11.02.2011 and thereafter they left for the home at about 11.30 hours. That, thereafter, at about 12.00 hours, the accused was seen with all the three minor children. At this stage, it is required to be noted that after Ashok Patel disclosed to Shivlal-P.W.18 and others that he had seen the accused with the three minor children on 11.02.2011 at about 11.30 hours, the name of the accused was specifically mentioned in the missing report given by Shivlal on 11.02.2011 and the same was also mentioned in the FIR. In the FIR, it was specifically mentioned that during the investigation of missing person No. 3/11, he had enquired the complainant and Ashok Patel and Ashok Patel told that he saw the minor children with the accused. Thus, considering the entire evidence on record, we see no reason to doubt the credibility of P.W.8-Ashok Patel. He is an independent witness and no mala-fides are alleged against him on behalf of the accusedTherefore, there is a recovery of the dead bodies along with the school dress and bags at the instance of the accused. It has been established and proved from the disclosure memo. The disclosure memo has been exhibited. Therefore, the aforesaid circumstance definitely goes against the accused19.1 However, it is required to be noted that the accused was not present in his house at all. From the evidence on record, it appears that the concerned witnesses – Shivlal and others found that the accused Manoj was not in his house. Phone calls made at 11.00 pm on the mobile of the accused in the night of 11.02.2011 has been established and proved by the prosecution by producing the call details from the mobile company (produced as Ex.P.30). The accused has failed to give any explanation on the same in his statement under Section 313 Cr.P.C. Non-examination of the officer of the mobile company cannot be said to be fatal to the case of the prosecution, more particularly, when the CDR has been got exhibited, through the deposition of the Investigating Officer and when the same was exhibited, no objection was raised on behalf of the defence. Even otherwise, it is required to be noted that the mobile SIM No. 9179484724 was seized from the accused at the time of his arrest and which is proved as per the seizure memo. Therefore, the prosecution has proved that the mobile SIM No. 9179484724 belonged to the accusedHowever, having considered the so-called contradictions pointed out by the learned counsel appearing on behalf of the accused and other evidences, we are of the opinion that those contradictions are not material contradictions which may ultimately affect the case of the prosecution as a whole. The minor discrepancies and inconsistencies in the statements of the prosecution witnesses and the minor lacuna in the investigation led by the police cannot be a reason for discarding the entire prosecution case, if the evidence is otherwise sufficient and inspiring to bring home the guilt of the accused. As observed by this Court in the case of Leema Ram v. State of Haryana [AIR 1999 SC 3717 ], there are bound to be some discrepancies between the narrations of different witnesses, when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. It is further observed that corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless; some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. So it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive. Therefore, we are of the opinion that the so-called minor discrepancies/contradictions do not ultimately affect the case of the prosecution. The benefit of such minor discrepancies/ contradictions should not go to the accused, more particularly, when from the other evidences on record the guilt of the accused has been established and proved22. Thus, for the reasons sated above, we are of the opinion that the High Court has not committed any error in upholding the conviction of the accused for the offences punishable under Sections 302 and 364 IPC. We are in complete agreement with the view taken by the learned Trial Court as well as the High Court in so far as convicting the accused for the offences punishable under Section 302 and 364 IPC for having killed three minor children aged about 8 years, 6 years and 4 years respectivelyThus, there is no absolute proposition of law that in no case there can be conviction and sentence on the same day. There is no absolute proposition of law laid down by this Court in any of the decisions that if the sentence is awarded on the very same day on which the conviction was recorded, the sentencing would be vitiated23.1 So far as the reliance placed upon by the learned counsel appearing on behalf the appellant upon the decision of this Court in the case of Santa Singh (supra) is concerned, on considering the entire judgment and the facts in that case, we are of the opinion that the said decision shall not be applicable to the facts of the case on hand and/or the same shall not be of any assistance to the accused. In that case before this Court, it was found that the learned Trial Court did not give the accused an opportunity to be heard in regard to the sentence to be imposed on him and by one single judgment convicted the accused and also sentenced him to death23.2 Similarly, the decision of this Court in the case of Allaudin Mian (supra) also shall not be applicable to the facts of the case on hand. In the case before this Court, it was found that the death sentence was imposed by the Trial Court without affording proper opportunity of hearing as contemplated under Section 235(2) Cr.P.C. No reasons were recorded for awarding the death sentence which as such were mandatory and thereafter on merits this Court found that the death sentence was no warranted23.3 Applying the law laid down by this Court in the aforesaid decisions, more particularly, in the case of Accused X (supra) to the facts of the case on hand and on considering the reasoning given by the learned Trial Court as well as the High Court, we are of the opinion that there is sufficient compliance of the provisions of Section 235(2) Cr.P.C. The learned Trial Court heard the accused on the aspect of proposition of sentence separately which is clear from paragraphs 76 to 82 of the judgment of the learned Trial Court. Hence, based on the material on record, we are satisfied that the learned Trial Court fully complied with the requirements of Section 235(2) Cr.P.C. The learned Trial Court had considered the mitigating circumstances pointed out on behalf of the accused and also considered the aggravating circumstances which warranted the death sentence. Thus, it cannot be said that the accused was not given any sufficient opportunity to put forward his case on sentence. It also cannot be said that the learned Trial Court has not given any special reasons while awarding the death sentenceThus, the submission on behalf of the accused that as the sentence was recorded on the same day on which the conviction was recorded and therefore it has vitiated the award of sentence, cannot be accepted. As observed hereinabove, there is a total compliance of the provisions of Section 235 (2) as well as Section 354 Cr.P.C24. Now, so far as the submission on behalf of the accused that while awarding the capital punishment the learned Trial Court has solely looked to the brutality of the crime is concerned, it is factually incorrect. On considering the rival discussions as well as the reasons given by the learned Trial Court while awarding the capital punishment, it appears that the brutality of the crime was considered to be one of the reasons and not the sole reason25.4 Thus, from the catena of decisions of this Court, more particularly, the decisions referred to hereinabove, for deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. What can be said to be the mitigating circumstances has been dealt with and considered by this Court in the case of Bachan Singh (supra). As observed by this Court in the case of Bachan Singh (supra), the following can be said to be the mitigating circumstances which are required to be considered while deciding on the issue of death sentence(1) That the offence was committed under the influence of extreme mental or emotional disturbance(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence(6) That the accused acted under the duress or domination of another person(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. In the present case, the following are the mitigating factors/circumstances:(i) That the offence was committed under the influence of extreme mental or emotional disturbance. The accused was emotionally disturbed due to the elopement of his wife with the uncle of the deceased and that his children were suffering in absence of their mother with them. The accused was so much disturbed and troubled is also born out from the deposition of one of the witnesses that on mobile the accused told how Shivlal is feeling without his children(ii) There are no criminal antecedents(iii) At the time of commission of the offence the accused was 28 years of age and his conduct in prison is reported to be good(iv) That he belongs to a poor family and is the only son of his parents, and(v) That he has got an old aged mother who is taking care of two daughters of the accused, out of which one is married now25.6 On the other hand, the only aggravating circumstance pointed out by the State is that the manner in which the incident took place and three minors were brutally killed. Except the above, no other aggravating circumstances are pointed out on behalf of the State. Therefore, striking the balance between aggravating circumstances and mitigating circumstances, we are of the opinion that in the facts and circumstances of the case, more particularly, the mental condition of the accused at the time of the commission of the offence and that the accused was under extreme mental disturbance due to his wife eloped with the uncle of the deceased and his children were deprived of the company of their mother, the mitigating circumstances are in favour of the accused to convert the death sentence to life imprisonment. It is true that the court must respond to the cry of the society and to settle what would be the deterrent punishment for an abominable crime. It is also equally true that a larger number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. .It is also true that the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal get encouraged. Sometimes it is stated that only rights of criminals are kept in mind, the victims are forgotten. However, at the same time, while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. The mitigating circumstances as observed by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance because of the reasons stated hereinabove, we are of the opinion that, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment. | 1 | 14,547 | 3,359 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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has been condemned or who has been sentenced to death has a ray of hope. It, therefore, could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the doomsday. Therefore, the appellant cannot draw any support from the fact that from the day of the crime till the final verdict, a long time has elapsed. It must be remembered that fair trial is the right of an accused. Fair trial involves following the correct procedure and giving opportunity to the accused to probabilise his defence. In a matter such as this, hurried decision may not be in the interest of the appellant. 25.3 In the case of Absar Alam v. State of Bihar (2012) 2 SCC 728 , it is observed and held by this Court that the mental condition of the accused, which led to assault, cannot be lost sight of. It is further observed that the mental condition or state of mind of accused is one of the factors that can be taken into account in considering the question of sentence. 25.4 Thus, from the catena of decisions of this Court, more particularly, the decisions referred to hereinabove, for deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. What can be said to be the mitigating circumstances has been dealt with and considered by this Court in the case of Bachan Singh (supra). As observed by this Court in the case of Bachan Singh (supra), the following can be said to be the mitigating circumstances which are required to be considered while deciding on the issue of death sentence. (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. 25.5 In light of the above judgments, we would now ascertain the factors which we need to take into consideration while deciding on the question of sentence. We must locate the aggravating and mitigating circumstances in this case and strike a right balance. In the present case, the following are the mitigating factors/circumstances: (i) That the offence was committed under the influence of extreme mental or emotional disturbance. The accused was emotionally disturbed due to the elopement of his wife with the uncle of the deceased and that his children were suffering in absence of their mother with them. The accused was so much disturbed and troubled is also born out from the deposition of one of the witnesses that on mobile the accused told how Shivlal is feeling without his children. (ii) There are no criminal antecedents. (iii) At the time of commission of the offence the accused was 28 years of age and his conduct in prison is reported to be good. (iv) That he belongs to a poor family and is the only son of his parents, and (v) That he has got an old aged mother who is taking care of two daughters of the accused, out of which one is married now. 25.6 On the other hand, the only aggravating circumstance pointed out by the State is that the manner in which the incident took place and three minors were brutally killed. Except the above, no other aggravating circumstances are pointed out on behalf of the State. Therefore, striking the balance between aggravating circumstances and mitigating circumstances, we are of the opinion that in the facts and circumstances of the case, more particularly, the mental condition of the accused at the time of the commission of the offence and that the accused was under extreme mental disturbance due to his wife eloped with the uncle of the deceased and his children were deprived of the company of their mother, the mitigating circumstances are in favour of the accused to convert the death sentence to life imprisonment. It is true that the court must respond to the cry of the society and to settle what would be the deterrent punishment for an abominable crime. It is also equally true that a larger number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. .It is also true that the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal get encouraged. Sometimes it is stated that only rights of criminals are kept in mind, the victims are forgotten. However, at the same time, while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. The mitigating circumstances as observed by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance because of the reasons stated hereinabove, we are of the opinion that, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment.
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1
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of sentence separately which is clear from paragraphs 76 to 82 of the judgment of the learned Trial Court. Hence, based on the material on record, we are satisfied that the learned Trial Court fully complied with the requirements of Section 235(2) Cr.P.C. The learned Trial Court had considered the mitigating circumstances pointed out on behalf of the accused and also considered the aggravating circumstances which warranted the death sentence. Thus, it cannot be said that the accused was not given any sufficient opportunity to put forward his case on sentence. It also cannot be said that the learned Trial Court has not given any special reasons while awarding the death sentenceThus, the submission on behalf of the accused that as the sentence was recorded on the same day on which the conviction was recorded and therefore it has vitiated the award of sentence, cannot be accepted. As observed hereinabove, there is a total compliance of the provisions of Section 235 (2) as well as Section 354 Cr.P.C24. Now, so far as the submission on behalf of the accused that while awarding the capital punishment the learned Trial Court has solely looked to the brutality of the crime is concerned, it is factually incorrect. On considering the rival discussions as well as the reasons given by the learned Trial Court while awarding the capital punishment, it appears that the brutality of the crime was considered to be one of the reasons and not the sole reason25.4 Thus, from the catena of decisions of this Court, more particularly, the decisions referred to hereinabove, for deciding on the issue of sentence, the aggravating circumstances and mitigating circumstances must be located and the right balance must be adopted. What can be said to be the mitigating circumstances has been dealt with and considered by this Court in the case of Bachan Singh (supra). As observed by this Court in the case of Bachan Singh (supra), the following can be said to be the mitigating circumstances which are required to be considered while deciding on the issue of death sentence(1) That the offence was committed under the influence of extreme mental or emotional disturbance(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence(6) That the accused acted under the duress or domination of another person(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. In the present case, the following are the mitigating factors/circumstances:(i) That the offence was committed under the influence of extreme mental or emotional disturbance. The accused was emotionally disturbed due to the elopement of his wife with the uncle of the deceased and that his children were suffering in absence of their mother with them. The accused was so much disturbed and troubled is also born out from the deposition of one of the witnesses that on mobile the accused told how Shivlal is feeling without his children(ii) There are no criminal antecedents(iii) At the time of commission of the offence the accused was 28 years of age and his conduct in prison is reported to be good(iv) That he belongs to a poor family and is the only son of his parents, and(v) That he has got an old aged mother who is taking care of two daughters of the accused, out of which one is married now25.6 On the other hand, the only aggravating circumstance pointed out by the State is that the manner in which the incident took place and three minors were brutally killed. Except the above, no other aggravating circumstances are pointed out on behalf of the State. Therefore, striking the balance between aggravating circumstances and mitigating circumstances, we are of the opinion that in the facts and circumstances of the case, more particularly, the mental condition of the accused at the time of the commission of the offence and that the accused was under extreme mental disturbance due to his wife eloped with the uncle of the deceased and his children were deprived of the company of their mother, the mitigating circumstances are in favour of the accused to convert the death sentence to life imprisonment. It is true that the court must respond to the cry of the society and to settle what would be the deterrent punishment for an abominable crime. It is also equally true that a larger number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. .It is also true that the peculiar circumstances of a given case often results in miscarriage of justice and makes the justice delivery system a suspect; in the ultimate analysis, the society suffers and a criminal get encouraged. Sometimes it is stated that only rights of criminals are kept in mind, the victims are forgotten. However, at the same time, while imposing the rarest of rare punishment, i.e. death penalty, the Court must balance the mitigating and aggravating circumstances of the crime and it would depend upon particular and peculiar facts and circumstances of each case. The mitigating circumstances as observed by this Court in the case of Bachan Singh (supra) and the mitigating circumstances in the present case, if are considered cumulatively and more particularly, that the accused was under the extreme mental disturbance because of the reasons stated hereinabove, we are of the opinion that, in the peculiar facts and circumstances of the case, the death penalty is not warranted and the same be converted to life imprisonment.
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Manohar Infrastructure and Constructions Private Limited And Ors Vs. Sanjeev Kumar Sharma and Ors | of party seeking such stay. 13. We are in complete agreement with the view taken by this Court in the case of Shreenath Corporation and Ors. (supra). Therefore, it is held that National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission while staying the order passed by the State commission. However, at the same time, while considering the stay application against the order passed by the State Commission and while passing the order to deposit the entire amount and/or any amount higher than 50 per cent of the amount, the National Commission has to assign some reasons and pass a speaking order why the conditional stay is being granted on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount. Such an order on the stay application is not to be passed mechanically. Even in the case of Shreenath Corporation and Ors. (supra), it is observed that if the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded by the State Commission, it is open to the National Commission to pass an appropriate interim order including a conditional order of stay. The order passed by the State Commission directing the appellant to refund the amount and/or pay any amount higher than 50 per cent can be said to be akin to a money decree. Even as per Order XLI Rule 5, the general rule is that normally there shall not be any unconditional stay of a money decree, however, at the same time, the Appellate Court may pass an appropriate conditional order while staying the impugned decree depending upon the facts of the case and by giving cogent reasons. Therefore, while considering the stay application requesting to stay the order passed by the State Commission and as observed and held hereinabove, the National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount while staying the order passed by the State commission, however, the National Commission has to pass a speaking order giving some reasons why in the facts of the particular case the conditional stay of the order passed by the State Commission is to be passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission and that too after giving an opportunity to the appellant as well as to the respondent. The order on the stay application is not to be passed mechanically. It must reflect an application of mind by the National Commission why the order passed by the State Commission is to be stayed on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission. However, at the same time, there is no discretion at all to stay the order passed by the State Commission subject to deposit of any amount less than 50 per cent of the amount which is required to be deposited as a pre-deposit before the appeal is entertained as per second proviso to Section 51 of the Act, 2019. 14. Now in so far as the various orders passed by this Court relied upon by the learned counsel for the respective appellant(s) by which, the special leave petition(s) have been disposed of directing the appellant(s) to deposit only 50 per cent of the amount as ordered by the State Commission are concerned, at the outset, it is noted that in none of the cases any law has been laid down by this Court. It appears that while issuing a notice(s), the appellant(s) was/were directed to deposit 50 per cent of the amount as ordered by the State Commission and thereafter without discussing any law and/or considering anything on merits and the scheme of the Act, 2019, more particularly, Section 51 of the Act, 2019, the special leave petition(s) has/have been disposed of. On the contrary, there is a direct binding decision of this Court in the case of Shreenath Corporation and Ors. (supra) laying down the law after discussing the scheme, object and purpose of pre-deposit and the power of the National Commission to grant conditional stay of deposit of the entire amount and/or any amount higher than 50 per cent of the amount. 15. The sum and substance of the above discussion and our conclusions would be that:- (i) pre-deposit of 50 per cent of amount as ordered by the State Commission under second proviso to Section 51 of the Consumer Protection Act, 2019 is mandatory for entertainment of an appeal by the National Commission; (ii) the object of the said pre-deposit condition is to avoid frivolous appeals; (iii) the said pre-deposit condition has no nexus with the grant of stay by the National Commission; (iv) while considering the stay application in staying the order passed by the State Commission, the National Commission can grant a conditional stay directing the appellant(s) to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission; (v) however, at the same time, the National Commission has to assign some cogent reasons and/or pass a speaking order when the conditional stay of the order passed by the State Commission is passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount either as an ex parte order or after hearing both sides and considering the facts and circumstances of the case. (vi) Thus, the National Commission can grant a conditional stay of the order passed by the State Commission on deposit of the entire amount and/or any amount higher than 50 per cent of the amount as ordered by the State Commission in the aforesaid manner. | 1[ds]12. An identical question came to be considered by this Court in the case of Shreenath Corporation and Ors. (supra). In the aforesaid case, this Court was considering the pari materia provision under the Act, 1986 and second proviso to Section 19, which provided pre-deposit of amount specified therein, i.e., 50 per cent of the amount awarded by the State Commission or Rs.35,000/- whichever is less. In the aforesaid case, this Court had occasion to consider the object and purpose of predeposit condition while entertaining the appeal under Section 19 by the National Commission, against the order passed by the State Commission. In paragraphs 8 to 10, it is observed and held as under:-8. This Court in State of Haryana v. Maruti Udyog Ltd. [(2000) 7 SCC 348] , while dealing with the case of waiver of pre-deposit in an appeal under first proviso to Section 39(5) of the Haryana General Sales Tax Act held: (SCC p. 353, para 7)7. … There cannot be any dispute that right of appeal is the creature of the statute and has to be exercised within the limits and according to the procedure provided by law. It is filed for invoking the powers of a superior court to redress the error of the court below, if any. No right of appeal can be conferred except by express words. An appeal, for its maintainability, must have a clear authority of law. Sub-section (5) of Section 39 of the Act vests a discretion in the appellate authority to entertain the appeal if it is filed within sixty days and the amount of tax assessed along with penalty and interest, if any, recoverable from the persons has been paid. The aforesaid restriction is subject to the proviso conferring discretion upon the appellate authority to dispense with the deposit of the amount only on proof of the fact that the appellant was unable to pay the amount. Before deciding the appeal, the appellate authority affords an opportunity to the party concerned to either pay the amount or make out a case for the stay in terms of proviso to sub-section (5) of Section 39 of the Act. Once the conditions specified under sub-section (5) of Section 39 are complied with, the appeal is born for being disposed of on merits after hearing both the sides.9. The second proviso to Section 19 of the Act mandates pre-deposit for consideration of an appeal before the National Commission. It requires 50% of the amount in terms of an order of the State Commission or Rs 35,000, whichever is less for entertainment of an appeal by the National Commission. Unless the appellant has deposited the pre-deposit amount, the appeal cannot be entertained by the National Commission. A pre-deposit condition to deposit 50% of the amount in terms of the order of the State Commission or Rs 35,000 being condition precedent for entertaining appeal, it has no nexus with the order of stay, as such an order may or may not be passed by the National Commission. The condition of pre-deposit is there to avoid frivolous appeals.10. It is not the case of any of the appellants that the Consumer Forum, including the State and National Commissions, has no power to pass interim order of stay. If the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded, it is open to the National Commission to pass an appropriate interim order including conditional order of stay. Entertainment of an appeal and stay of proceeding pursuant to order impugned in the appeal stand on different footings, at two different stages. One (predeposit) has no nexus with merit of the appeal and the other (grant of stay) depends on prima facie case, balance of convenience and irreparable loss of party seeking such stay.13. We are in complete agreement with the view taken by this Court in the case of Shreenath Corporation and Ors. (supra). Therefore, it is held that National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission while staying the order passed by the State commission.However, at the same time, while considering the stay application against the order passed by the State Commission and while passing the order to deposit the entire amount and/or any amount higher than 50 per cent of the amount, the National Commission has to assign some reasons and pass a speaking order why the conditional stay is being granted on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount. Such an order on the stay application is not to be passed mechanically. Even in the case of Shreenath Corporation and Ors. (supra), it is observed that if the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded by the State Commission, it is open to the National Commission to pass an appropriate interim order including a conditional order of stay. The order passed by the State Commission directing the appellant to refund the amount and/or pay any amount higher than 50 per cent can be said to be akin to a money decree. Even as per Order XLI Rule 5, the general rule is that normally there shall not be any unconditional stay of a money decree, however, at the same time, the Appellate Court may pass an appropriate conditional order while staying the impugned decree depending upon the facts of the case and by giving cogent reasons. Therefore, while considering the stay application requesting to stay the order passed by the State Commission and as observed and held hereinabove, the National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount while staying the order passed by the State commission, however, the National Commission has to pass a speaking order giving some reasons why in the facts of the particular case the conditional stay of the order passed by the State Commission is to be passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission and that too after giving an opportunity to the appellant as well as to the respondent. The order on the stay application is not to be passed mechanically. It must reflect an application of mind by the National Commission why the order passed by the State Commission is to be stayed on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission. However, at the same time, there is no discretion at all to stay the order passed by the State Commission subject to deposit of any amount less than 50 per cent of the amount which is required to be deposited as a pre-deposit before the appeal is entertained as per second proviso to Section 51 of the Act, 2019.14. Now in so far as the various orders passed by this Court relied upon by the learned counsel for the respective appellant(s) by which, the special leave petition(s) have been disposed of directing the appellant(s) to deposit only 50 per cent of the amount as ordered by the State Commission are concerned, at the outset, it is noted that in none of the cases any law has been laid down by this Court. It appears that while issuing a notice(s), the appellant(s) was/were directed to deposit 50 per cent of the amount as ordered by the State Commission and thereafter without discussing any law and/or considering anything on merits and the scheme of the Act, 2019, more particularly, Section 51 of the Act, 2019, the special leave petition(s) has/have been disposed of. On the contrary, there is a direct binding decision of this Court in the case of Shreenath Corporation and Ors. (supra) laying down the law after discussing the scheme, object and purpose of pre-deposit and the power of the National Commission to grant conditional stay of deposit of the entire amount and/or any amount higher than 50 per cent of the amount.15. The sum and substance of the above discussion and our conclusions would be that:-(i) pre-deposit of 50 per cent of amount as ordered by the State Commission under second proviso to Section 51 of the Consumer Protection Act, 2019 is mandatory for entertainment of an appeal by the National Commission;(ii) the object of the said pre-deposit condition is to avoid frivolous appeals;(iii) the said pre-deposit condition has no nexus with the grant of stay by the National Commission;(iv) while considering the stay application in staying the order passed by the State Commission, the National Commission can grant a conditional stay directing the appellant(s) to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission;(v) however, at the same time, the National Commission has to assign some cogent reasons and/or pass a speaking order when the conditional stay of the order passed by the State Commission is passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount either as an ex parte order or after hearing both sides and considering the facts and circumstances of the case.(vi) Thus, the National Commission can grant a conditional stay of the order passed by the State Commission on deposit of the entire amount and/or any amount higher than 50 per cent of the amount as ordered by the State Commission in the aforesaid manner. | 1 | 4,467 | 1,805 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
of party seeking such stay. 13. We are in complete agreement with the view taken by this Court in the case of Shreenath Corporation and Ors. (supra). Therefore, it is held that National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission while staying the order passed by the State commission. However, at the same time, while considering the stay application against the order passed by the State Commission and while passing the order to deposit the entire amount and/or any amount higher than 50 per cent of the amount, the National Commission has to assign some reasons and pass a speaking order why the conditional stay is being granted on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount. Such an order on the stay application is not to be passed mechanically. Even in the case of Shreenath Corporation and Ors. (supra), it is observed that if the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded by the State Commission, it is open to the National Commission to pass an appropriate interim order including a conditional order of stay. The order passed by the State Commission directing the appellant to refund the amount and/or pay any amount higher than 50 per cent can be said to be akin to a money decree. Even as per Order XLI Rule 5, the general rule is that normally there shall not be any unconditional stay of a money decree, however, at the same time, the Appellate Court may pass an appropriate conditional order while staying the impugned decree depending upon the facts of the case and by giving cogent reasons. Therefore, while considering the stay application requesting to stay the order passed by the State Commission and as observed and held hereinabove, the National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount while staying the order passed by the State commission, however, the National Commission has to pass a speaking order giving some reasons why in the facts of the particular case the conditional stay of the order passed by the State Commission is to be passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission and that too after giving an opportunity to the appellant as well as to the respondent. The order on the stay application is not to be passed mechanically. It must reflect an application of mind by the National Commission why the order passed by the State Commission is to be stayed on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission. However, at the same time, there is no discretion at all to stay the order passed by the State Commission subject to deposit of any amount less than 50 per cent of the amount which is required to be deposited as a pre-deposit before the appeal is entertained as per second proviso to Section 51 of the Act, 2019. 14. Now in so far as the various orders passed by this Court relied upon by the learned counsel for the respective appellant(s) by which, the special leave petition(s) have been disposed of directing the appellant(s) to deposit only 50 per cent of the amount as ordered by the State Commission are concerned, at the outset, it is noted that in none of the cases any law has been laid down by this Court. It appears that while issuing a notice(s), the appellant(s) was/were directed to deposit 50 per cent of the amount as ordered by the State Commission and thereafter without discussing any law and/or considering anything on merits and the scheme of the Act, 2019, more particularly, Section 51 of the Act, 2019, the special leave petition(s) has/have been disposed of. On the contrary, there is a direct binding decision of this Court in the case of Shreenath Corporation and Ors. (supra) laying down the law after discussing the scheme, object and purpose of pre-deposit and the power of the National Commission to grant conditional stay of deposit of the entire amount and/or any amount higher than 50 per cent of the amount. 15. The sum and substance of the above discussion and our conclusions would be that:- (i) pre-deposit of 50 per cent of amount as ordered by the State Commission under second proviso to Section 51 of the Consumer Protection Act, 2019 is mandatory for entertainment of an appeal by the National Commission; (ii) the object of the said pre-deposit condition is to avoid frivolous appeals; (iii) the said pre-deposit condition has no nexus with the grant of stay by the National Commission; (iv) while considering the stay application in staying the order passed by the State Commission, the National Commission can grant a conditional stay directing the appellant(s) to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission; (v) however, at the same time, the National Commission has to assign some cogent reasons and/or pass a speaking order when the conditional stay of the order passed by the State Commission is passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount either as an ex parte order or after hearing both sides and considering the facts and circumstances of the case. (vi) Thus, the National Commission can grant a conditional stay of the order passed by the State Commission on deposit of the entire amount and/or any amount higher than 50 per cent of the amount as ordered by the State Commission in the aforesaid manner.
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on prima facie case, balance of convenience and irreparable loss of party seeking such stay.13. We are in complete agreement with the view taken by this Court in the case of Shreenath Corporation and Ors. (supra). Therefore, it is held that National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission while staying the order passed by the State commission.However, at the same time, while considering the stay application against the order passed by the State Commission and while passing the order to deposit the entire amount and/or any amount higher than 50 per cent of the amount, the National Commission has to assign some reasons and pass a speaking order why the conditional stay is being granted on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount. Such an order on the stay application is not to be passed mechanically. Even in the case of Shreenath Corporation and Ors. (supra), it is observed that if the National Commission after hearing the appeal of the parties in its discretion wants to stay the amount awarded by the State Commission, it is open to the National Commission to pass an appropriate interim order including a conditional order of stay. The order passed by the State Commission directing the appellant to refund the amount and/or pay any amount higher than 50 per cent can be said to be akin to a money decree. Even as per Order XLI Rule 5, the general rule is that normally there shall not be any unconditional stay of a money decree, however, at the same time, the Appellate Court may pass an appropriate conditional order while staying the impugned decree depending upon the facts of the case and by giving cogent reasons. Therefore, while considering the stay application requesting to stay the order passed by the State Commission and as observed and held hereinabove, the National Commission can pass an order to deposit the entire amount and/or any amount higher than 50 per cent of the amount while staying the order passed by the State commission, however, the National Commission has to pass a speaking order giving some reasons why in the facts of the particular case the conditional stay of the order passed by the State Commission is to be passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission and that too after giving an opportunity to the appellant as well as to the respondent. The order on the stay application is not to be passed mechanically. It must reflect an application of mind by the National Commission why the order passed by the State Commission is to be stayed on condition of deposit of the entire amount and/or any amount higher than 50 per cent of the amount awarded by the State Commission. However, at the same time, there is no discretion at all to stay the order passed by the State Commission subject to deposit of any amount less than 50 per cent of the amount which is required to be deposited as a pre-deposit before the appeal is entertained as per second proviso to Section 51 of the Act, 2019.14. Now in so far as the various orders passed by this Court relied upon by the learned counsel for the respective appellant(s) by which, the special leave petition(s) have been disposed of directing the appellant(s) to deposit only 50 per cent of the amount as ordered by the State Commission are concerned, at the outset, it is noted that in none of the cases any law has been laid down by this Court. It appears that while issuing a notice(s), the appellant(s) was/were directed to deposit 50 per cent of the amount as ordered by the State Commission and thereafter without discussing any law and/or considering anything on merits and the scheme of the Act, 2019, more particularly, Section 51 of the Act, 2019, the special leave petition(s) has/have been disposed of. On the contrary, there is a direct binding decision of this Court in the case of Shreenath Corporation and Ors. (supra) laying down the law after discussing the scheme, object and purpose of pre-deposit and the power of the National Commission to grant conditional stay of deposit of the entire amount and/or any amount higher than 50 per cent of the amount.15. The sum and substance of the above discussion and our conclusions would be that:-(i) pre-deposit of 50 per cent of amount as ordered by the State Commission under second proviso to Section 51 of the Consumer Protection Act, 2019 is mandatory for entertainment of an appeal by the National Commission;(ii) the object of the said pre-deposit condition is to avoid frivolous appeals;(iii) the said pre-deposit condition has no nexus with the grant of stay by the National Commission;(iv) while considering the stay application in staying the order passed by the State Commission, the National Commission can grant a conditional stay directing the appellant(s) to deposit the entire amount and/or any amount higher than 50 per cent of the amount in terms of the order of the State Commission;(v) however, at the same time, the National Commission has to assign some cogent reasons and/or pass a speaking order when the conditional stay of the order passed by the State Commission is passed subject to deposit of the entire amount and/or any amount higher than 50 per cent of the amount either as an ex parte order or after hearing both sides and considering the facts and circumstances of the case.(vi) Thus, the National Commission can grant a conditional stay of the order passed by the State Commission on deposit of the entire amount and/or any amount higher than 50 per cent of the amount as ordered by the State Commission in the aforesaid manner.
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Rutta Pedda Narasareddy & Others Vs. Sughra Begum & Others | plaintiff alone was in actual possession of the Jagdeopur lands, that the oral lease set up by defendants 1-10 was not true and that they occupied the lands illegally. It differed from the Trial Court and held that D-1 and others were not protected tenants in respect of the lands in Gandamalla village, that Exhibit D-40, the tenancy certificate? on the basis of which the 1st defendant was held to be a protected tenant by the Trial Court was brought into existence to support the defendants case, and therefore, allowed the plaintiffs suit in toto. The defendants have filed this appeal by certificate granted by the High Court. We find ourselves in entire agreement with the learned Judges of the High Court. It is not necessary to deal with two other items of property which was dealt with by the Court below. 2. The whole case turns upon the question whether Exhibit P-8 is a genuine document or not. If it is held to be a genuine document the question whether the plaintiff repaid the loan taken by her from the 11th defendant is of no importance. It is difficult to understand the written statement filed on behalf of the 11th defendant on this aspect of the case. It is in English and refers to the amount advanced by the 11th defendant towards the purchase of the land as a lean though contrary to the plaintiffs contention it is contended that the whole of the Rupees 5,000 was given by the 11th defendant. If it is a loan, whether it is of Rupees 5,000 or Rs. 3,000 makes no difference. Though in the written statement the verbal agreement as well as the Exhibit P-8 are formally denied, there is no positive denial. This document is signed not only by the 11th defendant but also her husband, DW-15 as a witness. It bears the 11th defendants thumb impression. The Trial Court thought that the fact that the thumb impression was found at the beginning of the document was suspicious. The learned Judges of the High Court have, however, stated that such is the usual practice in the Telangana region. We cannot but give due importance to this observation of the learned Judges. Their view is also supported by the fact that Exhibit D-1, the General Power of Attorney, said to have been executed by the plaintiff and the 11th defendant bears the thumb impression of both of them in the beginning. In the circumstances if the defendants wanted to impugn the genuineness of Exhibit P-8 it was open to them to have insisted that Exhibit P-8 should be sent to the finger print expert for finding out if the thumb impression on it is that of the 11th defendant. This was not done. Nor did DW-15 have the courage to demand that his signature should be sent to the handwriting expert. And it has to be pointed out that though PWs 2-4 and PW 7 spoke about the execution of Exhibit P-8 by defendant 11, there was no cross-examination worth speaking on this point. PW 3 on seeing Exhibit P-8 identified the signature of D-11s husband, and stated that this was the document which was executed by the 11th defendant. He was not cross-examined at all. PW 3 is a stranger to the family. There was no cross examination of this witness worth speaking of. PW 4 identified the signature of DW-15 and the other attesting witness and also the thumb impression of the 11th defendant. Although the 11th defendants pleader wanted to cross-examine him, he did not actually do so. PW 7 is none other than the 11th defendants son-in-law. He was also not cross-examined on the point.In the circumstances we are satisfied that the High Court was right in coming to the conclusion that Exhibit P-8 is a genuine document. The most significant fact to our mind is that in spite of the definite assertion on behalf of the plaintiff that the 11th defendant executed Exhibit P-8, she did not categorically deny this nor did she enter the witness box and deny it.We do not think that Ex. D-1 in any way militates against this conclusion. The High Court has pointed out that though the plaintiff is a signatory, the document only had her thumb impression and that it was executed at a time when plaintiffs husband was admittedly in jail, and that the internal evidence also shows that this document is the result of a sinister attempt by DW 15 to establish the rights of his wife to a half share in the lands. 3. We think it hardly necessary to refer at length to the conclusion arrived at by the Trial Court as well as the Appellate Court that the 11th defendant was not in possession of the suit lands but that only the plaintiff was in possession throughout. We agree with their concurrent finding on this point. 4. As regards the lands in Gandamalla village, in view of the other findings already given above, the defendants case rests only upon Exhibit D-40. The question of its genuineness was not seriously argued. The High Court has pointed out that interpolations and corrections have been made in Exhibit D-38, the Permanent Register, for obtaining Exhibit D-40. It has elaborately discussed the question of genuineness of Ex. D-38 and Ex. D-40 and come to the conclusion that they have been brought into existence to support the case of the defendants. The learned District Judge was of the opinion that right or wrong since Ex. D-40 had been obtained, no Civil Court could question it. We agree with the High Court that when once Ex. D-40 is held to be not a genuine document at all there is no question of any rights that could be claimed on the basis of that document; nor could the jurisdiction of the Civil Court be shut out on the basis of a spurious document. We have dealt with the only two points argued. | 0[ds]3. We think it hardly necessary to refer at length to the conclusion arrived at by the Trial Court as well as the Appellate Court that the 11th defendant was not in possession of the suit lands but that only the plaintiff was in possession throughoutWe agree with their concurrent finding on this point4. As regards the lands in Gandamalla village, in view of the other findings already given above, the defendants case rests only upon Exhibit. The question of its genuineness was not seriously argued. The High Court has pointed out that interpolations and corrections have been made in Exhibit, the Permanent Register, for obtaining Exhibit. It has elaborately discussed the question of genuineness of Ex.0 and come to the conclusion that they have been brought into existence to support the case of the defendants. The learned District Judge was of the opinion that right or wrong since Ex.0 had been obtained, no Civil Court could question it. We agree with the High Court that when once Ex.0 is held to be not a genuine document at all there is no question of any rights that could be claimed on the basis of that document; nor could the jurisdiction of the Civil Court be shut out on the basis of a spurious document. We have dealt with the only two points argued. | 0 | 1,550 | 242 | ### 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:
plaintiff alone was in actual possession of the Jagdeopur lands, that the oral lease set up by defendants 1-10 was not true and that they occupied the lands illegally. It differed from the Trial Court and held that D-1 and others were not protected tenants in respect of the lands in Gandamalla village, that Exhibit D-40, the tenancy certificate? on the basis of which the 1st defendant was held to be a protected tenant by the Trial Court was brought into existence to support the defendants case, and therefore, allowed the plaintiffs suit in toto. The defendants have filed this appeal by certificate granted by the High Court. We find ourselves in entire agreement with the learned Judges of the High Court. It is not necessary to deal with two other items of property which was dealt with by the Court below. 2. The whole case turns upon the question whether Exhibit P-8 is a genuine document or not. If it is held to be a genuine document the question whether the plaintiff repaid the loan taken by her from the 11th defendant is of no importance. It is difficult to understand the written statement filed on behalf of the 11th defendant on this aspect of the case. It is in English and refers to the amount advanced by the 11th defendant towards the purchase of the land as a lean though contrary to the plaintiffs contention it is contended that the whole of the Rupees 5,000 was given by the 11th defendant. If it is a loan, whether it is of Rupees 5,000 or Rs. 3,000 makes no difference. Though in the written statement the verbal agreement as well as the Exhibit P-8 are formally denied, there is no positive denial. This document is signed not only by the 11th defendant but also her husband, DW-15 as a witness. It bears the 11th defendants thumb impression. The Trial Court thought that the fact that the thumb impression was found at the beginning of the document was suspicious. The learned Judges of the High Court have, however, stated that such is the usual practice in the Telangana region. We cannot but give due importance to this observation of the learned Judges. Their view is also supported by the fact that Exhibit D-1, the General Power of Attorney, said to have been executed by the plaintiff and the 11th defendant bears the thumb impression of both of them in the beginning. In the circumstances if the defendants wanted to impugn the genuineness of Exhibit P-8 it was open to them to have insisted that Exhibit P-8 should be sent to the finger print expert for finding out if the thumb impression on it is that of the 11th defendant. This was not done. Nor did DW-15 have the courage to demand that his signature should be sent to the handwriting expert. And it has to be pointed out that though PWs 2-4 and PW 7 spoke about the execution of Exhibit P-8 by defendant 11, there was no cross-examination worth speaking on this point. PW 3 on seeing Exhibit P-8 identified the signature of D-11s husband, and stated that this was the document which was executed by the 11th defendant. He was not cross-examined at all. PW 3 is a stranger to the family. There was no cross examination of this witness worth speaking of. PW 4 identified the signature of DW-15 and the other attesting witness and also the thumb impression of the 11th defendant. Although the 11th defendants pleader wanted to cross-examine him, he did not actually do so. PW 7 is none other than the 11th defendants son-in-law. He was also not cross-examined on the point.In the circumstances we are satisfied that the High Court was right in coming to the conclusion that Exhibit P-8 is a genuine document. The most significant fact to our mind is that in spite of the definite assertion on behalf of the plaintiff that the 11th defendant executed Exhibit P-8, she did not categorically deny this nor did she enter the witness box and deny it.We do not think that Ex. D-1 in any way militates against this conclusion. The High Court has pointed out that though the plaintiff is a signatory, the document only had her thumb impression and that it was executed at a time when plaintiffs husband was admittedly in jail, and that the internal evidence also shows that this document is the result of a sinister attempt by DW 15 to establish the rights of his wife to a half share in the lands. 3. We think it hardly necessary to refer at length to the conclusion arrived at by the Trial Court as well as the Appellate Court that the 11th defendant was not in possession of the suit lands but that only the plaintiff was in possession throughout. We agree with their concurrent finding on this point. 4. As regards the lands in Gandamalla village, in view of the other findings already given above, the defendants case rests only upon Exhibit D-40. The question of its genuineness was not seriously argued. The High Court has pointed out that interpolations and corrections have been made in Exhibit D-38, the Permanent Register, for obtaining Exhibit D-40. It has elaborately discussed the question of genuineness of Ex. D-38 and Ex. D-40 and come to the conclusion that they have been brought into existence to support the case of the defendants. The learned District Judge was of the opinion that right or wrong since Ex. D-40 had been obtained, no Civil Court could question it. We agree with the High Court that when once Ex. D-40 is held to be not a genuine document at all there is no question of any rights that could be claimed on the basis of that document; nor could the jurisdiction of the Civil Court be shut out on the basis of a spurious document. We have dealt with the only two points argued.
### Response:
0
### Explanation:
3. We think it hardly necessary to refer at length to the conclusion arrived at by the Trial Court as well as the Appellate Court that the 11th defendant was not in possession of the suit lands but that only the plaintiff was in possession throughoutWe agree with their concurrent finding on this point4. As regards the lands in Gandamalla village, in view of the other findings already given above, the defendants case rests only upon Exhibit. The question of its genuineness was not seriously argued. The High Court has pointed out that interpolations and corrections have been made in Exhibit, the Permanent Register, for obtaining Exhibit. It has elaborately discussed the question of genuineness of Ex.0 and come to the conclusion that they have been brought into existence to support the case of the defendants. The learned District Judge was of the opinion that right or wrong since Ex.0 had been obtained, no Civil Court could question it. We agree with the High Court that when once Ex.0 is held to be not a genuine document at all there is no question of any rights that could be claimed on the basis of that document; nor could the jurisdiction of the Civil Court be shut out on the basis of a spurious document. We have dealt with the only two points argued.
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SANTOSH BATRA (SINCE DECEASED) THROUGH LRS Vs. GOLDEN FOREST (INDIA) LTD. MANI MAJRA (UT), CHANDIGARH, THR. ITS DIRECTOR | specific performance, which was contested by the appellants on the ground that the respondent failed to perform its part of the agreement by stipulated dated 31.01.1990. It was further pleaded that though in these circumstances the appellant could have forfeited the entire money paid by the respondent, with mutual understanding the agreement to sell was cancelled and the amount was refunded by the appellants to the respondent by way of bankers cheque which was duly encashed by the respondent. On the pleadings, issues were framed by the Trial Court and the first issue, which is relevant for our purposes, reads as under: (1) Whether the agreement dated 05.01.1990 was cancelled and earnest money has already been refunded by the defendants, if so to what effect? 7. The evidence was read. In support of the aforesaid issue, onus thereof was upon the appellants. The appellants produced a letter dated 18.05.1991 which was sent along with the cheque wherein the appellants had maintained that even though the case of the respondent was quite weak as it had failed to perform its part by 31.03.1990, yet in order to keep harmonious relation the appellanst had accepted the offer and enclosed a cheque bearing no. 337185 dated 18.05.1991 amounting to Rs. 61,434/- as per the terms settled on 25.04.1991. The appellants also proved on record that the said cheque was duly encashed by the respondent. The Trial Court, after discussing the evidence so produced, decided the aforesaid issue in favour of the appellants holding that the agreement dated 05.01.1990 stood cancelled and the money had been refunded to the respondent. On that basis, suit of the respondent was dismissed. 8. The First Appellate Court, however, reversed the aforesaid finding primarily on the ground that the total amount paid by the respondent to the appellants was Rs. 62,500/- whereas the appellants had returned the amount of Rs. 61,434/- and no interest was also refunded and, thus, in the absence of refund of full amount it could not be said that the agreement was cancelled. The suit was accordingly decreed. The aforesaid reasoning is accepted by the High Court while affirming the decree passed by the Additional District Judge. 9. We have heard the learned counsel for the parties primarily on the issue as to whether the agreement stood cancelled and whether the finding of the Trial Court on the Issue No. 1 is rightly reversed by the High Court. We find that the approach of the First Appellate Court as well as the High Court in reversing the finding on Issue No. 1 is clearly erroneous. As mentioned above, main reason for not accepting the plea of the appellants that the agreement dated 05.01.1990 stood cancelled was that full amount of Rs. Rs.62,500/- was not refunded and only a sum of Rs. 61,434/- was given by the appellants to the respondent and the contention of the appellant that on payment of Rs. 61,434/- nothing more remains due. While coming to such a conclusion, the two courts below have conveniently failed to peruse the covering letter dated 18.05.1991 along with which a cheque of Rs. Rs.61,434/- was enclosed. This letter metions about the agreement to sell and also mentions about the meeting which took place between the parties on 25.04.1991 at about 12.30 hours at the residence of Mr. V.K. Gupta, Executive Director of the respondent/company wherein purported agreement was arrived at as per which it was agreed to cancel the contract. Last two paragraphs of this letter are material for the purposes of this case and we reproduce the same herein under: Even though the case of company was quite weak in as much as the sale deed had to be got registered on 31.03.90 by paying the balance amount to the first party to whcih the company (GFIL) had failed to perform its part of the agreement by the said date. Yet in order to keep harmonious relation and considering the matter on compassionate grounds, we (Smt. Santosh Batra, GPA, for Smt. Santosh Batra and Smt. Asha Doda) accepted the offer. In order to perform our part of new contact dated 25.04.91, we enclosed herewith a cheque no. 337185 dated 18.5.91, amounting to Rs. 61,434/- (Rupees sixty one thousand four hundred thirty four only) as per terms settled on 25.4.91. Consequently the matter stand settled and no dispute thus remains between parties. We also enclosed (return) herewith 9 no. Cheques of Rs. 2,100/- each, and 1 No. Cheque of Rs. 1.40 lacs of dated 5.1.92, and not Rs. 1.30 lacs(FDR) as stated by the company in the agreement dated 5.1.90. 10. This letter thus clearly demonstrates the following aspects: A) As per the appellants the respondent/company had failed to perform its part of the contract. B) Notwithstanding the same, offer of the respondent to refund the money was accepted in order to keep harmoneous relation between the parties. C) It was agreed between the parties that the amount of Rs. 61,434/- is to be given as per the terms settled on 25.04.1991. D) A cheque for the said amount was enclosed with categorical assertion that consequently the matter stands settled and no dispute thus remains between the parties. Other cheques towards interest were returned (9 in number) including the cheque dated 05.01.1992 in the sum of Rs. 1,40,000/- (which was towards the payment of FDR). 11. It is important to note that on the receipt of the said cheque of Rs. 61,434/-, along with the aforesaid letter not only the said cheque was encashed by the respondent, there is no reply to the aforesaid letter dated 18.05.1991 by the respondent refuting the averments contained in the said letter. This overt conduct of the respondent would clearly demonstrate that it accepted that there was a settlement and even received the payment in terms of the settlement. The settlement was for anulling the agreement. The amount of Rs. 61,434/- was paid as full and final payment and there was no question of any balance payment thereafter. | 1[ds]9. We have heard the learned counsel for the parties primarily on the issue as to whether the agreement stood cancelled and whether the finding of the Trial Court on the Issue No. 1 is rightly reversed by the High Court. We find that the approach of the First Appellate Court as well as the High Court in reversing the finding on Issue No. 1 is clearly erroneous. As mentioned above, main reason for not accepting the plea of the appellants that the agreement dated 05.01.1990 stood cancelled was that full amount of Rs. Rs.62,500/- was not refunded and only a sum of Rs. 61,434/- was given by the appellants to the respondent and the contention of the appellant that on payment of Rs. 61,434/- nothing more remains due. While coming to such a conclusion, the two courts below have conveniently failed to peruse the covering letter dated 18.05.1991 along with which a cheque of Rs. Rs.61,434/- was enclosed. This letter metions about the agreement to sell and also mentions about the meeting which took place between the parties on 25.04.1991 at about 12.30 hours at the residence of Mr. V.K. Gupta, Executive Director of the respondent/company wherein purported agreement was arrived at as per which it was agreed to cancel the contract. Last two paragraphs of this letter are material for the purposes of this case and we reproduce the same herein under:Even though the case of company was quite weak in as much as the sale deed had to be got registered on 31.03.90 by paying the balance amount to the first party to whcih the company (GFIL) had failed to perform its part of the agreement by the said date. Yet in order to keep harmonious relation and considering the matter on compassionate grounds, we (Smt. Santosh Batra, GPA, for Smt. Santosh Batra and Smt. Asha Doda) accepted the offer.In order to perform our part of new contact dated 25.04.91, we enclosed herewith a cheque no. 337185 dated 18.5.91, amounting to Rs. 61,434/- (Rupees sixty one thousand four hundred thirty four only) as per terms settled on 25.4.91. Consequently the matter stand settled and no dispute thus remains between parties. We also enclosed (return) herewith 9 no. Cheques of Rs. 2,100/- each, and 1 No. Cheque of Rs. 1.40 lacs of dated 5.1.92, and not Rs. 1.30 lacs(FDR) as stated by the company in the agreement dated 5.1.90.10. This letter thus clearly demonstrates the following aspects:A) As per the appellants the respondent/company had failed to perform its part of the contract.B) Notwithstanding the same, offer of the respondent to refund the money was accepted in order to keep harmoneous relation between the parties.C) It was agreed between the parties that the amount of Rs. 61,434/- is to be given as per the terms settled on 25.04.1991.D) A cheque for the said amount was enclosed with categorical assertion that consequently the matter stands settled and no dispute thus remains between the parties. Other cheques towards interest were returned (9 in number) including the cheque dated 05.01.1992 in the sum of Rs. 1,40,000/- (which was towards the payment of FDR).11. It is important to note that on the receipt of the said cheque of Rs. 61,434/-, along with the aforesaid letter not only the said cheque was encashed by the respondent, there is no reply to the aforesaid letter dated 18.05.1991 by the respondent refuting the averments contained in the said letter. This overt conduct of the respondent would clearly demonstrate that it accepted that there was a settlement and even received the payment in terms of the settlement. The settlement was for anulling the agreement. The amount of Rs. 61,434/- was paid as full and final payment and there was no question of any balance payment thereafter. | 1 | 1,855 | 707 | ### 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:
specific performance, which was contested by the appellants on the ground that the respondent failed to perform its part of the agreement by stipulated dated 31.01.1990. It was further pleaded that though in these circumstances the appellant could have forfeited the entire money paid by the respondent, with mutual understanding the agreement to sell was cancelled and the amount was refunded by the appellants to the respondent by way of bankers cheque which was duly encashed by the respondent. On the pleadings, issues were framed by the Trial Court and the first issue, which is relevant for our purposes, reads as under: (1) Whether the agreement dated 05.01.1990 was cancelled and earnest money has already been refunded by the defendants, if so to what effect? 7. The evidence was read. In support of the aforesaid issue, onus thereof was upon the appellants. The appellants produced a letter dated 18.05.1991 which was sent along with the cheque wherein the appellants had maintained that even though the case of the respondent was quite weak as it had failed to perform its part by 31.03.1990, yet in order to keep harmonious relation the appellanst had accepted the offer and enclosed a cheque bearing no. 337185 dated 18.05.1991 amounting to Rs. 61,434/- as per the terms settled on 25.04.1991. The appellants also proved on record that the said cheque was duly encashed by the respondent. The Trial Court, after discussing the evidence so produced, decided the aforesaid issue in favour of the appellants holding that the agreement dated 05.01.1990 stood cancelled and the money had been refunded to the respondent. On that basis, suit of the respondent was dismissed. 8. The First Appellate Court, however, reversed the aforesaid finding primarily on the ground that the total amount paid by the respondent to the appellants was Rs. 62,500/- whereas the appellants had returned the amount of Rs. 61,434/- and no interest was also refunded and, thus, in the absence of refund of full amount it could not be said that the agreement was cancelled. The suit was accordingly decreed. The aforesaid reasoning is accepted by the High Court while affirming the decree passed by the Additional District Judge. 9. We have heard the learned counsel for the parties primarily on the issue as to whether the agreement stood cancelled and whether the finding of the Trial Court on the Issue No. 1 is rightly reversed by the High Court. We find that the approach of the First Appellate Court as well as the High Court in reversing the finding on Issue No. 1 is clearly erroneous. As mentioned above, main reason for not accepting the plea of the appellants that the agreement dated 05.01.1990 stood cancelled was that full amount of Rs. Rs.62,500/- was not refunded and only a sum of Rs. 61,434/- was given by the appellants to the respondent and the contention of the appellant that on payment of Rs. 61,434/- nothing more remains due. While coming to such a conclusion, the two courts below have conveniently failed to peruse the covering letter dated 18.05.1991 along with which a cheque of Rs. Rs.61,434/- was enclosed. This letter metions about the agreement to sell and also mentions about the meeting which took place between the parties on 25.04.1991 at about 12.30 hours at the residence of Mr. V.K. Gupta, Executive Director of the respondent/company wherein purported agreement was arrived at as per which it was agreed to cancel the contract. Last two paragraphs of this letter are material for the purposes of this case and we reproduce the same herein under: Even though the case of company was quite weak in as much as the sale deed had to be got registered on 31.03.90 by paying the balance amount to the first party to whcih the company (GFIL) had failed to perform its part of the agreement by the said date. Yet in order to keep harmonious relation and considering the matter on compassionate grounds, we (Smt. Santosh Batra, GPA, for Smt. Santosh Batra and Smt. Asha Doda) accepted the offer. In order to perform our part of new contact dated 25.04.91, we enclosed herewith a cheque no. 337185 dated 18.5.91, amounting to Rs. 61,434/- (Rupees sixty one thousand four hundred thirty four only) as per terms settled on 25.4.91. Consequently the matter stand settled and no dispute thus remains between parties. We also enclosed (return) herewith 9 no. Cheques of Rs. 2,100/- each, and 1 No. Cheque of Rs. 1.40 lacs of dated 5.1.92, and not Rs. 1.30 lacs(FDR) as stated by the company in the agreement dated 5.1.90. 10. This letter thus clearly demonstrates the following aspects: A) As per the appellants the respondent/company had failed to perform its part of the contract. B) Notwithstanding the same, offer of the respondent to refund the money was accepted in order to keep harmoneous relation between the parties. C) It was agreed between the parties that the amount of Rs. 61,434/- is to be given as per the terms settled on 25.04.1991. D) A cheque for the said amount was enclosed with categorical assertion that consequently the matter stands settled and no dispute thus remains between the parties. Other cheques towards interest were returned (9 in number) including the cheque dated 05.01.1992 in the sum of Rs. 1,40,000/- (which was towards the payment of FDR). 11. It is important to note that on the receipt of the said cheque of Rs. 61,434/-, along with the aforesaid letter not only the said cheque was encashed by the respondent, there is no reply to the aforesaid letter dated 18.05.1991 by the respondent refuting the averments contained in the said letter. This overt conduct of the respondent would clearly demonstrate that it accepted that there was a settlement and even received the payment in terms of the settlement. The settlement was for anulling the agreement. The amount of Rs. 61,434/- was paid as full and final payment and there was no question of any balance payment thereafter.
### Response:
1
### Explanation:
9. We have heard the learned counsel for the parties primarily on the issue as to whether the agreement stood cancelled and whether the finding of the Trial Court on the Issue No. 1 is rightly reversed by the High Court. We find that the approach of the First Appellate Court as well as the High Court in reversing the finding on Issue No. 1 is clearly erroneous. As mentioned above, main reason for not accepting the plea of the appellants that the agreement dated 05.01.1990 stood cancelled was that full amount of Rs. Rs.62,500/- was not refunded and only a sum of Rs. 61,434/- was given by the appellants to the respondent and the contention of the appellant that on payment of Rs. 61,434/- nothing more remains due. While coming to such a conclusion, the two courts below have conveniently failed to peruse the covering letter dated 18.05.1991 along with which a cheque of Rs. Rs.61,434/- was enclosed. This letter metions about the agreement to sell and also mentions about the meeting which took place between the parties on 25.04.1991 at about 12.30 hours at the residence of Mr. V.K. Gupta, Executive Director of the respondent/company wherein purported agreement was arrived at as per which it was agreed to cancel the contract. Last two paragraphs of this letter are material for the purposes of this case and we reproduce the same herein under:Even though the case of company was quite weak in as much as the sale deed had to be got registered on 31.03.90 by paying the balance amount to the first party to whcih the company (GFIL) had failed to perform its part of the agreement by the said date. Yet in order to keep harmonious relation and considering the matter on compassionate grounds, we (Smt. Santosh Batra, GPA, for Smt. Santosh Batra and Smt. Asha Doda) accepted the offer.In order to perform our part of new contact dated 25.04.91, we enclosed herewith a cheque no. 337185 dated 18.5.91, amounting to Rs. 61,434/- (Rupees sixty one thousand four hundred thirty four only) as per terms settled on 25.4.91. Consequently the matter stand settled and no dispute thus remains between parties. We also enclosed (return) herewith 9 no. Cheques of Rs. 2,100/- each, and 1 No. Cheque of Rs. 1.40 lacs of dated 5.1.92, and not Rs. 1.30 lacs(FDR) as stated by the company in the agreement dated 5.1.90.10. This letter thus clearly demonstrates the following aspects:A) As per the appellants the respondent/company had failed to perform its part of the contract.B) Notwithstanding the same, offer of the respondent to refund the money was accepted in order to keep harmoneous relation between the parties.C) It was agreed between the parties that the amount of Rs. 61,434/- is to be given as per the terms settled on 25.04.1991.D) A cheque for the said amount was enclosed with categorical assertion that consequently the matter stands settled and no dispute thus remains between the parties. Other cheques towards interest were returned (9 in number) including the cheque dated 05.01.1992 in the sum of Rs. 1,40,000/- (which was towards the payment of FDR).11. It is important to note that on the receipt of the said cheque of Rs. 61,434/-, along with the aforesaid letter not only the said cheque was encashed by the respondent, there is no reply to the aforesaid letter dated 18.05.1991 by the respondent refuting the averments contained in the said letter. This overt conduct of the respondent would clearly demonstrate that it accepted that there was a settlement and even received the payment in terms of the settlement. The settlement was for anulling the agreement. The amount of Rs. 61,434/- was paid as full and final payment and there was no question of any balance payment thereafter.
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THE ORIENTAL INSURANCE CO.LTD Vs. M/S J.K.CEMENT WORKS | with water 9. Simply put, a flood may be described as overflow of water over land. Floods can be broadly divided into the following categories: coastal floods, fluvial floods (river floods), and pluvial floods (surface floods). 9.1 Coastal floods occur when water from a sea or an ocean flows into nearby areas. They are caused either by extreme tidal activity (high tides) or by a storm surge – strong winds from a hurricane or other storms forcing the water onshore – or by the simultaneous occurrence of both these phenomena. 9.2 Fluvial or river flood occurs when the water level exceeds the capacity of a river, stream, or lake, resulting in the overflow of the surplus water to surrounding banks and neighbouring land. They are usually caused by either excessive rainfall or unusually high melting of snow because of rising temperatures. 9.3 Lastly, pluvial or surface floods refers to the accumulation of water in an area because of excessive rainfall. These floods occur independently of an overflowing water body. Pluvial floods include flash floods which take place due to intense, torrential rains over a short period of time. A pluvial flood may also occur if the area is surrounded by hilly regions from where the run¬off water comes and accumulates in the low¬lying area. In urban localities, because of concrete streets and dense construction, rainwater is unable to seep into the ground. Steady rainfall over a few days or torrential rains for a short period of time may overwhelm the capacity of the drainage systems in place, leading to accumulation of water on the streets and nearby structures, and resulting in immense economic damage. 10. So far as the term inundation is concerned, it can be used to refer to both the act of overflow of water over land that is normally dry and to the state of being inundated. Inundation can also be intentional, which is sometimes carried out for military purposes, as well as for agricultural and river¬management purposes. In the latter sense, i.e. as a state of being, inundation refers to accumulation of water in which objects or land may be submerged. In simpler terms, inundation can be used to refer both the act of overflow of water as well as the result of such overflow. 11. It flows from the above discussion that overflow of water due to a flood may result in the state of inundation. As discussed above, floods are of different types, and may be caused due to several factors complementing each other. Usually, non¬coastal floods originate from rainfall, but the magnitude of rainfall sufficient to cause a flood, and the damage that a flood causes, may vary depending on a variety of aspects such as the location of land (low-lying or altitudinous), the water retention capacity of the soil, and the density of population and man¬made construction in the area, among other things. In rare cases, a non-coastal flood may also occur without any rainfall. For instance, shortcomings in the construction of a dam may lead to its complete breakdown, resulting in a flood. 12. It is not the case of the appellant that the coal was not properly stocked or that there was any negligence on part of the Respondent. The only arguments advanced by the Appellant are: firstly, that the terms flood and inundation cannot be equated, and, secondly, that flood needs to be understood in a narrow sense to refer only to the overflowing of a water body, and to exclude instances where overflowing of water occurs due to excessive rainfall. 12.1 We have already highlighted that the terms flood and inundation are often used synonymously to refer to the act of overflowing of water over land that is generally dry. Therefore, the first argument of the Appellant cannot be sustained. 12.2 Similarly, given our prior discussion on pluvial floods, which occur independently of a water body, it is clear that floods are not restricted to overflow of water bodies. Thus, the second argument raised by the Appellant also lacks merit. 12.3 Furthermore, the second argument made by the Appellant seems tenuous even if we look into the intent of the parties entering into the contract, as it has not come on record that there was any water body near the coal yard or the factory premises. In such a scenario, where there was no risk of water from a water body overflowing onto the dry land where the coal yard was located, it could not have been the intention of the parties entering into the contract to give a restrictive meaning to the term flood. Such a narrow interpretation would lead to the conclusion that the insertion of the term flood was superfluous, which could not have been the case. 13. In the instant case, the Appellant has not disputed that there were heavy rains on 29.08.2003 and 30.08.2003 in the Nimbahera region. In fact, the surveyor appointed by the Appellant had also observed in its report that heavy rainfall had occurred in the area, causing flood-like conditions that resulted in some of the coal kept in the insured premises being washed off. Moreover, the surveryors report also stated that there was accumulation of water due to the heavy rains, that had caused the coal to get washed off. 14. The NCDRC in the following cases: (i) Bajaj Allianz General Insurance Co. Ltd. v. M/s. Gondamal Hardyal Mal, [2009] NCDRC 127, (ii) Oriental Insurance Co. Ltd. v. M/s Sathyanarayana Setty & Sons, [2012] NCDRC 124, and (iii) Oriental Insurance Co. Ltd. v. M/s R.P. Bricks, [2013] NCDRC 494, had held that damage caused by heavy rainfall would not fall beyond the flood and inundation clause of the Standard Fire and Special Perils insurance policies. It is brought to our notice by the learned counsel appearing for the Respondent that the aforesaid view has been consistently taken by the NCDRC. The aforementioned view of the NCDRC supports the impugned judgment and the same cannot be said to be erroneous. | 0[ds]6. At the very outset, we note that as far as the Respondents contention regarding the appointment of a second surveyor is concerned, the Appellant had only appointed a Chartered Accountant for the purposes of verifying the accounts books of the Respondent regarding its daily stock of coal. In our considered opinion, the appointment of a Chartered Accountant for this limited purpose is not tantamount to the appointment of a surveyor. Thus, we do not consider it necessary to deal with the prerequisites for the appointment of a second surveyor in the instant case7. Further, it is pertinent to note that the quantum of compensation or the date of the incident are not in dispute here. Nor has it been argued by the Appellant that the date of the incident did not fall within the insurance period11. It flows from the above discussion that overflow of water due to a flood may result in the state of inundation. As discussed above, floods are of different types, and may be caused due to several factors complementing each other. Usually, non¬coastal floods originate from rainfall, but the magnitude of rainfall sufficient to cause a flood, and the damage that a flood causes, may vary depending on a variety of aspects such as the location of land (low-lying or altitudinous), the water retention capacity of the soil, and the density of population and man¬made construction in the area, among other things. In rare cases, a non-coastal flood may also occur without any rainfall. For instance, shortcomings in the construction of a dam may lead to its complete breakdown, resulting in a flood12. It is not the case of the appellant that the coal was not properly stocked or that there was any negligence on part of the Respondent12.1 We have already highlighted that the terms flood and inundation are often used synonymously to refer to the act of overflowing of water over land that is generally dry. Therefore, the first argument of the Appellant cannot be sustained12.2 Similarly, given our prior discussion on pluvial floods, which occur independently of a water body, it is clear that floods are not restricted to overflow of water bodies. Thus, the second argument raised by the Appellant also lacks merit12.3 Furthermore, the second argument made by the Appellant seems tenuous even if we look into the intent of the parties entering into the contract, as it has not come on record that there was any water body near the coal yard or the factory premises. In such a scenario, where there was no risk of water from a water body overflowing onto the dry land where the coal yard was located, it could not have been the intention of the parties entering into the contract to give a restrictive meaning to the term flood. Such a narrow interpretation would lead to the conclusion that the insertion of the term flood was superfluous, which could not have been the case13. In the instant case, the Appellant has not disputed that there were heavy rains on 29.08.2003 and 30.08.2003 in the Nimbahera region. In fact, the surveyor appointed by the Appellant had also observed in its report that heavy rainfall had occurred in the area, causing flood-like conditions that resulted in some of the coal kept in the insured premises being washed off. Moreover, the surveryors report also stated that there was accumulation of water due to the heavy rains, that had caused the coal to get washed off14. The NCDRC in the following cases: (i) Bajaj Allianz General Insurance Co. Ltd. v. M/s. Gondamal Hardyal Mal, [2009] NCDRC 127, (ii) Oriental Insurance Co. Ltd. v. M/s Sathyanarayana Setty & Sons, [2012] NCDRC 124, and (iii) Oriental Insurance Co. Ltd. v. M/s R.P. Bricks, [2013] NCDRC 494, had held that damage caused by heavy rainfall would not fall beyond the flood and inundation clause of the Standard Fire and Special Perils insurance policies. It is brought to our notice by the learned counsel appearing for the Respondent that the aforesaid view has been consistently taken by the NCDRC. The aforementioned view of the NCDRC supports the impugned judgment and the same cannot be said to be erroneous. | 0 | 2,359 | 781 | ### Instruction:
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with water 9. Simply put, a flood may be described as overflow of water over land. Floods can be broadly divided into the following categories: coastal floods, fluvial floods (river floods), and pluvial floods (surface floods). 9.1 Coastal floods occur when water from a sea or an ocean flows into nearby areas. They are caused either by extreme tidal activity (high tides) or by a storm surge – strong winds from a hurricane or other storms forcing the water onshore – or by the simultaneous occurrence of both these phenomena. 9.2 Fluvial or river flood occurs when the water level exceeds the capacity of a river, stream, or lake, resulting in the overflow of the surplus water to surrounding banks and neighbouring land. They are usually caused by either excessive rainfall or unusually high melting of snow because of rising temperatures. 9.3 Lastly, pluvial or surface floods refers to the accumulation of water in an area because of excessive rainfall. These floods occur independently of an overflowing water body. Pluvial floods include flash floods which take place due to intense, torrential rains over a short period of time. A pluvial flood may also occur if the area is surrounded by hilly regions from where the run¬off water comes and accumulates in the low¬lying area. In urban localities, because of concrete streets and dense construction, rainwater is unable to seep into the ground. Steady rainfall over a few days or torrential rains for a short period of time may overwhelm the capacity of the drainage systems in place, leading to accumulation of water on the streets and nearby structures, and resulting in immense economic damage. 10. So far as the term inundation is concerned, it can be used to refer to both the act of overflow of water over land that is normally dry and to the state of being inundated. Inundation can also be intentional, which is sometimes carried out for military purposes, as well as for agricultural and river¬management purposes. In the latter sense, i.e. as a state of being, inundation refers to accumulation of water in which objects or land may be submerged. In simpler terms, inundation can be used to refer both the act of overflow of water as well as the result of such overflow. 11. It flows from the above discussion that overflow of water due to a flood may result in the state of inundation. As discussed above, floods are of different types, and may be caused due to several factors complementing each other. Usually, non¬coastal floods originate from rainfall, but the magnitude of rainfall sufficient to cause a flood, and the damage that a flood causes, may vary depending on a variety of aspects such as the location of land (low-lying or altitudinous), the water retention capacity of the soil, and the density of population and man¬made construction in the area, among other things. In rare cases, a non-coastal flood may also occur without any rainfall. For instance, shortcomings in the construction of a dam may lead to its complete breakdown, resulting in a flood. 12. It is not the case of the appellant that the coal was not properly stocked or that there was any negligence on part of the Respondent. The only arguments advanced by the Appellant are: firstly, that the terms flood and inundation cannot be equated, and, secondly, that flood needs to be understood in a narrow sense to refer only to the overflowing of a water body, and to exclude instances where overflowing of water occurs due to excessive rainfall. 12.1 We have already highlighted that the terms flood and inundation are often used synonymously to refer to the act of overflowing of water over land that is generally dry. Therefore, the first argument of the Appellant cannot be sustained. 12.2 Similarly, given our prior discussion on pluvial floods, which occur independently of a water body, it is clear that floods are not restricted to overflow of water bodies. Thus, the second argument raised by the Appellant also lacks merit. 12.3 Furthermore, the second argument made by the Appellant seems tenuous even if we look into the intent of the parties entering into the contract, as it has not come on record that there was any water body near the coal yard or the factory premises. In such a scenario, where there was no risk of water from a water body overflowing onto the dry land where the coal yard was located, it could not have been the intention of the parties entering into the contract to give a restrictive meaning to the term flood. Such a narrow interpretation would lead to the conclusion that the insertion of the term flood was superfluous, which could not have been the case. 13. In the instant case, the Appellant has not disputed that there were heavy rains on 29.08.2003 and 30.08.2003 in the Nimbahera region. In fact, the surveyor appointed by the Appellant had also observed in its report that heavy rainfall had occurred in the area, causing flood-like conditions that resulted in some of the coal kept in the insured premises being washed off. Moreover, the surveryors report also stated that there was accumulation of water due to the heavy rains, that had caused the coal to get washed off. 14. The NCDRC in the following cases: (i) Bajaj Allianz General Insurance Co. Ltd. v. M/s. Gondamal Hardyal Mal, [2009] NCDRC 127, (ii) Oriental Insurance Co. Ltd. v. M/s Sathyanarayana Setty & Sons, [2012] NCDRC 124, and (iii) Oriental Insurance Co. Ltd. v. M/s R.P. Bricks, [2013] NCDRC 494, had held that damage caused by heavy rainfall would not fall beyond the flood and inundation clause of the Standard Fire and Special Perils insurance policies. It is brought to our notice by the learned counsel appearing for the Respondent that the aforesaid view has been consistently taken by the NCDRC. The aforementioned view of the NCDRC supports the impugned judgment and the same cannot be said to be erroneous.
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6. At the very outset, we note that as far as the Respondents contention regarding the appointment of a second surveyor is concerned, the Appellant had only appointed a Chartered Accountant for the purposes of verifying the accounts books of the Respondent regarding its daily stock of coal. In our considered opinion, the appointment of a Chartered Accountant for this limited purpose is not tantamount to the appointment of a surveyor. Thus, we do not consider it necessary to deal with the prerequisites for the appointment of a second surveyor in the instant case7. Further, it is pertinent to note that the quantum of compensation or the date of the incident are not in dispute here. Nor has it been argued by the Appellant that the date of the incident did not fall within the insurance period11. It flows from the above discussion that overflow of water due to a flood may result in the state of inundation. As discussed above, floods are of different types, and may be caused due to several factors complementing each other. Usually, non¬coastal floods originate from rainfall, but the magnitude of rainfall sufficient to cause a flood, and the damage that a flood causes, may vary depending on a variety of aspects such as the location of land (low-lying or altitudinous), the water retention capacity of the soil, and the density of population and man¬made construction in the area, among other things. In rare cases, a non-coastal flood may also occur without any rainfall. For instance, shortcomings in the construction of a dam may lead to its complete breakdown, resulting in a flood12. It is not the case of the appellant that the coal was not properly stocked or that there was any negligence on part of the Respondent12.1 We have already highlighted that the terms flood and inundation are often used synonymously to refer to the act of overflowing of water over land that is generally dry. Therefore, the first argument of the Appellant cannot be sustained12.2 Similarly, given our prior discussion on pluvial floods, which occur independently of a water body, it is clear that floods are not restricted to overflow of water bodies. Thus, the second argument raised by the Appellant also lacks merit12.3 Furthermore, the second argument made by the Appellant seems tenuous even if we look into the intent of the parties entering into the contract, as it has not come on record that there was any water body near the coal yard or the factory premises. In such a scenario, where there was no risk of water from a water body overflowing onto the dry land where the coal yard was located, it could not have been the intention of the parties entering into the contract to give a restrictive meaning to the term flood. Such a narrow interpretation would lead to the conclusion that the insertion of the term flood was superfluous, which could not have been the case13. In the instant case, the Appellant has not disputed that there were heavy rains on 29.08.2003 and 30.08.2003 in the Nimbahera region. In fact, the surveyor appointed by the Appellant had also observed in its report that heavy rainfall had occurred in the area, causing flood-like conditions that resulted in some of the coal kept in the insured premises being washed off. Moreover, the surveryors report also stated that there was accumulation of water due to the heavy rains, that had caused the coal to get washed off14. The NCDRC in the following cases: (i) Bajaj Allianz General Insurance Co. Ltd. v. M/s. Gondamal Hardyal Mal, [2009] NCDRC 127, (ii) Oriental Insurance Co. Ltd. v. M/s Sathyanarayana Setty & Sons, [2012] NCDRC 124, and (iii) Oriental Insurance Co. Ltd. v. M/s R.P. Bricks, [2013] NCDRC 494, had held that damage caused by heavy rainfall would not fall beyond the flood and inundation clause of the Standard Fire and Special Perils insurance policies. It is brought to our notice by the learned counsel appearing for the Respondent that the aforesaid view has been consistently taken by the NCDRC. The aforementioned view of the NCDRC supports the impugned judgment and the same cannot be said to be erroneous.
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Pure Helium India Pvt. Ltd Vs. Oil and Natural Gas Commission | but unless such a prohibition/bar is found out the court cannot exercise its jurisdiction under Section 30 of the Act. The High Court, therefore, misdirected itself in law in posing a wrong question. It is true that where such prohibition exists, the court will not hesitate to set aside the award. 43. In the instant case, the appellant did not ask for any enhancement in the price. It only asked for the difference in price occurred owing to fluctuation in the rate of dollar. 44. It is true that by taking recourse to the interpretation of documents, the appellant did not become entitled to claim a higher amount than Rs. 149/- but, thereby the appellant had not unjustly enriched itself. Had the price of the dollar fallen, the respondent would have become entitled to claim the difference therefore. 45. The appellant quoted the foreign exchange component in its bids in terms of the notice inviting tenders. The same was asked for by the respondent itself for a definite purpose. A contract between the parties must be construed keeping in view the fact that the fluctuation in the rate of dollar was required to be kept in mind by the respondent having regard to the fact that the tender was global in nature and in the event the respondent was required to pay in foreign currency, the same would have an impact on the cost factor. 46. Clauses 2.5 and 2.7 aforementioned must be construed in such a manner so that effect to both of them may be given. Whereas Clause 2.6 prohibits escalation: Clause 2.7 makes the bidder liable for exchange fluctuations which does not amount to an escalation of the price or disturb their cost evaluation. The bid of the appellant had two components, namely, Indian currency component and US Dollar component. The appellant claimed $ 4-.60 within the total price of Rs. 149/- which was to be paid in Indian currency. In any manner, the claim did not violate clause 2.6. The appellant merely claimed foreign exchange component at the rate of $ 4.80 and no more. 47. The very fact that three different types of quotations were invited from the bidders itself is suggestive of the fact that each one of them was required to be construed in such a manner so as to apply in different situations. The submission of Mr. Rohtagi, the learned Additional Solicitor General to the effect that if such a factor was to be taken into consideration, the person who had quoted only in terms of Indian rupee would be at a disadvantage is stated to be rejected. The question as to whether suppliers quoting their bid in Indian currency alone would face disadvantage or not will depend upon the question as to whether they were similarly situated. One bidder may have to import the raw-materials: other may not have to. This itself will lead to a difference. In fact, those who did not bid with the amount of foreign exchange component cannot be placed on equal footing to those who in their bid pursuant to the notice inviting tender disclosed that they would have to make import where for only the foreign exchange component in the price had to be disclosed. 48. Furthermore, the circular letter dated 25.9.1989 issued by the Government of India itself clearly shows that a decision had been taken to make such payments. The contract having not been entered into by the parties herein as on the said date, the decision to include the said term would mean that the same shall be incorporated in the contracts which were to be executed in future. 49. It is further not in dispute that the respondent is bound by the directives issued by the Union of India. In fact from the letter dated 21.5.1990 it is evident that even for the purpose of entering into the contract approval of the Central Government was sought for and granted. Such a directive of the Central Government was not required to be made by way of a notification nor the same was required to have the force of law as the matter Involved a contract between the parties. 50. Mr. Rohtagi is not correct in his contention that such condition was required to be incorporated in the NIT inasmuch as from a plain reading of the said letter, it is evident that such a clause was to be incorporated in the notice inviting tenders ex majority cautela. 51. As regard the contention as to whether the notification issued under Section 40 of the Reserve Bank of India would be rules or regulations having an impact in the cost factor is concerned, the arbitrator had jurisdiction to decided the same, subject of course to application of correct principles of law in relation thereto. 52. Even assuming that the arbitrators faulted in that regard, it must be borne in mind that such a contention was raised on behalf of the appellant, only for the purpose of showing that several aspects of the matter arose before the learned arbitrators for making the award and any-one of them would be sufficient to uphold the award. 53. The court, having regard to the proposition of law that the jurisdiction of the arbitrator will be ousted only in the event that there exists a specific bar in the contract as regard raising of a particular claim must necessarily hold that the award was sustainable. As in the instant case there did not exist any such bar, it is enforceable in law. Furthermore, in the event the ratio of the decision of the High Court is accepted, the same would amount to re-hearing of the entire arguments once over again by the court as regard construction of a contract which is impermissible in law. 54. The arbitrators were called upon to determine a legal issue which included interpretation of the contract. The arbitrators, therefore, cannot be said to have been travelled beyond jurisdiction in making the award. CONCLUSION : | 0[ds]OUR CONCLUSION :20. The questions framed are self-contradictory and inconsistent. Whereas in framing question (a) a right approach had been adopted by the Division Bench, a wrong one had been adopted in framing question (b). It is not in dispute that there were three different nature of bids; which were required to be made in terms of the notice inviting tenders : (i) by foreign bidders; (ii) by Indian bidders quoting Indian price with the foreign exchange component therefore as import was required to be made; (iii) payable only in Indian rupee without foreign exchange component.21. Before the arbitrators apart from construction of the contract agreement, the questions which, inter alia, arose were : (a) the effect and purport of circular letter dated 25.8.1989 issued by the Central Government: (b) the conduct of the respondent in making the payments to the persons similarly situated.24. We, however, as discussed in details a little later are strictly not concerned as regard true import and purport of the relevant clauses of the contract agreement. Our concern is merely to see as to whether the learned arbitrators exceeded their jurisdiction in making the award.25. The learned arbitrators, as noticed, hereinbefore, in making the award took into consideration the documentary as well as circumstantial evidence including private pleadings of the parties. It is trite that the terms of the contract can be express or implied. The conduct of the parties would also be a relevant factor in the matter of construction of a contract.26. In Khardah Company Ltd. (supra), this Court held :...We agree that when a contract has been reduced to writing we must look only to that writing for ascertaining the terms of the agreement between the parties but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a term of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used herein that the parties had agreed on a particular term, there is nothing in law which prevents them from setting up that term, The terms of a contract can be expressed or implied from what has been expressed. It is in the ultimate analysis a question of construction of the contract. And again it is well established that in construing a contract it would be legitimate to take into account surrounding circumstances..... Construction of the contract agreement, therefore, was within the jurisdiction of the learned arbitrators having regard to the wide nature, scope and ambit of the arbitration agreement and they cannot, thus, be said to have misdirected themselves in passing the award by taking into consideration the conduct of the parties as also the circumstantial evidence.28. A dispute as regard the construction of Clause 23 of the contract vis-a-vis the notification issued under Section 40 of the Reserve Bank of India Act also fell for their consideration. Such a question of law, it is trite, is also arbitrable and was specifically raised by the appellant. The learned arbitrators were further entitled to consider the question as to whether the appellant had been discriminated against insofar as similar claims have been allowed by the respondent.35. Rajasthan State Mines & Minerals Ltd. (supra) whereupon Mr. Rohtagi placed strong reliance, this Court held that the dispute to the arbitrator could not be termed as without jurisdiction but proceeded to consider the question as to whether he will have authority or jurisdiction to grant damages or compensation in the teeth of the stipulation providing that no escalation would be granted and that the contractor would only be entitled to payment of the composite rate as mentioned and no other or further payment of any kind or item whatsoever shall be due and payable by the Company to the contractor.36. It was concluded :(a) It is not open to the Court to speculate, where on reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion.(b) It is not open to the Court to admit to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of the award.(c) If the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication then the Court cannot interfere.(d) If no specific question of law is referred, the decision of the Arbitrator on that question is not final, however much it may be within his jurisdiction and indeed essential for him to decide the question incidentally. In a case where specific question of law touching upon the jurisdiction of the arbitrator was referred for the decision of the arbitrator by the parties, then the finding of the arbitrator on the said question between the parties may be binding.(e) In a case of non-speaking award, the jurisdiction of the Court is limited. The award can be set aside if the arbitrator acts beyond his jurisdiction.(f) To find out whether the arbitrator has travelled beyond his jurisdiction, it would be necessary to consider the agreement between the parties containing the arbitration clause. Arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award.(g) In order to determine whether arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant could raise a particular claim before the arbitrator. If there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to the raising of the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction.37. With respect we agree with the conclusions arrived at in Rajasthan State Mines & Minerals Ltd. (supra).38. Clause (g) of the conclusion in the said case, as quoted supra, is not applicable in the instant case inasmuch as there does not exist any provision which does not permit or give the arbitrator the power to decide the dispute raised by the claimant nor there exist any specific bar in the contract to raise such claim.39. To the same effect is the decision of this Court in Food Corporation of India v. Surendra, Devendra & Mahendra Transport Co. [2003]1SCR839 .40. In Shyama Charan Agarwala (supra), this Court observed :19. Testing the case on hand on the touchstone of well-settled principles laid down by courts, we are unable to hold that the High Court exceeded its jurisdiction in interfering with the award or failed to exercise the jurisdiction vested in it to set aside the award. The approach of the High Court cannot be said to be contrary to the well-settled principles governing the scope of interference with an award of the arbitrator under the old Act. As regards the first item, the question was whether the contract contemplates the use of stone aggregate and stone metal from the local sources only, the source of supply being silent in the relevant clause. The arbitrator was of the view that the unprecedented situation of the Contractor being put to the necessity of procuring the stone material from far-off places was not visualized and the parties proceeded on the basis that such material was available locally. He further noted that the sample kept in the office of the Engineer concerned, admittedly pertained to the material procured from local sources. A letter addressed by the Chief Engineer in support of the Contractors claim was also relied on in this context. Hence, in these circumstances, the arbitrator can be said to have taken a reasonably possible view and therefore the High Court rightly declined to set aside the award insofar as the quantity of stone aggregate/stone metal brought to the site up to 24-1-1994 is concerned. The arbitrator acted within the confines of the jurisdiction in making the award on this part of theS OF THE CASE LAWS :41. The principles of law laid down in the aforementioned decisions leave no manner of doubt that the jurisdiction of the court in interfering with a non-speaking award is limited.42. The upshot of the above decisions is that if the claim of the claimant is not arbitrable having regard to the bar/prohibition created under the contract; the court can set aside the award but unless such a prohibition/bar is found out the court cannot exercise its jurisdiction under Section 30 of the Act. The High Court, therefore, misdirected itself in law in posing a wrong question. It is true that where such prohibition exists, the court will not hesitate to set aside the award.43. In the instant case, the appellant did not ask for any enhancement in the price. It only asked for the difference in price occurred owing to fluctuation in the rate of dollar.44. It is true that by taking recourse to the interpretation of documents, the appellant did not become entitled to claim a higher amount than Rs. 149/- but, thereby the appellant had not unjustly enriched itself. Had the price of the dollar fallen, the respondent would have become entitled to claim the difference therefore.45. The appellant quoted the foreign exchange component in its bids in terms of the notice inviting tenders. The same was asked for by the respondent itself for a definite purpose. A contract between the parties must be construed keeping in view the fact that the fluctuation in the rate of dollar was required to be kept in mind by the respondent having regard to the fact that the tender was global in nature and in the event the respondent was required to pay in foreign currency, the same would have an impact on the cost factor.46. Clauses 2.5 and 2.7 aforementioned must be construed in such a manner so that effect to both of them may be given. Whereas Clause 2.6 prohibits escalation: Clause 2.7 makes the bidder liable for exchange fluctuations which does not amount to an escalation of the price or disturb their cost evaluation. The bid of the appellant had two components, namely, Indian currency component and US Dollar component. The appellant claimed $ 4-.60 within the total price of Rs. 149/- which was to be paid in Indian currency. In any manner, the claim did not violate clause 2.6. The appellant merely claimed foreign exchange component at the rate of $ 4.80 and no more.47. The very fact that three different types of quotations were invited from the bidders itself is suggestive of the fact that each one of them was required to be construed in such a manner so as to apply in different situations. The submission of Mr. Rohtagi, the learned Additional Solicitor General to the effect that if such a factor was to be taken into consideration, the person who had quoted only in terms of Indian rupee would be at a disadvantage is stated to be rejected. The question as to whether suppliers quoting their bid in Indian currency alone would face disadvantage or not will depend upon the question as to whether they were similarly situated. One bidder may have to import the raw-materials: other may not have to. This itself will lead to a difference. In fact, those who did not bid with the amount of foreign exchange component cannot be placed on equal footing to those who in their bid pursuant to the notice inviting tender disclosed that they would have to make import where for only the foreign exchange component in the price had to be disclosed.48. Furthermore, the circular letter dated 25.9.1989 issued by the Government of India itself clearly shows that a decision had been taken to make such payments. The contract having not been entered into by the parties herein as on the said date, the decision to include the said term would mean that the same shall be incorporated in the contracts which were to be executed in future.49. It is further not in dispute that the respondent is bound by the directives issued by the Union of India. In fact from the letter dated 21.5.1990 it is evident that even for the purpose of entering into the contract approval of the Central Government was sought for and granted. Such a directive of the Central Government was not required to be made by way of a notification nor the same was required to have the force of law as the matter Involved a contract between the parties.50. Mr. Rohtagi is not correct in his contention that such condition was required to be incorporated in the NIT inasmuch as from a plain reading of the said letter, it is evident that such a clause was to be incorporated in the notice inviting tenders ex majority cautela.51. As regard the contention as to whether the notification issued under Section 40 of the Reserve Bank of India would be rules or regulations having an impact in the cost factor is concerned, the arbitrator had jurisdiction to decided the same, subject of course to application of correct principles of law in relation thereto.52. Even assuming that the arbitrators faulted in that regard, it must be borne in mind that such a contention was raised on behalf of the appellant, only for the purpose of showing that several aspects of the matter arose before the learned arbitrators for making the award and any-one of them would be sufficient to uphold the award.53. The court, having regard to the proposition of law that the jurisdiction of the arbitrator will be ousted only in the event that there exists a specific bar in the contract as regard raising of a particular claim must necessarily hold that the award was sustainable. As in the instant case there did not exist any such bar, it is enforceable in law. Furthermore, in the event the ratio of the decision of the High Court is accepted, the same would amount to re-hearing of the entire arguments once over again by the court as regard construction of a contract which is impermissible in law.54. The arbitrators were called upon to determine a legal issue which included interpretation of the contract. The arbitrators, therefore, cannot be said to have been travelled beyond jurisdiction in making the award. | 0 | 7,944 | 2,616 | ### 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:
but unless such a prohibition/bar is found out the court cannot exercise its jurisdiction under Section 30 of the Act. The High Court, therefore, misdirected itself in law in posing a wrong question. It is true that where such prohibition exists, the court will not hesitate to set aside the award. 43. In the instant case, the appellant did not ask for any enhancement in the price. It only asked for the difference in price occurred owing to fluctuation in the rate of dollar. 44. It is true that by taking recourse to the interpretation of documents, the appellant did not become entitled to claim a higher amount than Rs. 149/- but, thereby the appellant had not unjustly enriched itself. Had the price of the dollar fallen, the respondent would have become entitled to claim the difference therefore. 45. The appellant quoted the foreign exchange component in its bids in terms of the notice inviting tenders. The same was asked for by the respondent itself for a definite purpose. A contract between the parties must be construed keeping in view the fact that the fluctuation in the rate of dollar was required to be kept in mind by the respondent having regard to the fact that the tender was global in nature and in the event the respondent was required to pay in foreign currency, the same would have an impact on the cost factor. 46. Clauses 2.5 and 2.7 aforementioned must be construed in such a manner so that effect to both of them may be given. Whereas Clause 2.6 prohibits escalation: Clause 2.7 makes the bidder liable for exchange fluctuations which does not amount to an escalation of the price or disturb their cost evaluation. The bid of the appellant had two components, namely, Indian currency component and US Dollar component. The appellant claimed $ 4-.60 within the total price of Rs. 149/- which was to be paid in Indian currency. In any manner, the claim did not violate clause 2.6. The appellant merely claimed foreign exchange component at the rate of $ 4.80 and no more. 47. The very fact that three different types of quotations were invited from the bidders itself is suggestive of the fact that each one of them was required to be construed in such a manner so as to apply in different situations. The submission of Mr. Rohtagi, the learned Additional Solicitor General to the effect that if such a factor was to be taken into consideration, the person who had quoted only in terms of Indian rupee would be at a disadvantage is stated to be rejected. The question as to whether suppliers quoting their bid in Indian currency alone would face disadvantage or not will depend upon the question as to whether they were similarly situated. One bidder may have to import the raw-materials: other may not have to. This itself will lead to a difference. In fact, those who did not bid with the amount of foreign exchange component cannot be placed on equal footing to those who in their bid pursuant to the notice inviting tender disclosed that they would have to make import where for only the foreign exchange component in the price had to be disclosed. 48. Furthermore, the circular letter dated 25.9.1989 issued by the Government of India itself clearly shows that a decision had been taken to make such payments. The contract having not been entered into by the parties herein as on the said date, the decision to include the said term would mean that the same shall be incorporated in the contracts which were to be executed in future. 49. It is further not in dispute that the respondent is bound by the directives issued by the Union of India. In fact from the letter dated 21.5.1990 it is evident that even for the purpose of entering into the contract approval of the Central Government was sought for and granted. Such a directive of the Central Government was not required to be made by way of a notification nor the same was required to have the force of law as the matter Involved a contract between the parties. 50. Mr. Rohtagi is not correct in his contention that such condition was required to be incorporated in the NIT inasmuch as from a plain reading of the said letter, it is evident that such a clause was to be incorporated in the notice inviting tenders ex majority cautela. 51. As regard the contention as to whether the notification issued under Section 40 of the Reserve Bank of India would be rules or regulations having an impact in the cost factor is concerned, the arbitrator had jurisdiction to decided the same, subject of course to application of correct principles of law in relation thereto. 52. Even assuming that the arbitrators faulted in that regard, it must be borne in mind that such a contention was raised on behalf of the appellant, only for the purpose of showing that several aspects of the matter arose before the learned arbitrators for making the award and any-one of them would be sufficient to uphold the award. 53. The court, having regard to the proposition of law that the jurisdiction of the arbitrator will be ousted only in the event that there exists a specific bar in the contract as regard raising of a particular claim must necessarily hold that the award was sustainable. As in the instant case there did not exist any such bar, it is enforceable in law. Furthermore, in the event the ratio of the decision of the High Court is accepted, the same would amount to re-hearing of the entire arguments once over again by the court as regard construction of a contract which is impermissible in law. 54. The arbitrators were called upon to determine a legal issue which included interpretation of the contract. The arbitrators, therefore, cannot be said to have been travelled beyond jurisdiction in making the award. CONCLUSION :
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### Explanation:
to the bar/prohibition created under the contract; the court can set aside the award but unless such a prohibition/bar is found out the court cannot exercise its jurisdiction under Section 30 of the Act. The High Court, therefore, misdirected itself in law in posing a wrong question. It is true that where such prohibition exists, the court will not hesitate to set aside the award.43. In the instant case, the appellant did not ask for any enhancement in the price. It only asked for the difference in price occurred owing to fluctuation in the rate of dollar.44. It is true that by taking recourse to the interpretation of documents, the appellant did not become entitled to claim a higher amount than Rs. 149/- but, thereby the appellant had not unjustly enriched itself. Had the price of the dollar fallen, the respondent would have become entitled to claim the difference therefore.45. The appellant quoted the foreign exchange component in its bids in terms of the notice inviting tenders. The same was asked for by the respondent itself for a definite purpose. A contract between the parties must be construed keeping in view the fact that the fluctuation in the rate of dollar was required to be kept in mind by the respondent having regard to the fact that the tender was global in nature and in the event the respondent was required to pay in foreign currency, the same would have an impact on the cost factor.46. Clauses 2.5 and 2.7 aforementioned must be construed in such a manner so that effect to both of them may be given. Whereas Clause 2.6 prohibits escalation: Clause 2.7 makes the bidder liable for exchange fluctuations which does not amount to an escalation of the price or disturb their cost evaluation. The bid of the appellant had two components, namely, Indian currency component and US Dollar component. The appellant claimed $ 4-.60 within the total price of Rs. 149/- which was to be paid in Indian currency. In any manner, the claim did not violate clause 2.6. The appellant merely claimed foreign exchange component at the rate of $ 4.80 and no more.47. The very fact that three different types of quotations were invited from the bidders itself is suggestive of the fact that each one of them was required to be construed in such a manner so as to apply in different situations. The submission of Mr. Rohtagi, the learned Additional Solicitor General to the effect that if such a factor was to be taken into consideration, the person who had quoted only in terms of Indian rupee would be at a disadvantage is stated to be rejected. The question as to whether suppliers quoting their bid in Indian currency alone would face disadvantage or not will depend upon the question as to whether they were similarly situated. One bidder may have to import the raw-materials: other may not have to. This itself will lead to a difference. In fact, those who did not bid with the amount of foreign exchange component cannot be placed on equal footing to those who in their bid pursuant to the notice inviting tender disclosed that they would have to make import where for only the foreign exchange component in the price had to be disclosed.48. Furthermore, the circular letter dated 25.9.1989 issued by the Government of India itself clearly shows that a decision had been taken to make such payments. The contract having not been entered into by the parties herein as on the said date, the decision to include the said term would mean that the same shall be incorporated in the contracts which were to be executed in future.49. It is further not in dispute that the respondent is bound by the directives issued by the Union of India. In fact from the letter dated 21.5.1990 it is evident that even for the purpose of entering into the contract approval of the Central Government was sought for and granted. Such a directive of the Central Government was not required to be made by way of a notification nor the same was required to have the force of law as the matter Involved a contract between the parties.50. Mr. Rohtagi is not correct in his contention that such condition was required to be incorporated in the NIT inasmuch as from a plain reading of the said letter, it is evident that such a clause was to be incorporated in the notice inviting tenders ex majority cautela.51. As regard the contention as to whether the notification issued under Section 40 of the Reserve Bank of India would be rules or regulations having an impact in the cost factor is concerned, the arbitrator had jurisdiction to decided the same, subject of course to application of correct principles of law in relation thereto.52. Even assuming that the arbitrators faulted in that regard, it must be borne in mind that such a contention was raised on behalf of the appellant, only for the purpose of showing that several aspects of the matter arose before the learned arbitrators for making the award and any-one of them would be sufficient to uphold the award.53. The court, having regard to the proposition of law that the jurisdiction of the arbitrator will be ousted only in the event that there exists a specific bar in the contract as regard raising of a particular claim must necessarily hold that the award was sustainable. As in the instant case there did not exist any such bar, it is enforceable in law. Furthermore, in the event the ratio of the decision of the High Court is accepted, the same would amount to re-hearing of the entire arguments once over again by the court as regard construction of a contract which is impermissible in law.54. The arbitrators were called upon to determine a legal issue which included interpretation of the contract. The arbitrators, therefore, cannot be said to have been travelled beyond jurisdiction in making the award.
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