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Bhagat Raja Vs. The Union Of India & Ors | reached by the Compensation Appeal Tribunal dismissing an appeal by Shaw against an award to him of compensation for loss of employment as a clerk to a Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948 There the question of the practice and procedure with regard to the issue of a writ of certiorari was gone into at some length. The tribunal in that case had made a speaking order. It- was contended by the counsel for the tribunal that the Kings Bench Division had no power to examine the order in the case before it on certiorari on the ground that certiorari went only to defect of jurisdiction. This was turned down and the Divisional Court held that it had jurisdiction to quash by certiorari the decision of ant inferior tribunal when the latter had embodied the reasons for its decision in its order and those reasons are bad in law. For our purpose, wee need only refer to the observations of Lord Goddard C,. J. at p. 724 of the report where he said:"I think it is beneficial in this case that we should do so, not merely having regard to the facts of this case, tent because so many tribunals have now been set up, all of whom I am certain, desire to do their duty on the best way, and are often given very difficult sets of regulations and statutes to construe. It certainly must be for their benefit, and I have no doubt but that they will welcome that this Court should be able to give guidance to them if, in making their orders, they make their orders speaking orders, so that this Court can then consider them if they are brought before the Court on certiorari. 23. The case for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to this Court. 24. Counsel for the respondents referred us to the comment on this case made by Sir C. K. Allen, in his law and Order (Second Edition) at p. 259 to p. 261. According to the learned author, the Northumber land Compensation case might be a greater deterrent than encouragement to speaking orders inasmuch as "the prospect of having their mental process set forth in literary form, might be extremely disagreeable to them" and up to the year 1956 did not seems to have assisted greatly the means of recourse against decisions of inferior jurisdictions. Speaking for ourselves, with great respect to the learned author, we do not learned that the position of the Central Government as a reviewing authority under the Mineral Concession Rules can be equated with an appellate tribunal of the type whose decision was before the Kings Bench Division in England. If the State Government is enjoined by law to give its reasons, there is no reason why it should he difficult for the appellate authority to do so. The necessity and the desirability of tribunals making speaking orders has been adverted upon by different High Courts in India. Thus in Vedachala Mudaliar v. State of Madras, AIR 1952 Mad 276 . where the State Government of Madras set aside the order of the Central Road Traffic Board, without giving any reasons, it was observed that"When the policy of the legislature is to confer powers on administrative tribunals with a duty to discharge their elections judicially. I do not see any reason why they should be exempted from all those safeguards inherent in its exercise of that jurisdiction. From the standpoint of fair name of the tribunals and also in the interest of the public they should be expected to give reasons when they set aside an order of inferior tribunal Further, if reasons for an order are given there will be less scope for arbitrary or partial exercise of powers and the order ex facie will indicate whether extraneous circumstances were taken into consideration by the tribunal in passing the order. 25. Reference may also be made to Ramayya v. State of Andhra 1LR (1956) Andh 712 = (AIR 1956; Andh 217) and Annnamalai v. State of Madras, AIR 1357 Andh Pra 739. To the same effect is the judgment of this Kerala High Court in P. J. Joseph v. Superintendent of Post Offices, Kottayam, ILR(1961) 2 Ker 245 = (AIR 1961 Ker 197 ). 26. We have already commented that the order ,of the Central Government in this case is couched in the came language as was used in the case before this Court ~ 1966-1 SCR 466 =(AIR 1966 SC, 6711 (supra), in August 1965The old R. 55 was replaced by a new rule which Came into forces on 19th July1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only the new rule is aimed at calling upon all the parties including the State` Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party may challenge the grant of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to show that the comments and counter-comments, which were before the Central Government in this case, had been considered. It would certainly have been better if the order of 22nd June 1966 had shown that: the Central Government had taken into consideration all the fresh material adduced before it and for the reasons formulated they thought that the order of the State Government should not be disturbed. 27. | 1[ds]it will he amply clear that in exercising its powers of revision under R. 55 the Central Government must take into consideration not only the material which was before the State Government but comments and counter-comments, if any, which the parties may make regarding the order of the State Government. In other words, it is open to the parties to show how and where the State Government had gone wrong, or, why the order of the State Government should be confirmed. A party whose application for a mining lease is turned down by the State Government is therefore given an opportunity of showing that the State Government had taken into consideration irrelevant matters or based its decision on grounds which were not justified. At the time when applications for a licence are made by different parties to the State Government they tire not given an opportunity of showing any defects or demerits in the applications of the others or why their applications should he preferred to others. The State Government has to make up its mind by considering the applications before it as to which party is to be preferred to the other or others. S 11 (3), as already noted prescribes the matters which the State Government must consider before selecting one` out of the numerous applicants the possibility of the State Government being misled in its consideration of the matters cannot be ruled out. It may be that a party to whom a lease is directed to be granted has in fact no special knowledge or experience requisite for the mining operations or it may be that his financial resources have not been properly disclosed, It may also be that the nature and quality of the technical staff employed or to be employed by him is not of the requisite is standard. In an application for revision under R. 55 it will be open to an aggrieved party to contend that the matters covered by TV sub-s. (3) of S. 11 were not properly examined by the State Government, or that the State Government had not before it all the available material to make up its mind with respect thereto before granting a licence. In a case where complaints of this nature are made off necessity, the central Government has to scrutinise matters which were not canvassed before the State Government A question may arise in such cases as to whether the order of the Central Government in the form in which it was made in this case would be sufficient, specially in view of the fact that the correctness thereof may be tested in appeal to this Court8. It is now well settled that in exercising its powers of revision under R.55 the Central Government discharges functions which are quasi Judicial;10. The order of the Central Government of June 22, 1966 is so worded as to he open to the construction that the reviewing authority was primarily concerned with finding out whether any grounds had been made out for interfering with the decision of the State Government. In other words the Central Government was not so much concerned to examine the grounds or the reasons for the decision of the State Government but to find out whether there was any cause for disturbing the same. Prima facie the order does not show that the reviewing authority had any thought of expressing its own reasons for maintaining the decision arrived at. If detailed reasons had been given by the State Government and the Central Government had indicated clearly that it was accepting the reasons for the decision of the State Government, one would be in a position to say that the reasons for the grant of a lease to a person other than the appellant were obvious. But, where as here, the State Government does not find any fault or defect in the application of the unsuccessful applicant and merely prefers another on the ground that "he had adequate general experience and technical knowledge and was an old lessee without any arrears of mineral dues" it is difficult to say what turned the scale in favour of the successful applicant excepting the fact that he was known to the State Government from before. We do not want to express any views on this but if this be a proper test, then no new entrant in the field can have any chance of success where there is an old lessee competing with him. The order of the Central Government does not bring out any reason for its own decision except that no grounds for interference with the decision arrived at was established15. As has already been noted, the board of directors in that case did not give any reasons for the refusal to register and the Central Government adopting the same course reversed the decision of the directors without giving any reasons. Clearly, the act of the Central Government there savored of arbitrariness. Under the articles of association of the company the directors were not obliged to give any reasons. Their power of refusal was unrestricted if they acted bona fide or in the interest of the company. The reversal of their discretion clearly amounted to a finding that they had acted arbitrarily or mala fide and one was left to guess the reasons of the Central Government for coming to this conclusion. As has already been said, when the authority whose decision is be owed gives reason for its conclusion and the reviewing authority affirms the decision for the reasons given by the lower authority one can assume that the reviewing authority found the reasons given by the lower authority as acceptable to it; but, where the lower authority itself fails to give any reason other than that the successful applicant was an old lessee and the reviewing authority does not even refer to that ground, this Court has to grope in the dark for finding into reasons for upholding or rejecting the decision of the reviewing authority . After all a tribunal which exercises judicial or quasi judicial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of parties of far-reaching consequence to them are adjudicated upon in a summary fashion. without giving a personal hearing where proposals and counter-proposals are made and examined, the least can be expected is that the tribunal should tell the party why the decision is going against him in all cases where - the law gives a further right of appealOur attention was drawn in particular to R. 26 of the Mineral Concession Rules which enjoined upon the State Government to communicate in writing the reasons for any order refusing to grant or renew a mining lease. The absence of any provision in R. 55 for giving such reasons was said to be decisive on the matter as indicative of the view of the legislature that there was no necessity for giving reasons for the order on review. We find ourselves enable to accept this contention. Take the case where the Central Government sets aside the order of the State Government without giving any reasons as in Harinagar Sugar Mills case. The party who loses before the Central Government cannot know why he had lost it and would be in great difficulty in pressing his appeal to the Supreme Court and this Court would have to do the best it could in circumstances which are not conducive to the proper disposal of the appeal.. In a case wherethe Central Government merely affirms the order of the State Government, it should make it clear in the order itself as to why it is affirming the same. It is not suggested that the Central Government should write out a judgment as Courts of law are wont to do. But we find no merit in the contention that an authority which is called upon to determine and adjudicate upon the rights of parties subject only to a right of appeal to this Court should not he expected to give all outline of the process of reasoning by which they find themselves in agreement with the decision of the State Government. As a matter of fact, R. 26 considerably lightens the burden of the Central Government in this respect. As the State Government has to give reasons, the Central Government after considering the comments and counter-comments on the reasons given by the State Government should have no difficulty in making up its mind as to whether the reasoning of the State Government is acceptable and to state as briefly as possible the reasons for its own conclusionThe above observations were sought to be pressed into service by the counsel for the respondents but there is a good dead of difference between that case and the one with which we have to deal. The High Court there was merely called upon to give its opinion on the statement of facts set out by the Appellate Tribunal. It was for the Income-tax Officer in the first instance to accept or reject the explanation with regard to the cash credit. If the Income-tax Officer found the assessees explanation unacceptable, he had to say why he did not accept it. Unless the assessee in appeal was able to point out to the Appellate authorities some flaw in the reasoning of the Income-tax Officer, it is not necessary for the appellate authorities to give their reasons independently. The explanation of the assessee is either accepted or rejected; but in the case which we have before us, the State Government has to consider the merits and demerits of the applications and to give its reasons why it prefers one to the other or others. There is a dispute between two or more contesting parties and the reasons for preferring one to the other or others may be more than one. It is not a question of accepting or rejecting an explanation. In our opinion what was said in the above Income-tax case will not apply in the case of a review by the Central Government of a decision of the State Government under the Act and the Rules22. Thecase for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to this CourtWe have already commented that the order ,of the Central Government in this case is couched in the came language as was used in the case before this Court ~ 1966-1 SCR 466 =(AIR 1966 SC, 6711 (supra), in August 1965The old R. 55 was replaced by a new rule which Came into forces on 19th July1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only the new rule is aimed at calling upon all the parties including the State` Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party may challenge the grant of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to show that the comments and counter-comments, which were before the Central Government in this case, had been considered. It would certainly have been better if the order of 22nd June 1966 had shown that: the Central Government had taken into consideration all the fresh material adduced before it and for the reasons formulated they thought that the order of the State Government should not be disturbed. | 1 | 8,714 | 2,088 | ### Instruction:
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reached by the Compensation Appeal Tribunal dismissing an appeal by Shaw against an award to him of compensation for loss of employment as a clerk to a Hospital Board payable under the National Health Service (Transfer of Officers and Compensation) Regulations, 1948 There the question of the practice and procedure with regard to the issue of a writ of certiorari was gone into at some length. The tribunal in that case had made a speaking order. It- was contended by the counsel for the tribunal that the Kings Bench Division had no power to examine the order in the case before it on certiorari on the ground that certiorari went only to defect of jurisdiction. This was turned down and the Divisional Court held that it had jurisdiction to quash by certiorari the decision of ant inferior tribunal when the latter had embodied the reasons for its decision in its order and those reasons are bad in law. For our purpose, wee need only refer to the observations of Lord Goddard C,. J. at p. 724 of the report where he said:"I think it is beneficial in this case that we should do so, not merely having regard to the facts of this case, tent because so many tribunals have now been set up, all of whom I am certain, desire to do their duty on the best way, and are often given very difficult sets of regulations and statutes to construe. It certainly must be for their benefit, and I have no doubt but that they will welcome that this Court should be able to give guidance to them if, in making their orders, they make their orders speaking orders, so that this Court can then consider them if they are brought before the Court on certiorari. 23. The case for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to this Court. 24. Counsel for the respondents referred us to the comment on this case made by Sir C. K. Allen, in his law and Order (Second Edition) at p. 259 to p. 261. According to the learned author, the Northumber land Compensation case might be a greater deterrent than encouragement to speaking orders inasmuch as "the prospect of having their mental process set forth in literary form, might be extremely disagreeable to them" and up to the year 1956 did not seems to have assisted greatly the means of recourse against decisions of inferior jurisdictions. Speaking for ourselves, with great respect to the learned author, we do not learned that the position of the Central Government as a reviewing authority under the Mineral Concession Rules can be equated with an appellate tribunal of the type whose decision was before the Kings Bench Division in England. If the State Government is enjoined by law to give its reasons, there is no reason why it should he difficult for the appellate authority to do so. The necessity and the desirability of tribunals making speaking orders has been adverted upon by different High Courts in India. Thus in Vedachala Mudaliar v. State of Madras, AIR 1952 Mad 276 . where the State Government of Madras set aside the order of the Central Road Traffic Board, without giving any reasons, it was observed that"When the policy of the legislature is to confer powers on administrative tribunals with a duty to discharge their elections judicially. I do not see any reason why they should be exempted from all those safeguards inherent in its exercise of that jurisdiction. From the standpoint of fair name of the tribunals and also in the interest of the public they should be expected to give reasons when they set aside an order of inferior tribunal Further, if reasons for an order are given there will be less scope for arbitrary or partial exercise of powers and the order ex facie will indicate whether extraneous circumstances were taken into consideration by the tribunal in passing the order. 25. Reference may also be made to Ramayya v. State of Andhra 1LR (1956) Andh 712 = (AIR 1956; Andh 217) and Annnamalai v. State of Madras, AIR 1357 Andh Pra 739. To the same effect is the judgment of this Kerala High Court in P. J. Joseph v. Superintendent of Post Offices, Kottayam, ILR(1961) 2 Ker 245 = (AIR 1961 Ker 197 ). 26. We have already commented that the order ,of the Central Government in this case is couched in the came language as was used in the case before this Court ~ 1966-1 SCR 466 =(AIR 1966 SC, 6711 (supra), in August 1965The old R. 55 was replaced by a new rule which Came into forces on 19th July1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only the new rule is aimed at calling upon all the parties including the State` Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party may challenge the grant of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to show that the comments and counter-comments, which were before the Central Government in this case, had been considered. It would certainly have been better if the order of 22nd June 1966 had shown that: the Central Government had taken into consideration all the fresh material adduced before it and for the reasons formulated they thought that the order of the State Government should not be disturbed. 27.
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for finding into reasons for upholding or rejecting the decision of the reviewing authority . After all a tribunal which exercises judicial or quasi judicial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of parties of far-reaching consequence to them are adjudicated upon in a summary fashion. without giving a personal hearing where proposals and counter-proposals are made and examined, the least can be expected is that the tribunal should tell the party why the decision is going against him in all cases where - the law gives a further right of appealOur attention was drawn in particular to R. 26 of the Mineral Concession Rules which enjoined upon the State Government to communicate in writing the reasons for any order refusing to grant or renew a mining lease. The absence of any provision in R. 55 for giving such reasons was said to be decisive on the matter as indicative of the view of the legislature that there was no necessity for giving reasons for the order on review. We find ourselves enable to accept this contention. Take the case where the Central Government sets aside the order of the State Government without giving any reasons as in Harinagar Sugar Mills case. The party who loses before the Central Government cannot know why he had lost it and would be in great difficulty in pressing his appeal to the Supreme Court and this Court would have to do the best it could in circumstances which are not conducive to the proper disposal of the appeal.. In a case wherethe Central Government merely affirms the order of the State Government, it should make it clear in the order itself as to why it is affirming the same. It is not suggested that the Central Government should write out a judgment as Courts of law are wont to do. But we find no merit in the contention that an authority which is called upon to determine and adjudicate upon the rights of parties subject only to a right of appeal to this Court should not he expected to give all outline of the process of reasoning by which they find themselves in agreement with the decision of the State Government. As a matter of fact, R. 26 considerably lightens the burden of the Central Government in this respect. As the State Government has to give reasons, the Central Government after considering the comments and counter-comments on the reasons given by the State Government should have no difficulty in making up its mind as to whether the reasoning of the State Government is acceptable and to state as briefly as possible the reasons for its own conclusionThe above observations were sought to be pressed into service by the counsel for the respondents but there is a good dead of difference between that case and the one with which we have to deal. The High Court there was merely called upon to give its opinion on the statement of facts set out by the Appellate Tribunal. It was for the Income-tax Officer in the first instance to accept or reject the explanation with regard to the cash credit. If the Income-tax Officer found the assessees explanation unacceptable, he had to say why he did not accept it. Unless the assessee in appeal was able to point out to the Appellate authorities some flaw in the reasoning of the Income-tax Officer, it is not necessary for the appellate authorities to give their reasons independently. The explanation of the assessee is either accepted or rejected; but in the case which we have before us, the State Government has to consider the merits and demerits of the applications and to give its reasons why it prefers one to the other or others. There is a dispute between two or more contesting parties and the reasons for preferring one to the other or others may be more than one. It is not a question of accepting or rejecting an explanation. In our opinion what was said in the above Income-tax case will not apply in the case of a review by the Central Government of a decision of the State Government under the Act and the Rules22. Thecase for giving reasons or for making a speaking order becomes much stronger when the decision can be challenged not only by the issue of a writ of certiorari but an appeal to this CourtWe have already commented that the order ,of the Central Government in this case is couched in the came language as was used in the case before this Court ~ 1966-1 SCR 466 =(AIR 1966 SC, 6711 (supra), in August 1965The old R. 55 was replaced by a new rule which Came into forces on 19th July1965. Whereas the old rule directed the Central Government to consider comments on the petition of review by the State Government or other authority only the new rule is aimed at calling upon all the parties including the State` Government to make their comments in the matter and the parties are given the right to make further comments on those made by the other or others. In effect, the parties are given a right to bring forth material which was not before the State Government. It is easy to see that an unsuccessful party may challenge the grant of a lease in favour of another by pointing out defects or demerits which did not come to the knowledge of the State Government. The order in this case does not even purport to show that the comments and counter-comments, which were before the Central Government in this case, had been considered. It would certainly have been better if the order of 22nd June 1966 had shown that: the Central Government had taken into consideration all the fresh material adduced before it and for the reasons formulated they thought that the order of the State Government should not be disturbed.
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ARISUDANA SPINNING MILLS LTD Vs. COMMISSIONER OF INCOME TAX, LUDHIANA | 1. Heard Learned Counsel on both sides. 2. For the sake of convenience, we may refer to the facts of Civil Appeal No. 1070 of 2009 filed by the Department, which concerns Assessment Year 1998-1999. The Assessee is aggrieved by denial of deduction which it claimed u/s 80IA of the Income Tax Act, 1961 (Act, for short). In this case, Return was filed by the Assessee on 30th November, 1998, showing income of Rs. 36,27,866/-. The said Return was processed u/s 143(1)(a) of the Act. The case was thereafter selected for scrutiny. Notice u/s 143(2) of the Act was, accordingly, issued. The Assessing Officer found that the Assessee-Company was engaged in the business of manufacturing of yarn. The Assessee derived, during the relevant assessment year, a gross total income of Rs. 51,82,666/- from what it called manufacturing activity. It denied that it had undertaken any trading activity during the year in question. On the said sum of Rs. 51,82,666/- the Assessee claimed deduction at the rate of thirty per cent u/s 80IA of the Act amounting to Rs. 15,54,800/-. The Assessing Officer found that the Assessee had not maintained a separate trading and profit and loss account for the goods manufactured. In the assessment year in question, it appears that the Assessee had sold raw wool, wool waste and textile and knitting cloths. When a query was raised, the Assessee contended that, for certain business exigencies in the assessment year in question, it had sold the above items. However, according to the Assessee, the sale of raw wool, wool waste, etc., would not disentitle it from claiming the benefit u/s 80IA of the Act on the total sum of Rs. 51,82,666/- at the rate of 30%. As stated above, the Department found that the Assessee has not maintained the accounts for manufacture of yarn actually produced as a part of industrial undertaking. Consequently, the Assessing Officer worked out, on his own, the manufacturing account, as indicated in his Order, giving a bifurcation in terms of quantity of raw wool produced, which is indicated at page 32 of the SLP paper book. of course, the Assessee challenged the preparation of separate trading account by the Assessing Officer in respect of manufacturing and trading activities before the Commissioner of Income Tax (Appeals) (CIT(A), for short). The CIT(A), however, applying the rule of consistency, followed the decision of the earlier year and allowed the appeal. However, the Income Tax Appellate Tribunal has reversed the findings given by CIT(A), which view has been upheld by the High Court. Hence, the civil appeal has been filed by the Assessee. 3. In our view, the findings given by ITAT and the High Court are findings of fact. In this case, we are not concerned with the interpretation of Section 80IA of the Act. On facts, we find that the Assessee ought to have maintained a separate account in respect of raw material which it had sold during the assessment year. If the Assessee had maintained a separate account, then, in that event, a clear picture would have emerged which would have indicated the income accrued from the manufacturing activity and the income accrued on the sale of raw material. We do not know the reason why separate accounts were not maintained for the raw material sold and for the income derived from manufacture of yarn. | 0[ds]3. In our view, the findings given by ITAT and the High Court are findings of fact. In this case, we are not concerned with the interpretation of Section 80IA of the Act. On facts, we find that the Assessee ought to have maintained a separate account in respect of raw material which it had sold during the assessment year. If the Assessee had maintained a separate account, then, in that event, a clear picture would have emerged which would have indicated the income accrued from the manufacturing activity and the income accrued on the sale of raw material. We do not know the reason why separate accounts were not maintained for the raw material sold and for the income derived from manufacture of yarn. | 0 | 661 | 141 | ### Instruction:
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1. Heard Learned Counsel on both sides. 2. For the sake of convenience, we may refer to the facts of Civil Appeal No. 1070 of 2009 filed by the Department, which concerns Assessment Year 1998-1999. The Assessee is aggrieved by denial of deduction which it claimed u/s 80IA of the Income Tax Act, 1961 (Act, for short). In this case, Return was filed by the Assessee on 30th November, 1998, showing income of Rs. 36,27,866/-. The said Return was processed u/s 143(1)(a) of the Act. The case was thereafter selected for scrutiny. Notice u/s 143(2) of the Act was, accordingly, issued. The Assessing Officer found that the Assessee-Company was engaged in the business of manufacturing of yarn. The Assessee derived, during the relevant assessment year, a gross total income of Rs. 51,82,666/- from what it called manufacturing activity. It denied that it had undertaken any trading activity during the year in question. On the said sum of Rs. 51,82,666/- the Assessee claimed deduction at the rate of thirty per cent u/s 80IA of the Act amounting to Rs. 15,54,800/-. The Assessing Officer found that the Assessee had not maintained a separate trading and profit and loss account for the goods manufactured. In the assessment year in question, it appears that the Assessee had sold raw wool, wool waste and textile and knitting cloths. When a query was raised, the Assessee contended that, for certain business exigencies in the assessment year in question, it had sold the above items. However, according to the Assessee, the sale of raw wool, wool waste, etc., would not disentitle it from claiming the benefit u/s 80IA of the Act on the total sum of Rs. 51,82,666/- at the rate of 30%. As stated above, the Department found that the Assessee has not maintained the accounts for manufacture of yarn actually produced as a part of industrial undertaking. Consequently, the Assessing Officer worked out, on his own, the manufacturing account, as indicated in his Order, giving a bifurcation in terms of quantity of raw wool produced, which is indicated at page 32 of the SLP paper book. of course, the Assessee challenged the preparation of separate trading account by the Assessing Officer in respect of manufacturing and trading activities before the Commissioner of Income Tax (Appeals) (CIT(A), for short). The CIT(A), however, applying the rule of consistency, followed the decision of the earlier year and allowed the appeal. However, the Income Tax Appellate Tribunal has reversed the findings given by CIT(A), which view has been upheld by the High Court. Hence, the civil appeal has been filed by the Assessee. 3. In our view, the findings given by ITAT and the High Court are findings of fact. In this case, we are not concerned with the interpretation of Section 80IA of the Act. On facts, we find that the Assessee ought to have maintained a separate account in respect of raw material which it had sold during the assessment year. If the Assessee had maintained a separate account, then, in that event, a clear picture would have emerged which would have indicated the income accrued from the manufacturing activity and the income accrued on the sale of raw material. We do not know the reason why separate accounts were not maintained for the raw material sold and for the income derived from manufacture of yarn.
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3. In our view, the findings given by ITAT and the High Court are findings of fact. In this case, we are not concerned with the interpretation of Section 80IA of the Act. On facts, we find that the Assessee ought to have maintained a separate account in respect of raw material which it had sold during the assessment year. If the Assessee had maintained a separate account, then, in that event, a clear picture would have emerged which would have indicated the income accrued from the manufacturing activity and the income accrued on the sale of raw material. We do not know the reason why separate accounts were not maintained for the raw material sold and for the income derived from manufacture of yarn.
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A.V.Subramanian Vs. Uoi | Kurian Joseph, J. 1. Leave granted. 2. Aggrieved by the award passed by the Additional District Judge, Karaikal on 24.1.1994 in L.A.O.P. No.38/1993, the Union of India approached the High Court in A.S.583 of 1994. The said appeal was partly allowed by the judgment dated 23.02.2001, reducing the compensation. 3. Aggrieved, the appellant approached this Court in SLP(C) No.16046 of 2001, which was dismissed in limine - Special leave petition is dismissed, by order dated 28.09.2001. Since, the dismissal was not on merits, the appellant filed a review petition before the High Court on 20.11.2001. When the said review petition was pending before the High Court, in a connected matter, this Court in Civil Appeal No.1500 of 2004 by judgment dated 08.11.2005 titled Pattammal & Others. v. Union of India and Another, reported in 2006(1) R.C.R.(Civil) 14 : (2005) 13 SCC 63 , allowed the appeal and restored the award passed by the Reference Court. The appellant contended before the High Court that in view of the subsequent judgment by this Court and in view of the fact that the review petition was already pending before the High Court, the appellant should get the benefit of the judgment dated 08.11.2005 of this Court. It was not in dispute that the acquisition in both the cases was pursuant to the same notification and for the same purpose and the acquired lands were similar. However, the High Court declined to review the judgment. Thus, aggrieved, the appellant is before this Court. 4. As rightly submitted by Shri Venkatramani, learned senior counsel appearing for the Union of India, unless the order passed by this Court in the special leave petition, which rendered in dismissal on 28.09.2001, is reviewed and unless there is also a challenge thereafter to the original order passed by the High Court dated 23.02.2001, the appellant cannot succeed. 5. We may not have any quarrel with the legal position. However, having regard to the factual position that in a land acquisition case the claimants have received different amounts by way of compensation and that too in respect of the lands of same nature covered by the same notification and acquired for the same purpose, we are of the view that all these technicalities should give way since they are procedural and which can still be cured. We do not think that the appellant should be driven to such steps having regard to the factual position we have referred to above. 6. Therefore, we are of the view that the lis should be given a quietus. | 1[ds]5. We may not have any quarrel with the legal position. However, having regard to the factual position that in a land acquisition case the claimants have received different amounts by way of compensation and that too in respect of the lands of same nature covered by the same notification and acquired for the same purpose, we are of the view that all these technicalities should give way since they are procedural and which can still be cured. We do not think that the appellant should be driven to such steps having regard to the factual position we have referred to above6. Therefore, we are of the view that the lis should be given a quietus. | 1 | 486 | 128 | ### 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:
Kurian Joseph, J. 1. Leave granted. 2. Aggrieved by the award passed by the Additional District Judge, Karaikal on 24.1.1994 in L.A.O.P. No.38/1993, the Union of India approached the High Court in A.S.583 of 1994. The said appeal was partly allowed by the judgment dated 23.02.2001, reducing the compensation. 3. Aggrieved, the appellant approached this Court in SLP(C) No.16046 of 2001, which was dismissed in limine - Special leave petition is dismissed, by order dated 28.09.2001. Since, the dismissal was not on merits, the appellant filed a review petition before the High Court on 20.11.2001. When the said review petition was pending before the High Court, in a connected matter, this Court in Civil Appeal No.1500 of 2004 by judgment dated 08.11.2005 titled Pattammal & Others. v. Union of India and Another, reported in 2006(1) R.C.R.(Civil) 14 : (2005) 13 SCC 63 , allowed the appeal and restored the award passed by the Reference Court. The appellant contended before the High Court that in view of the subsequent judgment by this Court and in view of the fact that the review petition was already pending before the High Court, the appellant should get the benefit of the judgment dated 08.11.2005 of this Court. It was not in dispute that the acquisition in both the cases was pursuant to the same notification and for the same purpose and the acquired lands were similar. However, the High Court declined to review the judgment. Thus, aggrieved, the appellant is before this Court. 4. As rightly submitted by Shri Venkatramani, learned senior counsel appearing for the Union of India, unless the order passed by this Court in the special leave petition, which rendered in dismissal on 28.09.2001, is reviewed and unless there is also a challenge thereafter to the original order passed by the High Court dated 23.02.2001, the appellant cannot succeed. 5. We may not have any quarrel with the legal position. However, having regard to the factual position that in a land acquisition case the claimants have received different amounts by way of compensation and that too in respect of the lands of same nature covered by the same notification and acquired for the same purpose, we are of the view that all these technicalities should give way since they are procedural and which can still be cured. We do not think that the appellant should be driven to such steps having regard to the factual position we have referred to above. 6. Therefore, we are of the view that the lis should be given a quietus.
### Response:
1
### Explanation:
5. We may not have any quarrel with the legal position. However, having regard to the factual position that in a land acquisition case the claimants have received different amounts by way of compensation and that too in respect of the lands of same nature covered by the same notification and acquired for the same purpose, we are of the view that all these technicalities should give way since they are procedural and which can still be cured. We do not think that the appellant should be driven to such steps having regard to the factual position we have referred to above6. Therefore, we are of the view that the lis should be given a quietus.
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Workmen Of Gujarat Electricity Board,Baroda Vs. The Gujarat Electricity Board, Baroda | the wages being paid by the Board, and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the employees of those Electric Supply Companies. One of those Electric Supply Companies is the Ahmedabad Electricity Co. Ltd., Ahmedabad, in whose case wages were fixed by an Award published in 1956 Industrial Court Reporter at p. 746. The other is the Viramgam, Electric Supply Co. Ltd., Viramgam, the Award relating to which is published in 1958 Industrial Court Reporter at p. 1010.The argument was that wages paid by the Board should not be lower than those paid by these two Electric Supply Companies which were engaged in the same line of business of production and supply of electricity. The Tribunal brushed aside the examples by stating the they were not comparable with the Board. In taking this view, we do not think that the Tribunal committed any error.In Williamsons (India) Private Ltd. v. Its Workmen, 1962-1 Lab LJ 302 (SC) this Court clearly laid down what criteria had been established for considering what are comparable concerns when dealing with a question of wage fixation. It was held :-"This Court has repeatedly observed that, in considering the question about comparable concerns, tribunals should bear in mind all the relevant facts in relation to the problem. The extent of the business carried by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reserves, the dividends declared by them and the prospects about the future of their business - these and all other relevant facts have to be borne in mind." In the present case, it is clear that if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board. As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas; but also includes preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licensees. The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them. The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns. The supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns. Then, there is the important factor that the Board is running at the huge loss every year. The workmen did not provide figures to show that was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit. In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns when dealing with the question of payment of dearness allowance by the Board. In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, if there be no such undertakings available, of undertaking in other industries in the Saurashtra region so as to enable the Sangh to claim wages on parity with those undertakings. We do not think that there is any justification for remanding the case for such a purpose at this stage. It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so. Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal. The further requests that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, not losses has also no force, because when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness-box,no attempt was made on behalf of the Sangh to cross-examine the deponent in order to establish that the losses had not been correctly represented. We do not think that, in these circumstances, any remand of this case is called for. It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry-cum-region basis;but that mistake does not justify any interference with the award which is otherwise correct and justified. The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of the Board in the Gujarat Region as well as a large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlements and only 466 employees had come forward with this demand without establishing that the demand was restricted to bringing up their wages to the level of minimum wages. | 0[ds]5. So far as the question of capacity of the Board to pay is concerned, there is a clear finding by the Tribunal that the Board is running at heavy losses, so that it is not in a position to meet the extra expenditure of about Rs. 49 lakhs a year which will be involved if the dearness allowance is fixed as claimed by the Sangh. The Tribunal has found that the Board, when constituted on 1st may, 1960, inherited an accumulated deficit of over Rs. 2 crores from the Bombay State Electricity Board. In its own working, the Board sustained a loss of over Rs. 29 lakhs between 1st May 1960 and 31st March, 1961, and in the two succeeding years 1961-62 and 1962-63, the losses incurred were in the region of Rs. 39 lakhs and Rs. 41 lakhs. The Tribunal, thus, held that the total loss was to the tune of Rs. 31 millions; and since the Board had undertaken a further liability of over Rs. 6.75 lakhs a year under the settlements and the offer to individual workman, it could not possibly undertake the further burden of paying about Rs. 49 lakhs per year as increased dearness allowance. The Tribunal was also of the opinion that, considering this financial condition of the Board, there was no justification for introducing a Gratuity Scheme for workmen governed by the Provident Fund Rules, nor was there any justification for calculation of pension on the basis of adding 50 per cent of the dearness allowance to the basic pay6. So far as the first point is concerned, we think that there is some force in the submission made by learned counsel. The deficit inherited by the Board from it predecessor cannot be treated as a revenue loss which will have bearing on its paying capacity. Such inherited deficit should really have been treated as capital loss; but even this loss cannot be completely ignored, because the paying capacity of an employer has to take into account even capital losses. However, even if this accumulated deficit of over Rs. 2 corers is ignored, it is clear that, during the three years after its formation, the Board itself incurred heavy losses which totalled to about Rs. 110 lakhs.Consequently, even if that accumulated deficit is not taken into account it cannot be held that the Board will have the capacity of bearing the additional financial burden to the tune of Rs. 49 lakhs a year, if required to pay dearness allowance at the rates claimed by the Sangh7. On the second point, we are unable to accept the submission made by learned counsel. The Board was constituted under the Electricity (Supply) Act No. 534 of 1948 and Section 18 of that Act lays down the duties of the Board.By its very constitution, the Board is charged with the general duty of promoting the co-ordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by any licensee. In particular, the duty of the Board is to prepare and carry out schemes with the objects mentioned above; to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; and to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply. When the Board was constituted to carry out these duties, its capacity to bear the burden of paying wages to its employees has to be worked out after taking into account all the activities which the statute requires it to carry on.The running of Power House is only one of the branch of those activities. The profit that the Board can be held to have earned can only be worked out after including in the accounts all the expenditure incurred by it on all its scheme for distribution of electricity to licensees or to consumers, whether in urban areas or in rural areas. In fact, there is not even an assertion on behalf of the appellants-workmen that they were employed solely in connection with a profitable undertaking of the Board and had nothing to do at with the other activities which the Board is actually carrying onIn the present case, it is clear that if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board. As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas; but also includes preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licensees. The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them. The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns. The supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns. Then, there is the important factor that the Board is running at the huge loss every year. The workmen did not provide figures to show that was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit. In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns when dealing with the question of payment of dearness allowance by the Board. In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, if there be no such undertakings available, of undertaking in other industries in the Saurashtra region so as to enable the Sangh to claim wages on parity with those undertakings. We do not think that there is any justification for remanding the case for such a purpose at this stage. It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so. Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal. The further requests that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, not losses has also no force, because when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness-box,no attempt was made on behalf of the Sangh to cross-examine the deponent in order to establish that the losses had not been correctly represented. We do not think that, in these circumstances, any remand of this case is called for. It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry-cum-region basis;but that mistake does not justify any interference with the award which is otherwise correct and justified. The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of the Board in the Gujarat Region as well as a large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlements and only 466 employees had come forward with this demand without establishing that the demand was restricted to bringing up their wages to the level of minimum wages. | 0 | 4,133 | 1,554 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the wages being paid by the Board, and there was no justification for refusing the demand for additional dearness allowance which would place the employees of the Board on par with the employees of those Electric Supply Companies. One of those Electric Supply Companies is the Ahmedabad Electricity Co. Ltd., Ahmedabad, in whose case wages were fixed by an Award published in 1956 Industrial Court Reporter at p. 746. The other is the Viramgam, Electric Supply Co. Ltd., Viramgam, the Award relating to which is published in 1958 Industrial Court Reporter at p. 1010.The argument was that wages paid by the Board should not be lower than those paid by these two Electric Supply Companies which were engaged in the same line of business of production and supply of electricity. The Tribunal brushed aside the examples by stating the they were not comparable with the Board. In taking this view, we do not think that the Tribunal committed any error.In Williamsons (India) Private Ltd. v. Its Workmen, 1962-1 Lab LJ 302 (SC) this Court clearly laid down what criteria had been established for considering what are comparable concerns when dealing with a question of wage fixation. It was held :-"This Court has repeatedly observed that, in considering the question about comparable concerns, tribunals should bear in mind all the relevant facts in relation to the problem. The extent of the business carried by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reserves, the dividends declared by them and the prospects about the future of their business - these and all other relevant facts have to be borne in mind." In the present case, it is clear that if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board. As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas; but also includes preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licensees. The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them. The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns. The supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns. Then, there is the important factor that the Board is running at the huge loss every year. The workmen did not provide figures to show that was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit. In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns when dealing with the question of payment of dearness allowance by the Board. In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, if there be no such undertakings available, of undertaking in other industries in the Saurashtra region so as to enable the Sangh to claim wages on parity with those undertakings. We do not think that there is any justification for remanding the case for such a purpose at this stage. It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so. Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal. The further requests that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, not losses has also no force, because when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness-box,no attempt was made on behalf of the Sangh to cross-examine the deponent in order to establish that the losses had not been correctly represented. We do not think that, in these circumstances, any remand of this case is called for. It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry-cum-region basis;but that mistake does not justify any interference with the award which is otherwise correct and justified. The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of the Board in the Gujarat Region as well as a large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlements and only 466 employees had come forward with this demand without establishing that the demand was restricted to bringing up their wages to the level of minimum wages.
### Response:
0
### Explanation:
made by learned counsel. The Board was constituted under the Electricity (Supply) Act No. 534 of 1948 and Section 18 of that Act lays down the duties of the Board.By its very constitution, the Board is charged with the general duty of promoting the co-ordinated development of the generation, supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by any licensee. In particular, the duty of the Board is to prepare and carry out schemes with the objects mentioned above; to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act; and to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply. When the Board was constituted to carry out these duties, its capacity to bear the burden of paying wages to its employees has to be worked out after taking into account all the activities which the statute requires it to carry on.The running of Power House is only one of the branch of those activities. The profit that the Board can be held to have earned can only be worked out after including in the accounts all the expenditure incurred by it on all its scheme for distribution of electricity to licensees or to consumers, whether in urban areas or in rural areas. In fact, there is not even an assertion on behalf of the appellants-workmen that they were employed solely in connection with a profitable undertaking of the Board and had nothing to do at with the other activities which the Board is actually carrying onIn the present case, it is clear that if these various factors are taken into account, neither the Ahmedabad Electricity Co. Ltd., nor the Viramgam Electric Supply Co., can be held to be a concern comparable with the Board. As we have indicated earlier, the activities carried on by the Board are not only production of electricity and direct distribution in some areas; but also includes preparation of schemes for development of supply of electricity in areas not served so far and for supply of electricity to licensees. The two concerns at Ahmedabad and Viramgam merely generate and supply electricity to consumers in the cities or towns served by them. The Board, according to the Act constituting it, has primarily to supply electricity to licensees, and not confine its supply to direct consumers like these two concerns. The supply to consumers is only undertaken where there are no licensees to undertake the distribution of electricity generated by the Board, and this activity of direct supply to consumers is primarily carried on in rural areas where the population is sparsely distributed as compared to the cities or towns served by the other two concerns. Then, there is the important factor that the Board is running at the huge loss every year. The workmen did not provide figures to show that was the profitability of the other two concerns, though the Awards in their cases seem to indicate that both of them are running at a profit. In these circumstances, we cannot hold that the Tribunal committed any error in ignoring the wages being paid by these two concerns when dealing with the question of payment of dearness allowance by the Board. In this connection, a request was made by learned counsel that we may remand the case to the Tribunal in order to enable the Sangh to produce evidence to the satisfaction of the Tribunal that these two concerns are comparable, or to cite examples of other undertakings in the same industry in the Saurashtra region, or, if there be no such undertakings available, of undertaking in other industries in the Saurashtra region so as to enable the Sangh to claim wages on parity with those undertakings. We do not think that there is any justification for remanding the case for such a purpose at this stage. It was open to the Sangh to produce material before the Tribunal when the dispute was first investigated by it, and no reason is shown why the Sangh did not do so. Further, as we have indicated earlier, the very circumstance that the Board does not have the financial capacity to meet the additional burden of the demands made by the workmen justifies the order made by the Tribunal. The further requests that the remand would enable the Sangh to show whether the losses brought to the notice of the Tribunal by the Board were, in fact, not losses has also no force, because when the losses were proved before the Tribunal by production of an affidavit on behalf of the Board and the deponent appeared in the witness-box,no attempt was made on behalf of the Sangh to cross-examine the deponent in order to establish that the losses had not been correctly represented. We do not think that, in these circumstances, any remand of this case is called for. It does appear that the Tribunal in its award committed the error of comparing the Board with the Maharashtra Electricity Board and similar Electricity Boards in other States and thus acted against the principle that wages should be compared on industry-cum-region basis;but that mistake does not justify any interference with the award which is otherwise correct and justified. The Tribunal was quite right in rejecting the demands made by the Sangh, particularly in the light of the further fact relied upon by the Tribunal that all the employees of the Board in the Gujarat Region as well as a large majority of over 2500 employees even in the Saurashtra Region had accepted the existing rates based on the settlements and only 466 employees had come forward with this demand without establishing that the demand was restricted to bringing up their wages to the level of minimum wages.
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Union Of India Vs. Kushala Shetty | was vitiated due to mala fides of the Chief Minister. This Court rejected the plea of mala fides by making the following observations: "90. ..... The petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second respondent and incurred his wrath by inconvenient and uncompromising acts and notings and contended that the second respondent, therefore, nursed hostility and malus animus against the petitioner and it was for this reason and not on account of exigencies of administration that the petitioner was transferred from the post of Chief Secretary. The incidents referred to by the petitioner, if true, constituted gross acts of maladministration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second respondent in these acts of maladministration, that the second respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second respondent transferred him from the post of Chief Secretary. The transfer of the petitioner was, therefore, in mala fide exercise of power and accordingly invalid.91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is not within our province to embark on a far-flung inquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus animus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up --these considerations are wholly irrelevant in judicial approach--but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent." 24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained. | 1[ds]19. In this case, notification dated 10.8.2005, which was published in the official Gazette of the same date and of which substance was published in two local newspapers, contained full description of the land proposed to be acquired for widening three National Highways. The names of the villages in which the land proposed to be acquired was situated, the survey numbers includingnumbers, the nature, type and area of the land were also given in the schedule appended to the notification. Not only this, it was clearly mentioned that land plans and other details of the land are available in the office of the Competent Authority. This is the reason why none of the land owners (including the respondents) made any grievance that the notification issued under Section 3A(1) of the 1956 Act was vague or that due to lack of particulars/details, they were prevented from effectively exercising their right to file objections in terms of Section 3C(1). Of course, a grievance of this score was made in the objections dated 16.10.2006 filed by some of the land owners of Padavu Village, but that was clearly an afterthought and, in any case, the same did not require consideration because ofto the time schedule specified in Section 3C(1) of the 1956 Act.20. The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge negating the respondents challenge to the acquisition was that declaration under Section 3D(1) was published even before communication of the decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of declaration under Section 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexurefiled before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from Surathkal to Nantoor and B.C.Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections.21. The plea of the respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion, the respondents have neither given particulars of the persons sought to be favoured nor placed any material to prima facie prove that the execution of the project of widening the National Highways is actuated by mala fides and, in the absence of proper pleadings and material, neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions of the appellants are tainted by mala fides.Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to becontrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained. | 1 | 7,408 | 919 | ### 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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was vitiated due to mala fides of the Chief Minister. This Court rejected the plea of mala fides by making the following observations: "90. ..... The petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second respondent and incurred his wrath by inconvenient and uncompromising acts and notings and contended that the second respondent, therefore, nursed hostility and malus animus against the petitioner and it was for this reason and not on account of exigencies of administration that the petitioner was transferred from the post of Chief Secretary. The incidents referred to by the petitioner, if true, constituted gross acts of maladministration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second respondent in these acts of maladministration, that the second respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second respondent transferred him from the post of Chief Secretary. The transfer of the petitioner was, therefore, in mala fide exercise of power and accordingly invalid.91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is not within our province to embark on a far-flung inquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus animus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up --these considerations are wholly irrelevant in judicial approach--but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent." 24. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.
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19. In this case, notification dated 10.8.2005, which was published in the official Gazette of the same date and of which substance was published in two local newspapers, contained full description of the land proposed to be acquired for widening three National Highways. The names of the villages in which the land proposed to be acquired was situated, the survey numbers includingnumbers, the nature, type and area of the land were also given in the schedule appended to the notification. Not only this, it was clearly mentioned that land plans and other details of the land are available in the office of the Competent Authority. This is the reason why none of the land owners (including the respondents) made any grievance that the notification issued under Section 3A(1) of the 1956 Act was vague or that due to lack of particulars/details, they were prevented from effectively exercising their right to file objections in terms of Section 3C(1). Of course, a grievance of this score was made in the objections dated 16.10.2006 filed by some of the land owners of Padavu Village, but that was clearly an afterthought and, in any case, the same did not require consideration because ofto the time schedule specified in Section 3C(1) of the 1956 Act.20. The only reason assigned by the Division Bench of the High Court for upsetting the well considered order passed by the learned Single Judge negating the respondents challenge to the acquisition was that declaration under Section 3D(1) was published even before communication of the decision taken by the Competent Authority in terms of Section 3C(2). The process of reasoning adopted by the Division Bench for recording its conclusion appears to have been influenced by an assumption that the objections filed by the land owners had not been decided till the issue of declaration under Section 3D(1). However, the fact of the matter is that the Competent Authority had, after giving opportunity of personal hearing to the objectors, passed order dated 11.10.2005 and rejected the objections. Though, that order was not crafted like a judicial order which is passed by a legally trained mind, the rejection of the representations made by the respondents cannot be faulted only on that ground. The Competent Authority did advert to the substance of objections, the details of which have been incorporated in Annexurefiled before this Court. The concerned officer rejected the same by observing that the land proposed for acquisition is necessary for widening the existing National Highways into four lanes. If the consideration made by the Competent Authority is judged in the backdrop of the fact that a Special Purpose Vehicle was incorporated with the name New Mangalore Port Road Company Limited for implementation of the project known as New Mangalore Port Road Connectivity Project from Surathkal to Nantoor and B.C.Road to Padil along with bypass from Nantoor to Padil, it is not possible to castigate the proved reasons recorded by the Competent Authority for rejecting the objections.21. The plea of the respondents that alignment of the proposed widening of National Highways was manipulated to suit the vested interests sounds attractive but lacks substance and merits rejection because except making a bald assertion, the respondents have neither given particulars of the persons sought to be favoured nor placed any material to prima facie prove that the execution of the project of widening the National Highways is actuated by mala fides and, in the absence of proper pleadings and material, neither the High Court could nor this Court can make a roving enquiry to fish out some material and draw a dubious conclusion that the decision and actions of the appellants are tainted by mala fides.Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to becontrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.
|
State Of Haryana Vs. Subash Chander Marwaha And Ors | interest of maintaining high-standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.8. It is rather difficult to follow the reasoning of the High Court in this case, It agrees that the advertisement mentioning 15 vacancies did not give a right to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated "so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10 (ii) in Part C." One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidates name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.9. It must be remembered that the petition is for a mandamus. This court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, 1982 (2) Supp SCR 144= (AIR 1962 SC 1210 ), that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.10. It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10 (ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55 % for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55 % for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55 % have no right to claim that the selections be made, of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C. | 1[ds]It will be seen from this that the function under the rules given to the Punjab Public Service Commission was to hold the examination and then prepare a list strictly in accordance with merit on the basis of the marks received in the examination and this list was to be published in the Punjab Government Gazette. Thus it became public property and every candidate would know having regard to the vacancies whether he is likely to be appointed.In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45 per cent. Their names were published in the Government Gazette as required by Rule 10 (1) already referred to. It is not disputed that the mere entry in this list of the name of a candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments. The High Court does not come into the picture for recommending any particular candidate. After the State Government have taken a decision as to which of the candidates in accordance with the list should be appointed, the list of selected candidates for appointment is forwarded to the High Court and the High Court then will have to enter such candidates on a Register maintained by it. When vacancies are to be filled the High Court will send in the names of the candidates in accordance with the select list and in the order they have been placed in that list for appointment in the vacancies The High Court, therefore, plays no part except to suggest to the Government who in accordance with the select list is to be appointed in a particular vacancy. It appears that in the present case the Public Service Commission had sent up the rolls of the first 15 candidates because the Commission had been informed that there are 15 vacancies The High Court also in its routine course had sent up the first 15 names to the Government for appointment.This will clearly go to show that the High Court itself had recommended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate Judges and the Haryana Government in the interest of maintaining high-standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.8. It is rather difficult to follow the reasoning of the High Court in this case, It agrees that the advertisement mentioning 15 vacancies did not give a right to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated "so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10 (ii) in Part C." One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidates name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by theargument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10 (ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55 % for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55 % for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55 % have no right to claim that the selections be made, of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C. | 1 | 3,319 | 1,264 | ### 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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interest of maintaining high-standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.8. It is rather difficult to follow the reasoning of the High Court in this case, It agrees that the advertisement mentioning 15 vacancies did not give a right to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated "so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10 (ii) in Part C." One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidates name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.9. It must be remembered that the petition is for a mandamus. This court has pointed out in Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, 1982 (2) Supp SCR 144= (AIR 1962 SC 1210 ), that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.10. It was, however, contended by Dr. Singhvi on behalf of the respondents that since rule 8 of Part C makes candidates who obtained 45 per cent or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55 per cent as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10 (ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55 % for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55 % for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55 % have no right to claim that the selections be made, of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C.
### Response:
1
### Explanation:
the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments. The High Court does not come into the picture for recommending any particular candidate. After the State Government have taken a decision as to which of the candidates in accordance with the list should be appointed, the list of selected candidates for appointment is forwarded to the High Court and the High Court then will have to enter such candidates on a Register maintained by it. When vacancies are to be filled the High Court will send in the names of the candidates in accordance with the select list and in the order they have been placed in that list for appointment in the vacancies The High Court, therefore, plays no part except to suggest to the Government who in accordance with the select list is to be appointed in a particular vacancy. It appears that in the present case the Public Service Commission had sent up the rolls of the first 15 candidates because the Commission had been informed that there are 15 vacancies The High Court also in its routine course had sent up the first 15 names to the Government for appointment.This will clearly go to show that the High Court itself had recommended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate Judges and the Haryana Government in the interest of maintaining high-standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.8. It is rather difficult to follow the reasoning of the High Court in this case, It agrees that the advertisement mentioning 15 vacancies did not give a right to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated "so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10 (ii) in Part C." One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidates name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by theargument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10 (ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high-standards of competence to fix a score which is much higher than the one required for mere eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55 % for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55 % for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who get less than 55 % have no right to claim that the selections be made, of also those candidates who obtained less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C.
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A.A. Padmanbhan Vs. The State of Kerala & Others | be ascertained is the true character of the legislation. If on such an examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object, scope and effect, is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be applied not only in cases of conflict between the powers of two legislatures but in any case where the question arises whether a legislation is covered by particular legislative power in exercise of which it is purported to be made. 35. Even if it is assumed that, in working of two legislations which pertain to different subject matters, there is an incidental encroachment in respect of small area of operation of two legislations, it cannot be held that one legislation overrides the other. When we look into the pith and substance of both the legislations, i.e., Act, 1958 and Act, 2013, it is clear that they operate in different fields and it cannot be said that Act, 1958 is repugnant to Act, 2013. It is also relevant to note that under Section 15(2) it is provided that where any school has vested in the Government under sub-section (1), compensation shall be paid to the persons entitled thereto on the basis of the market value thereof as on the date of the notification. 36. In the counter-affidavit in the present case, the State has clearly mentioned that compensation has been determined by the Collector. In paragraph 12 of the counter-affidavit following has been stated: 12.Out of the 4 schools that have been taken over by Government, compensations have been sanctioned to the erstwhile Managers of the following 3 schools as per market value. (i) A.U.P. School, Malaparamba Rs.5,85,86,710/- as per G.O.(Rt) No.181/2017(GEdn dated 25.01.2017. (ii) A.U.P. School, Palat, Kozhikode - Rs.56,09,947/- as per G.O.(Rt)No. 2289/2017/Gedn dated 11.07.2017 & G.O.(Rt)No.6047/2017/Fin dated 31.07.2017. (iii) P.M.L.P. School, Kiraloor, Thrissur Rs.79,54,550/- as per G.O.(Rt)No. 2289/2017/Gedn dated 11.07.2017 & G.O. (Rt) No. 6047/2017/Fin dated 31.07.2017. 37. It is also relevant to note that under Section 15 sub-section (4), any person aggrieved by an order of the Collector has a right to appeal to the District Court. 38. Applying the ratio as laid down by this Court in the above noted cases, we conclude that Act, 1958 and Act, 2013 operate in different fields and Section 15 of the Act, 1958 in no manner is overridden or repugnant to Act, 2013. There was no invalidity in the exercise of the power of the State Government under Section 15 to take over the schools. The owners being entitled to compensation at the market rate on the date of notification, the procedure for taking over the property is in full compliance of requirement of Article 300A of the Constitution of India. We, thus, do not find any merit in this submission of learned counsel for the appellant. 39. Learned counsel for the appellant has placed reliance on the judgment of this Court in Bhusawal Municipal Council Vs. Nivrutti Ramchandra Phalak and others, (2015) 14 SCC 327. Bhusawal Municipal Council had filed the appeal against the interlocutory order passed by the Bombay High Court by which interim relief was granted to the appellant to the extent of payment of 50% of the enhanced amount of compensation as awarded by the Reference Court in the land acquisition proceedings. The Council challenged the said order and contended that the land was acquired for the public purpose, the Council-appellant does not have sufficient funds to pay the enhanced compensation, this Court may grant stay of payment of the enhanced amount of compensation awarded by the Reference Court. In the above context following observation was made by this Court in paragraph 8: 8. We see no justification to accept the submissions so advanced on behalf of the appellant Council. Undoubtedly, the appellant might be willing to meet its constitutional or legal obligation to open a primary school for imparting education to children below 14 years of age but the question does arise as to whether the appellant Council has a right to meet a public purpose or a constitutional obligation at the cost of individual citizens by depriving them of their constitutional rights under Article 300-A of the Constitution? 40. This Court dismissed the appeal filed by the Council and had made the observation that right to property is not only a constitutional or a statutory right but also a human right. Therefore, in case the person aggrieved is deprived of the land without making the payment of compensation, it would be tantamount to forcing the said uprooted persons to become vagabond. There cannot be any dispute to the proposition laid down by this Court as above. For the land acquired under the Land Acquisition Act compensation determined under the provisions of the Land Acquisition Act, 1894 is required to be paid to the land owner. The order granting interim relief to the appellant was held to be just order in which this Court refused to interfere. 41. In the above case no such proposition has been laid down by this Court which may help the appellant. The present is not a case of acquisition under the Land Acquisition Act. As noted above, under Section 15 sub-section (4) of Act, 1958, the payment of compensation has to be made in accordance with the market value on the date of notification under Section 15. 42. In view of the foregoing discussion, we do not find any ground to interfere with the judgments of the learned Single Judge as well as Division Bench of the Kerala High Court dismissing the writ petition and writ appeal of the appellant. | 0[ds]20. Looking to the statutory scheme under Section 15(1), we are of the opinion that satisfaction of the Government as contemplated by Section 15 is the satisfaction of the competent authority, who can under the Rules of Business take a decision. We have noticed above the findings of learned Single Judge regarding the date of actual closure of the school, which finding has been specially affirmed by the Division Bench in writ appeal that closure of school took place on 07.06.2015 or thereafter and on the date when the Chief Minister took the decision, actual closure of the school was not taken place. The fact that contempt petition was filed by the management, which was closed on 16.06.2015 noticing that all formalities regarding closure had been taken and in the contempt, the statement on behalf of the State was also noted that the State has decided to take over the institutions. Thus, on the date when the Chief Minister took the decision, the existence of school cannot be denied21. The other two steps as noticed above, i.e. approval of Legislative Assembly and issuance of notification in the Gazette are further steps regarding completion of the process and on the date when Government was satisfied that it is in the public interest to take over the school, the school was in existence, the said decision cannot be said to lose its efficacy, even if the school was actually closed before issuance of notification under Section 15. When the decision taken on 07.06.2016 was valid to close the school, it was valid exercise of power and no infirmity can crept in the said decision even if as per the appellant, the school was closed before Legislative Assembly passed the resolution or notification was issued on 27.07.2016. It could have been open to the Legislative Assembly not to approve the proposal on account of any reason including any subsequent valid reason, but Legislative Assembly having approved, no capital can be gained by the appellant on the strength of the above submission22. We fully endorse the view taken by the learned Single Judge that on the date when the Government took the decision, i.e., the Chief Minister took a decision on 07.06.2016 to take over the schools; the schools were not actually closed23. There is one more reason due to which the decision taken by the State Government as approved by the Legislative Assembly and notified in the Gazette needs no interference. The reason is that all the institutions, which have been taken over were the institutions providing primary education. Under Article 21(A) of the Constitution of India as well as under the Right of Children to Free and Compulsory Education Act, 2009, the State has to take all steps for fulfilling the objective to provide education to children upto 14 years of age seeking Primary (Upper Primary and Lower Primary) education. The State decision to run the Primary schools which were decided to be closed by their respective management was in public interest and in the interest of the education. The High Court has rightly refused to interfere with the decision of the State Government taking over the schools to run the same directly by the Government28. In the present case the State Government has taken over the school in the public interest in the interest of education. The power under Section 15 given to the State is distinct and separate from the power which is possessed by the State under the provisions of the Act, 201335. Even if it is assumed that, in working of two legislations which pertain to different subject matters, there is an incidental encroachment in respect of small area of operation of two legislations, it cannot be held that one legislation overrides the other. When we look into the pith and substance of both the legislations, i.e., Act, 1958 and Act, 2013, it is clear that they operate in different fields and it cannot be said that Act, 1958 is repugnant to Act, 2013. It is also relevant to note that under Section 15(2) it is provided that where any school has vested in the Government undern (1), compensation shall be paid to the persons entitled thereto on the basis of the market value thereof as on the date of the notification38. Applying the ratio as laid down by this Court in the above noted cases, we conclude that Act, 1958 and Act, 2013 operate in different fields and Section 15 of the Act, 1958 in no manner is overridden or repugnant to Act, 2013. There was no invalidity in the exercise of the power of the State Government under Section 15 to take over the schools. The owners being entitled to compensation at the market rate on the date of notification, the procedure for taking over the property is in full compliance of requirement of Article 300A of the Constitution of India. We, thus, do not find any merit in this submission of learned counsel for the appellant40. This Court dismissed the appeal filed by the Council and had made the observation that right to property is not only a constitutional or a statutory right but also a human right. Therefore, in case the person aggrieved is deprived of the land without making the payment of compensation, it would be tantamount to forcing the said uprooted persons to become vagabond. There cannot be any dispute to the proposition laid down by this Court as above. For the land acquired under the Land Acquisition Act compensation determined under the provisions of the Land Acquisition Act, 1894 is required to be paid to the land owner. The order granting interim relief to the appellant was held to be just order in which this Court refused to interfere41. In the above case no such proposition has been laid down by this Court which may help the appellant. The present is not a case of acquisition under the Land Acquisition Act. As noted above, under Section 15n (4) of Act, 1958, the payment of compensation has to be made in accordance with the market value on the date of notification under Section 1542. In view of the foregoing discussion, we do not find any ground to interfere with the judgments of the learned Single Judge as well as Division Bench of the Kerala High Court dismissing the writ petition and writ appeal of the appellant. | 0 | 9,423 | 1,170 | ### Instruction:
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be ascertained is the true character of the legislation. If on such an examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object, scope and effect, is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be applied not only in cases of conflict between the powers of two legislatures but in any case where the question arises whether a legislation is covered by particular legislative power in exercise of which it is purported to be made. 35. Even if it is assumed that, in working of two legislations which pertain to different subject matters, there is an incidental encroachment in respect of small area of operation of two legislations, it cannot be held that one legislation overrides the other. When we look into the pith and substance of both the legislations, i.e., Act, 1958 and Act, 2013, it is clear that they operate in different fields and it cannot be said that Act, 1958 is repugnant to Act, 2013. It is also relevant to note that under Section 15(2) it is provided that where any school has vested in the Government under sub-section (1), compensation shall be paid to the persons entitled thereto on the basis of the market value thereof as on the date of the notification. 36. In the counter-affidavit in the present case, the State has clearly mentioned that compensation has been determined by the Collector. In paragraph 12 of the counter-affidavit following has been stated: 12.Out of the 4 schools that have been taken over by Government, compensations have been sanctioned to the erstwhile Managers of the following 3 schools as per market value. (i) A.U.P. School, Malaparamba Rs.5,85,86,710/- as per G.O.(Rt) No.181/2017(GEdn dated 25.01.2017. (ii) A.U.P. School, Palat, Kozhikode - Rs.56,09,947/- as per G.O.(Rt)No. 2289/2017/Gedn dated 11.07.2017 & G.O.(Rt)No.6047/2017/Fin dated 31.07.2017. (iii) P.M.L.P. School, Kiraloor, Thrissur Rs.79,54,550/- as per G.O.(Rt)No. 2289/2017/Gedn dated 11.07.2017 & G.O. (Rt) No. 6047/2017/Fin dated 31.07.2017. 37. It is also relevant to note that under Section 15 sub-section (4), any person aggrieved by an order of the Collector has a right to appeal to the District Court. 38. Applying the ratio as laid down by this Court in the above noted cases, we conclude that Act, 1958 and Act, 2013 operate in different fields and Section 15 of the Act, 1958 in no manner is overridden or repugnant to Act, 2013. There was no invalidity in the exercise of the power of the State Government under Section 15 to take over the schools. The owners being entitled to compensation at the market rate on the date of notification, the procedure for taking over the property is in full compliance of requirement of Article 300A of the Constitution of India. We, thus, do not find any merit in this submission of learned counsel for the appellant. 39. Learned counsel for the appellant has placed reliance on the judgment of this Court in Bhusawal Municipal Council Vs. Nivrutti Ramchandra Phalak and others, (2015) 14 SCC 327. Bhusawal Municipal Council had filed the appeal against the interlocutory order passed by the Bombay High Court by which interim relief was granted to the appellant to the extent of payment of 50% of the enhanced amount of compensation as awarded by the Reference Court in the land acquisition proceedings. The Council challenged the said order and contended that the land was acquired for the public purpose, the Council-appellant does not have sufficient funds to pay the enhanced compensation, this Court may grant stay of payment of the enhanced amount of compensation awarded by the Reference Court. In the above context following observation was made by this Court in paragraph 8: 8. We see no justification to accept the submissions so advanced on behalf of the appellant Council. Undoubtedly, the appellant might be willing to meet its constitutional or legal obligation to open a primary school for imparting education to children below 14 years of age but the question does arise as to whether the appellant Council has a right to meet a public purpose or a constitutional obligation at the cost of individual citizens by depriving them of their constitutional rights under Article 300-A of the Constitution? 40. This Court dismissed the appeal filed by the Council and had made the observation that right to property is not only a constitutional or a statutory right but also a human right. Therefore, in case the person aggrieved is deprived of the land without making the payment of compensation, it would be tantamount to forcing the said uprooted persons to become vagabond. There cannot be any dispute to the proposition laid down by this Court as above. For the land acquired under the Land Acquisition Act compensation determined under the provisions of the Land Acquisition Act, 1894 is required to be paid to the land owner. The order granting interim relief to the appellant was held to be just order in which this Court refused to interfere. 41. In the above case no such proposition has been laid down by this Court which may help the appellant. The present is not a case of acquisition under the Land Acquisition Act. As noted above, under Section 15 sub-section (4) of Act, 1958, the payment of compensation has to be made in accordance with the market value on the date of notification under Section 15. 42. In view of the foregoing discussion, we do not find any ground to interfere with the judgments of the learned Single Judge as well as Division Bench of the Kerala High Court dismissing the writ petition and writ appeal of the appellant.
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specially affirmed by the Division Bench in writ appeal that closure of school took place on 07.06.2015 or thereafter and on the date when the Chief Minister took the decision, actual closure of the school was not taken place. The fact that contempt petition was filed by the management, which was closed on 16.06.2015 noticing that all formalities regarding closure had been taken and in the contempt, the statement on behalf of the State was also noted that the State has decided to take over the institutions. Thus, on the date when the Chief Minister took the decision, the existence of school cannot be denied21. The other two steps as noticed above, i.e. approval of Legislative Assembly and issuance of notification in the Gazette are further steps regarding completion of the process and on the date when Government was satisfied that it is in the public interest to take over the school, the school was in existence, the said decision cannot be said to lose its efficacy, even if the school was actually closed before issuance of notification under Section 15. When the decision taken on 07.06.2016 was valid to close the school, it was valid exercise of power and no infirmity can crept in the said decision even if as per the appellant, the school was closed before Legislative Assembly passed the resolution or notification was issued on 27.07.2016. It could have been open to the Legislative Assembly not to approve the proposal on account of any reason including any subsequent valid reason, but Legislative Assembly having approved, no capital can be gained by the appellant on the strength of the above submission22. We fully endorse the view taken by the learned Single Judge that on the date when the Government took the decision, i.e., the Chief Minister took a decision on 07.06.2016 to take over the schools; the schools were not actually closed23. There is one more reason due to which the decision taken by the State Government as approved by the Legislative Assembly and notified in the Gazette needs no interference. The reason is that all the institutions, which have been taken over were the institutions providing primary education. Under Article 21(A) of the Constitution of India as well as under the Right of Children to Free and Compulsory Education Act, 2009, the State has to take all steps for fulfilling the objective to provide education to children upto 14 years of age seeking Primary (Upper Primary and Lower Primary) education. The State decision to run the Primary schools which were decided to be closed by their respective management was in public interest and in the interest of the education. The High Court has rightly refused to interfere with the decision of the State Government taking over the schools to run the same directly by the Government28. In the present case the State Government has taken over the school in the public interest in the interest of education. The power under Section 15 given to the State is distinct and separate from the power which is possessed by the State under the provisions of the Act, 201335. Even if it is assumed that, in working of two legislations which pertain to different subject matters, there is an incidental encroachment in respect of small area of operation of two legislations, it cannot be held that one legislation overrides the other. When we look into the pith and substance of both the legislations, i.e., Act, 1958 and Act, 2013, it is clear that they operate in different fields and it cannot be said that Act, 1958 is repugnant to Act, 2013. It is also relevant to note that under Section 15(2) it is provided that where any school has vested in the Government undern (1), compensation shall be paid to the persons entitled thereto on the basis of the market value thereof as on the date of the notification38. Applying the ratio as laid down by this Court in the above noted cases, we conclude that Act, 1958 and Act, 2013 operate in different fields and Section 15 of the Act, 1958 in no manner is overridden or repugnant to Act, 2013. There was no invalidity in the exercise of the power of the State Government under Section 15 to take over the schools. The owners being entitled to compensation at the market rate on the date of notification, the procedure for taking over the property is in full compliance of requirement of Article 300A of the Constitution of India. We, thus, do not find any merit in this submission of learned counsel for the appellant40. This Court dismissed the appeal filed by the Council and had made the observation that right to property is not only a constitutional or a statutory right but also a human right. Therefore, in case the person aggrieved is deprived of the land without making the payment of compensation, it would be tantamount to forcing the said uprooted persons to become vagabond. There cannot be any dispute to the proposition laid down by this Court as above. For the land acquired under the Land Acquisition Act compensation determined under the provisions of the Land Acquisition Act, 1894 is required to be paid to the land owner. The order granting interim relief to the appellant was held to be just order in which this Court refused to interfere41. In the above case no such proposition has been laid down by this Court which may help the appellant. The present is not a case of acquisition under the Land Acquisition Act. As noted above, under Section 15n (4) of Act, 1958, the payment of compensation has to be made in accordance with the market value on the date of notification under Section 1542. In view of the foregoing discussion, we do not find any ground to interfere with the judgments of the learned Single Judge as well as Division Bench of the Kerala High Court dismissing the writ petition and writ appeal of the appellant.
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State of Kerala & Another Vs. R.E. D'Souzha | or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process;"2. The respondent was convicted under Section 92 of the Factories Act for using a building as a factory without obtaining the previous permission in writing of the Chief Inspector of Factories, for failing to apply for registration and grant of licence for the factory and for failing to maintain a muster roll of the workers employed in the factory in one case and for failing to give attendance cards to every person employed in the factory in the other case. The respondent was sentenced to pay a fine of Rs. 20/- in each case. He was also directed under Section 102 of the Factories Act to rectify the defects within a specified period.3. The respondent filed a Revision Petition in the High Court. The High Court held that the work that was being carried out in the premises of the respondent amounted to manufacturing process. This question has not been debated before us. The High Court further held that the workmen working in the premises of the respondent were not workers within the meaning of S. 2 (1) of the Factories Act. It is this part of the decision that has been challenged in appeal by the State of Kerala.4. The nature of the work done was described in a letter produced by the prosecution. This letter is not printed on the record but the High Court summarises the document as follows:"This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the night, that the women and girls of the locality, who form a "casual, heterogeneous, miscellaneous and irregular group", come at their convenience and do the peeling, washing etc., at piece-rates; and that there are no specified hours of work, nor is there any control by the Petitioner over the irregularity and attendance or of the nature, manner or quantum of their work. The same workers after finishing the work in the premises of the petitioner, go to other similar premises in the locality where other lorry loads of prawns are taken. In other words, if more prawns are caught at a particular time, they are brought and distributed among several premises like the Petitioners and the local women and girls collect at the several premises and do the work at piece-rates. The same workers do not go to the same premises on different occasions, and the owners of the several premises do not have any control over the manner or quantum of work these women and girls do. The rates of remuneration naturally depend upon the quantity of prawns available, the number of women and girls that come to do the work the hour of the day or the night when the catches arrive, etc. Sometimes, for days no work is done in the premises."5. The High Court after referring to the decisions of this Court in Dharangadhara Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264 , a decision under the Industrial Disputes Act, Chintaman Rao v. State of Madhya Pradesh, 1958 SCR 1340 = (AIR.1958 SC 388) , and State of Kerala v. V. M. Patel, (1960) KLJ 1524 (SC), decisions under the Factories Act, held :"It will be apparent that the women and girls who assemble and do the work when a catch of prawns is brought to the premises of the petitioner are not workers coming within the definition of the Factories Act. The Petitioner does not insist as to who should do the job or how it should be done; he only wants the work to be done for the agreed remuneration without spoiling the prawns i. e. within a short time (A quantity of prawns is taken for peeling, cleaning, washing etc., by a particular individual for a fixed remuneration, and that individual, with the assistance of others whom she employs, finishes the job as quickly as possible)."6. The learned Counsel for the appellant contended that it was erroneous on the part of the High Court to have applied the decision of this Court in AIR 1957 SC 264 , a case under the Industrial Disputes Act. to the definition of worker in the Factories Act. He fairly pointed out that another Division Bench applied the same test in a dispute arising under the Factories Act. (see Birdhichand Sharma v. First Civil Judge Nagpur, (1961) 3 SCR 161 = (AIR 1961 SC 644 )).But, nevertheless, he urged that we should refer the case to a larger Bench We see nothing wrong in the decision of this Court in 1958 SCR 1340 = (AIR 1958 SC 388 ). On the contrary, we are of the opinion that the case has been rightly decided. The scheme of the Factories Act clearly shows that the test adopted by this Court is the correct one. It would be impossible to apply many provisions of the Factories Act to the workers of the type we are concerned with here if we were to hold that they were workers within the definition of the Factories Act. We are really surprised that the High Court certified this case to be a fit case for appeal to this Court. After this Court had laid down a test to be applied for determining who were workers within the meaning of the Factories Act, the High Court should have treated the question of principle as no longer open. The High Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134 (1) (c) of the Constitution. | 0[ds]On the contrary, we are of the opinion that the case has been rightly decided. The scheme of the Factories Act clearly shows that the test adopted by this Court is the correct one. It would be impossible to apply many provisions of the Factories Act to the workers of the type we are concerned with here if we were to hold that they were workers within the definition of the Factories Act. We are really surprised that the High Court certified this case to be a fit case for appeal to this Court. After this Court had laid down a test to be applied for determining who were workers within the meaning ofthe Factories Act,the High Court should have treated the question of principle as no longer open. The High Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134 (1) (c) of the Constitution. | 0 | 1,214 | 217 | ### Instruction:
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or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process;"2. The respondent was convicted under Section 92 of the Factories Act for using a building as a factory without obtaining the previous permission in writing of the Chief Inspector of Factories, for failing to apply for registration and grant of licence for the factory and for failing to maintain a muster roll of the workers employed in the factory in one case and for failing to give attendance cards to every person employed in the factory in the other case. The respondent was sentenced to pay a fine of Rs. 20/- in each case. He was also directed under Section 102 of the Factories Act to rectify the defects within a specified period.3. The respondent filed a Revision Petition in the High Court. The High Court held that the work that was being carried out in the premises of the respondent amounted to manufacturing process. This question has not been debated before us. The High Court further held that the workmen working in the premises of the respondent were not workers within the meaning of S. 2 (1) of the Factories Act. It is this part of the decision that has been challenged in appeal by the State of Kerala.4. The nature of the work done was described in a letter produced by the prosecution. This letter is not printed on the record but the High Court summarises the document as follows:"This document shows that as and when catches of prawns are made, a consignment of prawns is brought to the premises in a lorry at any time of the day or the night, that the women and girls of the locality, who form a "casual, heterogeneous, miscellaneous and irregular group", come at their convenience and do the peeling, washing etc., at piece-rates; and that there are no specified hours of work, nor is there any control by the Petitioner over the irregularity and attendance or of the nature, manner or quantum of their work. The same workers after finishing the work in the premises of the petitioner, go to other similar premises in the locality where other lorry loads of prawns are taken. In other words, if more prawns are caught at a particular time, they are brought and distributed among several premises like the Petitioners and the local women and girls collect at the several premises and do the work at piece-rates. The same workers do not go to the same premises on different occasions, and the owners of the several premises do not have any control over the manner or quantum of work these women and girls do. The rates of remuneration naturally depend upon the quantity of prawns available, the number of women and girls that come to do the work the hour of the day or the night when the catches arrive, etc. Sometimes, for days no work is done in the premises."5. The High Court after referring to the decisions of this Court in Dharangadhara Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264 , a decision under the Industrial Disputes Act, Chintaman Rao v. State of Madhya Pradesh, 1958 SCR 1340 = (AIR.1958 SC 388) , and State of Kerala v. V. M. Patel, (1960) KLJ 1524 (SC), decisions under the Factories Act, held :"It will be apparent that the women and girls who assemble and do the work when a catch of prawns is brought to the premises of the petitioner are not workers coming within the definition of the Factories Act. The Petitioner does not insist as to who should do the job or how it should be done; he only wants the work to be done for the agreed remuneration without spoiling the prawns i. e. within a short time (A quantity of prawns is taken for peeling, cleaning, washing etc., by a particular individual for a fixed remuneration, and that individual, with the assistance of others whom she employs, finishes the job as quickly as possible)."6. The learned Counsel for the appellant contended that it was erroneous on the part of the High Court to have applied the decision of this Court in AIR 1957 SC 264 , a case under the Industrial Disputes Act. to the definition of worker in the Factories Act. He fairly pointed out that another Division Bench applied the same test in a dispute arising under the Factories Act. (see Birdhichand Sharma v. First Civil Judge Nagpur, (1961) 3 SCR 161 = (AIR 1961 SC 644 )).But, nevertheless, he urged that we should refer the case to a larger Bench We see nothing wrong in the decision of this Court in 1958 SCR 1340 = (AIR 1958 SC 388 ). On the contrary, we are of the opinion that the case has been rightly decided. The scheme of the Factories Act clearly shows that the test adopted by this Court is the correct one. It would be impossible to apply many provisions of the Factories Act to the workers of the type we are concerned with here if we were to hold that they were workers within the definition of the Factories Act. We are really surprised that the High Court certified this case to be a fit case for appeal to this Court. After this Court had laid down a test to be applied for determining who were workers within the meaning of the Factories Act, the High Court should have treated the question of principle as no longer open. The High Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134 (1) (c) of the Constitution.
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0
### Explanation:
On the contrary, we are of the opinion that the case has been rightly decided. The scheme of the Factories Act clearly shows that the test adopted by this Court is the correct one. It would be impossible to apply many provisions of the Factories Act to the workers of the type we are concerned with here if we were to hold that they were workers within the definition of the Factories Act. We are really surprised that the High Court certified this case to be a fit case for appeal to this Court. After this Court had laid down a test to be applied for determining who were workers within the meaning ofthe Factories Act,the High Court should have treated the question of principle as no longer open. The High Court had certified the case to be fit for appeal as it felt that the question involved is of general importance in the State. If the question of principle has been settled by this Court, the application of the principle to the facts of a particular case does not make the question a fit one for the Supreme Court within Article 134 (1) (c) of the Constitution.
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Raza Buland Sugar Co. Ltd Vs. Municlpal Board, Rampur | of S. 131 (3). Further the manner of publication was in substantial compliance with S. 94 (3). Therefore as there was substantial compliance with the provisions of S. 94 (3), S. 135 (3) would in our opinion come to the help of the respondent and it must be held that all necessary steps had been taken.14. It is however contended on behalf of the respondent that S. 135 (3) goes further and means that where it applies, the tax must be held to be imposed in accordance with the provisions of the Act, even though none of the procedural provisions may have been complied with at all. It is enough to say that the question in this form does not arise before us directly for we have held that there was publication in compliance with S. 131 (3) though the manner was not strictly in accordance with S. 94 (3). We do not think it necessary in the present case to decide what would happen if there was no compliance at all with the various procedural provisions including S. 131 (3) by a Board before imposing a tax and the evidence consisted only of a notification under S.135 (2). It has been held by the Allahabad High Court in a number of cases that if there is no compliance with the procedural provisions in S. 131 to S. 134, the mere notification under S. 135 (2) would not be sufficient to impose a tax and S. 135 (3) would not save such tax: see Azimulla v. Suraj Kumar Singh, AIR 1957 All 307 and Municipal Board Hapur, District Meerut v. Raghvendra Kripal, 1960 All LJ 185. These are cases in which certain procedural provisions were not complied with at all and the High Court held that S. 135 (3) would not save the tax in such cases. We do not think it necessary to express any opinion on this question for it does not arise in the present case. We may however point out that the decision in the Berar Swadeshi Vanaspathis case, (1962) 1 SCR 596 : (AIR 1962 SC 420 ) is not a case where there was no compliance whatsoever with procedural provisions; all that had happened in that case was that the objections had been taken into consideration by the Board though they were rejected for reasons which were considered by the appellant in that case to be not sufficient. In that case therefore there was compliance with the provisions of the Act and all that we need say is that that case is no authority for the proposition that even if there is no compliance whatsoever with a mandatory provision of a statute relating to procedure for the imposition of a tax, a provision like S. 135 (3) of the Act or S. 67 (8) of the C. P. and Berar Municipal Act would necessarily save such imposition. If S: 135 3. means that where there is substantial compliance with the provisions of the Act that would be conclusive proof that they have been complied with there can be no valid objection to such a provision. But if the section is interpreted to mean, as is urged for the respondent, that even it there is no compliance whatever with any mandatory provision relating to imposition of tax andthe only thing proved is that a notification under S. 135 (2) has been made, the tax would still be good, the question may arise whether S. 135 (3) itself is a valid provision. For present purposes however it is unnecessary to decide that question. In the present case the mandatory part of S. 131 (3) has been complied with and its directory part has been substantially complied with and to S. 135 (3) will apply and the objection that the tax is not validly imposed must fail.15. This brings us to the second point raised before us. So far as that is concerned, it is enough to say that it is mainly a question of fact whether the buildings or any of them belonging to the appellant are within 600 feet of the standpipe. The restriction imposed in cl. (a) of S. 129 is that water-tax can be levied on a building where any part of it is within a radius fixed by rules which in the present case is 600 feet from the nearest standpipe or water-work whereat water is made available by the Board to the public. What is contended on behalf of the appellant is that these words mean that there should be a standpipe or water-work from which water is made available to the public by the respondent and that it is not enough if underground pipes carrying water are passing within 600 fect. It seems to us that this contention of the appellant is correct. The restriction in S. 129 (a) is that no water tax can be levied on a building which is more than a certain distance fixed by the rules from a standpipe or other water-work from which water is made available to the public. The restriction that water should be made available to the public within the specified distance does not mean that it prpes carrying water pass underground that would be enough. What is required is that water should be made available to the public from the nearest standpipe or other water work and that requires that there must be something above the ground from which the public can draw water. But even so, the question is one of fact and the High Court has pointed out that there was dispute on this question of fact and there was no sufficient material before it to enable it to come to a definite finding whether all the buildings of the appellant were beyond the radius of 600 feet from the nearest standpipe. In this state of the evidence the question must be left open and the appellant can pursue such remedies as he may be advised to take. | 0[ds]We are therefore of opinion that this part of S. 131 (3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed. We shall consider the interpretation of S. 135 (3) later; but we have no doubt that in the present case, in spite of S. 135 (3), the legislature tended that there must be publication as provided in what we have called the first part of S. 131 (3). We therefore hold that this part of S. 131 (3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we see no serious general inconvenience or injustice to any one if this part of the provision is held to be mandatory; on the other hand it will be unjust to taxpayers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive their of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of S. 131 (3) isprinciple that case in our opinion applies to the manner of publication provided in S. 94 (3) in the present case. As we have said already the essence of S. 131 (3) is that there should be publication of the proposals and draft rules so that the tax-payers have an opportunity of objecting to them, and that is provided in what we have called the first part of S. 131 (3); that is mandatory. But the manner of publication provided by S. 9-1 (3) which we have called the second part of S. 131 (3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the tax-payers a reasonable opportunity of making their objections. We are therefore of opinion that the manner of publication provided in S. 131(3) ismust however point out that if S. 94 (3) is interpreted literally all that it requires is that the publication must be in a local paper and that local paper must be published in Hindi, though the actual publication of the resolution may not be in Hindi. That does not seem to us to be the real meaning of S. 94 (3) and what it substantially requires is that the publication should be in Hindi in a local paper, and if that is done that would be compliance with S. 94 (3). Now what has happened in this case is that the publication has been made in a local paper which on the evidence seems to have good circulation in Rampur and the actual resolution has been published in Hindi, though the paper itself is published in Urdu. It seems to us therefore that there is substantial compliance with the provisions of S. 94(3) in this case, even though there is a technical defect inasmuch as the local paper in which the publication has been made is published in Urdu and not in Hindi. But what has happened in this case is in our opinion substantial compliance with S. 94(3) and as we have held that provision to be directory it must be held that S. 131 (3) has been complied with.The present case is in our opinion similar to that case. Here also the publication was made, as we have already pointed out in compliance with what we have called the first part of S. 131 (3). Further the manner of publication was in substantial compliance with S. 94 (3). Therefore as there was substantial compliance with the provisions of S. 94 (3), S. 135 (3) would in our opinion come to the help of the respondent and it must be held that all necessary steps had beenfar as that is concerned, it is enough to say that it is mainly a question of fact whether the buildings or any of them belonging to the appellant are within 600 feet of the standpipe. The restriction imposed in cl. (a) of S. 129 is that water-tax can be levied on a building where any part of it is within a radius fixed by rules which in the present case is 600 feet from the nearest standpipe or water-work whereat water is made available by the Board to the public. What is contended on behalf of the appellant is that these words mean that there should be a standpipe or water-work from which water is made available to the public by the respondent and that it is not enough if underground pipes carrying water are passing within 600 fect. It seems to us that this contention of the appellant is correct. The restriction in S. 129 (a) is that no water tax can be levied on a building which is more than a certain distance fixed by the rules from a standpipe or other water-work from which water is made available to the public. The restriction that water should be made available to the public within the specified distance does not mean that it prpes carrying water pass underground that would be enough. What is required is that water should be made available to the public from the nearest standpipe or other water work and that requires that there must be something above the ground from which the public can draw water. But even so, the question is one of fact and the High Court has pointed out that there was dispute on this question of fact and there was no sufficient material before it to enable it to come to a definite finding whether all the buildings of the appellant were beyond the radius of 600 feet from the nearest standpipe. In this state of the evidence the question must be left open and the appellant can pursue such remedies as he may be advised to take. | 0 | 6,269 | 1,095 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
of S. 131 (3). Further the manner of publication was in substantial compliance with S. 94 (3). Therefore as there was substantial compliance with the provisions of S. 94 (3), S. 135 (3) would in our opinion come to the help of the respondent and it must be held that all necessary steps had been taken.14. It is however contended on behalf of the respondent that S. 135 (3) goes further and means that where it applies, the tax must be held to be imposed in accordance with the provisions of the Act, even though none of the procedural provisions may have been complied with at all. It is enough to say that the question in this form does not arise before us directly for we have held that there was publication in compliance with S. 131 (3) though the manner was not strictly in accordance with S. 94 (3). We do not think it necessary in the present case to decide what would happen if there was no compliance at all with the various procedural provisions including S. 131 (3) by a Board before imposing a tax and the evidence consisted only of a notification under S.135 (2). It has been held by the Allahabad High Court in a number of cases that if there is no compliance with the procedural provisions in S. 131 to S. 134, the mere notification under S. 135 (2) would not be sufficient to impose a tax and S. 135 (3) would not save such tax: see Azimulla v. Suraj Kumar Singh, AIR 1957 All 307 and Municipal Board Hapur, District Meerut v. Raghvendra Kripal, 1960 All LJ 185. These are cases in which certain procedural provisions were not complied with at all and the High Court held that S. 135 (3) would not save the tax in such cases. We do not think it necessary to express any opinion on this question for it does not arise in the present case. We may however point out that the decision in the Berar Swadeshi Vanaspathis case, (1962) 1 SCR 596 : (AIR 1962 SC 420 ) is not a case where there was no compliance whatsoever with procedural provisions; all that had happened in that case was that the objections had been taken into consideration by the Board though they were rejected for reasons which were considered by the appellant in that case to be not sufficient. In that case therefore there was compliance with the provisions of the Act and all that we need say is that that case is no authority for the proposition that even if there is no compliance whatsoever with a mandatory provision of a statute relating to procedure for the imposition of a tax, a provision like S. 135 (3) of the Act or S. 67 (8) of the C. P. and Berar Municipal Act would necessarily save such imposition. If S: 135 3. means that where there is substantial compliance with the provisions of the Act that would be conclusive proof that they have been complied with there can be no valid objection to such a provision. But if the section is interpreted to mean, as is urged for the respondent, that even it there is no compliance whatever with any mandatory provision relating to imposition of tax andthe only thing proved is that a notification under S. 135 (2) has been made, the tax would still be good, the question may arise whether S. 135 (3) itself is a valid provision. For present purposes however it is unnecessary to decide that question. In the present case the mandatory part of S. 131 (3) has been complied with and its directory part has been substantially complied with and to S. 135 (3) will apply and the objection that the tax is not validly imposed must fail.15. This brings us to the second point raised before us. So far as that is concerned, it is enough to say that it is mainly a question of fact whether the buildings or any of them belonging to the appellant are within 600 feet of the standpipe. The restriction imposed in cl. (a) of S. 129 is that water-tax can be levied on a building where any part of it is within a radius fixed by rules which in the present case is 600 feet from the nearest standpipe or water-work whereat water is made available by the Board to the public. What is contended on behalf of the appellant is that these words mean that there should be a standpipe or water-work from which water is made available to the public by the respondent and that it is not enough if underground pipes carrying water are passing within 600 fect. It seems to us that this contention of the appellant is correct. The restriction in S. 129 (a) is that no water tax can be levied on a building which is more than a certain distance fixed by the rules from a standpipe or other water-work from which water is made available to the public. The restriction that water should be made available to the public within the specified distance does not mean that it prpes carrying water pass underground that would be enough. What is required is that water should be made available to the public from the nearest standpipe or other water work and that requires that there must be something above the ground from which the public can draw water. But even so, the question is one of fact and the High Court has pointed out that there was dispute on this question of fact and there was no sufficient material before it to enable it to come to a definite finding whether all the buildings of the appellant were beyond the radius of 600 feet from the nearest standpipe. In this state of the evidence the question must be left open and the appellant can pursue such remedies as he may be advised to take.
### Response:
0
### Explanation:
We are therefore of opinion that this part of S. 131 (3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed. We shall consider the interpretation of S. 135 (3) later; but we have no doubt that in the present case, in spite of S. 135 (3), the legislature tended that there must be publication as provided in what we have called the first part of S. 131 (3). We therefore hold that this part of S. 131 (3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we see no serious general inconvenience or injustice to any one if this part of the provision is held to be mandatory; on the other hand it will be unjust to taxpayers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive their of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of S. 131 (3) isprinciple that case in our opinion applies to the manner of publication provided in S. 94 (3) in the present case. As we have said already the essence of S. 131 (3) is that there should be publication of the proposals and draft rules so that the tax-payers have an opportunity of objecting to them, and that is provided in what we have called the first part of S. 131 (3); that is mandatory. But the manner of publication provided by S. 9-1 (3) which we have called the second part of S. 131 (3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the tax-payers a reasonable opportunity of making their objections. We are therefore of opinion that the manner of publication provided in S. 131(3) ismust however point out that if S. 94 (3) is interpreted literally all that it requires is that the publication must be in a local paper and that local paper must be published in Hindi, though the actual publication of the resolution may not be in Hindi. That does not seem to us to be the real meaning of S. 94 (3) and what it substantially requires is that the publication should be in Hindi in a local paper, and if that is done that would be compliance with S. 94 (3). Now what has happened in this case is that the publication has been made in a local paper which on the evidence seems to have good circulation in Rampur and the actual resolution has been published in Hindi, though the paper itself is published in Urdu. It seems to us therefore that there is substantial compliance with the provisions of S. 94(3) in this case, even though there is a technical defect inasmuch as the local paper in which the publication has been made is published in Urdu and not in Hindi. But what has happened in this case is in our opinion substantial compliance with S. 94(3) and as we have held that provision to be directory it must be held that S. 131 (3) has been complied with.The present case is in our opinion similar to that case. Here also the publication was made, as we have already pointed out in compliance with what we have called the first part of S. 131 (3). Further the manner of publication was in substantial compliance with S. 94 (3). Therefore as there was substantial compliance with the provisions of S. 94 (3), S. 135 (3) would in our opinion come to the help of the respondent and it must be held that all necessary steps had beenfar as that is concerned, it is enough to say that it is mainly a question of fact whether the buildings or any of them belonging to the appellant are within 600 feet of the standpipe. The restriction imposed in cl. (a) of S. 129 is that water-tax can be levied on a building where any part of it is within a radius fixed by rules which in the present case is 600 feet from the nearest standpipe or water-work whereat water is made available by the Board to the public. What is contended on behalf of the appellant is that these words mean that there should be a standpipe or water-work from which water is made available to the public by the respondent and that it is not enough if underground pipes carrying water are passing within 600 fect. It seems to us that this contention of the appellant is correct. The restriction in S. 129 (a) is that no water tax can be levied on a building which is more than a certain distance fixed by the rules from a standpipe or other water-work from which water is made available to the public. The restriction that water should be made available to the public within the specified distance does not mean that it prpes carrying water pass underground that would be enough. What is required is that water should be made available to the public from the nearest standpipe or other water work and that requires that there must be something above the ground from which the public can draw water. But even so, the question is one of fact and the High Court has pointed out that there was dispute on this question of fact and there was no sufficient material before it to enable it to come to a definite finding whether all the buildings of the appellant were beyond the radius of 600 feet from the nearest standpipe. In this state of the evidence the question must be left open and the appellant can pursue such remedies as he may be advised to take.
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B. Anjanappa & Others Vs. Vyalikaval House Building Co-Operative Society Limited & Others | private person with the written sanction of the BDA and subject to the terms and conditions which it may specify. Sub-section (2) of Section 32 provides for making of written application along with plans and sections showing various matters enumerated in clauses (a) to (d). Similar provisions are contained in Section 18 of the Karnataka Housing Board Act."Although, the appellant may not have been required to frame a scheme in strict conformity with the provisions of the 1976 Act and the Housing Board Act, but it was bound to frame scheme disclosing the total number of members eligible for allotment of sites, the requirement of land including the size of the plots and broad indication of the mode and manner of development of the land as a layout. The State Government could then apply mind whether or not the housing scheme framed by the appellant should be approved. However, as mentioned above, the appellant did not produce any evidence before the High Court to show that it had framed a housing scheme and the same was approved by the State Government before the issue of notification under Section 4(1) of the 1894 Act. Even before this Court, no material has been produced to show that, in fact, such a scheme had been framed and approved by the State Government. Therefore, the Division Bench of the High Court rightly referred to Section 3(f)(vi) and held that in the absence of a housing scheme having been framed by the appellant, the acquisition of land belonging to respondent No.3 was not for a public purpose as defined in Section 3(f)(vi)." 20. In the context of the aforesaid verdicts, we asked Shri V.N.Raghupathy, learned counsel for the State whether respondent No.1 had submitted a housing scheme for the approval of the State Government. In reply, Shri Raghupathy made a categorical statement that respondent No.1 had not submitted any scheme for the approval of the State Government. 21. We then enquired from Shri Bhat whether his client had submitted housing scheme for the approval of the State Government. Shri Bhat responded to the Courts query by relying upon the recommendations made by the State Leval Coordination Committee for the acquisition of 179 acres, one and half guntas land. We have carefully gone through the recommendations of the State Level Coordination Committee but do not find any trace of housing scheme which was under the consideration of the Committee. 22. Shri Bhat then relied upon the approval accorded by the State Government for the acquisition of land and the directions issued to Deputy Commissioner, Bangalore to issue notification under Section 4(1) of the 1894 Act. He also relied upon the judgment in Kanaka Gruha Nirmana Sahakara Sangha v. Narayanamma (2003) 1 SCC 228. 23. In Bangalore City Cooperative Housing Society Limited v. State of Karnataka and others decided on 2.2.2012, this Court considered the question whether the approval granted by the State Government for the acquisition of land can be considered as an approval of the housing scheme within the meaning of Section 3(f)(vi) of the Act and answered the same in negative. 24. The judgment in Kanak Gruha Nirmana Sahakara Sangha v. Narayanamma (supra), if read in the light of the 1st and 2nd HMT judgments and the finding recorded by us that respondent No.1 had not framed any housing scheme and secured its approval from the State Government, the direction given to the Deputy Commissioner to issue notification under Section 4(1) cannot be treated as the State Governments approval of the housing scheme framed by respondent No.1. It is also apposite to note that in Kanak Gruhas case, this Court was not called upon to consider a case in which the State Government had come out with a specific stand that the housing society had not framed any scheme. 25. We also find merit in the appellants contention that direction given by the learned Single Judge for issue of a declaration under Section 6(1) was totally unwarranted. As a matter of fact, the entire proceedings leading to the issue of notification under Section 4(1) were vitiated due to the intervention of the extraneous factor, i.e., the proposal prepared by Additional Registrar, Cooperative Societies and approval thereof by the Revenue Department in total disregard of the decision taken by the Council of Ministers on 30.12.1997. The direction given by the Revenue Minister of State to issue declaration without even waiting for the expiry of four weeks time specified in the order passed by the learned Single Judge in Writ Petition Nos.30629 and 30630 of 1999 was not only contrary to the decision of the Council of Ministers, but was ex facie contemptuous of the High Courts order. 26. We may also mention that the direction given by the learned Single Judge on 9.3.2004 was infructuous because the time within which the declaration under Section 6(1) could have been issued had expired on 28.7.2000 and in view of the judgment of the Constitution Bench in Padmausundara Rao (Dead) and others vs. State of T.N. and others (2002) 3 SCC 533 , the State Government could not have issued notification under Section 6(1) after that date. Unfortunately, the learned Single Judge and the Division Bench completely overlooked the mandate of proviso (ii) to Section 6(1).27. In the result, the appeals are allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by respondent No.1 is dismissed.28. If respondent No.1 is in possession of the acquired land or any portion thereof, then the same shall be returned to the concerned landowners within a period of two months from today. This direction shall apply not only qua the appellants but other landowners who may not have filed writ appeals or the special leave petitions, may be due to poverty, illeteracy or ignorance.29. However, it is made clear that the above mentioned directions shall not apply to such of the landowners who have withdrawn the special leave petitions. | 0[ds]27. In the result, the appeals are allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by respondent No.1 is dismissed.28. If respondent No.1 is in possession of the acquired land or any portion thereof, then the same shall be returned to the concerned landowners within a period of two months from today. This direction shall apply not only qua the appellants but other landowners who may not have filed writ appeals or the special leave petitions, may be due to poverty, illeteracy or ignorance.29. However, it is made clear that the above mentioned directions shall not apply to such of the landowners who have withdrawn the special leave petitions. | 0 | 5,835 | 138 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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private person with the written sanction of the BDA and subject to the terms and conditions which it may specify. Sub-section (2) of Section 32 provides for making of written application along with plans and sections showing various matters enumerated in clauses (a) to (d). Similar provisions are contained in Section 18 of the Karnataka Housing Board Act."Although, the appellant may not have been required to frame a scheme in strict conformity with the provisions of the 1976 Act and the Housing Board Act, but it was bound to frame scheme disclosing the total number of members eligible for allotment of sites, the requirement of land including the size of the plots and broad indication of the mode and manner of development of the land as a layout. The State Government could then apply mind whether or not the housing scheme framed by the appellant should be approved. However, as mentioned above, the appellant did not produce any evidence before the High Court to show that it had framed a housing scheme and the same was approved by the State Government before the issue of notification under Section 4(1) of the 1894 Act. Even before this Court, no material has been produced to show that, in fact, such a scheme had been framed and approved by the State Government. Therefore, the Division Bench of the High Court rightly referred to Section 3(f)(vi) and held that in the absence of a housing scheme having been framed by the appellant, the acquisition of land belonging to respondent No.3 was not for a public purpose as defined in Section 3(f)(vi)." 20. In the context of the aforesaid verdicts, we asked Shri V.N.Raghupathy, learned counsel for the State whether respondent No.1 had submitted a housing scheme for the approval of the State Government. In reply, Shri Raghupathy made a categorical statement that respondent No.1 had not submitted any scheme for the approval of the State Government. 21. We then enquired from Shri Bhat whether his client had submitted housing scheme for the approval of the State Government. Shri Bhat responded to the Courts query by relying upon the recommendations made by the State Leval Coordination Committee for the acquisition of 179 acres, one and half guntas land. We have carefully gone through the recommendations of the State Level Coordination Committee but do not find any trace of housing scheme which was under the consideration of the Committee. 22. Shri Bhat then relied upon the approval accorded by the State Government for the acquisition of land and the directions issued to Deputy Commissioner, Bangalore to issue notification under Section 4(1) of the 1894 Act. He also relied upon the judgment in Kanaka Gruha Nirmana Sahakara Sangha v. Narayanamma (2003) 1 SCC 228. 23. In Bangalore City Cooperative Housing Society Limited v. State of Karnataka and others decided on 2.2.2012, this Court considered the question whether the approval granted by the State Government for the acquisition of land can be considered as an approval of the housing scheme within the meaning of Section 3(f)(vi) of the Act and answered the same in negative. 24. The judgment in Kanak Gruha Nirmana Sahakara Sangha v. Narayanamma (supra), if read in the light of the 1st and 2nd HMT judgments and the finding recorded by us that respondent No.1 had not framed any housing scheme and secured its approval from the State Government, the direction given to the Deputy Commissioner to issue notification under Section 4(1) cannot be treated as the State Governments approval of the housing scheme framed by respondent No.1. It is also apposite to note that in Kanak Gruhas case, this Court was not called upon to consider a case in which the State Government had come out with a specific stand that the housing society had not framed any scheme. 25. We also find merit in the appellants contention that direction given by the learned Single Judge for issue of a declaration under Section 6(1) was totally unwarranted. As a matter of fact, the entire proceedings leading to the issue of notification under Section 4(1) were vitiated due to the intervention of the extraneous factor, i.e., the proposal prepared by Additional Registrar, Cooperative Societies and approval thereof by the Revenue Department in total disregard of the decision taken by the Council of Ministers on 30.12.1997. The direction given by the Revenue Minister of State to issue declaration without even waiting for the expiry of four weeks time specified in the order passed by the learned Single Judge in Writ Petition Nos.30629 and 30630 of 1999 was not only contrary to the decision of the Council of Ministers, but was ex facie contemptuous of the High Courts order. 26. We may also mention that the direction given by the learned Single Judge on 9.3.2004 was infructuous because the time within which the declaration under Section 6(1) could have been issued had expired on 28.7.2000 and in view of the judgment of the Constitution Bench in Padmausundara Rao (Dead) and others vs. State of T.N. and others (2002) 3 SCC 533 , the State Government could not have issued notification under Section 6(1) after that date. Unfortunately, the learned Single Judge and the Division Bench completely overlooked the mandate of proviso (ii) to Section 6(1).27. In the result, the appeals are allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by respondent No.1 is dismissed.28. If respondent No.1 is in possession of the acquired land or any portion thereof, then the same shall be returned to the concerned landowners within a period of two months from today. This direction shall apply not only qua the appellants but other landowners who may not have filed writ appeals or the special leave petitions, may be due to poverty, illeteracy or ignorance.29. However, it is made clear that the above mentioned directions shall not apply to such of the landowners who have withdrawn the special leave petitions.
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27. In the result, the appeals are allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by respondent No.1 is dismissed.28. If respondent No.1 is in possession of the acquired land or any portion thereof, then the same shall be returned to the concerned landowners within a period of two months from today. This direction shall apply not only qua the appellants but other landowners who may not have filed writ appeals or the special leave petitions, may be due to poverty, illeteracy or ignorance.29. However, it is made clear that the above mentioned directions shall not apply to such of the landowners who have withdrawn the special leave petitions.
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HOSPITALITY ASSOCIATION OF MUDUMALAI Vs. IN DEFENCE OF ENVIRONMENT AND ANIMALS AND ORS. ETC | impugned G.O., notified this single elephant corridor, along the lines of the recommendations made by the Expert Committee. 39. The first limb of the appellants contentions before us is that there is no statutory power for creating/recognition of new corridors by the State Government. We do not find merit in this argument and, in principle, are in agreement with the findings of the High Court regarding the power of the State Government to take measures, including issuance of the impugned G.O., for protection of wildlife in T amil Nadu. It is undeniable that the State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17A Forest and 17B Protection of wild animals and birds in the concurrent list and the power of the State Government under the Wildlife Act to notify Sanctuaries and other protected areas. It is an admitted position that the land of the appellants has also been notified as private forest in 1991 under the T amil Nadu Preservation of Private Forests Act, 1949, which prohibits cutting of trees in private forests. Our attention has also been drawn to the decision of this Court in T.N. Godavaraman Thirumulkpad v. Union of India 1997 (2) SCC 267 wherein felling of trees in the state of T amil Nadu was prohibited in all forests, including forests situated in privately owned lands. The contesting respondents have argued that the construction of the appellants resorts must have necessarily run afoul of the above decision of this Court. Without commenting on the factual accuracy of this assertion, given that the classification of the appellants land as private forest land is not in dispute here, we find no difficulty in holding that the State Government was empowered to protect the habitats situated on the appellants land by notifying an elephant corridor thereupon. 40. Furthermore, since the impugned decision of the High Court, the Ministry of Environment, Forest and Climate Change vide its Notification S.O. 4498(E) dated 13.12.2019 has declared the entire area in question and adjoining areas around the Mudumalai Tiger Reserve as an Eco-Sensitive Zone. Under this Notification, the State Government of T amil Nadu has been expressly directed to regulate land use generally, as well commercial establishment of hotels/resorts specifically, in the Eco-Sensitive Zone so established. As was held by this Court in M.C. Mehta v. Union of India and Ors.1997 (3) SCC 715 the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant corridor.41. The second limb of the appellants submissions comprises of questions about the scientific accuracy of the Expert Committees Report and contentions that the dimensions as well as the location of the single corridor identified therein are at odds with authoritative scientific publications. It has been argued by the appellants that their resorts and other establishments do not fall within the historic corridors identified in these publications.These assertions were dealt with by the High Court which held that there was material on record to show presence of elephants as well as a past incident of human-elephant conflict, which resulted in the death of a French tourist, in the region where the appellants resorts are located. The High Court also held that any absence of elephants from the areas surrounding the appellants resorts was, in fact, due to the construction activities of the appellants whereby access of the elephants has been restricted through erection of electric fencing. We see no reason to interfere with the above factual findings of the High Court and also do not find fault in the State Governments adoption of the recommendations of the High Court-appointed Expert Committee, through the impugned G.O. 42. This brings us to the last limb of the submissions of the appellants, which is comprised of factual objections to the acreage of the elephant corridor as notified by the impugned G.O. and the actions taken by the District Collector, Nilgiris in pursuance thereof. The appellants have contended that there has been substantial variance between the acreage recommended for acquisition by the Expert Committee Report and the acreage in the impugned G.O. It is further alleged that the acreage in the newspaper advertisement by the State Government inviting objections to notification of the corridor is also different from the acreage in the impugned G.O. As all the objections received pursuant to the said newspaper advertisement were rejected by the State Government and since the impugned G.O. purported to adopt the recommendations of the Expert Committee, the appellants allege that the said variance in acreage is arbitrary and unreasonable. It has also been alleged that the District Collector, Nilgiris has acted arbitrarily in sealing their resorts after rejecting the documents submitted by the appellant resorts purporting to show approvals and title. Similarly, it has been alleged that the District Collector went beyond the scope of this Courts order dated 24.12.2018 wherein immediate removal of electric fences and barbed wire was directed. It is the appellants case that non-electric fences as well as fences beyond the notified elephant corridor area were removed by the District Collector. We are of the view that it is just and proper to hold an inquiry to establish the veracity of the above factual objections of the appellants. | 1[ds]Elephant corridors allow elephants to continue their nomadic mode of survival, despite shrinking forest cover, by facilitating travel between distinct forest habitats. Corridors are narrow and linear patches of forest which establish and facilitate connectivity across habitats. In the context of todays world, where habitat fragmentation has become increasingly common, these corridors play a crucial role in sustaining wildlife by reducing the impact of habitat isolations. In their absence, elephants would be unable to move freely, which would in turn affect many other animal species and the ecosystem balance of several wild habitats would be unalterably upset. It would also eventually lead to the local extinction of elephants, a species which is widely revered in our country and across the world. T o secure wild elephants future, it is essential that we ensure their uninterrupted movement between different forest habitats. For this, elephant corridors must be protected.35. Legal intervention in preservation of these corridors has been necessitated because wildlife corridors are threatened by various social, economic and anthropogenic factors, as noted above. Commercial activities such as running of private resorts and construction of new buildings with barbed and electric fences within elephant corridors pose a serious threat of fragmentation and destruction of habitats. The long-term survival of the species depends on maintaining viable habitats and connecting corridors which maintain variance in the species gene pool and avoid other risks associated with habitat fragmentation and isolation of species.It connects the Western and the Eastern Ghats and sustains elephant populations and their genetic diversity. The Sigur Plateau has the Nilgiri Hills on its south- western side and the Moyar River Valley on its north-eastern side. Depending on the monsoon, the elephants migrate in search of food and water and during the course of their migration, they have to cross the Sigur Plateau. This migratory path is considered to be very crucial as it connects several contiguous forest areas forming the Nilgiri Biosphere Reserve in the states of T amil Nadu, Karnataka and Kerala, the largest protected forest area in India38. Conflicting maps of this corridor were presented before the Madras High Court, which thus directed the State Government to choose between: (i) the elephant corridors identified in the Wildlife Trust of Indias book titled Right of Passage – Elephant Corridors of India which were referred to by the Central Government in its letter dated 11.08.2006 to the State Government; or (ii) the single elephant corridor identified by the Expert Committee appointed by the High Court. As per the aforesaid book titled Right of Passage, the following 4 corridors lie in the Sigur Plateau region: (i) Avarahalla – Sigur, (ii) Kalhatti – Sigur at Glencorin, (iii) Moyar – Avarahalla and (iv) Kalmalai – Singara and Avarahalla. The Expert Committee examined all the elephant corridors in the area and identified a single elephant corridor comprising of various elephant corridors in the Sigur Plateau region. The State Government, vide the impugned G.O., notified this single elephant corridor, along the lines of the recommendations made by the Expert Committee.39. The first limb of the appellants contentions before us is that there is no statutory power for creating/recognition of new corridors by the State Government. We do not find merit in this argument and, in principle, are in agreement with the findings of the High Court regarding the power of the State Government to take measures, including issuance of the impugned G.O., for protection of wildlife in T amil Nadu. It is undeniable that the State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17A Forest and 17B Protection of wild animals and birds in the concurrent list and the power of the State Government under the Wildlife Act to notify Sanctuaries and other protected areas. It is an admitted position that the land of the appellants has also been notified as private forest in 1991 under the T amil Nadu Preservation of Private Forests Act, 1949, which prohibits cutting of trees in private forests.Without commenting on the factual accuracy of this assertion, given that the classification of the appellants land as private forest land is not in dispute here, we find no difficulty in holding that the State Government was empowered to protect the habitats situated on the appellants land by notifying an elephant corridor thereupon.40. Furthermore, since the impugned decision of the High Court, the Ministry of Environment, Forest and Climate Change vide its Notification S.O. 4498(E) dated 13.12.2019 has declared the entire area in question and adjoining areas around the Mudumalai Tiger Reserve as an Eco-Sensitive Zone. Under this Notification, the State Government of T amil Nadu has been expressly directed to regulate land use generally, as well commercial establishment of hotels/resorts specifically, in the Eco-Sensitive Zone so established. As was held by this Court in M.C. Mehta v. Union of India and Ors.1997 (3) SCC 715 the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant corridor.We are of the view that it is just and proper to hold an inquiry to establish the veracity of the above factual objections of the appellants.37. Specifically in issue before us, is the corridor in the Sigur Plateau of T amil Nadu. | 1 | 7,260 | 1,097 | ### 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:
impugned G.O., notified this single elephant corridor, along the lines of the recommendations made by the Expert Committee. 39. The first limb of the appellants contentions before us is that there is no statutory power for creating/recognition of new corridors by the State Government. We do not find merit in this argument and, in principle, are in agreement with the findings of the High Court regarding the power of the State Government to take measures, including issuance of the impugned G.O., for protection of wildlife in T amil Nadu. It is undeniable that the State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17A Forest and 17B Protection of wild animals and birds in the concurrent list and the power of the State Government under the Wildlife Act to notify Sanctuaries and other protected areas. It is an admitted position that the land of the appellants has also been notified as private forest in 1991 under the T amil Nadu Preservation of Private Forests Act, 1949, which prohibits cutting of trees in private forests. Our attention has also been drawn to the decision of this Court in T.N. Godavaraman Thirumulkpad v. Union of India 1997 (2) SCC 267 wherein felling of trees in the state of T amil Nadu was prohibited in all forests, including forests situated in privately owned lands. The contesting respondents have argued that the construction of the appellants resorts must have necessarily run afoul of the above decision of this Court. Without commenting on the factual accuracy of this assertion, given that the classification of the appellants land as private forest land is not in dispute here, we find no difficulty in holding that the State Government was empowered to protect the habitats situated on the appellants land by notifying an elephant corridor thereupon. 40. Furthermore, since the impugned decision of the High Court, the Ministry of Environment, Forest and Climate Change vide its Notification S.O. 4498(E) dated 13.12.2019 has declared the entire area in question and adjoining areas around the Mudumalai Tiger Reserve as an Eco-Sensitive Zone. Under this Notification, the State Government of T amil Nadu has been expressly directed to regulate land use generally, as well commercial establishment of hotels/resorts specifically, in the Eco-Sensitive Zone so established. As was held by this Court in M.C. Mehta v. Union of India and Ors.1997 (3) SCC 715 the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant corridor.41. The second limb of the appellants submissions comprises of questions about the scientific accuracy of the Expert Committees Report and contentions that the dimensions as well as the location of the single corridor identified therein are at odds with authoritative scientific publications. It has been argued by the appellants that their resorts and other establishments do not fall within the historic corridors identified in these publications.These assertions were dealt with by the High Court which held that there was material on record to show presence of elephants as well as a past incident of human-elephant conflict, which resulted in the death of a French tourist, in the region where the appellants resorts are located. The High Court also held that any absence of elephants from the areas surrounding the appellants resorts was, in fact, due to the construction activities of the appellants whereby access of the elephants has been restricted through erection of electric fencing. We see no reason to interfere with the above factual findings of the High Court and also do not find fault in the State Governments adoption of the recommendations of the High Court-appointed Expert Committee, through the impugned G.O. 42. This brings us to the last limb of the submissions of the appellants, which is comprised of factual objections to the acreage of the elephant corridor as notified by the impugned G.O. and the actions taken by the District Collector, Nilgiris in pursuance thereof. The appellants have contended that there has been substantial variance between the acreage recommended for acquisition by the Expert Committee Report and the acreage in the impugned G.O. It is further alleged that the acreage in the newspaper advertisement by the State Government inviting objections to notification of the corridor is also different from the acreage in the impugned G.O. As all the objections received pursuant to the said newspaper advertisement were rejected by the State Government and since the impugned G.O. purported to adopt the recommendations of the Expert Committee, the appellants allege that the said variance in acreage is arbitrary and unreasonable. It has also been alleged that the District Collector, Nilgiris has acted arbitrarily in sealing their resorts after rejecting the documents submitted by the appellant resorts purporting to show approvals and title. Similarly, it has been alleged that the District Collector went beyond the scope of this Courts order dated 24.12.2018 wherein immediate removal of electric fences and barbed wire was directed. It is the appellants case that non-electric fences as well as fences beyond the notified elephant corridor area were removed by the District Collector. We are of the view that it is just and proper to hold an inquiry to establish the veracity of the above factual objections of the appellants.
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### Explanation:
Elephant corridors allow elephants to continue their nomadic mode of survival, despite shrinking forest cover, by facilitating travel between distinct forest habitats. Corridors are narrow and linear patches of forest which establish and facilitate connectivity across habitats. In the context of todays world, where habitat fragmentation has become increasingly common, these corridors play a crucial role in sustaining wildlife by reducing the impact of habitat isolations. In their absence, elephants would be unable to move freely, which would in turn affect many other animal species and the ecosystem balance of several wild habitats would be unalterably upset. It would also eventually lead to the local extinction of elephants, a species which is widely revered in our country and across the world. T o secure wild elephants future, it is essential that we ensure their uninterrupted movement between different forest habitats. For this, elephant corridors must be protected.35. Legal intervention in preservation of these corridors has been necessitated because wildlife corridors are threatened by various social, economic and anthropogenic factors, as noted above. Commercial activities such as running of private resorts and construction of new buildings with barbed and electric fences within elephant corridors pose a serious threat of fragmentation and destruction of habitats. The long-term survival of the species depends on maintaining viable habitats and connecting corridors which maintain variance in the species gene pool and avoid other risks associated with habitat fragmentation and isolation of species.It connects the Western and the Eastern Ghats and sustains elephant populations and their genetic diversity. The Sigur Plateau has the Nilgiri Hills on its south- western side and the Moyar River Valley on its north-eastern side. Depending on the monsoon, the elephants migrate in search of food and water and during the course of their migration, they have to cross the Sigur Plateau. This migratory path is considered to be very crucial as it connects several contiguous forest areas forming the Nilgiri Biosphere Reserve in the states of T amil Nadu, Karnataka and Kerala, the largest protected forest area in India38. Conflicting maps of this corridor were presented before the Madras High Court, which thus directed the State Government to choose between: (i) the elephant corridors identified in the Wildlife Trust of Indias book titled Right of Passage – Elephant Corridors of India which were referred to by the Central Government in its letter dated 11.08.2006 to the State Government; or (ii) the single elephant corridor identified by the Expert Committee appointed by the High Court. As per the aforesaid book titled Right of Passage, the following 4 corridors lie in the Sigur Plateau region: (i) Avarahalla – Sigur, (ii) Kalhatti – Sigur at Glencorin, (iii) Moyar – Avarahalla and (iv) Kalmalai – Singara and Avarahalla. The Expert Committee examined all the elephant corridors in the area and identified a single elephant corridor comprising of various elephant corridors in the Sigur Plateau region. The State Government, vide the impugned G.O., notified this single elephant corridor, along the lines of the recommendations made by the Expert Committee.39. The first limb of the appellants contentions before us is that there is no statutory power for creating/recognition of new corridors by the State Government. We do not find merit in this argument and, in principle, are in agreement with the findings of the High Court regarding the power of the State Government to take measures, including issuance of the impugned G.O., for protection of wildlife in T amil Nadu. It is undeniable that the State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17A Forest and 17B Protection of wild animals and birds in the concurrent list and the power of the State Government under the Wildlife Act to notify Sanctuaries and other protected areas. It is an admitted position that the land of the appellants has also been notified as private forest in 1991 under the T amil Nadu Preservation of Private Forests Act, 1949, which prohibits cutting of trees in private forests.Without commenting on the factual accuracy of this assertion, given that the classification of the appellants land as private forest land is not in dispute here, we find no difficulty in holding that the State Government was empowered to protect the habitats situated on the appellants land by notifying an elephant corridor thereupon.40. Furthermore, since the impugned decision of the High Court, the Ministry of Environment, Forest and Climate Change vide its Notification S.O. 4498(E) dated 13.12.2019 has declared the entire area in question and adjoining areas around the Mudumalai Tiger Reserve as an Eco-Sensitive Zone. Under this Notification, the State Government of T amil Nadu has been expressly directed to regulate land use generally, as well commercial establishment of hotels/resorts specifically, in the Eco-Sensitive Zone so established. As was held by this Court in M.C. Mehta v. Union of India and Ors.1997 (3) SCC 715 the Precautionary Principle has been accepted as a part of the law of our land. Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. In this light, we have no hesitation in holding that in order to protect the elephant population in the Sigur Plateau region, it was necessary and appropriate for the State Government to limit commercial activity in the areas falling within the elephant corridor.We are of the view that it is just and proper to hold an inquiry to establish the veracity of the above factual objections of the appellants.37. Specifically in issue before us, is the corridor in the Sigur Plateau of T amil Nadu.
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Raja Dhruv Dev Chand Vs. Harmohinder Singh & Anr | the land under his tenancy at the disposal of the Land Acquisition Collector, and the Collector took possession of the premises let out to him, it was held that even though the occurrence was unforeseen and was not contemplated by the parties when the lease was created, the occurrence was not so fundamental as to be regarded in law to strike at the root and destroy the basis of the relationship of landlord and tenant. 14. In Tarabai Jivanlal v. Padamchand, AIR 1950 Bom 89 it was held that monthly tenants of residential premises from whose occupation the premises were requisitioned continued to remain the monthly tenants of the landlord as before and that by reason of the requisition there was no eviction by title paramount or a frustration of adventure. The Court in that case observed that the doctrine of frustration did not apply where there is a lease whether the term is one for a fixed period or one which can be terminated by notice to quit, as the estate vested in the lessee by a lease is not extinguished by the order of requisition which is of a temporary nature. 15. In Alanduraiappar Koil Chithakkadu v. T. S. A. Hamid, AIR l968 Mad 194 a lessee of a shandy tope agreeing to pay an annual rent for a period of five years was held not to be entitled to remission merely for the reason that the shandy was hit by two cyclones during the period of lease and that for, some period on account of the cyclone, "the shandy did not form properly or regularly and the lessee did not get any income". The Court held in that case that in the absence of any provision for remission on account of losses, no such remission can be granted by the Courts. 16. In Sri Amurui Perumal Devasthanam v. Sahapathi Pillai, AIR 1962 Mad 132 the plaintiff Devasthanam granted a lease of lands in open auction to the defendant on the terms and conditions set out in the auction notices and a deed of lease was executed by the Devasthanam and the defendants. The Government of Madras thereafter promulgated Ordinance IV of 1952 which restricted the quantum of rent payable by the tenants to the landlords. The defendants remained in possession till after the expiry of the period of the lease, but neglected to pay rent and failed to comply with the terms of the lease. It was held that the plaintiff was held entitled to recover the stipulated rent from the defendants. 17. Our attention was, however, invited to certain cases in which counsel claimed that the doctrine of frustration had been applied to leases. In Inder Pershad Singh v. Campbell, (1881) ILR 7 Cal 474 the plaintiff agreed to cultivate indigo for the defendant for a specified number of years in certain lands with respect to a portion of which lands the plaintiff was a sub-tenant only. During the continuance of the contract the plaintiff lost possession of those lands through his immediate landlord having failed to pay the rent, and having been in consequence ejected therefrom by the owner. In a suit by the plaintiff to have so much of the contract as related to those lands cancelled, on the ground that it had become impossible of performance through no neglect on his part, it was held that the case fell within Cl. 2 of S. 56 of the Contract Act. But between the parties to the litigation there was no relation of landlord and tenant. The plaintiff was enable to raise indigo and supply to the defendants because the plaintiffs landlord failed to pay the rent due, and the plaintiff was on that account ejected from the land. That case does not in our view, support the contention that the doctrine of frustration applies to the case of a lease. 18. The case strongly relied upon by counsel for the appellant was Gurdarshan Singh v. Bishen Singh, ILR (1962) 2 Punj .5 = (AIR l963 Punj 49) (FB). In that case a lease was executed on January 8, 1947 in respect of agricultural land situated in an area which on partition of India fell within West Pakistan. The Court found that possession of the demised land was not given to the lessee, and the landlord was on account of riots unable to deliver possession. Obviously on that finding the tenant was entitled to claim refund of the rent paid. But the Court proceeded to consider the question "whether the doctrine of frustration applies to a contract of lease of agricultural lands" and recorded an answer that the doctrine of frustration applies to leases. The Court observed at p. 13-"that the doctrine of frustration does apply to leases, but even if it does not apply in terms to contract of lease of agricultural land the broad principle of frustration of contract applies to leases". We are unable to agree with that observation, and the observation at p. 11 that "According to Indian law, sales of land as also leases are contracts" -Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or renderd substantially and permanently unfit for the purpose for which it was let out, because of Fire, tempest, flood, violence of an army or a mob, or other irresistible force the lease may at the option of the lessee, be avoided. This rule is incorporated in S. 108 (e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him. | 0[ds]10. We are unable to agree with counsel for the appellant in the present case that the relation between the appellant and the respondents vested in a contract. It is true that the Court of Wards had accepted the tender of the appellant and had granted him lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract.By S. 4 of the Transfer of Pro party Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part ofthe Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transferits express terms S. 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second paragraph of S 56 which is the only paragraph material to cases of this nature has a limited application to covenants under a lease. A covenant under a lease to do an act which after the contract is made becomes impossible or by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawfu1. But on that account the transfer of property resulting from the lease granted by the lessor to the lessee is not declared void12. By the agreement of lease the appellant undertook to pay rent for the year1947-48 and the Court of Wards agreed to give on lease the land in its management. It is not claimed that the agreement of lease was void or voidable. Nor is it the case of the appellant that the lease was determined in any manner known to law. The appellant obtained possession of the land. He was unable to continue in effective possession on account of circumstances beyond his control. Granting that the parties at the date of the lease did not contemplate that there may be riots in the area rendering it unsafe for the appellant to carry on cultivation, or that the crops grown by him may be looted, there was no covenant in the lease that in the event of the appellant being unable to remain in possession and to cultivate the land and to collect the crops, he will not be liable to pay the rent. Inability of the appellant to cultivate the land or to collect the crops because of widespread riots cannot in the events that transpired clothe him with the right to claim refund of the rent paidThe Court found that possession of the demised land was not given to the lessee, and the landlord was on account of riots unable to deliver possession. Obviously on that finding the tenant was entitled to claim refund of the rent paid. But the Court proceeded to consider the questionr the doctrine of frustration applies to a contract of lease of agricultural lands" and recorded an answer that the doctrine of frustration applies to leases.The Court observed at p.t the doctrine of frustration does apply to leases, but even if it does not apply in terms to contract of lease of agricultural land the broad principle of frustration of contract applies to leases".We are unable to agree with that observation, and the observation at p. 11 that "According to Indian law, sales of land as also leases are contracts" -Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or renderd substantially and permanently unfit for the purpose for which it was let out, because of Fire, tempest, flood, violence of an army or a mob, or other irresistible force the lease may at the option of the lessee, be avoided. This rule is incorporated in S. 108 (e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him. | 0 | 2,761 | 813 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the land under his tenancy at the disposal of the Land Acquisition Collector, and the Collector took possession of the premises let out to him, it was held that even though the occurrence was unforeseen and was not contemplated by the parties when the lease was created, the occurrence was not so fundamental as to be regarded in law to strike at the root and destroy the basis of the relationship of landlord and tenant. 14. In Tarabai Jivanlal v. Padamchand, AIR 1950 Bom 89 it was held that monthly tenants of residential premises from whose occupation the premises were requisitioned continued to remain the monthly tenants of the landlord as before and that by reason of the requisition there was no eviction by title paramount or a frustration of adventure. The Court in that case observed that the doctrine of frustration did not apply where there is a lease whether the term is one for a fixed period or one which can be terminated by notice to quit, as the estate vested in the lessee by a lease is not extinguished by the order of requisition which is of a temporary nature. 15. In Alanduraiappar Koil Chithakkadu v. T. S. A. Hamid, AIR l968 Mad 194 a lessee of a shandy tope agreeing to pay an annual rent for a period of five years was held not to be entitled to remission merely for the reason that the shandy was hit by two cyclones during the period of lease and that for, some period on account of the cyclone, "the shandy did not form properly or regularly and the lessee did not get any income". The Court held in that case that in the absence of any provision for remission on account of losses, no such remission can be granted by the Courts. 16. In Sri Amurui Perumal Devasthanam v. Sahapathi Pillai, AIR 1962 Mad 132 the plaintiff Devasthanam granted a lease of lands in open auction to the defendant on the terms and conditions set out in the auction notices and a deed of lease was executed by the Devasthanam and the defendants. The Government of Madras thereafter promulgated Ordinance IV of 1952 which restricted the quantum of rent payable by the tenants to the landlords. The defendants remained in possession till after the expiry of the period of the lease, but neglected to pay rent and failed to comply with the terms of the lease. It was held that the plaintiff was held entitled to recover the stipulated rent from the defendants. 17. Our attention was, however, invited to certain cases in which counsel claimed that the doctrine of frustration had been applied to leases. In Inder Pershad Singh v. Campbell, (1881) ILR 7 Cal 474 the plaintiff agreed to cultivate indigo for the defendant for a specified number of years in certain lands with respect to a portion of which lands the plaintiff was a sub-tenant only. During the continuance of the contract the plaintiff lost possession of those lands through his immediate landlord having failed to pay the rent, and having been in consequence ejected therefrom by the owner. In a suit by the plaintiff to have so much of the contract as related to those lands cancelled, on the ground that it had become impossible of performance through no neglect on his part, it was held that the case fell within Cl. 2 of S. 56 of the Contract Act. But between the parties to the litigation there was no relation of landlord and tenant. The plaintiff was enable to raise indigo and supply to the defendants because the plaintiffs landlord failed to pay the rent due, and the plaintiff was on that account ejected from the land. That case does not in our view, support the contention that the doctrine of frustration applies to the case of a lease. 18. The case strongly relied upon by counsel for the appellant was Gurdarshan Singh v. Bishen Singh, ILR (1962) 2 Punj .5 = (AIR l963 Punj 49) (FB). In that case a lease was executed on January 8, 1947 in respect of agricultural land situated in an area which on partition of India fell within West Pakistan. The Court found that possession of the demised land was not given to the lessee, and the landlord was on account of riots unable to deliver possession. Obviously on that finding the tenant was entitled to claim refund of the rent paid. But the Court proceeded to consider the question "whether the doctrine of frustration applies to a contract of lease of agricultural lands" and recorded an answer that the doctrine of frustration applies to leases. The Court observed at p. 13-"that the doctrine of frustration does apply to leases, but even if it does not apply in terms to contract of lease of agricultural land the broad principle of frustration of contract applies to leases". We are unable to agree with that observation, and the observation at p. 11 that "According to Indian law, sales of land as also leases are contracts" -Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or renderd substantially and permanently unfit for the purpose for which it was let out, because of Fire, tempest, flood, violence of an army or a mob, or other irresistible force the lease may at the option of the lessee, be avoided. This rule is incorporated in S. 108 (e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him.
### Response:
0
### Explanation:
10. We are unable to agree with counsel for the appellant in the present case that the relation between the appellant and the respondents vested in a contract. It is true that the Court of Wards had accepted the tender of the appellant and had granted him lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract.By S. 4 of the Transfer of Pro party Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part ofthe Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transferits express terms S. 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second paragraph of S 56 which is the only paragraph material to cases of this nature has a limited application to covenants under a lease. A covenant under a lease to do an act which after the contract is made becomes impossible or by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawfu1. But on that account the transfer of property resulting from the lease granted by the lessor to the lessee is not declared void12. By the agreement of lease the appellant undertook to pay rent for the year1947-48 and the Court of Wards agreed to give on lease the land in its management. It is not claimed that the agreement of lease was void or voidable. Nor is it the case of the appellant that the lease was determined in any manner known to law. The appellant obtained possession of the land. He was unable to continue in effective possession on account of circumstances beyond his control. Granting that the parties at the date of the lease did not contemplate that there may be riots in the area rendering it unsafe for the appellant to carry on cultivation, or that the crops grown by him may be looted, there was no covenant in the lease that in the event of the appellant being unable to remain in possession and to cultivate the land and to collect the crops, he will not be liable to pay the rent. Inability of the appellant to cultivate the land or to collect the crops because of widespread riots cannot in the events that transpired clothe him with the right to claim refund of the rent paidThe Court found that possession of the demised land was not given to the lessee, and the landlord was on account of riots unable to deliver possession. Obviously on that finding the tenant was entitled to claim refund of the rent paid. But the Court proceeded to consider the questionr the doctrine of frustration applies to a contract of lease of agricultural lands" and recorded an answer that the doctrine of frustration applies to leases.The Court observed at p.t the doctrine of frustration does apply to leases, but even if it does not apply in terms to contract of lease of agricultural land the broad principle of frustration of contract applies to leases".We are unable to agree with that observation, and the observation at p. 11 that "According to Indian law, sales of land as also leases are contracts" -Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or renderd substantially and permanently unfit for the purpose for which it was let out, because of Fire, tempest, flood, violence of an army or a mob, or other irresistible force the lease may at the option of the lessee, be avoided. This rule is incorporated in S. 108 (e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him.
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Mcdowell & Company Ltd Vs. Commissioner of Income-Tax, Karnataka Central, Bangalore | Company, which was a different assessee, could not be held to be the income of the amalgamated company for purposes of Section 41(1) of the Act. The High Court was in error in holding that even after amalgamation of two companies, the transferor company did not become non-existent instead it continued its entity in a blended form with the appellant company. The High Courts view that on amalgamation there is no complete destruction of corporate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that when two companies amalgamate and merge into one the transferor company loses its entity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amalgamation is made effective." 10. The aforesaid arguments appear to be attractive in the first blush, but a little deeper scrutiny thereof in the light of the situation prevailing in the instant case would reflect that these arguments need to be rejected. In fact, same arguments were advanced before the High Court as well which did not find merit therein. The High Court took note of the fact that the assessee had taken over the sick company-HPL through the scheme of amalgamation sanctioned in 1982 w.e.f. 01.04.1977 and that the HPL ceased to have any identity as it did not remain a ‘person’ either in fact or in law after amalgamation. However, rights are determined in terms of the scheme of amalgamation and since the benefit of interest had accrued after the company had ceased to exist, it was, in fact, availed of by the assessee company. What is more important is that the assessee company was allowed to set off the amalgamated losses of the company amalgamated with it, i.e., HPL. This was the benefit which accrued to the assessee under the provisions of section 72A of the Act. When the assessee is allowed the benefit of the accumulated loses, while computing those loses, the income which accrued to it had to be adjusted and only thereafter net losses could have been allowed to be set off by the assessee company. Calculations to this effect are given by the Assessing Officer in his assessment order and there is no dispute about the same. Judgment of this Court in Saraswathi Industrial Syndicate Ltd. (supra) deals with the provisions of Section 41(1) of the Act per se. Section 72A of the Act was not the subject matter of the said decision. Therefore, the principle laid down in the said case may not be applicable in the instant case inasmuch as the position would be totally different in those cases where the income has accrued to an amalgamated company under Section 41(1) of the Act and, obviously, that cannot be treated as income at the hands of the company which has taken over the amalgamated company. However, in the instant case, the assessee was given the benefit of accumulated loses of the amalgamated company. The effect thereof is that thought these loses were suffered by the amalgamated company they were deemed to be treated as loses of the assessee company by virtue of Section 72A of the Act. In a case like this, it cannot be said that the assessee would be entitled to take advantage of the accumulated loses but while calculating these accumulated loses at the hands of amalgamated company, i.e., HPL, the income accrued under section 41(1) of the Act at the hands of HPL would not be accounted for. That had to be necessarily adjusted in order to see what are the actual accumulated loses, the benefit whereof is to be extended to the assessee. We, thus, agree with the High Court in its analysis of Section 41(1) along with Section 72A of the Act, which is to the following effect: "10. Though the ITO proposed to treat the waiver of interest portion as revenue receipt in the hands of assessees company under Section 41(1) of the Act, the same is to be read with Section 72A of the Act. The Finance Minister in his Budget speech while introducing Section 72A of the Act stated that the sickness among industrial undertaking was regarded as a matter of grave national concern inasmuch as closure of any sizable manufacturing unit industry entailed social costs in terms of production loss and unemployment as also waste of valuable capital assets, and experience had shown that taking over of such sick units by Governments was not always a satisfactory or economical solution; it was felt that a more effective method would be to facilitate amalgamation of sick industrial units with sound ones by providing incentives and removing impediments in the way of such amalgamation which would not merely relieve the Government of un-economical burden of taking over and running sick units but save the Government from social costs in terms of loss of production and unemployment. With such objection in view, in order to facilitate the merger of sick industrial units with sound ones and as and by way of offering an incentive in that behalf section 72A was introduced, where under, by a deeming fiction, the accumulated loss or unabsorbed depreciation of the amalgamating company is treated to be a loss or, as the case may be. The Revenue before the first appellate authority emphasized the application of section 72A of the Act, to the facts of the case. The first appellate authority and also the Tribunal failed to consider the scope and object of section 72A of the Act. Thus, the Tribunal committed an error in treating the waiver of interest as not income of the assessee." | 0[ds]10. The aforesaid arguments appear to be attractive in the first blush, but a little deeper scrutiny thereof in the light of the situation prevailing in the instant case would reflect that these arguments need to be rejected. In fact, same arguments were advanced before the High Court as well which did not find merit therein. The High Court took note of the fact that the assessee had taken over the sickthrough the scheme of amalgamation sanctioned in 1982 w.e.f. 01.04.1977 and that the HPL ceased to have any identity as it did not remain aeither in fact or in law after amalgamation. However, rights are determined in terms of the scheme of amalgamation and since the benefit of interest had accrued after the company had ceased to exist, it was, in fact, availed of by the assessee company. What is more important is that the assessee company was allowed to set off the amalgamated losses of the company amalgamated with it, i.e., HPL. This was the benefit which accrued to the assessee under the provisions of section 72A of the Act. When the assessee is allowed the benefit of the accumulated loses, while computing those loses, the income which accrued to it had to be adjusted and only thereafter net losses could have been allowed to be set off by the assessee company. Calculations to this effect are given by the Assessing Officer in his assessment order and there is no dispute about the same. Judgment of this Court in Saraswathi Industrial Syndicate Ltd. (supra) deals with the provisions of Section 41(1) of the Act per se. Section 72A of the Act was not the subject matter of the said decision. Therefore, the principle laid down in the said case may not be applicable in the instant case inasmuch as the position would be totally different in those cases where the income has accrued to an amalgamated company under Section 41(1) of the Act and, obviously, that cannot be treated as income at the hands of the company which has taken over the amalgamated company. However, in the instant case, the assessee was given the benefit of accumulated loses of the amalgamated company. The effect thereof is that thought these loses were suffered by the amalgamated company they were deemed to be treated as loses of the assessee company by virtue of Section 72A of the Act. In a case like this, it cannot be said that the assessee would be entitled to take advantage of the accumulated loses but while calculating these accumulated loses at the hands of amalgamated company, i.e., HPL, the income accrued under section 41(1) of the Act at the hands of HPL would not be accounted for. That had to be necessarily adjusted in order to see what are the actual accumulated loses, the benefit whereof is to be extended to the assessee. We, thus, agree with the High Court in its analysis of Section 41(1) along with Section 72A of the Act, which is to the followingThough the ITO proposed to treat the waiver of interest portion as revenue receipt in the hands of assessees company under Section 41(1) of the Act, the same is to be read with Section 72A of the Act. The Finance Minister in his Budget speech while introducing Section 72A of the Act stated that the sickness among industrial undertaking was regarded as a matter of grave national concern inasmuch as closure of any sizable manufacturing unit industry entailed social costs in terms of production loss and unemployment as also waste of valuable capital assets, and experience had shown that taking over of such sick units by Governments was not always a satisfactory or economical solution; it was felt that a more effective method would be to facilitate amalgamation of sick industrial units with sound ones by providing incentives and removing impediments in the way of such amalgamation which would not merely relieve the Government ofburden of taking over and running sick units but save the Government from social costs in terms of loss of production and unemployment. With such objection in view, in order to facilitate the merger of sick industrial units with sound ones and as and by way of offering an incentive in that behalf section 72A was introduced, where under, by a deeming fiction, the accumulated loss or unabsorbed depreciation of the amalgamating company is treated to be a loss or, as the case may be. The Revenue before the first appellate authority emphasized the application of section 72A of the Act, to the facts of the case. The first appellate authority and also the Tribunal failed to consider the scope and object of section 72A of the Act. Thus, the Tribunal committed an error in treating the waiver of interest as not income of the assessee." | 0 | 2,873 | 883 | ### 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:
Company, which was a different assessee, could not be held to be the income of the amalgamated company for purposes of Section 41(1) of the Act. The High Court was in error in holding that even after amalgamation of two companies, the transferor company did not become non-existent instead it continued its entity in a blended form with the appellant company. The High Courts view that on amalgamation there is no complete destruction of corporate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law. The true effect and character of the amalgamation largely depends on the terms of the scheme of merger. But there cannot be any doubt that when two companies amalgamate and merge into one the transferor company loses its entity as it ceases to have its business. However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amalgamation is made effective." 10. The aforesaid arguments appear to be attractive in the first blush, but a little deeper scrutiny thereof in the light of the situation prevailing in the instant case would reflect that these arguments need to be rejected. In fact, same arguments were advanced before the High Court as well which did not find merit therein. The High Court took note of the fact that the assessee had taken over the sick company-HPL through the scheme of amalgamation sanctioned in 1982 w.e.f. 01.04.1977 and that the HPL ceased to have any identity as it did not remain a ‘person’ either in fact or in law after amalgamation. However, rights are determined in terms of the scheme of amalgamation and since the benefit of interest had accrued after the company had ceased to exist, it was, in fact, availed of by the assessee company. What is more important is that the assessee company was allowed to set off the amalgamated losses of the company amalgamated with it, i.e., HPL. This was the benefit which accrued to the assessee under the provisions of section 72A of the Act. When the assessee is allowed the benefit of the accumulated loses, while computing those loses, the income which accrued to it had to be adjusted and only thereafter net losses could have been allowed to be set off by the assessee company. Calculations to this effect are given by the Assessing Officer in his assessment order and there is no dispute about the same. Judgment of this Court in Saraswathi Industrial Syndicate Ltd. (supra) deals with the provisions of Section 41(1) of the Act per se. Section 72A of the Act was not the subject matter of the said decision. Therefore, the principle laid down in the said case may not be applicable in the instant case inasmuch as the position would be totally different in those cases where the income has accrued to an amalgamated company under Section 41(1) of the Act and, obviously, that cannot be treated as income at the hands of the company which has taken over the amalgamated company. However, in the instant case, the assessee was given the benefit of accumulated loses of the amalgamated company. The effect thereof is that thought these loses were suffered by the amalgamated company they were deemed to be treated as loses of the assessee company by virtue of Section 72A of the Act. In a case like this, it cannot be said that the assessee would be entitled to take advantage of the accumulated loses but while calculating these accumulated loses at the hands of amalgamated company, i.e., HPL, the income accrued under section 41(1) of the Act at the hands of HPL would not be accounted for. That had to be necessarily adjusted in order to see what are the actual accumulated loses, the benefit whereof is to be extended to the assessee. We, thus, agree with the High Court in its analysis of Section 41(1) along with Section 72A of the Act, which is to the following effect: "10. Though the ITO proposed to treat the waiver of interest portion as revenue receipt in the hands of assessees company under Section 41(1) of the Act, the same is to be read with Section 72A of the Act. The Finance Minister in his Budget speech while introducing Section 72A of the Act stated that the sickness among industrial undertaking was regarded as a matter of grave national concern inasmuch as closure of any sizable manufacturing unit industry entailed social costs in terms of production loss and unemployment as also waste of valuable capital assets, and experience had shown that taking over of such sick units by Governments was not always a satisfactory or economical solution; it was felt that a more effective method would be to facilitate amalgamation of sick industrial units with sound ones by providing incentives and removing impediments in the way of such amalgamation which would not merely relieve the Government of un-economical burden of taking over and running sick units but save the Government from social costs in terms of loss of production and unemployment. With such objection in view, in order to facilitate the merger of sick industrial units with sound ones and as and by way of offering an incentive in that behalf section 72A was introduced, where under, by a deeming fiction, the accumulated loss or unabsorbed depreciation of the amalgamating company is treated to be a loss or, as the case may be. The Revenue before the first appellate authority emphasized the application of section 72A of the Act, to the facts of the case. The first appellate authority and also the Tribunal failed to consider the scope and object of section 72A of the Act. Thus, the Tribunal committed an error in treating the waiver of interest as not income of the assessee."
### Response:
0
### Explanation:
10. The aforesaid arguments appear to be attractive in the first blush, but a little deeper scrutiny thereof in the light of the situation prevailing in the instant case would reflect that these arguments need to be rejected. In fact, same arguments were advanced before the High Court as well which did not find merit therein. The High Court took note of the fact that the assessee had taken over the sickthrough the scheme of amalgamation sanctioned in 1982 w.e.f. 01.04.1977 and that the HPL ceased to have any identity as it did not remain aeither in fact or in law after amalgamation. However, rights are determined in terms of the scheme of amalgamation and since the benefit of interest had accrued after the company had ceased to exist, it was, in fact, availed of by the assessee company. What is more important is that the assessee company was allowed to set off the amalgamated losses of the company amalgamated with it, i.e., HPL. This was the benefit which accrued to the assessee under the provisions of section 72A of the Act. When the assessee is allowed the benefit of the accumulated loses, while computing those loses, the income which accrued to it had to be adjusted and only thereafter net losses could have been allowed to be set off by the assessee company. Calculations to this effect are given by the Assessing Officer in his assessment order and there is no dispute about the same. Judgment of this Court in Saraswathi Industrial Syndicate Ltd. (supra) deals with the provisions of Section 41(1) of the Act per se. Section 72A of the Act was not the subject matter of the said decision. Therefore, the principle laid down in the said case may not be applicable in the instant case inasmuch as the position would be totally different in those cases where the income has accrued to an amalgamated company under Section 41(1) of the Act and, obviously, that cannot be treated as income at the hands of the company which has taken over the amalgamated company. However, in the instant case, the assessee was given the benefit of accumulated loses of the amalgamated company. The effect thereof is that thought these loses were suffered by the amalgamated company they were deemed to be treated as loses of the assessee company by virtue of Section 72A of the Act. In a case like this, it cannot be said that the assessee would be entitled to take advantage of the accumulated loses but while calculating these accumulated loses at the hands of amalgamated company, i.e., HPL, the income accrued under section 41(1) of the Act at the hands of HPL would not be accounted for. That had to be necessarily adjusted in order to see what are the actual accumulated loses, the benefit whereof is to be extended to the assessee. We, thus, agree with the High Court in its analysis of Section 41(1) along with Section 72A of the Act, which is to the followingThough the ITO proposed to treat the waiver of interest portion as revenue receipt in the hands of assessees company under Section 41(1) of the Act, the same is to be read with Section 72A of the Act. The Finance Minister in his Budget speech while introducing Section 72A of the Act stated that the sickness among industrial undertaking was regarded as a matter of grave national concern inasmuch as closure of any sizable manufacturing unit industry entailed social costs in terms of production loss and unemployment as also waste of valuable capital assets, and experience had shown that taking over of such sick units by Governments was not always a satisfactory or economical solution; it was felt that a more effective method would be to facilitate amalgamation of sick industrial units with sound ones by providing incentives and removing impediments in the way of such amalgamation which would not merely relieve the Government ofburden of taking over and running sick units but save the Government from social costs in terms of loss of production and unemployment. With such objection in view, in order to facilitate the merger of sick industrial units with sound ones and as and by way of offering an incentive in that behalf section 72A was introduced, where under, by a deeming fiction, the accumulated loss or unabsorbed depreciation of the amalgamating company is treated to be a loss or, as the case may be. The Revenue before the first appellate authority emphasized the application of section 72A of the Act, to the facts of the case. The first appellate authority and also the Tribunal failed to consider the scope and object of section 72A of the Act. Thus, the Tribunal committed an error in treating the waiver of interest as not income of the assessee."
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Bala Subrahmanya Rajaram Vs. B.C. Patil & Others | a bonus awarded by an Industrial Court.27. The clause we have yet to examine is this :"And includes any bonus or other additional remuneration of the nature aforesaid which would be so payable."It was contended that the words "and includes any bonus" stand by themselves and that the words that follow must be disregarded when bonus is under consideration because they relate only to "additional remuneration" and not to "bonus."28. Now, it may be possible to say that the words "of the nature aforesaid" only govern the words "additional remuneration" and that they do not apply to "bonus," with the result that the inclusion clause "and includes any bonus etc." would refer to two separate things, namely,(1) bonus and(2) other additional remuneration of the nature aforesaid.29. In our opinion, the clause means -(1) "Bonus............which would be so payable," and(2) "other additional remuneration of the nature aforesaid which would be so payable." If that is correct, then the words "which would be so payable" throw us back to the earlier part of the definition and we reach the position that the kind of bonus that is included by the inclusion clause is the kind that would be payable "if the terms of the contract of employment, express or implied are fulfilled."30. There is another reason for reaching this conclusion. The opening words of the definition made it clear that "wages" means remuneration that is payable when the terms of the contract of employment are fulfilled. Therefore, that is something certain. One knows ahead of time that if the terms of the contract are fulfilled, then the bonus is payable. It may be that the exact amount has yet to be determined but the fact that bonus is payable and can be claimed as soon as the terms of the contract are fulfilled is a matter that can be predicated before-hand, that is to say even before the terms of the contract are fulfilled, or indeed, even before the work has started if the contract is made that far ahead. But that is not the case when bonus is awarded by an Industrial Court, for there it is impossible to say ahead of time whether bonus will be awarded or not; indeed, at the time the contract is entered into, it would be impossible to say whether such a claim could be laid at all because a difference of opinion between one worker and his employer about the right to bonus would not necessarily lead to an industrial dispute. When an Industrial Court awards a bonus, independent of any contract, it does so only if there is an available surplus for a distribution of bonus and the amount of the award would depend on the extent of the surplus available for that purpose. Therefore, the fulfilment or otherwise of the terms of the contract of employment is not an essential ingredient of an award of an Industrial Court.31. In F. W. Heilgers and Co. v. N. C. Chakravarthi, 1949 F C R 356 at p. 360 : ( A I R 1949 F C 142 at p. 143) (A) , the learned Judges of the Federal Court held that a bonus not payable under a contract of employment does not fall within the definition of "wages" in S. 2 (vi) of the Payment of Wages Act, as it stood before the amendment in 1957. We are concerned with the old definition here and not the amended one, so the present case is, in our opinion, covered by that authority.32. It is true, that no bonus had been awarded in Heligers case (A) and that therefore there was no ascertained sum, whereas there is one in the present case, or rather a sum that is ascertainable, but that was only one of the grounds on which the learned Judges proceeded. They held that in order to bring a particular payment under the definition of "wages" two things are necessary -"(1) A definite sum, and(2) a contract indicating when the sum becomes payable.";and they said -"It is obvious that unless there is an express provisions for paying a stipulated sum, the definition will not cover such a payment."33.The bonus in the present case is not payable because of a contract but because of the award of an Industrial Court. Therefore, according to the Federal Court, it is not "wages" within the meaning of the Payment of Wages Act.34. In 1957 the definition was amended and the following was added :" Wages means......and includes.....................(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);..............but does not include-(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of remuneration payable under the terms of employment........ ."The change would have been unnecessary had the law been otherwise under the old definition; nor is it possible to say that the clause was added by way of abundant caution because the Federal Court decided otherwise in 1949. In view of this amendment, and in view of the Federal Courts decision, we do not feel justified in taking a different view, especially as we think the decision was right.35. The learned Judges of the Bombay High Court, tried to distinguish the Federal Courts judgment on the ground that no bonus had been declared there and so there was no ascertained sum, but, as we have pointed out, the ratio of the decision covers the present case and, in any case, that is our view quite apart from their conclusion.36. On this view, it is not necessary to consider the other points that were argued because, if the definition of "wages" as it stood before the amendment is not wide enough to include a bonus of the kind we have here, namely, one payable under an award of an Industrial Court, then, the Authority under the Payment of Wages Act had no jurisdiction to entertain the petitions made to it under S. 15 of the Act.3 | 1[ds]The opening words of the definition made it clear that "wages" means remuneration that is payable when the terms of the contract of employment are fulfilled. Therefore, that is something certain. One knows ahead of time that if the terms of the contract are fulfilled, then the bonus is payable. It may be that the exact amount has yet to be determined but the fact that bonus is payable and can be claimed as soon as the terms of the contract are fulfilled is a matter that can be predicated before-hand, that is to say even before the terms of the contract are fulfilled, or indeed, even before the work has started if the contract is made that far ahead. But that is not the case when bonus is awarded by an Industrial Court, for there it is impossible to say ahead of time whether bonus will be awarded or not; indeed, at the time the contract is entered into, it would be impossible to say whether such a claim could be laid at all because a difference of opinion between one worker and his employer about the right to bonus would not necessarily lead to an industrial dispute. When an Industrial Court awards a bonus, independent of any contract, it does so only if there is an available surplus for a distribution of bonus and the amount of the award would depend on the extent of the surplus available for that purpose. Therefore, the fulfilment or otherwise of the terms of the contract of employment is not an essential ingredient of an award of an Industrialchange would have been unnecessary had the law been otherwise under the old definition; nor is it possible to say that the clause was added by way of abundant caution because the Federal Court decided otherwise in 1949. In view of this amendment, and in view of the Federal Courts decision, we do not feel justified in taking a different view, especially as we think the decision was right.On this view, it is not necessary to consider the other points that were argued because, if the definition of "wages" as it stood before the amendment is not wide enough to include a bonus of the kind we have here, namely, one payable under an award of an Industrial Court, then, the Authority under the Payment of Wages Act had no jurisdiction to entertain the petitions made to it under S. 15 of the Act. | 1 | 2,969 | 448 | ### 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:
a bonus awarded by an Industrial Court.27. The clause we have yet to examine is this :"And includes any bonus or other additional remuneration of the nature aforesaid which would be so payable."It was contended that the words "and includes any bonus" stand by themselves and that the words that follow must be disregarded when bonus is under consideration because they relate only to "additional remuneration" and not to "bonus."28. Now, it may be possible to say that the words "of the nature aforesaid" only govern the words "additional remuneration" and that they do not apply to "bonus," with the result that the inclusion clause "and includes any bonus etc." would refer to two separate things, namely,(1) bonus and(2) other additional remuneration of the nature aforesaid.29. In our opinion, the clause means -(1) "Bonus............which would be so payable," and(2) "other additional remuneration of the nature aforesaid which would be so payable." If that is correct, then the words "which would be so payable" throw us back to the earlier part of the definition and we reach the position that the kind of bonus that is included by the inclusion clause is the kind that would be payable "if the terms of the contract of employment, express or implied are fulfilled."30. There is another reason for reaching this conclusion. The opening words of the definition made it clear that "wages" means remuneration that is payable when the terms of the contract of employment are fulfilled. Therefore, that is something certain. One knows ahead of time that if the terms of the contract are fulfilled, then the bonus is payable. It may be that the exact amount has yet to be determined but the fact that bonus is payable and can be claimed as soon as the terms of the contract are fulfilled is a matter that can be predicated before-hand, that is to say even before the terms of the contract are fulfilled, or indeed, even before the work has started if the contract is made that far ahead. But that is not the case when bonus is awarded by an Industrial Court, for there it is impossible to say ahead of time whether bonus will be awarded or not; indeed, at the time the contract is entered into, it would be impossible to say whether such a claim could be laid at all because a difference of opinion between one worker and his employer about the right to bonus would not necessarily lead to an industrial dispute. When an Industrial Court awards a bonus, independent of any contract, it does so only if there is an available surplus for a distribution of bonus and the amount of the award would depend on the extent of the surplus available for that purpose. Therefore, the fulfilment or otherwise of the terms of the contract of employment is not an essential ingredient of an award of an Industrial Court.31. In F. W. Heilgers and Co. v. N. C. Chakravarthi, 1949 F C R 356 at p. 360 : ( A I R 1949 F C 142 at p. 143) (A) , the learned Judges of the Federal Court held that a bonus not payable under a contract of employment does not fall within the definition of "wages" in S. 2 (vi) of the Payment of Wages Act, as it stood before the amendment in 1957. We are concerned with the old definition here and not the amended one, so the present case is, in our opinion, covered by that authority.32. It is true, that no bonus had been awarded in Heligers case (A) and that therefore there was no ascertained sum, whereas there is one in the present case, or rather a sum that is ascertainable, but that was only one of the grounds on which the learned Judges proceeded. They held that in order to bring a particular payment under the definition of "wages" two things are necessary -"(1) A definite sum, and(2) a contract indicating when the sum becomes payable.";and they said -"It is obvious that unless there is an express provisions for paying a stipulated sum, the definition will not cover such a payment."33.The bonus in the present case is not payable because of a contract but because of the award of an Industrial Court. Therefore, according to the Federal Court, it is not "wages" within the meaning of the Payment of Wages Act.34. In 1957 the definition was amended and the following was added :" Wages means......and includes.....................(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);..............but does not include-(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of remuneration payable under the terms of employment........ ."The change would have been unnecessary had the law been otherwise under the old definition; nor is it possible to say that the clause was added by way of abundant caution because the Federal Court decided otherwise in 1949. In view of this amendment, and in view of the Federal Courts decision, we do not feel justified in taking a different view, especially as we think the decision was right.35. The learned Judges of the Bombay High Court, tried to distinguish the Federal Courts judgment on the ground that no bonus had been declared there and so there was no ascertained sum, but, as we have pointed out, the ratio of the decision covers the present case and, in any case, that is our view quite apart from their conclusion.36. On this view, it is not necessary to consider the other points that were argued because, if the definition of "wages" as it stood before the amendment is not wide enough to include a bonus of the kind we have here, namely, one payable under an award of an Industrial Court, then, the Authority under the Payment of Wages Act had no jurisdiction to entertain the petitions made to it under S. 15 of the Act.3
### Response:
1
### Explanation:
The opening words of the definition made it clear that "wages" means remuneration that is payable when the terms of the contract of employment are fulfilled. Therefore, that is something certain. One knows ahead of time that if the terms of the contract are fulfilled, then the bonus is payable. It may be that the exact amount has yet to be determined but the fact that bonus is payable and can be claimed as soon as the terms of the contract are fulfilled is a matter that can be predicated before-hand, that is to say even before the terms of the contract are fulfilled, or indeed, even before the work has started if the contract is made that far ahead. But that is not the case when bonus is awarded by an Industrial Court, for there it is impossible to say ahead of time whether bonus will be awarded or not; indeed, at the time the contract is entered into, it would be impossible to say whether such a claim could be laid at all because a difference of opinion between one worker and his employer about the right to bonus would not necessarily lead to an industrial dispute. When an Industrial Court awards a bonus, independent of any contract, it does so only if there is an available surplus for a distribution of bonus and the amount of the award would depend on the extent of the surplus available for that purpose. Therefore, the fulfilment or otherwise of the terms of the contract of employment is not an essential ingredient of an award of an Industrialchange would have been unnecessary had the law been otherwise under the old definition; nor is it possible to say that the clause was added by way of abundant caution because the Federal Court decided otherwise in 1949. In view of this amendment, and in view of the Federal Courts decision, we do not feel justified in taking a different view, especially as we think the decision was right.On this view, it is not necessary to consider the other points that were argued because, if the definition of "wages" as it stood before the amendment is not wide enough to include a bonus of the kind we have here, namely, one payable under an award of an Industrial Court, then, the Authority under the Payment of Wages Act had no jurisdiction to entertain the petitions made to it under S. 15 of the Act.
|
K.N. Joglekar & Others Vs. Barsi Light Railway Company Limited | is nothing more than a further step towards the standardisation of the rights of the workman.The Legislature has fixed a certain amount as the proper amount to be paid to a workman whose services have been terminated. What exactly should be the rights of labour, where the line must be drawn, are matters of policy with which the Court is not concerned. But it cannot possibly be said that if the Legislature passes a law in order to improve the status and position of labour and to confer upon it certain rights and to standardise those rights, the restriction imposed upon the employer to carry on his business is not a reasonable restriction or not in public interest.11. It is then pointed out that this restriction is unreasonable because it may confer a right upon the workman, although the termination of his services may not result in any detriment to him. Instances are given where a workman may be dismissed and his services may be continued by the successor business where there may be no break in the continuity of the business at all, and it is pointed out that in such a case the workman has suffered no prejudice by his services being terminated by one business because his services are continued by the succeeding business. In our opinion that is a wrong approach to this piece of legislation.What the Legislature was contemplating was the prejudice caused to the workman by his losing his job with a particular employer with whom he was employed. It was not contemplating the possibility of the workman getting employment with the successor business or getting employment with some other employer. There is no obligation on the successor business employing a workman who has been dismissed by the owner of a business to which it succeeds, nor has the workman any guarantee that after his services are terminated he would be reemployed.Therefore the Legislature was satisfied with providing for compensation for loss of service without entering into the region of speculation as to whether in certain cases the employee may or may not be employed. We are not also prepared to accept the contention that merely because an employee immediately gets fresh employment or is re-employed by the same business no prejudice or detriment is caused to him.If an employee has continued in service for a certain length of time, the termination of his service by its very nature causes some detriment or prejudice to him. The new business may not have the same security of tenure, it may not be as acceptable as the previous business, and it is precisely because of various human factors which it is impossible to legislate about that the Legislature did not provide for cases where the employee receives employment immediately on the termination of his services.12. Therefore, we are not prepared to hold that merely because the Legislature did not provide for a case where a business is being closed down because the owner of the business has suffered loss and therefore the services of the workman have been terminated, and the case where the employee obtains fresh employment immediately on his services being terminated, the restriction imposed upon a person carrying on business to pay compensation on his terminating the services of his workmen is an unreasonable restriction.That the restriction is in the interests of the public goes without saying. As we have already pointed out, welfare of labour is in public interest and any legislation intended to advance the welfare of labour must satisfy the test of public interest.13. In this connection perhaps we may look at a recent decision of the Supreme Court reported in - Bijay Cotton Mills Ltd. v. State of Ajmer, AIR 1953 SC 33 (A), where the Supreme Court was considering the constitutionality of the Minimum Wages Act, and some of the arguments advanced there are reminiscent of the arguments advanced by Mr. Palkhivala before us. Mr. Seervai who was arguing the case for the employer advanced the argument that the compulsion with regard to payment of minimum wages was unreasonable and even oppressive with regard to one class of employers who for purely economic reasons were not able to pay the minimum wages, and this argument was rejected by the Supreme Court by observing (p.35):"Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers. That cannot be a reason for striking down the law itself as unreasonable."Applying the same argument to the impugned Act before us, the mere fact that some employers are not in a position to pay the compensation fixed under S.25F may be unfortunate from the point of view of the employers, but that is no reason for declaring the law as unconstitutional.14. The third contention raised by Mr. Palkhivala, which he did not elaborate but just stated it, was that S.25F will not apply to the case of a business which was succeeded by another business. Now, our reasons for rejecting this contention have already been set out in the earlier part of our judgment.We may mention only one thing more that if the Legislature intended to exempt certain classes of termination of service from the operation of S.25F, no reason is suggested why the Legislature should not have added to the three classes mentioned in S.2(oo) which are not included in the definition of "retrenchment". Nothing was easier and simpler than for the Legislature to say that retrenchment shall not include a case where the business is closed or a case where the continuity of the business is maintained by another business succeeding to the business already being carried on. But the very fact that the Legislature has not chosen to exempt these cases is sufficient for us to take the view that we should not add to the three classes expressly enumerated by the Legislature in S.2(oo). | 0[ds]Mr. Palkhivala rightly points out that if we hold that the Authority had jurisdiction and if the Authority passes an order for payment in favour of the workmen, he will have a right to appeal to the Districtparties are agreed that on this petition we should review the judgment of the Authority on merits under S.25F. We have ample jurisdiction to do so under Art.227 of the Constitution, and as we just said both parties are agreed that we should exercise that jurisdiction.Mr. Patel and Mr. Palkhivala are agreed that the question as to whether a particular person is a workman or not should be decided by the Conciliator, Central Division, Poona, as an arbitrator and his decision will be binding upon both the parties. In the event of the Conciliator not being able to undertake this arbitration, parties are agreed that this question should be decided by the Authority under the Payment of Wages Act of Madha also as an arbitrator and his decision will also be binding upon the parties.The undertaking given by Mr. Patel and by Mr. Palkhivala and the agreement arrived at between Mr. Patel and Mr. Palkhivala will not only apply to the applications covered by this petition, but also to applications still pending before the Authority or applications intended to be filed before the Authority and to suits filed or to be filed in the civil Court. In short they will apply to all cases of workmen of the Railway Company who claim compensation underputting forward this argument Mr. Palkhivala forgets that he is doing away with the essential element present in the expression "retrenchment". The essential element is not whether the business is carried on or the business is closed. As we have just pointed out, the essential element is that the termination of service must be in the interest of economy.Once it is conceded that even though an employer may terminate the services of an employee for a reason which is not the reason of economy, then the Legislature obviously has given a meaning to the expression "retrenchment" which is far divorced from its ordinary naturalour opinion this is putting an entirely unwarranted restriction upon the expression used by the Legislature.If the Legislature uses an artificial expression or a term of art, then that expression or that term must be construed according to the language used by the Legislature, and if the Legislature advisedly provides that the termination of the service of an employee for any reason whatsoever shall be deemed to be retrenchment, within the meaning of the Act, there is no reason why the Court should select or accept certain reasons as coming within the meaning of the definition and certain other reasons as not coming within the meaning of the definition.Whether the reason is that the employer is dismissing his servant on the ground of economy or that he is dismissing him because he does not like the colour of his politics or that he wishes to close down his business, these are all different reasons for termination of the service of an employee, and the Legislature clearly and emphatically says that never mind the reason, if the employer dismisses the employee it will constitute retrenchment within the meaning of thatare not prepared to accept the position in law that in one case where the business is being run at a loss no compensation should be determined either under Chap. VA or by the Industrial Court, and in the case where a business is being run at a profit and which is closed down the compensation should be determined by the Industrial Court.The whole object of Chap. VA was to standardize the compensation to be paid on the termination of the services of an employee and not to leave it to various Industrial Tribunals awarding different compensation on different bases. It is well known that before Chap. VA was enacted Industrial Courts did in certain cases award compensation for termination of services by theour opinion, S.25F imposes a statutory liability upon the employer to pay a certain amount when he terminates the services of an employee. No employer is heard to say that because his business suffers loss and because he wishes to close down the business he should not be made to pay the wages due to the employees. Just as there is a contractual liability upon the employer to pay the wages due to the employees whether the business is running at a loss or not and whether he intends to close the business, similarly the Legislature has imposed a statutory liability upon the employer to pay to the employees, over and above the wages and whatever other dues he may be liable to pay, the amount fixed under S.25F. Therefore, in our opinion, this contention of Mr. Palkhivala has not much substance.Therefore, if we give to the expression "retrenchment" the wide meaning which the Legislature obviously intended should be given to it, then there can be no doubt that this case falls under S.25F. Admittedly the Railway Company has terminated the services of the workmen and by doing so they have become liable to pay compensation as calculated under cl. (b) ofmay be that Mr. Palkhivala is right when he contends that the right to carry on business must imply the right to carry on a business as the owner of the business likes, including the right to close it down when he chooses, and if the Legislature were to put a restriction upon the right of a businessman to close his business, it may be that the case may fall within the ambit of Art.19(1)(g).But we fail to see how this legislation prevents any businessman from closing his business as and when he likes. The Legislature does not dictate to those who are carrying on business whether they should carry on the business at a loss or whether they should close it down and when they should close it down. But what is urged by Mr. Palkhivala is that the penalty imposed by S.25F for closing down the business is so severe that in effect it might prevent a businessman from closing hisour opinion that argument is entirely untenable. Labour Legislation has gradually proceeded to standardise several rights of workmen, and when the Legislature standardises these rights, it does not consider whether the employer is making a profit or a loss. The legislation is put on the statute book from the point of view of the workman, and what the Legislature is considering is what the workman is entitled to receive irrespective of whether the employer makes a profit or not, and S.25F is nothing more than a further step towards the standardisation of the rights of the workman.The Legislature has fixed a certain amount as the proper amount to be paid to a workman whose services have been terminated. What exactly should be the rights of labour, where the line must be drawn, are matters of policy with which the Court is not concerned. But it cannot possibly be said that if the Legislature passes a law in order to improve the status and position of labour and to confer upon it certain rights and to standardise those rights, the restriction imposed upon the employer to carry on his business is not a reasonable restriction or not in publicis then pointed out that this restriction is unreasonable because it may confer a right upon the workman, although the termination of his services may not result in any detriment to him. Instances are given where a workman may be dismissed and his services may be continued by the successor business where there may be no break in the continuity of the business at all, and it is pointed out that in such a case the workman has suffered no prejudice by his services being terminated by one business because his services are continued by the succeeding business.In our opinion that is a wrong approach to this piece ofare not prepared to hold that merely because the Legislature did not provide for a case where a business is being closed down because the owner of the business has suffered loss and therefore the services of the workman have been terminated, and the case where the employee obtains fresh employment immediately on his services being terminated, the restriction imposed upon a person carrying on business to pay compensation on his terminating the services of his workmen is an unreasonable restriction.That the restriction is in the interests of the public goes without saying. As we have already pointed out, welfare of labour is in public interest and any legislation intended to advance the welfare of labour must satisfy the test of publicmay mention only one thing more that if the Legislature intended to exempt certain classes of termination of service from the operation of S.25F, no reason is suggested why the Legislature should not have added to the three classes mentioned in S.2(oo) which are not included in the definition of "retrenchment". Nothing was easier and simpler than for the Legislature to say that retrenchment shall not include a case where the business is closed or a case where the continuity of the business is maintained by another business succeeding to the business already being carried on. But the very fact that the Legislature has not chosen to exempt these cases is sufficient for us to take the view that we should not add to the three classes expressly enumerated by the Legislature in S.2(oo). | 0 | 4,726 | 1,682 | ### 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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is nothing more than a further step towards the standardisation of the rights of the workman.The Legislature has fixed a certain amount as the proper amount to be paid to a workman whose services have been terminated. What exactly should be the rights of labour, where the line must be drawn, are matters of policy with which the Court is not concerned. But it cannot possibly be said that if the Legislature passes a law in order to improve the status and position of labour and to confer upon it certain rights and to standardise those rights, the restriction imposed upon the employer to carry on his business is not a reasonable restriction or not in public interest.11. It is then pointed out that this restriction is unreasonable because it may confer a right upon the workman, although the termination of his services may not result in any detriment to him. Instances are given where a workman may be dismissed and his services may be continued by the successor business where there may be no break in the continuity of the business at all, and it is pointed out that in such a case the workman has suffered no prejudice by his services being terminated by one business because his services are continued by the succeeding business. In our opinion that is a wrong approach to this piece of legislation.What the Legislature was contemplating was the prejudice caused to the workman by his losing his job with a particular employer with whom he was employed. It was not contemplating the possibility of the workman getting employment with the successor business or getting employment with some other employer. There is no obligation on the successor business employing a workman who has been dismissed by the owner of a business to which it succeeds, nor has the workman any guarantee that after his services are terminated he would be reemployed.Therefore the Legislature was satisfied with providing for compensation for loss of service without entering into the region of speculation as to whether in certain cases the employee may or may not be employed. We are not also prepared to accept the contention that merely because an employee immediately gets fresh employment or is re-employed by the same business no prejudice or detriment is caused to him.If an employee has continued in service for a certain length of time, the termination of his service by its very nature causes some detriment or prejudice to him. The new business may not have the same security of tenure, it may not be as acceptable as the previous business, and it is precisely because of various human factors which it is impossible to legislate about that the Legislature did not provide for cases where the employee receives employment immediately on the termination of his services.12. Therefore, we are not prepared to hold that merely because the Legislature did not provide for a case where a business is being closed down because the owner of the business has suffered loss and therefore the services of the workman have been terminated, and the case where the employee obtains fresh employment immediately on his services being terminated, the restriction imposed upon a person carrying on business to pay compensation on his terminating the services of his workmen is an unreasonable restriction.That the restriction is in the interests of the public goes without saying. As we have already pointed out, welfare of labour is in public interest and any legislation intended to advance the welfare of labour must satisfy the test of public interest.13. In this connection perhaps we may look at a recent decision of the Supreme Court reported in - Bijay Cotton Mills Ltd. v. State of Ajmer, AIR 1953 SC 33 (A), where the Supreme Court was considering the constitutionality of the Minimum Wages Act, and some of the arguments advanced there are reminiscent of the arguments advanced by Mr. Palkhivala before us. Mr. Seervai who was arguing the case for the employer advanced the argument that the compulsion with regard to payment of minimum wages was unreasonable and even oppressive with regard to one class of employers who for purely economic reasons were not able to pay the minimum wages, and this argument was rejected by the Supreme Court by observing (p.35):"Individual employers might find it difficult to carry on the business on the basis of the minimum wages fixed under the Act but this must be due entirely to the economic conditions of these particular employers. That cannot be a reason for striking down the law itself as unreasonable."Applying the same argument to the impugned Act before us, the mere fact that some employers are not in a position to pay the compensation fixed under S.25F may be unfortunate from the point of view of the employers, but that is no reason for declaring the law as unconstitutional.14. The third contention raised by Mr. Palkhivala, which he did not elaborate but just stated it, was that S.25F will not apply to the case of a business which was succeeded by another business. Now, our reasons for rejecting this contention have already been set out in the earlier part of our judgment.We may mention only one thing more that if the Legislature intended to exempt certain classes of termination of service from the operation of S.25F, no reason is suggested why the Legislature should not have added to the three classes mentioned in S.2(oo) which are not included in the definition of "retrenchment". Nothing was easier and simpler than for the Legislature to say that retrenchment shall not include a case where the business is closed or a case where the continuity of the business is maintained by another business succeeding to the business already being carried on. But the very fact that the Legislature has not chosen to exempt these cases is sufficient for us to take the view that we should not add to the three classes expressly enumerated by the Legislature in S.2(oo).
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0
### Explanation:
at a profit and which is closed down the compensation should be determined by the Industrial Court.The whole object of Chap. VA was to standardize the compensation to be paid on the termination of the services of an employee and not to leave it to various Industrial Tribunals awarding different compensation on different bases. It is well known that before Chap. VA was enacted Industrial Courts did in certain cases award compensation for termination of services by theour opinion, S.25F imposes a statutory liability upon the employer to pay a certain amount when he terminates the services of an employee. No employer is heard to say that because his business suffers loss and because he wishes to close down the business he should not be made to pay the wages due to the employees. Just as there is a contractual liability upon the employer to pay the wages due to the employees whether the business is running at a loss or not and whether he intends to close the business, similarly the Legislature has imposed a statutory liability upon the employer to pay to the employees, over and above the wages and whatever other dues he may be liable to pay, the amount fixed under S.25F. Therefore, in our opinion, this contention of Mr. Palkhivala has not much substance.Therefore, if we give to the expression "retrenchment" the wide meaning which the Legislature obviously intended should be given to it, then there can be no doubt that this case falls under S.25F. Admittedly the Railway Company has terminated the services of the workmen and by doing so they have become liable to pay compensation as calculated under cl. (b) ofmay be that Mr. Palkhivala is right when he contends that the right to carry on business must imply the right to carry on a business as the owner of the business likes, including the right to close it down when he chooses, and if the Legislature were to put a restriction upon the right of a businessman to close his business, it may be that the case may fall within the ambit of Art.19(1)(g).But we fail to see how this legislation prevents any businessman from closing his business as and when he likes. The Legislature does not dictate to those who are carrying on business whether they should carry on the business at a loss or whether they should close it down and when they should close it down. But what is urged by Mr. Palkhivala is that the penalty imposed by S.25F for closing down the business is so severe that in effect it might prevent a businessman from closing hisour opinion that argument is entirely untenable. Labour Legislation has gradually proceeded to standardise several rights of workmen, and when the Legislature standardises these rights, it does not consider whether the employer is making a profit or a loss. The legislation is put on the statute book from the point of view of the workman, and what the Legislature is considering is what the workman is entitled to receive irrespective of whether the employer makes a profit or not, and S.25F is nothing more than a further step towards the standardisation of the rights of the workman.The Legislature has fixed a certain amount as the proper amount to be paid to a workman whose services have been terminated. What exactly should be the rights of labour, where the line must be drawn, are matters of policy with which the Court is not concerned. But it cannot possibly be said that if the Legislature passes a law in order to improve the status and position of labour and to confer upon it certain rights and to standardise those rights, the restriction imposed upon the employer to carry on his business is not a reasonable restriction or not in publicis then pointed out that this restriction is unreasonable because it may confer a right upon the workman, although the termination of his services may not result in any detriment to him. Instances are given where a workman may be dismissed and his services may be continued by the successor business where there may be no break in the continuity of the business at all, and it is pointed out that in such a case the workman has suffered no prejudice by his services being terminated by one business because his services are continued by the succeeding business.In our opinion that is a wrong approach to this piece ofare not prepared to hold that merely because the Legislature did not provide for a case where a business is being closed down because the owner of the business has suffered loss and therefore the services of the workman have been terminated, and the case where the employee obtains fresh employment immediately on his services being terminated, the restriction imposed upon a person carrying on business to pay compensation on his terminating the services of his workmen is an unreasonable restriction.That the restriction is in the interests of the public goes without saying. As we have already pointed out, welfare of labour is in public interest and any legislation intended to advance the welfare of labour must satisfy the test of publicmay mention only one thing more that if the Legislature intended to exempt certain classes of termination of service from the operation of S.25F, no reason is suggested why the Legislature should not have added to the three classes mentioned in S.2(oo) which are not included in the definition of "retrenchment". Nothing was easier and simpler than for the Legislature to say that retrenchment shall not include a case where the business is closed or a case where the continuity of the business is maintained by another business succeeding to the business already being carried on. But the very fact that the Legislature has not chosen to exempt these cases is sufficient for us to take the view that we should not add to the three classes expressly enumerated by the Legislature in S.2(oo).
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DOLMA DEVI & ORS Vs. MOHINDER KUMAR GOEL & ORS | 1. Leave granted. 2. The present appeal arises out of the impugned judgement dated 09.12.2016 passed by the High Court of Himachal Pradesh in FAO No. 168 of 2012. By the said judgment, the High Court dismissed the appeal filed by the appellant seeking enhancement of the compensation already awarded by the Motor Accident Claims Tribunal, Bilaspur. 3. The appellants case in brief is that, on 02.04.2007 at around 11:30 A.M., while the deceased Nand lal, a traffic constable, was doing his official duty was hit by a truck which was being driven in a negligent manner. Although, he was rushed to the hospital immediately, but he then died at around 5:30 P.M on the same day. The deceased was the sole bread earner of the family. Aged 37 years, the deceased was drawing a salary of Rs. 13,064/- per month as per salary certificate produced on record, hence the annual income of the deceased was Rs.1,56,768/. The present appellant being the wife of the deceased preferred M.A.C. No. 70/2007 before the Motor Accident Claims Tribunal, Bilaspur seeking compensation to the tune of Rs.40,00,000. Vide order dated 15.09.2011, the tribunal awarded compensation to the tune of Rs. 17,83,640/- along with interest at the rate of Rs.7.5% per annum from the date of filling till the amount is deposited with the tribunal. Aggrieved by the above compensation amount, the appellant preferred an appeal before the High Court in FAO No. 168/2012, seeking an enhancement to the tune of Rs. 25,00,000. Vide order dated 09.12.2016, the High Court dismissed the appeal, upholding the earlier award granted by the Tribunal. Hence, the present appeal. 4. The learned counsel for the appellant contended that, the High Court grossly erred while upholding the award passed by the Tribunal, as it did not calculate 50% of the salary as future prospects of the deceased. Further, the High Court erred in upholding the earlier judgment passed by the tribunal as the multiplier was applied on the lower side contrary to the settled position of law. 5. Whereas, the learned counsel for the respondent defended the impugned judgment contending that the High Court has plausibly dealt with the above raised contentions and thereafter considered the compensation amount to be justified. Hence it did not disturb the earlier amount of compensation awarded by the Tribunal. 6. We have heard learned counsel from both the sides and carefully perused the material on record. It is evident on perusal of the award passed by the tribunal which was subsequently upheld by the High Court that both the courts have plainly ignored the future prospect of the deceased person, which is gross violation of the law laid down by this court in National Insurance Company Limited vs. Pranay Sethi and Ors. (2017)16 SCC 680 . The future prospects would necessarily mean advancement in future career, earnings and progression in one?s life. The promotional avenues, career progression, grant of selection grades etc. are some of the features for considering one?s future prospects in one?s career. 7. On perusal of the facts, it is clear that the deceased who was a constable aged 37 years used to draw a salary of Rs.13,064/- per month. Taking 50% of the annual salary for the future prospect, it results to Rs. 78,384/- and the total salary would aggregate up to Rs. 2,35,152/- (i.e., Rs.1,56,768+ Rs.78,384).Further, taking 1/4th of Rs.2,35,152 would result to be Rs. 58,788/-. Therefore, the annual loss of dependent would be around Rs.2,35,152-Rs.58,788/-= Rs.1,76,364/. Further, this court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , has held that if the age of the deceased is between 36-40 years, then the multiplier applicable would be 15. Keeping in view the aforesaid law laid down in the Sarla Verma?s case (Supra) since the deceased was 37 years, the appropriate multiplier will be 15. Hence, the appellants are entitled to for a compensation to the tune of Rs. 26,45,460/-. | 1[ds]6. We have heard learned counsel from both the sides and carefully perused the material on record. It is evident on perusal of the award passed by the tribunal which was subsequently upheld by the High Court that both the courts have plainly ignored the future prospect of the deceased person, which is gross violation of the law laid down by this court in National Insurance Company Limited vs. Pranay Sethi and Ors. (2017)16 SCC 680 . The future prospects would necessarily mean advancement in future career, earnings and progression in one?s life. The promotional avenues, career progression, grant of selection grades etc. are some of the features for considering one?s future prospects in one?s career7. On perusal of the facts, it is clear that the deceased who was a constable aged 37 years used to draw a salary of Rs.13,064/- per month. Taking 50% of the annual salary for the future prospect, it results to Rs. 78,384/- and the total salary would aggregate up to Rs. 2,35,152/- (i.e., Rs.1,56,768+ Rs.78,384)Further, taking 1/4th of Rs.2,35,152 would result to be Rs. 58,788/-. Therefore, the annual loss of dependent would be around Rs.2,35,152-Rs.58,788/-= Rs.1,76,364/. Further, this court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , has held that if the age of the deceased is between 36-40 years, then the multiplier applicable would be 15. Keeping in view the aforesaid law laid down in the Sarla Verma?s case (Supra) since the deceased was 37 years, the appropriate multiplier will be 15. Hence, the appellants are entitled to for a compensation to the tune of Rs. 26,45,460/-. | 1 | 764 | 329 | ### 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:
1. Leave granted. 2. The present appeal arises out of the impugned judgement dated 09.12.2016 passed by the High Court of Himachal Pradesh in FAO No. 168 of 2012. By the said judgment, the High Court dismissed the appeal filed by the appellant seeking enhancement of the compensation already awarded by the Motor Accident Claims Tribunal, Bilaspur. 3. The appellants case in brief is that, on 02.04.2007 at around 11:30 A.M., while the deceased Nand lal, a traffic constable, was doing his official duty was hit by a truck which was being driven in a negligent manner. Although, he was rushed to the hospital immediately, but he then died at around 5:30 P.M on the same day. The deceased was the sole bread earner of the family. Aged 37 years, the deceased was drawing a salary of Rs. 13,064/- per month as per salary certificate produced on record, hence the annual income of the deceased was Rs.1,56,768/. The present appellant being the wife of the deceased preferred M.A.C. No. 70/2007 before the Motor Accident Claims Tribunal, Bilaspur seeking compensation to the tune of Rs.40,00,000. Vide order dated 15.09.2011, the tribunal awarded compensation to the tune of Rs. 17,83,640/- along with interest at the rate of Rs.7.5% per annum from the date of filling till the amount is deposited with the tribunal. Aggrieved by the above compensation amount, the appellant preferred an appeal before the High Court in FAO No. 168/2012, seeking an enhancement to the tune of Rs. 25,00,000. Vide order dated 09.12.2016, the High Court dismissed the appeal, upholding the earlier award granted by the Tribunal. Hence, the present appeal. 4. The learned counsel for the appellant contended that, the High Court grossly erred while upholding the award passed by the Tribunal, as it did not calculate 50% of the salary as future prospects of the deceased. Further, the High Court erred in upholding the earlier judgment passed by the tribunal as the multiplier was applied on the lower side contrary to the settled position of law. 5. Whereas, the learned counsel for the respondent defended the impugned judgment contending that the High Court has plausibly dealt with the above raised contentions and thereafter considered the compensation amount to be justified. Hence it did not disturb the earlier amount of compensation awarded by the Tribunal. 6. We have heard learned counsel from both the sides and carefully perused the material on record. It is evident on perusal of the award passed by the tribunal which was subsequently upheld by the High Court that both the courts have plainly ignored the future prospect of the deceased person, which is gross violation of the law laid down by this court in National Insurance Company Limited vs. Pranay Sethi and Ors. (2017)16 SCC 680 . The future prospects would necessarily mean advancement in future career, earnings and progression in one?s life. The promotional avenues, career progression, grant of selection grades etc. are some of the features for considering one?s future prospects in one?s career. 7. On perusal of the facts, it is clear that the deceased who was a constable aged 37 years used to draw a salary of Rs.13,064/- per month. Taking 50% of the annual salary for the future prospect, it results to Rs. 78,384/- and the total salary would aggregate up to Rs. 2,35,152/- (i.e., Rs.1,56,768+ Rs.78,384).Further, taking 1/4th of Rs.2,35,152 would result to be Rs. 58,788/-. Therefore, the annual loss of dependent would be around Rs.2,35,152-Rs.58,788/-= Rs.1,76,364/. Further, this court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , has held that if the age of the deceased is between 36-40 years, then the multiplier applicable would be 15. Keeping in view the aforesaid law laid down in the Sarla Verma?s case (Supra) since the deceased was 37 years, the appropriate multiplier will be 15. Hence, the appellants are entitled to for a compensation to the tune of Rs. 26,45,460/-.
### Response:
1
### Explanation:
6. We have heard learned counsel from both the sides and carefully perused the material on record. It is evident on perusal of the award passed by the tribunal which was subsequently upheld by the High Court that both the courts have plainly ignored the future prospect of the deceased person, which is gross violation of the law laid down by this court in National Insurance Company Limited vs. Pranay Sethi and Ors. (2017)16 SCC 680 . The future prospects would necessarily mean advancement in future career, earnings and progression in one?s life. The promotional avenues, career progression, grant of selection grades etc. are some of the features for considering one?s future prospects in one?s career7. On perusal of the facts, it is clear that the deceased who was a constable aged 37 years used to draw a salary of Rs.13,064/- per month. Taking 50% of the annual salary for the future prospect, it results to Rs. 78,384/- and the total salary would aggregate up to Rs. 2,35,152/- (i.e., Rs.1,56,768+ Rs.78,384)Further, taking 1/4th of Rs.2,35,152 would result to be Rs. 58,788/-. Therefore, the annual loss of dependent would be around Rs.2,35,152-Rs.58,788/-= Rs.1,76,364/. Further, this court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , has held that if the age of the deceased is between 36-40 years, then the multiplier applicable would be 15. Keeping in view the aforesaid law laid down in the Sarla Verma?s case (Supra) since the deceased was 37 years, the appropriate multiplier will be 15. Hence, the appellants are entitled to for a compensation to the tune of Rs. 26,45,460/-.
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Workmen of Messrs Firestone Tyre and Rubber Company Of India Private Limited Vs. Firestone Tyre and Rubber Company | law dealing with the entire subject of bonus of the persons to whom it should apply. The Bonus Act was not to apply to certain Establishments. Argument before the Court was that bonus was payable de hors the Act in such establishment also. This argument was repe11ed and in that connection it was observed at page 381:"It will be noticed that though the Industrial Disputes Act confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for , . investigation and settlement of disputes raised there under. There was, therefore, no question of Parliament having to delete o r modify item S in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus there under by any categorical exclusion in the present case."And finally it was held at page 385:"Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is not possible to accept A the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the Industrial Disputes Act or other corresponding law."11. In a case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer, the employer will be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen. If, however, the terms of r employment confer a right of lay-off on t he management, then, in the case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein. But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment.In Kanhaiya Lal Gupta v. Ajeet Kumar Dey and others ([1967] II Labour Law Journal, 761.) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer has no right to lay-off a workman without paying him wages. A learned single Judge o f the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others. ([1972] 1 Labour Law Journal, 284 .) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another v. M. R. Meher and other (A.I.R. 1963 Bombay, 146.) that it is not open to the Industrial Tribunal under the Act to award lay-off compensation to workmen employed in an Industrial Establishment to which S. 25-C does not apply, is not correct. The source of the power of the employer to lay-off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment.12. In the case of the Delhi office of the respondent the Tribunal has held that the lay-off was justified. It was open to the Tribunal to award a lesser amount of compensation than the full wages. Instead of sending back the case to the Tribunal, we direct that 75% the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay-off. As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management. Civil Appeals 1857-1859 (NL) of 197013. In these appeals the facts are identical to those in the other appeal. There were only 33 employees in the Madras office of the respondent company. Certain workmen were laid-off for identical reasons from the 5th February, 1968. The lay-off was lifted on the 29th April, 1968. The concerned workmen filed petitions under section 33C (2) of the Act f or computation of their wages for the period of lay-off. Holding that the lay-off was justified and valid the Presiding officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay -off. Hence these appeals.In a reference under section 10 (1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under section 33C (2) of the Act. Only the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C ( 2) of the Act, while, in the reference some compensation could be allowed. Similarly on the view expressed above that the respondent company had no power to lay-off any workmen, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay-off.14. | 1[ds]The effect of the provisions aforesaid is that for the period of lay-off in an Industrial Establishment to which the said provisions apply, compensation will have to be paid in accordance with section 25C. But if a workman is entitled to benefits which are more favourable to him than those provided in the Act, he shall continue to be entitled to the more favourable benefits. The rights and liabilities of employers and workmen in so far as it relate to lay-off and retrenchment, except as provided in section 25J, have got to be determined in accordance with the provisions of Chapter VA.The ticklish question which does not admit of an easy answer is as to the source of the power of management to lay-off a workman. The employer has a right to terminate the services of a workman. Therefore, his power to retrench presents no difficulty as retrenchment means the termination by the employer of the service of a workman for any reason whatsoever as mentioned in clause (oo) of section 2 of the Act. But lay-off means the failure, refusal or inability of employer on account of contingencies mentioned in clause (kkk) to give employment to a workman whose name is borne on the Muster Rolls of his Industrial Establishment. It has been called a temporary discharge of the workman or a temporary suspension of his contract of service. Strictly speaking, it is not so. It is merely a fact of temporary unemployment of the workman in the work of the Industrial Establishment. Mr. S. N. Andley submitted with reference to the explanation and the provisions appended to clause (kkk) that the power to lay-off a workman is inherent in the definition. We do not find any words in the definition clause to indicate the conferment of any power on the employer to lay-off a workman. His failure or inability to give employment by itself militates against the theory of conferment of power. The power to lay-off for the failure or inability to give employment has to be searched somewhere else. No section in the Act confers thisindicates that there is neither a temporary discharge of the work man nor a temporary suspension of his contract of service. Under the general law of Master and Servants an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice. Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause (kkk) of section 2 is not a temporary discharge of the work man. Such a power, therefore, must be found out from the terms of contract of service or the Standing orders governing the establishment. In the instant case the number of workmen being only 30, there were no Standing orders certified under the Industrial employment (Standing orders) Act, 1946. Nor was there any term of contract of service conferring any such right of lay-off. In such a situation the conclusion seems to be inescapable that the workmen were laid-off without any authority of law or the power in the management under the contract of service. In Industrial Establishments where there is a power in the management to lay-off a workman and to which the provisions of Chapter VA apply, the question of payment of compensation will be governed and determined by the said provisions. Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay-off compensation. This case, therefore, goes out of Chapter VA. Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10(l) of the Act, it is open to the Tribunal or the Court to award a lesser sum finding the justifiability of theour opinion, in the context, the sentence aforesaid means that if the power of lay-off is there in the Standing orders but the grounds of lay-o ff are not covered by them, rather, are governed by the provisions of the Act, then lay-off would be permissible only on one or the other of the factors mentioned in clause (kkk). Subsequent discussions at pages 558 and 559 lend ample support to t he appellants argument that there is no provision in the Act specifically providing that an employer would be entitled to lay-off his workmen for the reasons prescribed by section 2statute under consideration in this case was the Payment of Bonus Act, 1965 and it was held that the Act was intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus of the persons to whom it should apply. The Bonus Act was not to apply to certain Establishments. Argument before the Court was that bonus was payable de hors the Act in such establishment also. This argument was repe11ed and in that connection it was observed at pagewill be noticed that though the Industrial Disputes Act confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for , . investigation and settlement of disputes raised there under. There was, therefore, no question of Parliament having to delete o r modify item S in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus there under by any categorical exclusion in the presenta case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer, the employer will be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen. If, however, the terms of r employment confer a right of lay-off on t he management, then, in the case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein. But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of thethese appeals the facts are identical to those in the other appeal. There were only 33 employees in the Madras office of the respondent company. Certain workmen were laid-off for identical reasons from the 5th February, 1968. The lay-off was lifted on the 29th April, 1968. The concerned workmen filed petitions under section 33C (2) of the Act f or computation of their wages for the period of lay-off. Holding that the lay-off was justified and valid the Presiding officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay -off. Hence these appeals.In a reference under section 10 (1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under section 33C (2) of the Act. Only the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C ( 2) of the Act, while, in the reference some compensation could be allowed. Similarly on the view expressed above that the respondent company had no power to lay-off any workmen, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay-off. | 1 | 4,174 | 1,465 | ### 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:
law dealing with the entire subject of bonus of the persons to whom it should apply. The Bonus Act was not to apply to certain Establishments. Argument before the Court was that bonus was payable de hors the Act in such establishment also. This argument was repe11ed and in that connection it was observed at page 381:"It will be noticed that though the Industrial Disputes Act confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for , . investigation and settlement of disputes raised there under. There was, therefore, no question of Parliament having to delete o r modify item S in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus there under by any categorical exclusion in the present case."And finally it was held at page 385:"Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is not possible to accept A the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through Industrial adjudication under the Industrial Disputes Act or other corresponding law."11. In a case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer, the employer will be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen. If, however, the terms of r employment confer a right of lay-off on t he management, then, in the case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein. But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of the employment.In Kanhaiya Lal Gupta v. Ajeet Kumar Dey and others ([1967] II Labour Law Journal, 761.) a learned single Judge of the Allahabad High Court seem to have rightly held that in the absence of any term in the contract of service or in the statute or in the statutory rules or standing orders an employer has no right to lay-off a workman without paying him wages. A learned single Judge o f the Punjab and Haryana High Court took an identical view in the case of Steel and General Mills Co. Ltd. v. Additional District Judge, Rohtak and others. ([1972] 1 Labour Law Journal, 284 .) The majority view of the Bombay High Court in K. T. Rolling Mills Private Ltd. and another v. M. R. Meher and other (A.I.R. 1963 Bombay, 146.) that it is not open to the Industrial Tribunal under the Act to award lay-off compensation to workmen employed in an Industrial Establishment to which S. 25-C does not apply, is not correct. The source of the power of the employer to lay-off workmen does not seem to have been canvassed or discussed by the Bombay High Court in the said judgment.12. In the case of the Delhi office of the respondent the Tribunal has held that the lay-off was justified. It was open to the Tribunal to award a lesser amount of compensation than the full wages. Instead of sending back the case to the Tribunal, we direct that 75% the basic wages and dearness allowance would be paid to the workmen concerned for the period of lay-off. As we have said above this will not cover the case of those workmen who have settled or compromised their disputes with the management. Civil Appeals 1857-1859 (NL) of 197013. In these appeals the facts are identical to those in the other appeal. There were only 33 employees in the Madras office of the respondent company. Certain workmen were laid-off for identical reasons from the 5th February, 1968. The lay-off was lifted on the 29th April, 1968. The concerned workmen filed petitions under section 33C (2) of the Act f or computation of their wages for the period of lay-off. Holding that the lay-off was justified and valid the Presiding officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay -off. Hence these appeals.In a reference under section 10 (1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under section 33C (2) of the Act. Only the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C ( 2) of the Act, while, in the reference some compensation could be allowed. Similarly on the view expressed above that the respondent company had no power to lay-off any workmen, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay-off.14.
### Response:
1
### Explanation:
neither a temporary discharge of the work man nor a temporary suspension of his contract of service. Under the general law of Master and Servants an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice. Mere refusal or inability to give employment to the workman when he reports for duty on one or more grounds mentioned in clause (kkk) of section 2 is not a temporary discharge of the work man. Such a power, therefore, must be found out from the terms of contract of service or the Standing orders governing the establishment. In the instant case the number of workmen being only 30, there were no Standing orders certified under the Industrial employment (Standing orders) Act, 1946. Nor was there any term of contract of service conferring any such right of lay-off. In such a situation the conclusion seems to be inescapable that the workmen were laid-off without any authority of law or the power in the management under the contract of service. In Industrial Establishments where there is a power in the management to lay-off a workman and to which the provisions of Chapter VA apply, the question of payment of compensation will be governed and determined by the said provisions. Otherwise Chapter VA is not a complete Code as was argued on behalf of the respondent company in the matter of payment of lay-off compensation. This case, therefore, goes out of Chapter VA. Ordinarily and generally the workmen would be entitled to their full wages but in a reference made under section 10(l) of the Act, it is open to the Tribunal or the Court to award a lesser sum finding the justifiability of theour opinion, in the context, the sentence aforesaid means that if the power of lay-off is there in the Standing orders but the grounds of lay-o ff are not covered by them, rather, are governed by the provisions of the Act, then lay-off would be permissible only on one or the other of the factors mentioned in clause (kkk). Subsequent discussions at pages 558 and 559 lend ample support to t he appellants argument that there is no provision in the Act specifically providing that an employer would be entitled to lay-off his workmen for the reasons prescribed by section 2statute under consideration in this case was the Payment of Bonus Act, 1965 and it was held that the Act was intended to be a comprehensive and exhaustive law dealing with the entire subject of bonus of the persons to whom it should apply. The Bonus Act was not to apply to certain Establishments. Argument before the Court was that bonus was payable de hors the Act in such establishment also. This argument was repe11ed and in that connection it was observed at pagewill be noticed that though the Industrial Disputes Act confers substantive rights on workmen with regard to lay off, retrenchment compensation, etc., it does not create or confer any such statutory right as to payment to bonus. Bonus was so far the creature of industrial adjudication and was made payable by the employers under the machinery provided under that Act and other corresponding Acts enacted for , . investigation and settlement of disputes raised there under. There was, therefore, no question of Parliament having to delete o r modify item S in the Third Schedule to Industrial Disputes Act or any such provision in any corresponding Act or its having to exclude any right to bonus there under by any categorical exclusion in the presenta case of compensation for lay-off the position is quite distinct and different. If the term of contract of service or the statutory terms engrafted in the Standing orders do not give the power of lay off to the employer, the employer will be bound to pay compensation for the period of lay-off which ordinarily and generally would be equal to the full wages of the concerned workmen. If, however, the terms of r employment confer a right of lay-off on t he management, then, in the case of an industrial establishment which is governed by Chapter VA, compensation will be payable in accordance with the provisions contained therein. But compensation or no compensation will be payable in the case of an industrial establishment to which the provisions of Chapter VA do not apply, and it will be so as per the terms of thethese appeals the facts are identical to those in the other appeal. There were only 33 employees in the Madras office of the respondent company. Certain workmen were laid-off for identical reasons from the 5th February, 1968. The lay-off was lifted on the 29th April, 1968. The concerned workmen filed petitions under section 33C (2) of the Act f or computation of their wages for the period of lay-off. Holding that the lay-off was justified and valid the Presiding officer of the Additional Labour Court, Madras has dismissed their applications for salary and allowances for the period of lay -off. Hence these appeals.In a reference under section 10 (1) of the Act it is open to the Tribunal or the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under section 33C (2) of the Act. Only the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under section 33C ( 2) of the Act, while, in the reference some compensation could be allowed. Similarly on the view expressed above that the respondent company had no power to lay-off any workmen, there is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under section 33C(2) of the Act for the period of lay-off.
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M. Chinnaswamy Vs. Messrs Dhandayuthanpani Roadways Private Limited | KRISHNA IYER, J.1. This appeal relates to the award of a stage carriage permit on the route Gopichettipalayam to Mambur. Before the Regional Transport Authority the predecessor of the appellant was awarded the permit on January 15, 1959. But in appeal the State Transport Appellate Tribunal upset this award by its order dated March 11, 1960. Thereafter, the matter was taken up to the High Court in writ jurisdiction and the learned single Judge restored the permit awarded by the Regional Transport Authority, but the fluctuating fortunes of the litigation proved at the Writ Appeal stage that the permit should go to the respondents predecessor. It is represented by Shri M.K. Ramamurthi appearing for the appellant that from about 1960, for the last 16 years, both the parties had been plying their stage carriages on the said route. Although the permit to be granted was only one, but by orders of court or other authority both the parties had been allowed to ply their buses. It seems to be so obvious that in public interest if two stage carriage have been plying on the route for the last 16 years there is no reason to confine it to one. Both sides agree that there is necessity for two permit on the route. In that view we consider the dispute to be academic.2. We direct that the status quo of both parties being allowed to ply their stage carriages on the route taking appropriate permits from the authorities concerned will continue.3. | 0[ds]It seems to be so obvious that in public interest if two stage carriage have been plying on the route for the last 16 years there is no reason to confine it to one. Both sides agree that there is necessity for two permit on the route. In that view we consider the dispute to be academic.We direct that the status quo of both parties being allowed to ply their stage carriages on the route taking appropriate permits from the authorities concerned will continue. | 0 | 270 | 91 | ### 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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KRISHNA IYER, J.1. This appeal relates to the award of a stage carriage permit on the route Gopichettipalayam to Mambur. Before the Regional Transport Authority the predecessor of the appellant was awarded the permit on January 15, 1959. But in appeal the State Transport Appellate Tribunal upset this award by its order dated March 11, 1960. Thereafter, the matter was taken up to the High Court in writ jurisdiction and the learned single Judge restored the permit awarded by the Regional Transport Authority, but the fluctuating fortunes of the litigation proved at the Writ Appeal stage that the permit should go to the respondents predecessor. It is represented by Shri M.K. Ramamurthi appearing for the appellant that from about 1960, for the last 16 years, both the parties had been plying their stage carriages on the said route. Although the permit to be granted was only one, but by orders of court or other authority both the parties had been allowed to ply their buses. It seems to be so obvious that in public interest if two stage carriage have been plying on the route for the last 16 years there is no reason to confine it to one. Both sides agree that there is necessity for two permit on the route. In that view we consider the dispute to be academic.2. We direct that the status quo of both parties being allowed to ply their stage carriages on the route taking appropriate permits from the authorities concerned will continue.3.
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It seems to be so obvious that in public interest if two stage carriage have been plying on the route for the last 16 years there is no reason to confine it to one. Both sides agree that there is necessity for two permit on the route. In that view we consider the dispute to be academic.We direct that the status quo of both parties being allowed to ply their stage carriages on the route taking appropriate permits from the authorities concerned will continue.
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Anil @ Raju Namdev Patil Vs. Adminstration Of Daman & Diu, Daman &Anr | Court and the attention of the accused also was drawn. Further, they are punished for lesser of fence, therefore, the order passed by the High Court is justified and legal. 51. In Dalbir Singh v. State of U.P. [(2004) 5 SCC 334] , this Court observed: 11. The High Court was further of the opinion that the evidence on record clearly established the charge against the accused under Section 306 IPC and he could be convicted and sentenced for the said offence. However, in view of the fact that no charge under Section 306 IPC had been framed and there was conflict of opinion in the two decisions of this Court rendered by Benches of equal strength and as in such a situation a later decision was to be followed, the High Court came to a conclusion that the accused cannot be convicted under Section 306 IPC. On this basis the conviction and sentence of accused under Section 498-A IPC alone were maintained. 12. The main question which requires consideration is whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lekhjit Singh and Anr. v. State of Punjab (supra) the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non-framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C. it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC 52. In Kamalanantha and Others v. State of T.N. [(2005) 5 SCC 194] , this Court held: It is clear from the aforesaid decisions that misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. 53. The question came up for consideration in Harjit Singh v. State of Punjab [2006(1) SCC 463] wherein, however, it was held : 23. Faced with this situation, the learned counsel appearing on behalf of the State relies upon a judgment of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao wherein an observation was made in the peculiar facts and circumstances of that case that even if the accused is not found guilty for commission of an offence under Sections 304 and 304-B of the Penal Code, he can still be convicted under Section 306 IPS thereof. 24. Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused. 25. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused. 54. The propositions of law which can be culled out from the aforementioned judgments are: (i) The appellant should not suffer any prejudice by reason of misjoinder of charges. (ii) A conviction for lesser offence is permissible. (iii) It should not result in failure of justice. (iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. 55. The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom. 56. It was, thus, obligatory on the part of the learned Sessions Judge, Daman to frame a charge which would answer the description of the offence envisaged under Section 364-A of the Indian Penal Code. It may be true that the kidnapping was done with a view to get ransom but the same should have been put to the appellant while framing a charge. The prejudice to the appellant is apparent as the ingredients of a higher offence had not been put to him while framing any charge. 57. It is not a case unlike Kammari Brahmaiah (supra) where the offence was of a lesser gravity, as has been observed by Shah J. | 0[ds]17. The purported statement made by the appellant on 7.08.2000 leading to recovery reads as under:On 3-8-2000 one Jagdish Solanki brought one boy Paras from Coast Guard School on a scooter to Mashal Chowk and I along with Jagdish and two other Satish and Chotu took the boy in a D.C.M. Toyota to Kachigam near Kabra factory and from there took him in a isolated place near a nalla and after removing his clothes threw him in the nalla, after the dead body came up we removed the dead body and hided in a pithole and covered it with plastic sheet. We then burnt the clothes and other belonging, of the boy. In the night we came back to the spot with a kerosene cane and some cardboard and removed the dead body and burnt it in the field near the nalla and left while it was burning. Next day morning I and Satish came back again to the spot and found that the upper half portion of the body was not fully burnt we picked up the remaining part of the body and threw into the nalla. I am ready to show the place where the boy was killed and the dead body hidden and thereafter thrown in the nalla come with me.. The first part of the said statement is not admissible in evidence19. The appellant was taken to the place pointed by him with Mr. Jallauddin Mohamed Dali (PW-2) and Mr. John Bosco Machado (PW-3). They were also accompanied by the diver of the Coast Guard School Clifford Coutinho (PW-10). They were requested by the investigating officer to serve as panch witnesses in preparing the recovery panchnama of the said case. The preparation of panchnama commenced at 1610 hrs and concluded at 1630 hrs20. The only infirmity, pointed out from their evidence was, whereas PW-2 in his evidence stated that the appellant did not enter the nalla to take out the bones; according to PW-3, he did so. However, on perusal of their evidences, we find that both of them have stated that it was one person PW-10 who went into the nalla and took out the bones. Both PW-2 and PW-3 as also PW-10 gave a vivid description as to the mode and manner in which the appellant pointed out the place whereat the dead body of Paras was burnt, the nalla wherefrom the bones were recovered and the spot where some burnt pieces of cardboard and ashes were seen. The grass area of that spot was also found to have been burnt. On the other side of the nalla, burnt shoes and burnt trousers were found. That spot was at a distance of about 500 mtrs. from a factory known as Midley. It was an isolated place and was a grassy area.22. The information disclosed by the evidences leading to the discovery of a fact which is based on mental state of affair of the accused is, thus, admissible in evidence.26. This Court in Jaipur Development Authority v. Radhey Shyam [(1999) 4 SCC 370] opined that when an object is discovered from an isolated place pointed out by the appellant, the same would be admissible in evidence. [See also State of Maharashtra v. Suresh, (2000) 1 SCC 471 ]27. We may also refer to a recent decision of this Court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600] wherein this Court opined:The history of case law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kotayyas case, which has been described as a locus classicus, had set at rest much of the controversy that centered round the interpretation of Section 27. To a great extent the legal position has got crystallized with the rendering of this decision. The authority of Privy Councils decision has not been questioned in any of the decisions of the highest Court either in the pre or post independence era. Right from 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.. We have noticed hereinbefore the confessional statement of the appellant and the manner in which the same was recorded29. The appellant was not in police custody when a request was made to record his confessional statement. He was in judicial custody. He was produced before the Magistrate on 16.08.2000. The learned Magistrate took the requisite precaution in not recording his statement on that day. The requirements of Section 164 of the Code of Criminal procedure have, thus, fully been complied with. He was asked to come on the next day. A note of caution as envisaged in law was again administered. His statement was recorded on 17.08.2000.30. His statement was recorded after the court time was over. All persons had been asked to go out of the court room except the court peon. The questions put to him on 17.08.2000 clearly go to show that the learned Magistrate took all the requisite precautions before recording the said statement. He was produced from the magisterial custody. He did not stop there. He gave him another opportunity to think over the matter and remanded him to the magisterial custody till the next day. On 18.08.2000, the learned Magistrate again satisfied himself about the requirements of law. He made an inquiry as to when police had arrested him. He asked other relevant questions including the question as to whether the police had led a trap to arrest in Ankleshwar to which he pleaded ignorance.31. His confessional statement reads as under:My name is Anil @ Raju Namdev Patil, age 22 years, r/o Shevga Bk., Taluka Parola, District Jalgoan. I came to Daman in search of job in Nov. 99. My friend Dharamraj Vasantrao Patil @ Chhotu also came. The (sic) was working in village Somnath at Daman previouslyWithin two days I got the job as a driver on tempo 407 belonging to priest of Somnath temple Dilipbhai. Myself and my friend Dharamraj Patil were staying in Amlia at village (Somnath). Dharamraj @ Chhotu was working elsewhere as a driverMy cousin uncle Satish Shyamrao Patil r/o Shevge, Taluka Parola came to Daman in March 2000 in search of a job and started staying with me. He got a temporary job as a helper in JuneSince I got a better job I left the job at Dilipbhai on 20/4/2000 and joined in R.K. Plastic company on 20/4/2000Before 9/7/2000 my father had come to Somnath but I was not given leave by the owner of R.K. Plastic Ashwinbhai shah. So my father could not meet me. Again my father and mother came to see me and I went along with them. On 21/7/2000 I returned, my uncle was with meI had left the job, my uncle was also jobless. So, Chhotu @ Dharamraj and my uncle Satish told me to kidnap son of Ashwinbhai and for that to give me Rs. 1 Lakh and also told that after getting ransom all would go back to villageBeing greedy of money I thought for the whole night, I would get Rs.1 lakh and for that I had to look after the boy only for 2-3 daysWe three i.e. myself, Satish and Dharamraj as per plan on 3/8/2000, I and Satish went in a rickshaw to collect Paras from Coast Guard School. Paras knew me. I told Paras that your father has called you in factory so Paras came and sat with us in rickshaw. At 2.15 p.m. we reached our house along with Paras. We three had devide (sic) the work to be done. My work was to bring Paras. Satish was to telephone and take ransom from Ashwinseth, Dharamraj had to look after the child and with Satish to go for collecting ransom. On 3/8/2000 at 2.30 p.m. we went to Vapi to telephone Ashwinsheth. Ashwinseth was not available on phone. We returned. Dharamraj @ Chhotu and Paras were not in the room. Satish went to search Chhotu. At 5.30 Chhotu and Satish came back to the room. They told that Paras is kept at the safe place. At night 8 p.m. both left the room and returned at 12 midnight. On 4/8/00 Chhotu went for his work at 9 Oclock. Myself and Satish went to ring up Ashwinseth. Satish took me to Kachigam. He took me near a hill in jungle, there Satish showed me a burnt body of a male child. I started to cry. They have cheated meWe three had thrown the half burnt body into water. The body was of Paras. Statement is recorded as per the say of accused and it is read over to him.. The confession was not retracted during the course of the trial. It was purported to have been done only in his examination under Section 313 of the Criminal Procedure Code. The learned Magistrate examined himself as PW-33.37. In Subramania Goundan v. The State of Madras [1958 SCR 428 ], this Court held:The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially...38. It is however a case where the learned Magistrate did make preliminary inquiries, gave warning to him, send him back to the judicial custody for a few days or at least one day and then he was called back again. [See Bharat v. State of U.P. (1971) 3 SCC 950 ]41. We are thoroughly satisfied that the confession made by the appellant was voluntary in nature and the same was free from undue influence, coercion and threat. There is another reason why we think that there is a ring of truth in the confession of the appellant. He was a driver appointed by the parents of the deceased. He worked with them for three months. He might have become greedy to earn some easy money. From the tenor of his confession, it appears that his job merely was to kidnap the boy and handed over to other co-accused. He never thought that the boy would be murdered. He did not have any animosity with the deceased. He might have developed a liking for the boy. The act of others is apparent from the statement before the learned Magistrate42. Furthermore, in the meantime the other two co-accused had also committed suicide. They left a suicide note which implicated him also43. The said suicide note, in our considered opinion, is not admissible in evidence under Section 32(1) of the Indian Evidence Act as was suggested by Mr. Singh. He relied upon a decision of this Court in Sharad Birdhi Chand Sarda v. State of Maharashtra [1985 (1) SCR 88 : (1984) 4 SCC 116 ] wherein the question was as to whether the death of the deceased therein was homicidal or suicidal. The said decision has no application in the instant case44. The statement of a deceased may be admissible in evidence in terms of Section 32(1) of the Indian Evidence Act to prove the cause of the death or as to any of the circumstances of the transaction which resulted in his death. But, when a suicide is committed by a co-accused, the statements made in the suicide note implicating other co-accused would not be admissible thereunder.54. The propositions of law which can be culled out from the aforementioned judgments are:(i) The appellant should not suffer any prejudice by reason of misjoinder of charges(ii) A conviction for lesser offence is permissible(iii) It should not result in failure of justice(iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges55. The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom56. It was, thus, obligatory on the part of the learned Sessions Judge, Daman to frame a charge which would answer the description of the offence envisaged under Section 364-A of the Indian Penal Code. It may be true that the kidnapping was done with a view to get ransom but the same should have been put to the appellant while framing a charge. The prejudice to the appellant is apparent as the ingredients of a higher offence had not been put to him while framing any charge57. It is not a case unlike Kammari Brahmaiah (supra) where the offence was of a lesser gravity, as has been observed by Shah J. | 0 | 8,130 | 2,718 | ### 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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Court and the attention of the accused also was drawn. Further, they are punished for lesser of fence, therefore, the order passed by the High Court is justified and legal. 51. In Dalbir Singh v. State of U.P. [(2004) 5 SCC 334] , this Court observed: 11. The High Court was further of the opinion that the evidence on record clearly established the charge against the accused under Section 306 IPC and he could be convicted and sentenced for the said offence. However, in view of the fact that no charge under Section 306 IPC had been framed and there was conflict of opinion in the two decisions of this Court rendered by Benches of equal strength and as in such a situation a later decision was to be followed, the High Court came to a conclusion that the accused cannot be convicted under Section 306 IPC. On this basis the conviction and sentence of accused under Section 498-A IPC alone were maintained. 12. The main question which requires consideration is whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lekhjit Singh and Anr. v. State of Punjab (supra) the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non-framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C. it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC 52. In Kamalanantha and Others v. State of T.N. [(2005) 5 SCC 194] , this Court held: It is clear from the aforesaid decisions that misjoinder of charges is not an illegality but an irregularity curable under Section 464 or Section 465 Cr.P.C. provided no failure of justice had occasioned thereby. Whether or not the failure of justice had occasioned thereby, it is the duty of the Court to see, whether an accused had a fair trial whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. 53. The question came up for consideration in Harjit Singh v. State of Punjab [2006(1) SCC 463] wherein, however, it was held : 23. Faced with this situation, the learned counsel appearing on behalf of the State relies upon a judgment of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao wherein an observation was made in the peculiar facts and circumstances of that case that even if the accused is not found guilty for commission of an offence under Sections 304 and 304-B of the Penal Code, he can still be convicted under Section 306 IPS thereof. 24. Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused. 25. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused. 54. The propositions of law which can be culled out from the aforementioned judgments are: (i) The appellant should not suffer any prejudice by reason of misjoinder of charges. (ii) A conviction for lesser offence is permissible. (iii) It should not result in failure of justice. (iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. 55. The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom. 56. It was, thus, obligatory on the part of the learned Sessions Judge, Daman to frame a charge which would answer the description of the offence envisaged under Section 364-A of the Indian Penal Code. It may be true that the kidnapping was done with a view to get ransom but the same should have been put to the appellant while framing a charge. The prejudice to the appellant is apparent as the ingredients of a higher offence had not been put to him while framing any charge. 57. It is not a case unlike Kammari Brahmaiah (supra) where the offence was of a lesser gravity, as has been observed by Shah J.
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### Explanation:
on phone. We returned. Dharamraj @ Chhotu and Paras were not in the room. Satish went to search Chhotu. At 5.30 Chhotu and Satish came back to the room. They told that Paras is kept at the safe place. At night 8 p.m. both left the room and returned at 12 midnight. On 4/8/00 Chhotu went for his work at 9 Oclock. Myself and Satish went to ring up Ashwinseth. Satish took me to Kachigam. He took me near a hill in jungle, there Satish showed me a burnt body of a male child. I started to cry. They have cheated meWe three had thrown the half burnt body into water. The body was of Paras. Statement is recorded as per the say of accused and it is read over to him.. The confession was not retracted during the course of the trial. It was purported to have been done only in his examination under Section 313 of the Criminal Procedure Code. The learned Magistrate examined himself as PW-33.37. In Subramania Goundan v. The State of Madras [1958 SCR 428 ], this Court held:The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially...38. It is however a case where the learned Magistrate did make preliminary inquiries, gave warning to him, send him back to the judicial custody for a few days or at least one day and then he was called back again. [See Bharat v. State of U.P. (1971) 3 SCC 950 ]41. We are thoroughly satisfied that the confession made by the appellant was voluntary in nature and the same was free from undue influence, coercion and threat. There is another reason why we think that there is a ring of truth in the confession of the appellant. He was a driver appointed by the parents of the deceased. He worked with them for three months. He might have become greedy to earn some easy money. From the tenor of his confession, it appears that his job merely was to kidnap the boy and handed over to other co-accused. He never thought that the boy would be murdered. He did not have any animosity with the deceased. He might have developed a liking for the boy. The act of others is apparent from the statement before the learned Magistrate42. Furthermore, in the meantime the other two co-accused had also committed suicide. They left a suicide note which implicated him also43. The said suicide note, in our considered opinion, is not admissible in evidence under Section 32(1) of the Indian Evidence Act as was suggested by Mr. Singh. He relied upon a decision of this Court in Sharad Birdhi Chand Sarda v. State of Maharashtra [1985 (1) SCR 88 : (1984) 4 SCC 116 ] wherein the question was as to whether the death of the deceased therein was homicidal or suicidal. The said decision has no application in the instant case44. The statement of a deceased may be admissible in evidence in terms of Section 32(1) of the Indian Evidence Act to prove the cause of the death or as to any of the circumstances of the transaction which resulted in his death. But, when a suicide is committed by a co-accused, the statements made in the suicide note implicating other co-accused would not be admissible thereunder.54. The propositions of law which can be culled out from the aforementioned judgments are:(i) The appellant should not suffer any prejudice by reason of misjoinder of charges(ii) A conviction for lesser offence is permissible(iii) It should not result in failure of justice(iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges55. The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Indian Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom56. It was, thus, obligatory on the part of the learned Sessions Judge, Daman to frame a charge which would answer the description of the offence envisaged under Section 364-A of the Indian Penal Code. It may be true that the kidnapping was done with a view to get ransom but the same should have been put to the appellant while framing a charge. The prejudice to the appellant is apparent as the ingredients of a higher offence had not been put to him while framing any charge57. It is not a case unlike Kammari Brahmaiah (supra) where the offence was of a lesser gravity, as has been observed by Shah J.
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Hindustan Polymers Etc. Etc Vs. Collector Of Central Excise, Etc. Etc | were contained fell within the definition of packing in the Explanation to Section 4(4)(d)(i) and if these formed part of the packing in which the goods were packed when delivered at the time of removal, then under Section 4(4)(d)(i) read with the Explanation, the cost of such corrugated fibreboard containers would be liable to be included in the value of cigarettes. It is apparent from the wide language, according to the learned Chief Justice, of Explanation to Section 4(4)(d)(i) that every kind of container in which it can be said that the excisable goods are contained would be packing within the meaning of the Explanation. Even secondary packing would be within the terms of the Explanation, because such secondary packing would also constitute a wrapper or a container in which the excisable goods are wrapped or contained. But the test to determine whether the cost of any particular kind of secondary packing is liable to be included in the value of the article is whether a particular kind of packing is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate. If they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. According to learned Chief Justice, it makes no difference to applicability of the definition in Section 4(4)(i) read with Explanation that the packing of the goods ordinarily sold by the manufacturer in the wholesale trade is packing for the purpose of protecting the goods against damage during transportation or in the warehouse. However, if any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of such special packing would not be includible in the value of the goods. It may be necessary in this connection to refer to the observations of the Court in Union of India and Ors. v. Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ), dealing with the aspect of secondary packing, where this Court reiterated that the degrees of secondary packing which is necessary for putting the excisable article in which it is sold in the wholesale market at the factory was the degree of packing where the cost would be included in the value of the goods for the purpose of excise duty. Pathak J., as the Honble Chief Justice was then, asked whether it is necessary for putting the cigarettes in the conditions in which they were sold in the wholesale market or at the factory gate. He answered that it is not. It was found that these corrugated fiberboard containers are employed for the purpose of avoiding these corrugated fibreboard containers are employed for the purpose of avoiding damage or injury during the transit. It was conceivable that the wholesale dealer who takes delivery might have its depot at a very short distance only from the factory gate or may have such transport arrangements available that damage or injury to the cigarettes could be avoided. In those cases, the corrugated fibreboard containers, according to Pathak J. were not necessary for selling the cigarettes in the wholesale market. 14. I am of the opinion on that the views expressed by the majority of the learned Judges were correct and it appears, with respect, that the observations of the learned Chief Justice Bhagwati were not consistent with the judgment of this Court in Bombay Tyres International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) at p. 379. The learned Attorney General sought to suggest that the decision of this Court in Union of India v. Godfrey Philips Ltd. ((1985) 4 SCC 369 : 1886 SCC (Tax) 11 : 1985 Supp 3 SCR 123), perhaps might require reconsideration. I am unable to accept the suggestion. The ration of the decision in Godfrey Philips case ((1985) 4 SC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123), is in consonance with the decision of Union of India v. Bombay Tyre International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ), and farther in consonance with the true basis of excise as explained in several decisions mentioned before. In the premises, on the facts of this case, it is clear that the goods were not sold in drums generally in the course of the wholesale trade. There was evidence that 90 per cent of the goods were delivered at the time of removal without being put in drums. There was no evidence that there was any necessity of pacing or putting these in drums prior to their sale. It was not necessary that the articles were to be placed in drums for these to be able to generally to enter the stream of wholesale trade or to be marketable. On the other hand, there was evidence that in the wholesale trade, these goods were delivered directly in tankers and deliverable as such. But as a matter of fact, delivery in drums was only to facilitate their transport in small quantities. The manufacture of the goods was complete before these were placed in drums. The completely manufactured product was stored in tanks. From these tanks the goods were removed directly and placed in vehicles for their movement - for 90 per cent of the sales the vehicle of removal was tankers and 10 per cent of the sales the vehicle of removals was drums. In the premises, the value of the drums with regard to the fusel oil/styrene monomer irrespective of whether these were supplied by the assessee or not, are not includible in the assessable value of the Styrene monomer. | 1[ds]8. In order to appreciate the controversy in this case, it necessary to refer to the relevant provisions9. Section 2(f) of the Act provides the definition of the term "manufacture". It states, inter alia, that manufacture includes any process incidental or ancillary to the completion of manufactured product. It is, therefore, necessary to bear in mind that a process which is ancillary or incidental to the completion of the manufactured product, that is to say, to make the manufacture complete would be "manufacture". It is relevant and important to bear this aspect in mind. Section 3 of the Act provides that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India. "Excisable goods", under Section 2(d) of the Act, means goods specified in the Schedule tothe Central Excise Tariff Act, 1985 as being subject to duty of excise and includes salt. Section 4 of the Act provides for the valuation of excisable goods for purposes of charging of duty of excise. The relevant provision of Section 4 of the Act deals with the manner as to how the value is to be computed and Section 4(4)(d) stipulates as followsvalue in relation to any excisable goods, -(i) Where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assesseeExplanation. - In this sub-clause "packing" means the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound;(ii) does not include the amount of the duty of excise, sales tax and other taxes, if any, payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale;Explanation. - For the purpose of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the sum total of -(a) the effective duty of exercise payable on such goods under this Act; and(b) the aggregate of the effective duties of excise payable under other Central Acts, if any, providing for the levy of duties of excise on such goodsand the effective duty of excise on such goods under each Act referred to in clause (a) or clause (b) shall be, -(i) in a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to, or reduction or duty of excise under such Act on such goods equal to, any duty of excise under such Act, or the additional duty under Section 3 ofthe Customs Tariff Act, 1975 (51 of 1975), already paid on the raw material or component parts used in the production or manufacture of such goods) from the duty of excise under such Act is for the time being in force, the duty of excise computed with reference to the rate specified in such Act in respect of such goods as reduced so as to give full and complete effect to such exemption; and(ii) in any other case, the duty of excise computed with reference to the rate specified in such Act in respect of such goods."10. The expression "place of removal" has been defined under Section 4(4)(b) of the Act to mean a factory or any other place or premises of production or manufacture of the excisable goods; or a warehouse or any other place or premises where in the excisable goods have been permitted to be deposited without payment of duty, from where such goods are removed. It is in relation to Section 4(4)(d) that it is contended that except the cost of packing which is of a durable nature and is returnable by the buyer to the assessee to the buyer, in respect of all other costs of packing, the costs should be included in the value of the excisable goods. The explanation to the said sub-section defines the expression "packing" as the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound. The provisions of these two sections must be judged in the light of the principles laid down by this Court in Union of India v. Bombay Tyre International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ). In that decision, it has been recognized that the measure employed for assessing a tax must be confused with the nature of the tax; while the measure of the tax may be assessed by its own standard to serve as a standard for assessing the levy the legislature need not contour it along lines which spell out the character of the levy itself. Reliance may be placed to the observations of this Court at pp. 365-67 of the Report (SCC pp. 481-82). This Court rejected the contention of the assessee in that case that because the levy of excise is a levy on goods manufactured or produced, the value of an excisable article must be limited to the manufacturing cost plus manufacturing profit. This Court reiterated that Section 4 of the Act provides the measure by reference to which the charge is to be levied. Therefore, the charge is to be determined by the terms of Section 4 of the Act. But it has to be borne in mind that the duty of excise is chargeable with reference to the value of the excisable goods and the value is defined in express terms in that section. Though the learned Attorney General referred to the fact that in taxing status, one must look merely at what is clearly stated, yet such a construction must be made in the context of the entire scheme of the Act. Learned Attorney General emphasised that the language of clause (d) of sub-section (4) of Section 4 of the Act made it clear beyond doubt that in cases where the Act provides for excise duty with reference to value of the excisable goods, while determining the value of such good, the cost of packing where the excisable goods are delivered at the time of removal in packed condition, would have to be included in the assessable value of the excisable goods. According to the learned Attorney General, since the Act provides for only one exception to this measure, namely, non-inclusion of the cost of such packing where the packing is durable in nature and is returnable by the buyer to the assessee, in all other cases the cost of the packing would have to be included in the assessable value of the excisable goods where such goods are delivered at the time of removal in packed condition. According to him, the plain language of the Statute does not permit of any further exceptions beings read into the Act. To hold otherwise, it was contended, would make the provision of the measure of the levy unworkable inasmuch as in every case the measure would have to differ in the light of the contentions as may be raised by the assessee depending upon the business arrangement of each assessee. It was contended that it is not correct to equate the measure of tax with the levy itself which is the basis of the contentions of the appellant11. In my opinion, however, the correct position must be found out bearing in mind the essential nature of excise duty. Excise duty, as has been reiterated and explained, is a duty on the act of manufacture. Manufacture under the excise law, is the process or activity which brings into being articles which are known in the market as goods and to be goods these must be different, identifiable and distinct articles known to the market as such. It is then and then only that manufacture taken place attracting duty. In order to be goods, it was essential that as a result of the activity, goods must come into existence. For articles to be goods, these must be known in the market as such and these must be capable of being sold or being sold in the market as such. See the observations of this Court in Union of India v. Delhi Cloth and General Mills Ltd. (1963 Supp 1 SCR 586 : AIR 1963 SC 791 ), South Bihar Sugar Mills Ltd., v. Union of India ((1968) 3 SCR 21 : AIR 1968 SC 922 ) and and Bhor Industries Ltd., Bombay v. C CE ((1989) 1 SCC 602 : 1989 SCC (Tax) 98) In order, therefore, to be manufacture, there must be activity which beings transformation to the article in such a manner that different and distinct article comes into being which is known as such in the market. If in order to be able to put in on the market, a certain amount of packing or user of containers or wrappers or putting them either in drums or containers, are required, then the value or the cost of such wrapper or container or drum must be included in the assessable value and if the price at which the goods are sold does not include that value then it must be so included by the very force of the terms of the section. The question, therefore, that has to be examined in this case is whether these drums, containers or packing, by whatever name they are called, are necessary to make fusel oil or styrene monomer marketable as such or can these goods be sold without the containers or drums or packing In may opinion, the facts established that these could be. The fact that 90 per cent of the goods in Civil Appeal No. 4339 of 1986 were delivered in tankers belonging to the assessee and only 10 per cent of the goods were in packed condition at the time of removal clearly establish that the goods were marketable without being packed or contained in drums of containers. These were in the storage tanks of the assessee and were as such marketable. In this connection, it is necessary to refer to the observations of this Court in CCE v. Indian Oxygen Ltd. ((1988) 4 SCC 139 : 1988 SCC (Tax) 491 : (1988) 36 ELT 730 ) In that case, as mentioned hereinbefore, the respondent Indian oxygen Ltd., was manufacturer of dissolved acetylene gas and compressed oxygen gas, called therein the gases. The respondent supplied these gases in cylinders at their factory gate. For taking delivery of these gases, some consumers/customers used to bring their own cylinders and take the delivery, while others used to have the deliver in the cylinders supplied by the respondent. For the purpose of such supply of cylinders, certain rentals were charged by the respondent and also to ensure that these cylinders were returned properly, certain amount of deposit used to be taken from the customers. On these deposits, notional interest @ 18 per cent p.a. was calculated. The two amounts with which this Court was concerned were rentals of the cylinders and the notional interest earned on the deposit of cylinders - whether these two amounts were includible in the value under section 4 of the Act was the question. The revenues case was that the notional value of deposit was rental and hence should be included in computing the assessable value. The respondent, however, disputed this. Analysing the scope of Section 4 of the Act, it was held by this Court that supply of gas cylinders might be ancillary activity to the supply of gases but this was not ancillary or incidental to the manufacture of gases. The goods were manufactured without these cylinders. Therefore, the rental of the same though income of ancillary activity, was not the value incidental to the manufacture and could not be included in the assessable value. Similarly, in my opinion, drums even though these were ancillary or incidental to the supply of fusel of fusela oil and styrene monomer, these were not necessary to complete the manufacture of fusel oil or styrene monomer; the cost of such drums cannot, therefore, be included in the assessable value thereof. Furthermore, no cost was, in fact, incurred by the assessee. Drums had been supplied by the buyers12. This position, in my opinion, was correctly approached in the decision of the Bombay High Court in Govind Pay Oxygen Ltd., v. Assistant Collector of Central Excise, Panaji & Ors., ((1986) 23 ELT 394 (Bom)) where it was held that Section 4(4)(d)(i) of the Act does not make any provision for including the cost of packing which was supplied by the buyer to the assessee for the obvious reason that the assessee did not spend for such packing. It was for this simple reason that the legislature had not though it fit to exempt such packing from the value of excisable goods. In my opinion, that is the correct approach to the problem. Similarly, Karnataka High Court in Alembic Glass Industries v. Union of India & Ors., (1986) 24 ELT 23 (Kar)) held that the term "value" defined in Section 4(4)(d)(i) provides for exclusion of cost of packing material which was of durable nature and was returnable by the buyer to the assessee. Hence, there was no logic or reason for not excluding the value of packing material supplied by the buyer himself which is of durable nature and is returnable by the assessee to the buyer. Furthermore, in my opinion, in terms of section, it is not includible. The contention that the value of packing materials including those supplied by the buyer, has to be included in the value of the goods, is repugnant to the very scheme of Section 4. It overlooks the use of the expression "cost" in relation to packing in the clause (i) of Section 4(4)(d) of the Act. The word "cost" has a definite connotation, and is used generally in contradistinction of the expression "value". Thus, the clear implication of the use of the word "cost" is that only packing cost of which is incurred by the assessee, i.e., the seller, is to be included. The use of the expression "cost" could not obviously be by way of reference to packing for which the cost is incurred by the buyer. It has to be borne in mind that such a provision would make the provision really unworkable, since in making the assessment of the seller, there is no machinery for ascertaining the "cost" of the packing which might be supplied by the buyer. Such a contention further overlooks the scheme of clause (i) whereunder durable packing returnable by the buyer has to be excluded. It would create an absurd situation if durable packing supplied by the assessee and returnable to the assessee is not to be included in the assessable value but a durable packing supplied by the buyer to the assessee and returnable to the buyer is made a part of the assessable value. One has to bear in mind the scheme of clause (d) of Section 4(4) of the Act. The two sub-clause of this clause deal with abatements or deductions in respect of actual burdens, either by way of an expenditure or discount, borne by the assessee. Clause (ii) deals with duties of excise, sales tax and other tax, if any, payable on such goods. Here also obviously the reference is not generally to the taxes payable on such goods by either the assessee or the buyer but is obviously to the taxes payable by the assessee. The trade discount is referable to that allowed by the assessee. Therefore, in the same sense, clause (i) would only be referable to the packing in respect to which "cost" is incurred by the assessee. It has to be borne in mind that the scheme of old Section 4 of the Act and new Section 4 is the same as was held by this Court in the case of Bombay Tyre International (at pages 376 E-F, 377-H and 378 A-B, H of the report. The scheme of the old Section 4 is indisputedly to determine the assessable value of the goods on the basis of the price charged by the assessee, less certain abatements. There was no question of making any additions to the price charged by the assessee. The essential basis of the "assessable value" of old Section 4 was the wholesale cash price charged by the assessee. To construe new Section 4 as now suggested would amount to departing from this concept and replacing it with the concept of a notional value comprising of the wholesale cash price plus certain notional charges. This would be a radical departure from old Section 4 and cannot be said to be on the same basis. It has to be borne in mind that the measure of excise duty is price and not value. It has been so held by this Court in Bombay Tyre International case ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ). See in this connection, the observations of this Court in Bombay Tyres case at pages 368, 377, 379, 382 and 383, where this Court emphasised that in both the old Section 4 and the new Section 4, the price charged by the manufacturer on a sale by him represents the measure. Price and sale are related concepts and price has a definite connotation. Therefore, it was held that the "value" of the excisable articles has to be computed with reference to the price charged by the manufacturer, the computation being made in accordance with the terms of Section 4. This Court rejected the contention on behalf of the assessee in that case, that Section 4 also levied excise on the basis of a conceptual value which must exclude post-manufacturing expense and post-manufacturing profit by observing that the contention proceeded on the assumption that a conceptual value governed the assessment of the levy. It was reiterated that the old Section 4 and new section 4 determine the value on the basis of price charged or chargeable by the particular assessee. See in this connection, the observations of this Court at p. 388 F & G of the report. 13. It has also to be borne in mind that in any event insofar as Styrene monomer Oil is concerned, the value of the drums in which it is packed is not includible in the assessable value of the goods. It is not all packing which is liable to be included under Section 4(4)(d)(i) in the assessable value of the goods. It is only that degree of secondary packing which is necessary for assessable articles to be in the condition in which it is generally sold in the wholesale market which can be included at the factory gate which should be included in the value of the article. See the observations of this Court in Bombay Tyre International case ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) at page 393 D & E. (SCC p. 508, para 52). In the case of Union of India v. Godfrey Philips Ltd. ((1985) 4 SCC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123), this position was clarified by the majority judgment. In that case, the respondent therein manufactured cigarettes in their factories. The cigarettes so manufactured were packed initially in paper/cardboard packets of 10 and 20 and these packets were then packed together in paper/cardboard cartons/outer. These cartons/outers were then placed in corrugated fiberboard containers and delivered by the respondents to the wholesale dealers at the factory gate. There was no dispute that the cost of primary packing into packets of 10 and 20 and the cost of secondary packing in cartons/outers must be included in determining the value of the cigarettes for the purpose of assessment to excise duty, since such packing would fall under Section 4(4)(d)(i) of the Act. The question that arose was whether the cost of final packing in corrugated fiberboard containers would be liable to be included in the value of the cigarettes for the purpose of assessment to excise duty. The question was answered in negative by a majority of 2:1 of this Court. Chief Justice Bhagwati dissented. It was held by Pathak, J. (as the learned Chief Justice then was) that such cost of corrugated fiberboard containers could not be included in the determination of "value" in Section 4(4)(d)(i) of the Act for the purposes of excise duty. For the purpose of measure of levy on cigarettes, the statute has given an extended meaning to the expression "value" in Section 4(4)(d) of the Act. Plainly, the extension must be strictly construed, for what is being included in the value now is something beyond the value of the manufactured commodity itself. The corrugated fibreboard containers could be regarded as secondary packing. These were not necessary, it was emphasised by the majority of the Judges, for selling the cigarettes in the wholesale market at the factory gate. These were only employed, it was emphasised by the majority of the Judges, for the purpose of avoiding damage or injury during transit. It was perfectly conceivable that the wholesale dealer who took delivery might have his depot at a very short distance only from the factory gate or might have such transport arrangement available that damage or injury to the cigarettes could be avoided. A.N. Sen, J, who agreed with Pathak, J, observed that on a proper construction of Section 4(4)(d)(i), it was clear that any secondary packing done for the purpose of facilitating transport and smooth transit of the goods to be delivered to the buyer in the wholesale trade could not be included in the value for the purpose of assessment of excise duty. Chief Justice Bhagwati, on the other hand, held that corrugated fibreboard containers in which the cigarettes were contained fell within the definition of packing in the Explanation to Section 4(4)(d)(i) and if these formed part of the packing in which the goods were packed when delivered at the time of removal, then under Section 4(4)(d)(i) read with the Explanation, the cost of such corrugated fibreboard containers would be liable to be included in the value of cigarettes. It is apparent from the wide language, according to the learned Chief Justice, of Explanation to Section 4(4)(d)(i) that every kind of container in which it can be said that the excisable goods are contained would be packing within the meaning of the Explanation. Even secondary packing would be within the terms of the Explanation, because such secondary packing would also constitute a wrapper or a container in which the excisable goods are wrapped or contained. But the test to determine whether the cost of any particular kind of secondary packing is liable to be included in the value of the article is whether a particular kind of packing is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate. If they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. According to learned Chief Justice, it makes no difference to applicability of the definition in Section 4(4)(i) read with Explanation that the packing of the goods ordinarily sold by the manufacturer in the wholesale trade is packing for the purpose of protecting the goods against damage during transportation or in the warehouse. However, if any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of such special packing would not be includible in the value of the goods. It may be necessary in this connection to refer to the observations of the Court in Union of India and Ors. v. Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ), dealing with the aspect of secondary packing, where this Court reiterated that the degrees of secondary packing which is necessary for putting the excisable article in which it is sold in the wholesale market at the factory was the degree of packing where the cost would be included in the value of the goods for the purpose of excise duty. Pathak J., as the Honble Chief Justice was then, asked whether it is necessary for putting the cigarettes in the conditions in which they were sold in the wholesale market or at the factory gate. He answered that it is not. It was found that these corrugated fiberboard containers are employed for the purpose of avoiding these corrugated fibreboard containers are employed for the purpose of avoiding damage or injury during the transit. It was conceivable that the wholesale dealer who takes delivery might have its depot at a very short distance only from the factory gate or may have such transport arrangements available that damage or injury to the cigarettes could be avoided. In those cases, the corrugated fibreboard containers, according to Pathak J. were not necessary for selling the cigarettes in the wholesale market14. I am of the opinion on that the views expressed by the majority of the learned Judges were correct and it appears, with respect, that the observations of the learned Chief Justice Bhagwati were not consistent with the judgment of this Court in Bombay Tyres International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) at p. 379. The learned Attorney General sought to suggest that the decision of this Court in Union of India v. Godfrey Philips Ltd. ((1985) 4 SCC 369 : 1886 SCC (Tax) 11 : 1985 Supp 3 SCR 123), perhaps might require reconsideration. I am unable to accept the suggestion. The ration of the decision in Godfrey Philips case ((1985) 4 SC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123), is in consonance with the decision of Union of India v. Bombay Tyre International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ), and farther in consonance with the true basis of excise as explained in several decisions mentioned before. In the premises, on the facts of this case, it is clear that the goods were not sold in drums generally in the course of the wholesale trade. There was evidence that 90 per cent of the goods were delivered at the time of removal without being put in drums. There was no evidence that there was any necessity of pacing or putting these in drums prior to their sale. It was not necessary that the articles were to be placed in drums for these to be able to generally to enter the stream of wholesale trade or to be marketable. On the other hand, there was evidence that in the wholesale trade, these goods were delivered directly in tankers and deliverable as such. But as a matter of fact, delivery in drums was only to facilitate their transport in small quantities. The manufacture of the goods was complete before these were placed in drums. The completely manufactured product was stored in tanks. From these tanks the goods were removed directly and placed in vehicles for their movement - for 90 per cent of the sales the vehicle of removal was tankers and 10 per cent of the sales the vehicle of removals was drums. In the premises, the value of the drums with regard to the fusel oil/styrene monomer irrespective of whether these were supplied by the assessee or not, are not includible in the assessable value of the Styrene monomerI have perused the judgment proposed to be delivered by my learned brother Sabyasachi Mukharji, J.I agree with the conclusion arrived at by him but I would like to rest it entirely on the language of Section 4(4)(d)(i) of theCentral Excise andSalt Act, 1944, without going into the larger questions raised by counsel and dealt with by learned brother18. The assessee company is manufacturing and selling fusel oil. It also manufactures and sells another liquid known as styrene monomer. The fusel oil and monomer are supplied generally in tankers sought by the customers. Sometimes it is supplied in drums provided by the customers who are not charged anything for those drums. In the case of styrene monomer, the finding is that the supply is in tankers to the extent of 90 per cent and only 10 per cent of the sales were made in drums. The issue before us is whether the cost of the drums supplied by the customer for which he is not charged should be included in the assessable value of the goods in question : in other words, whether notional amount representing the cost of the drums should be added to the sale price charged by the assessee to its constituents19. Shri Harish Salve, arguing for the appellants, contended that the cost of pacing referred to in section 4(4)(d)(i) is such cost incurred by a manufacturer and not the cost of packing borne by the buyer. In the alternative, he contended that, at least so far as styrene monomer sales are concerned, the cost of drums cannot enter into the picture Citing several previous authorities of this Court he contended on the following lines"It is not all packing that is liable to be included under Section 4(4)(d)(i). It is only that degree of secondary packing which is necessary for the assessable article to be placed in the condition in which it is sold in the wholesale market at the factory gate which can be included in the assessable value of the article. On the facts of this case, there is evidence that 90 per cent of the monomer was delivered at the time of removal without being put in drums. There was no evidence that there was any necessity of packing or putting them in drums prior to their sale. Delivery in drums was only to facilitate their transport in small quantities. The manufacture of the monomer was complete when it was stored in tanks. From these tanks, the goods were, to the extent of 90 per cent, removed directly and placed in tankers. In 10 per cent of the sales, the "vehicle" of removal was drums. In the premises, the value of the drums irrespective of whether these were supplied by the assessee or not, is not includible in the assessable value of the goods20. The learned Attorney General, on the other hand, contended that the terms of Section 4(4)(d)(i) are very are very clear and specific. He pointed out though "Manufacture" is the taxable event, the measure of the levy need not be and is not to be restricted to the cost of manufacture. So it is open to Parliament to prescribe any measure by reference to which the charge is to be levied and this is what is done under Section 4. In construing Section 4(4)(d)(i), all that has to be seen is whether the goods are delivered in packing condition. If this question is answered in the affirmative, then, in respect of the goods so sold, the cost of packing, whether incurred by the manufacturer or by the supplier, has to be automatically included in the assessable value if necessary, by addition to the sale price, except only where the packing is of durable nature and returnable to the manufacturer. He reminded us of thed truism that, in tax matters, one has to look at what is said and that there is no question of any intendment, implication, equity or liberality in constructing the taxing provision. I agree with Mukharji, J. that this contention cannot be accepted. The principle referred to by the learned Attorney General is unexceptionable but the words of a statute have to be read in the context and setting in which they occur. The proper interpretation to be placed on the words of Section 4(4)(d)(i) has been explained in the judgment of my learned brother and I am in full agreement of with him on this point. There is ample internal indication in the statute to show that the cost of packing referred to in the above clause is the cost of packing incurred by the manufacturer and recovered by him from the purchaser whether as part of the sale price or separately. The object and purpose of the levy, the meaning of the expression assessable value as interpreted in the section before its amendment coupled with the now well established position that the amendment intended to make no change in this position, the use of the word "cost" rather than "value", the nature of the other payments referred to ine (ii)all these show beyond doubt that, while generally the normal price for which the goods are sold at the factory gate is to be taken as the assessable value, an addition thereto has to be made where, in addition to price, the manufacturer levies a charge for the packing which is intrinsically and inevitably incidental to placing the manufactured goods on the market. It will indeed be anomalous if the cost of packing charged for from the customer is to be excluded form the assessable value where the packing, though durable, is returnable is returnable to the manufacturer but the cost of an item of durable packing supplied by the customer and taken back by him is liable to be included in the assessable value. This conclusion, in my opinion, is sufficient to dispose of the present appeals21. In this view of the matter, I consider it unnecessary to discuss wider questions as to the circumstances in which the cost of packing (primary or secondary) can at all enter into the determination of the assessable valued under Section 4(4)(d)(i)canvassed by the counsel for the assesseeor as to the correctness or otherwise of the decision of this Court in Union of India v. Godfrey Philips ((1985) 4 SCC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123) canvassed by the learned Attorney General. My conclusion is that the answer to the question whether the cost of the container should be included in the assessable value or not would depend upon whether the goods in question are supplied in a packed condition or not. If the answer is yes, three kinds of situation may arise. Where the manufacture supplies his own container or drum but does not charge the customer therefor, then the price of the goods will also include the cost of the container. There will be no question of separate addition to the sale price nor can the assessee claim a deduction of the cost of packing from the sale price except where the container is a durable one and is returnable to the manufacturer. If the manufacturer supplies the drums and charges the customers separately therefor, then, under Section 4(4)(d)(i), the cost of the drums to the buyer has to be added to the price except where the packing is of durable nature and is to be returned to the manufacturer. If on the other hand, the manufacturer asks the customer to bring his own container and does not charge anything therefor then the cost (or value) of the packing cannot be "nationally" added to, or subtracted form, the price to which the goods have been sold by the manufacturerI have the benefit of perusing the judgments prepared separated by my learned Brothers Mukharji, J. and Ranganathan, J. Both of whom have arrived at the same conclusion. My conclusion. My conclusion also is the same. However, I append this short note only to emphasize that in my opinion also the view taken by all of us on the construction of Section 4(4)(d)(i) ofthe Central Excises and Salt Act, 1944 (hereinafter referred to as "the Act") is alone sufficient, in the present matters, to support the conclusion we have reached and it does not appear necessary to consider the wider propositions canvassed by the two side23. I agree that the cost of packing envisaged in Section4(4)(d)(i) ofthe Actfor determining the "value" in relation to any assessable goods is only the "cost of such packing" incurred by the manufacturer and recovered from the buyer except where the packing is of a durable nature and is returnable by the buyer to the manufacture. The "cost of such packing" referred in Section 4(4)(d)(i) does not include within its ambit the cost of packing not incurred by the manufacturer when the packing is supplied by the buyer and the manufacturer. This construction of the expression "cost of such packing" in Section4(4)(d)(i) ofthe Actclearly excludes in these matters the question of its addition to the price of goods recovered by the manufacturer for the buyer for determining the "value" in relation to the excisable goods for computing the duly payable on it24. In my opinion also, the above conclusion reached on the language of Section4(4)(d)(i) ofthe Actis sufficient to allow these appeals. For this reason, I agree with Ranganathan, J. that the wider propositions canvassed by the two sides including the question of correctness of the view relating to secondary packing taken in Union of India v. Godfrey Phillips India Ltd. ((1985) 4 SCC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123), raised by the learned Attorney General need not be considered and decided in these matters | 1 | 7,796 | 7,248 | ### 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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were contained fell within the definition of packing in the Explanation to Section 4(4)(d)(i) and if these formed part of the packing in which the goods were packed when delivered at the time of removal, then under Section 4(4)(d)(i) read with the Explanation, the cost of such corrugated fibreboard containers would be liable to be included in the value of cigarettes. It is apparent from the wide language, according to the learned Chief Justice, of Explanation to Section 4(4)(d)(i) that every kind of container in which it can be said that the excisable goods are contained would be packing within the meaning of the Explanation. Even secondary packing would be within the terms of the Explanation, because such secondary packing would also constitute a wrapper or a container in which the excisable goods are wrapped or contained. But the test to determine whether the cost of any particular kind of secondary packing is liable to be included in the value of the article is whether a particular kind of packing is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate. If they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty. According to learned Chief Justice, it makes no difference to applicability of the definition in Section 4(4)(i) read with Explanation that the packing of the goods ordinarily sold by the manufacturer in the wholesale trade is packing for the purpose of protecting the goods against damage during transportation or in the warehouse. However, if any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of such special packing would not be includible in the value of the goods. It may be necessary in this connection to refer to the observations of the Court in Union of India and Ors. v. Bombay Tyre International Ltd. ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ), dealing with the aspect of secondary packing, where this Court reiterated that the degrees of secondary packing which is necessary for putting the excisable article in which it is sold in the wholesale market at the factory was the degree of packing where the cost would be included in the value of the goods for the purpose of excise duty. Pathak J., as the Honble Chief Justice was then, asked whether it is necessary for putting the cigarettes in the conditions in which they were sold in the wholesale market or at the factory gate. He answered that it is not. It was found that these corrugated fiberboard containers are employed for the purpose of avoiding these corrugated fibreboard containers are employed for the purpose of avoiding damage or injury during the transit. It was conceivable that the wholesale dealer who takes delivery might have its depot at a very short distance only from the factory gate or may have such transport arrangements available that damage or injury to the cigarettes could be avoided. In those cases, the corrugated fibreboard containers, according to Pathak J. were not necessary for selling the cigarettes in the wholesale market. 14. I am of the opinion on that the views expressed by the majority of the learned Judges were correct and it appears, with respect, that the observations of the learned Chief Justice Bhagwati were not consistent with the judgment of this Court in Bombay Tyres International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ) at p. 379. The learned Attorney General sought to suggest that the decision of this Court in Union of India v. Godfrey Philips Ltd. ((1985) 4 SCC 369 : 1886 SCC (Tax) 11 : 1985 Supp 3 SCR 123), perhaps might require reconsideration. I am unable to accept the suggestion. The ration of the decision in Godfrey Philips case ((1985) 4 SC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123), is in consonance with the decision of Union of India v. Bombay Tyre International ((1984) 1 SCC 467 : 1984 SCC (Tax) 17 : (1984) 1 SCR 347 ), and farther in consonance with the true basis of excise as explained in several decisions mentioned before. In the premises, on the facts of this case, it is clear that the goods were not sold in drums generally in the course of the wholesale trade. There was evidence that 90 per cent of the goods were delivered at the time of removal without being put in drums. There was no evidence that there was any necessity of pacing or putting these in drums prior to their sale. It was not necessary that the articles were to be placed in drums for these to be able to generally to enter the stream of wholesale trade or to be marketable. On the other hand, there was evidence that in the wholesale trade, these goods were delivered directly in tankers and deliverable as such. But as a matter of fact, delivery in drums was only to facilitate their transport in small quantities. The manufacture of the goods was complete before these were placed in drums. The completely manufactured product was stored in tanks. From these tanks the goods were removed directly and placed in vehicles for their movement - for 90 per cent of the sales the vehicle of removal was tankers and 10 per cent of the sales the vehicle of removals was drums. In the premises, the value of the drums with regard to the fusel oil/styrene monomer irrespective of whether these were supplied by the assessee or not, are not includible in the assessable value of the Styrene monomer.
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nature and returnable to the manufacturer. He reminded us of thed truism that, in tax matters, one has to look at what is said and that there is no question of any intendment, implication, equity or liberality in constructing the taxing provision. I agree with Mukharji, J. that this contention cannot be accepted. The principle referred to by the learned Attorney General is unexceptionable but the words of a statute have to be read in the context and setting in which they occur. The proper interpretation to be placed on the words of Section 4(4)(d)(i) has been explained in the judgment of my learned brother and I am in full agreement of with him on this point. There is ample internal indication in the statute to show that the cost of packing referred to in the above clause is the cost of packing incurred by the manufacturer and recovered by him from the purchaser whether as part of the sale price or separately. The object and purpose of the levy, the meaning of the expression assessable value as interpreted in the section before its amendment coupled with the now well established position that the amendment intended to make no change in this position, the use of the word "cost" rather than "value", the nature of the other payments referred to ine (ii)all these show beyond doubt that, while generally the normal price for which the goods are sold at the factory gate is to be taken as the assessable value, an addition thereto has to be made where, in addition to price, the manufacturer levies a charge for the packing which is intrinsically and inevitably incidental to placing the manufactured goods on the market. It will indeed be anomalous if the cost of packing charged for from the customer is to be excluded form the assessable value where the packing, though durable, is returnable is returnable to the manufacturer but the cost of an item of durable packing supplied by the customer and taken back by him is liable to be included in the assessable value. This conclusion, in my opinion, is sufficient to dispose of the present appeals21. In this view of the matter, I consider it unnecessary to discuss wider questions as to the circumstances in which the cost of packing (primary or secondary) can at all enter into the determination of the assessable valued under Section 4(4)(d)(i)canvassed by the counsel for the assesseeor as to the correctness or otherwise of the decision of this Court in Union of India v. Godfrey Philips ((1985) 4 SCC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123) canvassed by the learned Attorney General. My conclusion is that the answer to the question whether the cost of the container should be included in the assessable value or not would depend upon whether the goods in question are supplied in a packed condition or not. If the answer is yes, three kinds of situation may arise. Where the manufacture supplies his own container or drum but does not charge the customer therefor, then the price of the goods will also include the cost of the container. There will be no question of separate addition to the sale price nor can the assessee claim a deduction of the cost of packing from the sale price except where the container is a durable one and is returnable to the manufacturer. If the manufacturer supplies the drums and charges the customers separately therefor, then, under Section 4(4)(d)(i), the cost of the drums to the buyer has to be added to the price except where the packing is of durable nature and is to be returned to the manufacturer. If on the other hand, the manufacturer asks the customer to bring his own container and does not charge anything therefor then the cost (or value) of the packing cannot be "nationally" added to, or subtracted form, the price to which the goods have been sold by the manufacturerI have the benefit of perusing the judgments prepared separated by my learned Brothers Mukharji, J. and Ranganathan, J. Both of whom have arrived at the same conclusion. My conclusion. My conclusion also is the same. However, I append this short note only to emphasize that in my opinion also the view taken by all of us on the construction of Section 4(4)(d)(i) ofthe Central Excises and Salt Act, 1944 (hereinafter referred to as "the Act") is alone sufficient, in the present matters, to support the conclusion we have reached and it does not appear necessary to consider the wider propositions canvassed by the two side23. I agree that the cost of packing envisaged in Section4(4)(d)(i) ofthe Actfor determining the "value" in relation to any assessable goods is only the "cost of such packing" incurred by the manufacturer and recovered from the buyer except where the packing is of a durable nature and is returnable by the buyer to the manufacture. The "cost of such packing" referred in Section 4(4)(d)(i) does not include within its ambit the cost of packing not incurred by the manufacturer when the packing is supplied by the buyer and the manufacturer. This construction of the expression "cost of such packing" in Section4(4)(d)(i) ofthe Actclearly excludes in these matters the question of its addition to the price of goods recovered by the manufacturer for the buyer for determining the "value" in relation to the excisable goods for computing the duly payable on it24. In my opinion also, the above conclusion reached on the language of Section4(4)(d)(i) ofthe Actis sufficient to allow these appeals. For this reason, I agree with Ranganathan, J. that the wider propositions canvassed by the two sides including the question of correctness of the view relating to secondary packing taken in Union of India v. Godfrey Phillips India Ltd. ((1985) 4 SCC 369 : 1986 SCC (Tax) 11 : 1985 Supp 3 SCR 123), raised by the learned Attorney General need not be considered and decided in these matters
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Employers In Relation To The Management Ofindian Cable Co Vs. Their Workmen | second item, which according to the Unions should have been added back is the sum of Rs. 65, 764 which was claimed as extra shift allowance of plants and machinery added during the year. The consideration of this claim was postponed by the Income-tax Officer on the ground that the Company had not furnished the requisite particulars. The Company claimed a sum of Rs. 36, 10, 594 as depreciation allowable under s. 32(1) of the Income-tax Act. According to the Unions, as the sum of Rs. 65, 764 has not been accepted by the Income-tax Officer, the Company can claim depreciation only in the sum of Rs. 35, 44, 830. The Tribunal did not accept this contention of the Unions on the ground that the amount of Rs. 65, 764 has not been disallowed by the Income-tax Officer. It is now stated in an affidavit filed in this Court on March 23, 1972 by the Chief Financial Accountant of the Company that the Company has filed an appeal against the order of the Income-tax Officer refusing to allow Rs. 65, 764 as extra shift allowance for the year 1965-66. In our opinion, the rejection of the Unions contention in this regard by the Tribunal is justified. It is seen that the Company has produced figures for depreciation and that has not been subjected to any serious challenge by the Unions. Hence the objection regarding extra shift allowance has also to be rejected in view of the decision of this Court, in Jabalpur Bijlighar Karamchari Panchayat v. The Jabalpur Electric Supply Co. Ltd. and another. (A.I.R. 1972 S.C.70) 22. The third item objected to by the Unions related to the expenditure shown by the Company for repairs and renewals. According to the Unions the expenses shown are very heavy and large and that the Company was not justified in incurring the same. In our opinion, this contention also has been properly rejected by the Tribunal. Apart from the fact that the Unions are not technically entitled to raise this objection, as they have not pleaded the same in their statement of case filed before this Court, this contention can be rejected even on merits. The Unions had furnished interrogatories requiring the Company to furnish certain particulars. Mr. R. N. Gupta, the Chief Financial Accountant of the Company filed an affidavit before the Tribunal giving answers to the interrogatories. He had categorically given details as to how the amount of Rs. 12.94 lakhs has been incurred as expenses for repairs and renewal. Mr . Gupta had also given evidence about this matter. In cross-examination he had stated that all the vouchers for repairs and renewal were scrutinised by the auditors and this evidence has been accepted by the Tribunal. Therefore, the Tribunal was justified in rejecting this claim of the Unions. 23. The last item relates to the claim made by the Unions that after distribution of bonus at 20% for the year 1964-65, there must have been a surplus and it. should have been set on for the next year, namely, 1965-66. This amount so set on should be taken into account for computing bonus for the year 1965-66. This assertion made on behalf of the Unions was controverted by the Company on the ground that there was no surplus left after paying, the maximum 20% bonus for the accounting year 1964-65. In fact the evidence of Mr. Gupta shows that apart from there not having been any surplus, the Company Raid 20% bonus merely because they had already announced that they will pay the same. It is clear from his evidence that bon- us at 20% could not have been declared for the year 1964-65 and in order to honour the declaration made by the Company, bonus was paid at that percentage. This evidence of Mr. Gupta has been, in our opinion, rightly accepted by the Tribunal. No evidence contra has been adduced by the Unions. Once the evidence of Mr. Gupta is accepted, it is: clear that there was no surplus after paying bonus for 1964- 65. Therefore, the question of set on does not arise. This plea of the Unions also has to be rejected. 24. From what is stated above, it is seen that the only aspect in respect of which the Award of the Tribunal requires modification is in respect of the principle to, be adopted for calculating direct tax. As we have accepted the contention of the Company in that regard, it follows that recomputation of the available and allocable surplus will have to be made after making a calculation of direct tax without deducting bonus payable for the year 1965-66. 25. In the original calculation filed by the Company, it calculated tax only in the sum of Rs. 98, 10, 893. It has later on corrected this figure by adding a sum of Rs. 1, 34, 921 being surtax. Therefore, the total direct tax will be Rs. 99, 45, 814. Here again Mr. Gupta in his affidavit dated March 23, 1972 has given the correct figures. Therefore the recomputation of the available surplus, allocable surplus and the percentage of bonus for T he accounting year 1965-66 on the basis of our judgment will be as follows "TABLE" 26. From the above, it will be seen that the workmen will be entitled to bonus at 14.02% of their total salary or wages and the amount will be Rs. 14, 76, 706 and not Rs. 20% as awarded by the Tribunal. From this it follows that the further direction in the Award of the Tribunal regarding set on cannot be accepted. Admittedly, the Company has already declared and paid Rs. 14, 22, 922 representing 13.51% of the total wages or salary. Therefore, the balance additional amount that the Company will have to pay by way of bonus to make up the 14.02%, as stated above, is Rs. 53, 714. This amount will be paid by the Company within a period not exceeding two months from today. | 1[ds]9. We are in entire agreement with this contention of Mr. Mukherjee. In view of the decisions of this Court, to which we will immediately refer, Mr. P. S. Khera, learned counsel for the Unions was unable to support the reasoning of the Tribunal on this aspect10. The question of calculation of direct tax under the Act was considered for the first time b y this Court in Metal Box Co. of India Ltd. v. Their Workmen.([1969] 1 S.C.R. 750.) It was held therein that the national tax liability is to be worked out by first working out the gross-profits and deducting there from the prior charges under s. 6, but not the bonus payable to the employees. Therefore, it is clear from this decision that an employer is entitled to deduct his tax liability without deducting first the amount of bonus he would be liable to pay from and out of the amount computed under ss. 4 and 6 of the Act. The same principle, has been reiterated in The Workmen of William Jacks and Company Ltd. Madras v. Management of William Jacks and Co., Madras, (A.I.R. 1971 S.C. 1821.) Delhi Cloth and General Mills Co. Ltd. v. Workmen([1971] 2 S.C.C. 695) and Indian Oxygen Ltd. etc. v. Their Workmen. (A.I.R. 1972 S.C. 471.) In fact the last decision overruled the decision of the National Industrial Tribunal in Reference No. NIT-1 of 1966, which has been followed by the present Tribunal. We may also state that after the first decision of this Court, referred to above, the Act was amended in 1969. The last three decisions of this Court considered the question whether the amendments effected to the Act had made any change in the principle laid down by this Court in the first decision. It was uniformly held in all the three decisions that the amendment has not effected any change in the principle laid down in the earliest decision that the tax liability under the Act is to be worked out first by working out the gross-profits and deducting there from bonus payable to the employees. Therefore, it follows that the Tribunal committed an error in law in corrupting, direct tax after deducting bonus. Therefore, this point will have to be held in favour of the appellant11. The second item relates to the disallowance of Rs. 2.65 lakhs which represented the ex-gratia payment made by the Company to certain employees drawing, emoluments exceeding Rs. 750 per mensem for the year 1964-65. The Company claimed that this amount should be deducted from the gross profits whereas the Unions contended that the same has to be added back to the gross-profits shown in the profit and loss account. The factual position relating to this claim is as follows: From the letter dated February 4, 1966, Ext. 1, written by the Company to one of its officers Mr. S. N. Banerjee, it is seen that the Company in appreciation of the officers services during the year 1964-65 made an ex-gratia payment of Rs. 90. Mr. Banerjee has given evidence on behalf of the Unions. He has deposed to the fact that he was drawing about Rs. 1, 000 per mensem and that he received the letter Ext. I as well as the sum of Rs. 90 mentioned therein. H e has further stated that over and above this sum of Rs. 90 he has also, received the bonus payable to him under the Act for the year 1964-65. He has also deposed to the effect that the ex-gratia payment of Rs.( 90 was paid to him in lieu of bonus calculated on the difference in emoluments drawn by him and the ceiling of Rs. 750 per mensem fixed by the Act. It was the practice of the Company to pay bonus to all the members of its staff without application of any ceiling. In view of the fact that a ceiling had been fixed under the Act, to make up for the lesser amount that the employees like Mr. Banerjee will get under the Act, this amount of Rs. 2.65 lakhs was paid to all such officers. The Tribunal accepted the evidence of Mr. Banerjee that the ex-gratia amount was paid to keep up the old practice of the Company of paying all the members of the staff without the application of any ceiling. The Tribunal held that such a payment was not an item which could be deducted from the gross-profits under the Act as claimed by the management. Accordingly, it added back the sum of Rs. 2.65 lakhs to the gross-profits shown i n the profit and loss account13. We are not inclined to agree with the contention of Mr. Mukherjee that the Tribunal committed an error when it added back the sum of Rs. 2.65 lakhs. From the evidence of Mr. Banerjee, which has been accepted by the Tribunal, read along with the letter Ext. 1, it is clear that Mr. Banerjee received not only bonus due to him under the Act, but also the extra amount of Rs. 90. Mr. Banerjee was admittedly drawing a salary of Rs. 1000 per mensem. For a person to be an "employee" under s. 2(13), among other things, he is a person drawing a salary or wage not exceeding Rs . 1600 per mensem. Under s. 8, it is provided that every employee is entitled to be paid in an accounting year bonus as per the Act provided he has worked in the establishment for not less than thirty working days in that year. Section 10, provides for payment of minimum bonus to every employee. Similarly s. 11 provides for payment of bonus to every employee subject to a maximum of 20% of his salary or wage. According to Mr. Mukherjee there is no prohibition in the Act from paying bonus to officers like Mr. Banerjee, up to a maximum of 20%. Therefore, when the payment as in Ext. 1, has been made to officers like Mr. Banerjee and others, such amounts have to be computed as an item of expenditure, under the Second Schedule of t he Act. It is no doubt true that an officer drawing a salary not exceeding, Rs. 1600 per mensem is an employee under s. 2(13) and he will also be eligible for payment of bonus under s. 8 read with ss. 10 and 11 of the Act. But , the point that is missed by the learned counsel is the limitation contained in s. 12. Though officers drawing salary up to Rs. 1600 per mensem are employees under s. 2 (13) and eligible for bonus, still for purposes of calculation of bonus payable under ss . 10 and 11, such officers, whose salary exceeds Rs. 750 per mensem, for calculating bonus, the, salary or wages per month will be taken at the maximum of Rs. 750 per mensem. That is, if an officer is getting, Rs. 1500, per mensem. he will be eligible for onus; nevertheless for calculating bonus payable to him he will be treated as drawing a salary of only Rs. 750 per mensem. Therefore, Mr. Banerjee, in the case before., us, has admittedly to be paid bonus, which is due to him under the Act f or the year 1964- 65 on the, basis that his salary is only Rs. 750 per mensem. What the Company has done was to pay him not only the bonus as calculated under the Act, but also an additional amount. Such additional amount paid to all such officers tot alling Rs. 2.65 lakhs cannot be considered to be an expenditure debited directly to Reserves. The Tribunal was justified in adding back this amount to the gross-profits16. The right of parties like the respondents before us even in labour adjudication to support the decision of the Tribunal on grounds which were not accepted by the Tribunal o r on other grounds which may not have been taken note of by the Tribunal, has been recognised by this Court in Management of Northern Railway Co-operative Society Ltd. v. Industrial Tribunal, Rajasthan etc.([1967] 2 S.C.R. 476.) In fact this decision had to deal with an appeal filed a Co-operative Society against the Award of the Tribunal setting aside the order passed by the Society removing from its service an employee. This Court permitted the Union concerned, which was respondent in the appeal, to support the Award of the Tribunal, directing reinstatement of the employee on grounds which had not been accepted by the Tribunal and also on ground which had not been taken notice of by the Tribunal. Similarly, in J. K. Synthetics Limited v. J. K. Synthetics Mazdoor Union ([1971] 2 L.L.J 552), this Court permitted the Union, which was the respondent in the appeal, to support the decision of the Industrial Tribunal on a method of computation regarding bonus which was not adopted by the Tribunal. Though t he management appellant therein challenged the right of the Union to support the award on other grounds without filing an appeal, that contention was rejected by this Court17. In the said decision this Court also found support for the above view in the decision of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others([1965]1 S.C.R. 712.), though the latter decision related to an election appeal18. We will now deal with the items, which, according to the Unions should not have been allowed to be deducted from the gross-profits. The first item r elates to a sum of Rs. 18, 24, 047 paid by the Company to retired workmen at Jamshedpur Workshop under a Voluntary Retirement Scheme. This Scheme is Ex. G. and it was framed on August 9, 1965. The Scheme states that the Company has been suffering, from an acute shortage of imported raw materials in view of the difficulty in getting foreign exchange and as such production could not be maintained for some, considerable time. In view of these difficulties it is stated that the Company has found it necessary substantially to reduce the number of workers in the Workshop. The Scheme offered substantial benefits to workmen who choose to retire voluntarily, namely, ex-gratia payment equal to retrenchment compensation under s. 25 of the Industrial Disputes Act, and gratuity admissible to the workmen. There is evidence on the side of the Company that about 450 workmen availed themselves of the Voluntary Retirement Scheme and a sum of Rs. 18, 24, 047 was paid . This item has been included in the profit and loss account under the heading "Salary, Wages, Bonus and Retirement gratuities." The Company gave a break- , up of these items in answer to the interrogatories furnished to it by the workmen. | 1 | 5,472 | 2,012 | ### 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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second item, which according to the Unions should have been added back is the sum of Rs. 65, 764 which was claimed as extra shift allowance of plants and machinery added during the year. The consideration of this claim was postponed by the Income-tax Officer on the ground that the Company had not furnished the requisite particulars. The Company claimed a sum of Rs. 36, 10, 594 as depreciation allowable under s. 32(1) of the Income-tax Act. According to the Unions, as the sum of Rs. 65, 764 has not been accepted by the Income-tax Officer, the Company can claim depreciation only in the sum of Rs. 35, 44, 830. The Tribunal did not accept this contention of the Unions on the ground that the amount of Rs. 65, 764 has not been disallowed by the Income-tax Officer. It is now stated in an affidavit filed in this Court on March 23, 1972 by the Chief Financial Accountant of the Company that the Company has filed an appeal against the order of the Income-tax Officer refusing to allow Rs. 65, 764 as extra shift allowance for the year 1965-66. In our opinion, the rejection of the Unions contention in this regard by the Tribunal is justified. It is seen that the Company has produced figures for depreciation and that has not been subjected to any serious challenge by the Unions. Hence the objection regarding extra shift allowance has also to be rejected in view of the decision of this Court, in Jabalpur Bijlighar Karamchari Panchayat v. The Jabalpur Electric Supply Co. Ltd. and another. (A.I.R. 1972 S.C.70) 22. The third item objected to by the Unions related to the expenditure shown by the Company for repairs and renewals. According to the Unions the expenses shown are very heavy and large and that the Company was not justified in incurring the same. In our opinion, this contention also has been properly rejected by the Tribunal. Apart from the fact that the Unions are not technically entitled to raise this objection, as they have not pleaded the same in their statement of case filed before this Court, this contention can be rejected even on merits. The Unions had furnished interrogatories requiring the Company to furnish certain particulars. Mr. R. N. Gupta, the Chief Financial Accountant of the Company filed an affidavit before the Tribunal giving answers to the interrogatories. He had categorically given details as to how the amount of Rs. 12.94 lakhs has been incurred as expenses for repairs and renewal. Mr . Gupta had also given evidence about this matter. In cross-examination he had stated that all the vouchers for repairs and renewal were scrutinised by the auditors and this evidence has been accepted by the Tribunal. Therefore, the Tribunal was justified in rejecting this claim of the Unions. 23. The last item relates to the claim made by the Unions that after distribution of bonus at 20% for the year 1964-65, there must have been a surplus and it. should have been set on for the next year, namely, 1965-66. This amount so set on should be taken into account for computing bonus for the year 1965-66. This assertion made on behalf of the Unions was controverted by the Company on the ground that there was no surplus left after paying, the maximum 20% bonus for the accounting year 1964-65. In fact the evidence of Mr. Gupta shows that apart from there not having been any surplus, the Company Raid 20% bonus merely because they had already announced that they will pay the same. It is clear from his evidence that bon- us at 20% could not have been declared for the year 1964-65 and in order to honour the declaration made by the Company, bonus was paid at that percentage. This evidence of Mr. Gupta has been, in our opinion, rightly accepted by the Tribunal. No evidence contra has been adduced by the Unions. Once the evidence of Mr. Gupta is accepted, it is: clear that there was no surplus after paying bonus for 1964- 65. Therefore, the question of set on does not arise. This plea of the Unions also has to be rejected. 24. From what is stated above, it is seen that the only aspect in respect of which the Award of the Tribunal requires modification is in respect of the principle to, be adopted for calculating direct tax. As we have accepted the contention of the Company in that regard, it follows that recomputation of the available and allocable surplus will have to be made after making a calculation of direct tax without deducting bonus payable for the year 1965-66. 25. In the original calculation filed by the Company, it calculated tax only in the sum of Rs. 98, 10, 893. It has later on corrected this figure by adding a sum of Rs. 1, 34, 921 being surtax. Therefore, the total direct tax will be Rs. 99, 45, 814. Here again Mr. Gupta in his affidavit dated March 23, 1972 has given the correct figures. Therefore the recomputation of the available surplus, allocable surplus and the percentage of bonus for T he accounting year 1965-66 on the basis of our judgment will be as follows "TABLE" 26. From the above, it will be seen that the workmen will be entitled to bonus at 14.02% of their total salary or wages and the amount will be Rs. 14, 76, 706 and not Rs. 20% as awarded by the Tribunal. From this it follows that the further direction in the Award of the Tribunal regarding set on cannot be accepted. Admittedly, the Company has already declared and paid Rs. 14, 22, 922 representing 13.51% of the total wages or salary. Therefore, the balance additional amount that the Company will have to pay by way of bonus to make up the 14.02%, as stated above, is Rs. 53, 714. This amount will be paid by the Company within a period not exceeding two months from today.
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of Mr. Mukherjee that the Tribunal committed an error when it added back the sum of Rs. 2.65 lakhs. From the evidence of Mr. Banerjee, which has been accepted by the Tribunal, read along with the letter Ext. 1, it is clear that Mr. Banerjee received not only bonus due to him under the Act, but also the extra amount of Rs. 90. Mr. Banerjee was admittedly drawing a salary of Rs. 1000 per mensem. For a person to be an "employee" under s. 2(13), among other things, he is a person drawing a salary or wage not exceeding Rs . 1600 per mensem. Under s. 8, it is provided that every employee is entitled to be paid in an accounting year bonus as per the Act provided he has worked in the establishment for not less than thirty working days in that year. Section 10, provides for payment of minimum bonus to every employee. Similarly s. 11 provides for payment of bonus to every employee subject to a maximum of 20% of his salary or wage. According to Mr. Mukherjee there is no prohibition in the Act from paying bonus to officers like Mr. Banerjee, up to a maximum of 20%. Therefore, when the payment as in Ext. 1, has been made to officers like Mr. Banerjee and others, such amounts have to be computed as an item of expenditure, under the Second Schedule of t he Act. It is no doubt true that an officer drawing a salary not exceeding, Rs. 1600 per mensem is an employee under s. 2(13) and he will also be eligible for payment of bonus under s. 8 read with ss. 10 and 11 of the Act. But , the point that is missed by the learned counsel is the limitation contained in s. 12. Though officers drawing salary up to Rs. 1600 per mensem are employees under s. 2 (13) and eligible for bonus, still for purposes of calculation of bonus payable under ss . 10 and 11, such officers, whose salary exceeds Rs. 750 per mensem, for calculating bonus, the, salary or wages per month will be taken at the maximum of Rs. 750 per mensem. That is, if an officer is getting, Rs. 1500, per mensem. he will be eligible for onus; nevertheless for calculating bonus payable to him he will be treated as drawing a salary of only Rs. 750 per mensem. Therefore, Mr. Banerjee, in the case before., us, has admittedly to be paid bonus, which is due to him under the Act f or the year 1964- 65 on the, basis that his salary is only Rs. 750 per mensem. What the Company has done was to pay him not only the bonus as calculated under the Act, but also an additional amount. Such additional amount paid to all such officers tot alling Rs. 2.65 lakhs cannot be considered to be an expenditure debited directly to Reserves. The Tribunal was justified in adding back this amount to the gross-profits16. The right of parties like the respondents before us even in labour adjudication to support the decision of the Tribunal on grounds which were not accepted by the Tribunal o r on other grounds which may not have been taken note of by the Tribunal, has been recognised by this Court in Management of Northern Railway Co-operative Society Ltd. v. Industrial Tribunal, Rajasthan etc.([1967] 2 S.C.R. 476.) In fact this decision had to deal with an appeal filed a Co-operative Society against the Award of the Tribunal setting aside the order passed by the Society removing from its service an employee. This Court permitted the Union concerned, which was respondent in the appeal, to support the Award of the Tribunal, directing reinstatement of the employee on grounds which had not been accepted by the Tribunal and also on ground which had not been taken notice of by the Tribunal. Similarly, in J. K. Synthetics Limited v. J. K. Synthetics Mazdoor Union ([1971] 2 L.L.J 552), this Court permitted the Union, which was the respondent in the appeal, to support the decision of the Industrial Tribunal on a method of computation regarding bonus which was not adopted by the Tribunal. Though t he management appellant therein challenged the right of the Union to support the award on other grounds without filing an appeal, that contention was rejected by this Court17. In the said decision this Court also found support for the above view in the decision of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others([1965]1 S.C.R. 712.), though the latter decision related to an election appeal18. We will now deal with the items, which, according to the Unions should not have been allowed to be deducted from the gross-profits. The first item r elates to a sum of Rs. 18, 24, 047 paid by the Company to retired workmen at Jamshedpur Workshop under a Voluntary Retirement Scheme. This Scheme is Ex. G. and it was framed on August 9, 1965. The Scheme states that the Company has been suffering, from an acute shortage of imported raw materials in view of the difficulty in getting foreign exchange and as such production could not be maintained for some, considerable time. In view of these difficulties it is stated that the Company has found it necessary substantially to reduce the number of workers in the Workshop. The Scheme offered substantial benefits to workmen who choose to retire voluntarily, namely, ex-gratia payment equal to retrenchment compensation under s. 25 of the Industrial Disputes Act, and gratuity admissible to the workmen. There is evidence on the side of the Company that about 450 workmen availed themselves of the Voluntary Retirement Scheme and a sum of Rs. 18, 24, 047 was paid . This item has been included in the profit and loss account under the heading "Salary, Wages, Bonus and Retirement gratuities." The Company gave a break- , up of these items in answer to the interrogatories furnished to it by the workmen.
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T. N. Raghunatha Reddy Vs. Mysore State Transport Authority | Section 68-F (2) and resolved to take the following action under Section 68-F (2) of the M. V. Act, 1939, (as appended hereto)."11. It seems to us that this is not a correct way of interpreting the Scheme. The scheme, as approved, was published in the Government Gazette under Section 68-D (3) on January 25, 1968, and on March 1, 1968, the Mysore undertaking applied under Section 68-F (1) to operate buses from January 1968 (1969 (?)) or a later date. As held by this Court in Abdul Gafoor v. State of Mysore, (1962) 1 SCR 909 = (AIR 1961 SC 1556 ) "when a scheme prepared and published under Section 68-C has been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority and it has no option to refuse the grant of the permit" and "when taking action under Section 68-F (1) the Regional Transport Authority does not exercise any quasi-judicial function and acts wholly in a ministerial capacity". It seems to us that even if the date of publication may not be the appropriate date - we do not decide that it is not an appropriate date - at least the date on which the transport undertaking applies under Sec. 68-F (1) for a permit must be the date with reference to which the expression "existing permit holder" must be interpreted. If this is the crucial date, then it is quite clear that the appellant was not an existing permit holder because he did not obtain his countersignature till July, 1968.12. The observations of Raghubar Dayal, J. in Sri Satyanarayana Transports (P) Ltd., Guntur v. Andhra Pradesh State Road Transport Corporation, Civil Appeal No. 347 of 1961, D/-3-10-1961 do not assist the appellant. In that case the Court was dealing with the objection that it was the duty of the Road Transport Corporation to furnish the date of implementation of each scheme as a part of the proposal, the date being a material particular. In this connection the Court observed:"The question whether the State Government can fix a date or not is not for determination in this appeal and we do not express any opinion on that point. Suffice it to say that the Regional Transport Authority has the power to fix a date after the scheme has been approved by the State Government, as it is that authority which has, under Section 68-F, to issue a permit to the State Transport Undertaking for plying motor vehicles and to cancel existing permits. The date up to which the existing permits are to continue and the date for the State Transport Undertaking to commence plying motor vehicles should be such that there be a continuity of transport service on the notified route and that here be no dislocation of transport arrangements."The Court was not considering the crucial date for the purpose of interpreting the expression existing permit holder" in a scheme.13. Apart from that the appellant must fail on the ground that he was not a permit holder at all even if the crucial date be January 1, 1969. His countersignature must be deemed to have lapsed when the High Court dismissed the writ petitions in which the Kolar scheme had been stayed on October 7, 1968. In our opinion the order of the Regional Transport Authority granting the countersignature "subject to the decision of the High Court of Mysore about the validity of the Nationalisation Scheme of Kolar Pocket," in the context which we have reproduced above, means that if the writs failed the countersignature would automatically lapse. It will be recalled that this Court held in the Samarth Transport Co. v. The Regional Transport Authority (1961) 1 SCR 631 at page 639 = (AIR 1961 SC 93 at page 96) that the Regional Transport Authority is within its rights not to entertain an application if the Scheme had been approved and published. This Court observed:"The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit. This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained."The Regional Transport Authority must have been aware of this and it must be because of the stay order that the countersignature was granted to the appellant by it.14. In view of our decision that the appellants countersignature lapsed when the writ petitions were dismissed, the second point does not arise.15. Regarding the third point, we were unable to appreciate how an inter-State agreement overrides the provisions of Chapter IV-A. inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act which provides that "the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law." In this connection reference was made to Article 162 and Article 298 of the Constitution. But we were unable to appreciate what relevance these articles have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of its executive powers under Article 162, and under article 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us.16. We stopped the learned counsel from developing the fourth point because this point was not taken up in the High Court. | 0[ds]14. In view of our decision that the appellants countersignature lapsed when the writ petitions were dismissed, the second point does not arise.15. Regarding the third point, we were unable to appreciate how an inter-State agreement overrides the provisions of Chapter IV-A. inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act which provides that "the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law." In this connection reference was made to Article 162 and Article 298 of the Constitution. But we were unable to appreciate what relevance these articles have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of its executive powers under Article 162, and under article 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us.16. We stopped the learned counsel from developing the fourth point because this point was not taken up in the High Court. | 0 | 2,572 | 240 | ### Instruction:
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Section 68-F (2) and resolved to take the following action under Section 68-F (2) of the M. V. Act, 1939, (as appended hereto)."11. It seems to us that this is not a correct way of interpreting the Scheme. The scheme, as approved, was published in the Government Gazette under Section 68-D (3) on January 25, 1968, and on March 1, 1968, the Mysore undertaking applied under Section 68-F (1) to operate buses from January 1968 (1969 (?)) or a later date. As held by this Court in Abdul Gafoor v. State of Mysore, (1962) 1 SCR 909 = (AIR 1961 SC 1556 ) "when a scheme prepared and published under Section 68-C has been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority and it has no option to refuse the grant of the permit" and "when taking action under Section 68-F (1) the Regional Transport Authority does not exercise any quasi-judicial function and acts wholly in a ministerial capacity". It seems to us that even if the date of publication may not be the appropriate date - we do not decide that it is not an appropriate date - at least the date on which the transport undertaking applies under Sec. 68-F (1) for a permit must be the date with reference to which the expression "existing permit holder" must be interpreted. If this is the crucial date, then it is quite clear that the appellant was not an existing permit holder because he did not obtain his countersignature till July, 1968.12. The observations of Raghubar Dayal, J. in Sri Satyanarayana Transports (P) Ltd., Guntur v. Andhra Pradesh State Road Transport Corporation, Civil Appeal No. 347 of 1961, D/-3-10-1961 do not assist the appellant. In that case the Court was dealing with the objection that it was the duty of the Road Transport Corporation to furnish the date of implementation of each scheme as a part of the proposal, the date being a material particular. In this connection the Court observed:"The question whether the State Government can fix a date or not is not for determination in this appeal and we do not express any opinion on that point. Suffice it to say that the Regional Transport Authority has the power to fix a date after the scheme has been approved by the State Government, as it is that authority which has, under Section 68-F, to issue a permit to the State Transport Undertaking for plying motor vehicles and to cancel existing permits. The date up to which the existing permits are to continue and the date for the State Transport Undertaking to commence plying motor vehicles should be such that there be a continuity of transport service on the notified route and that here be no dislocation of transport arrangements."The Court was not considering the crucial date for the purpose of interpreting the expression existing permit holder" in a scheme.13. Apart from that the appellant must fail on the ground that he was not a permit holder at all even if the crucial date be January 1, 1969. His countersignature must be deemed to have lapsed when the High Court dismissed the writ petitions in which the Kolar scheme had been stayed on October 7, 1968. In our opinion the order of the Regional Transport Authority granting the countersignature "subject to the decision of the High Court of Mysore about the validity of the Nationalisation Scheme of Kolar Pocket," in the context which we have reproduced above, means that if the writs failed the countersignature would automatically lapse. It will be recalled that this Court held in the Samarth Transport Co. v. The Regional Transport Authority (1961) 1 SCR 631 at page 639 = (AIR 1961 SC 93 at page 96) that the Regional Transport Authority is within its rights not to entertain an application if the Scheme had been approved and published. This Court observed:"The Regional Transport Authority is authorized for the purpose of giving effect to an approved scheme to refuse to entertain an application for renewal of any other permit. This power does not depend upon the presentation of an application by the State Transport Undertaking for a permit. This power is exercisable when it is brought to the notice of the Authority that there is an approved scheme and, to give effect to it, the application for renewal cannot be entertained."The Regional Transport Authority must have been aware of this and it must be because of the stay order that the countersignature was granted to the appellant by it.14. In view of our decision that the appellants countersignature lapsed when the writ petitions were dismissed, the second point does not arise.15. Regarding the third point, we were unable to appreciate how an inter-State agreement overrides the provisions of Chapter IV-A. inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act which provides that "the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law." In this connection reference was made to Article 162 and Article 298 of the Constitution. But we were unable to appreciate what relevance these articles have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of its executive powers under Article 162, and under article 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us.16. We stopped the learned counsel from developing the fourth point because this point was not taken up in the High Court.
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14. In view of our decision that the appellants countersignature lapsed when the writ petitions were dismissed, the second point does not arise.15. Regarding the third point, we were unable to appreciate how an inter-State agreement overrides the provisions of Chapter IV-A. inter-State agreement is not law and to hold that an inter-State agreement overrides Chapter IV-A would be to completely disregard the provisions of Section 68-B of the Act which provides that "the provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law." In this connection reference was made to Article 162 and Article 298 of the Constitution. But we were unable to appreciate what relevance these articles have to the point at issue. Assuming that a State has power to enter into agreement with another State in exercise of its executive powers under Article 162, and under article 298 it can carry on trade or business, we are unable to see what light these facts throw on the question before us.16. We stopped the learned counsel from developing the fourth point because this point was not taken up in the High Court.
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MUNICIPAL COUNCIL, RAGHOGARH Vs. NATIONAL FERTILIZER LTD. | maintainable. In the absence of notice under Section 319 of the Madhya Pradesh Municipalities Act, Suit against Municipal Council is not maintainable.7. The contesting respondents herein challenged aforesaid judgment of the High Court in Civil Appeal Nos. 3502 and 3503 of 2006 before this Court. By order dated 21 st November, 2006 this Court opined that having regard to the fact that the State of M.P. did not prefer any appeal against the judgment and decree passed by the learned trial Judge, the Division Bench of the High Court went wrong in holding that the suit was barred under Section 80, CPC. So far as the non-maintainability of the suit for want of notice under Section 319 of the M.P. Municipalities Act is concerned, neither any such plea was taken in the written statement nor any issue was raised before the trial Court by the Municipal Council. Therefore, it was held that the Division Bench of the High Court was wrong in holding that the Suit was not maintainable. This Court, accordingly, set aside the judgment passed by the High Court and remitted the matter back to the High Court for consideration of the first appeals on merit.8. The High Court, after considering the matter on merits, by the judgment impugned herein, formed the opinion that the trial Court did not commit any error in declaring that the appellant Municipal Council had no authority under law to charge external development cost and thereby affirmed the judgment of the trial Court and dismissed the appeals of the Municipal Council. Aggrieved thereby, the said Municipal Council is in appeal before us.9. The case put forward on behalf of the appellant Municipal Council is that it is a statutory body providing various amenities and necessities to the general public residing in its area limits. Relying on Order No.F./3-39/32/85 dated 28-11-1983 of Housing and Environment Department, Government of Madhya Pradesh, it is stated that the areas where there is a Municipal Committee or Municipal Corporation, the internal development work of colonies by House Construction Societies and individual persons will be done in supervision of respective Municipal Committee or Municipal Corporation. For that all the activities pertaining to maintenance, civil amenities, development work and construction require heavy expenditure. About Rs.5 lakhs per month is the electricity bill to maintain the streetlights and to run pump houses. Nearly Rs.25 lakhs per annum are the vehicle maintenance charges, Rs.50 lakhs for supply of water and pipeline maintenance and about Rs.25 lakhs for sanitation and Rs.2 crores per year is required for maintenance, construction and development of roads. In view thereof, in accordance with the prevailing rules, the externational development fee @ Rs.5/- per. Sq.m. has been legally charged on the contesting respondents and they are liable to make payment. But, unfortunately the trial Court committed legal error and declared that the defendants (appellant and proforma respondents herein) jointly or severally have no right to recover amount by name of external development fee from the plaintiffs (respondents herein) and the same view has been affirmed by the High Court. The entire development activity in the Municipality, Rahograh has come to standstill and it is therefore necessary for this Court to set aside the impugned judgment.10. On behalf of contesting respondents, it is contended that the contesting respondents are not private entities, nor colonizers. The ownership of the institutions lies with the Government of India in whose control the day to day activities of the institutions are run. The institutions being totally secured, no outsider can enter the Company premises without prior permission. As regards the maintenance, cleanliness, electricity, roads and safeguarding environment in the entire area is being done by the institutions and therefore they are not binding on the demands of Municipal Council for making payment of external development charges. The Courts below have thoroughly examined the issue in clear legal view and only thereafter rendered the judgment in their favour and therefore there is no occasion for this Court to exercise the power under Article 136 of the Constitution to interfere in these appeals.11. Having heard learned counsel on either side, we have also given our thoughtful consideration to various Government of Madhya Pradesh Orders including the first and foremost Order on the issue in question viz., No. 2681/1677/32, dated 6 th July, 1978 for levying internal development charges. The subsequent Order No. 2997/C.R.129/32/Bhopal, dated 27 th July, 1978 provides certain relaxations regarding the mode of payment of the amount required to be deposited under original order dated 6 th July, 1978. The next one is the Order No. F.3-39/32/85 dated 28 th November, 1983 on levying external development fee @ Rs.5/- per sq. mtr.12. It is clearly noticeable from the aforementioned Government Orders that they are meant for housing construction societies, colonizers and individual persons where the internal developmental works of the colonies are done by the respective house construction society, colonizers or individual persons. In the same way, if any colonizer, house construction society or individual person constructs a colony under the supervision of Municipal Committee or Municipal Corporation, as the case may be, Rs.5/- per sq. mtr. towards external development charges are applicable. While so, in the case on hand, the contesting respondents are neither colonizers nor house construction societies or individuals. The dwelling units developed by them are for their employees only and not meant for sale or for letting out on rent. Apparently, the construction of dwelling units and the residential areas developed by the contesting respondents are done by the contesting respondents i.e. Government entities being Public Sector Undertakings with the investment of Central Government.13. For all the aforementioned reasons we do not see any error in the impugned judgment. In our opinion, the trial Court as well as the High Court considered all the relevant issues in their true spirit and came to the right conclusion that the contesting respondents are not liable to pay any amount in the form of external development fee as demanded by the appellants. | 0[ds]11. Having heard learned counsel on either side, we have also given our thoughtful consideration to various Government of Madhya Pradesh Orders including the first and foremost Order on the issue in question viz., No. 2681/1677/32, dated 6 th July, 1978 for levying internal development charges. The subsequent Order No. 2997/C.R.129/32/Bhopal, dated 27 th July, 1978 provides certain relaxations regarding the mode of payment of the amount required to be deposited under original order dated 6 th July, 1978. The next one is the Order No.dated 28 th November, 1983 on levying external development fee @ Rs.5/per sq. mtr.12. It is clearly noticeable from the aforementioned Government Orders that they are meant for housing construction societies, colonizers and individual persons where the internal developmental works of the colonies are done by the respective house construction society, colonizers or individual persons. In the same way, if any colonizer, house construction society or individual person constructs a colony under the supervision of Municipal Committee or Municipal Corporation, as the case may be, Rs.5/per sq. mtr. towards external development charges are applicable. While so, in the case on hand, the contesting respondents are neither colonizers nor house construction societies or individuals. The dwelling units developed by them are for their employees only and not meant for sale or for letting out on rent. Apparently, the construction of dwelling units and the residential areas developed by the contesting respondents are done by the contesting respondents i.e. Government entities being Public Sector Undertakings with the investment of Central Government.13. For all the aforementioned reasons we do not see any error in the impugned judgment. In our opinion, the trial Court as well as the High Court considered all the relevant issues in their true spirit and came to the right conclusion that the contesting respondents are not liable to pay any amount in the form of external development fee as demanded by the appellants. | 0 | 1,560 | 358 | ### 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:
maintainable. In the absence of notice under Section 319 of the Madhya Pradesh Municipalities Act, Suit against Municipal Council is not maintainable.7. The contesting respondents herein challenged aforesaid judgment of the High Court in Civil Appeal Nos. 3502 and 3503 of 2006 before this Court. By order dated 21 st November, 2006 this Court opined that having regard to the fact that the State of M.P. did not prefer any appeal against the judgment and decree passed by the learned trial Judge, the Division Bench of the High Court went wrong in holding that the suit was barred under Section 80, CPC. So far as the non-maintainability of the suit for want of notice under Section 319 of the M.P. Municipalities Act is concerned, neither any such plea was taken in the written statement nor any issue was raised before the trial Court by the Municipal Council. Therefore, it was held that the Division Bench of the High Court was wrong in holding that the Suit was not maintainable. This Court, accordingly, set aside the judgment passed by the High Court and remitted the matter back to the High Court for consideration of the first appeals on merit.8. The High Court, after considering the matter on merits, by the judgment impugned herein, formed the opinion that the trial Court did not commit any error in declaring that the appellant Municipal Council had no authority under law to charge external development cost and thereby affirmed the judgment of the trial Court and dismissed the appeals of the Municipal Council. Aggrieved thereby, the said Municipal Council is in appeal before us.9. The case put forward on behalf of the appellant Municipal Council is that it is a statutory body providing various amenities and necessities to the general public residing in its area limits. Relying on Order No.F./3-39/32/85 dated 28-11-1983 of Housing and Environment Department, Government of Madhya Pradesh, it is stated that the areas where there is a Municipal Committee or Municipal Corporation, the internal development work of colonies by House Construction Societies and individual persons will be done in supervision of respective Municipal Committee or Municipal Corporation. For that all the activities pertaining to maintenance, civil amenities, development work and construction require heavy expenditure. About Rs.5 lakhs per month is the electricity bill to maintain the streetlights and to run pump houses. Nearly Rs.25 lakhs per annum are the vehicle maintenance charges, Rs.50 lakhs for supply of water and pipeline maintenance and about Rs.25 lakhs for sanitation and Rs.2 crores per year is required for maintenance, construction and development of roads. In view thereof, in accordance with the prevailing rules, the externational development fee @ Rs.5/- per. Sq.m. has been legally charged on the contesting respondents and they are liable to make payment. But, unfortunately the trial Court committed legal error and declared that the defendants (appellant and proforma respondents herein) jointly or severally have no right to recover amount by name of external development fee from the plaintiffs (respondents herein) and the same view has been affirmed by the High Court. The entire development activity in the Municipality, Rahograh has come to standstill and it is therefore necessary for this Court to set aside the impugned judgment.10. On behalf of contesting respondents, it is contended that the contesting respondents are not private entities, nor colonizers. The ownership of the institutions lies with the Government of India in whose control the day to day activities of the institutions are run. The institutions being totally secured, no outsider can enter the Company premises without prior permission. As regards the maintenance, cleanliness, electricity, roads and safeguarding environment in the entire area is being done by the institutions and therefore they are not binding on the demands of Municipal Council for making payment of external development charges. The Courts below have thoroughly examined the issue in clear legal view and only thereafter rendered the judgment in their favour and therefore there is no occasion for this Court to exercise the power under Article 136 of the Constitution to interfere in these appeals.11. Having heard learned counsel on either side, we have also given our thoughtful consideration to various Government of Madhya Pradesh Orders including the first and foremost Order on the issue in question viz., No. 2681/1677/32, dated 6 th July, 1978 for levying internal development charges. The subsequent Order No. 2997/C.R.129/32/Bhopal, dated 27 th July, 1978 provides certain relaxations regarding the mode of payment of the amount required to be deposited under original order dated 6 th July, 1978. The next one is the Order No. F.3-39/32/85 dated 28 th November, 1983 on levying external development fee @ Rs.5/- per sq. mtr.12. It is clearly noticeable from the aforementioned Government Orders that they are meant for housing construction societies, colonizers and individual persons where the internal developmental works of the colonies are done by the respective house construction society, colonizers or individual persons. In the same way, if any colonizer, house construction society or individual person constructs a colony under the supervision of Municipal Committee or Municipal Corporation, as the case may be, Rs.5/- per sq. mtr. towards external development charges are applicable. While so, in the case on hand, the contesting respondents are neither colonizers nor house construction societies or individuals. The dwelling units developed by them are for their employees only and not meant for sale or for letting out on rent. Apparently, the construction of dwelling units and the residential areas developed by the contesting respondents are done by the contesting respondents i.e. Government entities being Public Sector Undertakings with the investment of Central Government.13. For all the aforementioned reasons we do not see any error in the impugned judgment. In our opinion, the trial Court as well as the High Court considered all the relevant issues in their true spirit and came to the right conclusion that the contesting respondents are not liable to pay any amount in the form of external development fee as demanded by the appellants.
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0
### Explanation:
11. Having heard learned counsel on either side, we have also given our thoughtful consideration to various Government of Madhya Pradesh Orders including the first and foremost Order on the issue in question viz., No. 2681/1677/32, dated 6 th July, 1978 for levying internal development charges. The subsequent Order No. 2997/C.R.129/32/Bhopal, dated 27 th July, 1978 provides certain relaxations regarding the mode of payment of the amount required to be deposited under original order dated 6 th July, 1978. The next one is the Order No.dated 28 th November, 1983 on levying external development fee @ Rs.5/per sq. mtr.12. It is clearly noticeable from the aforementioned Government Orders that they are meant for housing construction societies, colonizers and individual persons where the internal developmental works of the colonies are done by the respective house construction society, colonizers or individual persons. In the same way, if any colonizer, house construction society or individual person constructs a colony under the supervision of Municipal Committee or Municipal Corporation, as the case may be, Rs.5/per sq. mtr. towards external development charges are applicable. While so, in the case on hand, the contesting respondents are neither colonizers nor house construction societies or individuals. The dwelling units developed by them are for their employees only and not meant for sale or for letting out on rent. Apparently, the construction of dwelling units and the residential areas developed by the contesting respondents are done by the contesting respondents i.e. Government entities being Public Sector Undertakings with the investment of Central Government.13. For all the aforementioned reasons we do not see any error in the impugned judgment. In our opinion, the trial Court as well as the High Court considered all the relevant issues in their true spirit and came to the right conclusion that the contesting respondents are not liable to pay any amount in the form of external development fee as demanded by the appellants.
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Azizul Haque Vs. State of Uttar Pradesh and Others | HEGDE, J.1. The second respondent in this appeal is the owner of a premises in the city of Kanpur. The appellant is occupying that premises as a tenant. On August 6, 1962, respondent No. 2 applied to the Rent Control and Eviction Officer, Kanpur, under Section 3 of the U.P. Rent Control and Eviction Act, for permission to file a suit in the Civil Court for eviction of the appellant from the premises primarily on the ground that the said premises is required for starting dry-cleaning business by his son. The Rent Controller after holding the necessary enquiry granted the permission asked for but in revision the Commissioner reversed the order of the Rent Controller and rejected the application of respondent No. 2. Thereafter respondent No. 2 took the matter in revision to the State Government under Section 7(F) of the U.P. Rent Control and Eviction Act. The State Government after giving an opportunity to the parties to represent their case reversed the order of the Commissioner and restored that of the Rent Control and Eviction Officer. The appellant challenged the order of the State Government by means of an application under Article 226 of the Constitution before the High Court of Allahabad. The High Court summarily dismissed that writ petition. Thereafter this appeal has been brought after obtaining from the High Court a certificate under Article 133(1)(b) of the Constitution.2. The only ground that appears to have been urged before the High Court against the order of the State Government was that the State Government before passing the order had called for the comments of the Rent Control and Eviction Officer; those comments had not been made available to the appellant before he represented his case to the State Government and therefore the order of the State Government is vitiated as it contravened the principles of natural justice. The High Court before summarily rejecting the writ petition had called for the comments in question. After perusing the same, it found those comments to be innocuous as the Rent Control and Eviction Officer had not expressed any opinion in those comments.3. It was urged before us that the very fact that the State Government had occasion to look into the comments of the Rent Control and Eviction Officer behind the back of the appellant, has vitiated the order made by it as the proceeding before the State Government was a quasi-judicial one as held by this Court in several cases.4. We are unable to accept this contention. This Court has said more than once that the rules of natural justice are not embodied rules. Before coming to the conclusion that any particular procedure adopted had contravened the principles of natural justice, the Court must be satisfied that the procedure adopted was not conducive to reach a just decision. A party is not entitled as of right to have his attention called to any material that may come before a quasi-judicial tribunal unless the material in question is likely to prejudice his case either directly or indirectly. The learned Judges of the High Court before dismissing the writ petition had called for the comments of the Rent Control and Eviction Officer and perused the same. They have come to the conclusion that those comments are innocuous. We are sure that the learned counsel for the appellant before the High Court also must have had an opportunity to look into those comments. It is not mentioned either in the application made to the High Court for certificate or in the petition of appeal that the appellant or his counsel had no opportunity to look into those comments when the same was before the High Court. | 0[ds]3. It was urged before us that the very fact that the State Government had occasion to look into the comments of the Rent Control and Eviction Officer behind the back of the appellant, has vitiated the order made by it as the proceeding before the State Government was ae as held by this Court in several cases.We are unable to accept this contention. This Court has said more than once that the rules of natural justice are not embodied rules. Before coming to the conclusion that any particular procedure adopted had contravened the principles of natural justice, the Court must be satisfied that the procedure adopted was not conducive to reach a just decision. A party is not entitled as of right to have his attention called to any material that may come before atribunal unless the material in question is likely to prejudice his case either directly or indirectly. The learned Judges of the High Court before dismissing the writ petition had called for the comments of the Rent Control and Eviction Officer and perused the same. They have come to the conclusion that those comments are innocuous. We are sure that the learned counsel for the appellant before the High Court also must have had an opportunity to look into those comments. It is not mentioned either in the application made to the High Court for certificate or in the petition of appeal that the appellant or his counsel had no opportunity to look into those comments when the same was before the High Court. | 0 | 659 | 273 | ### 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:
HEGDE, J.1. The second respondent in this appeal is the owner of a premises in the city of Kanpur. The appellant is occupying that premises as a tenant. On August 6, 1962, respondent No. 2 applied to the Rent Control and Eviction Officer, Kanpur, under Section 3 of the U.P. Rent Control and Eviction Act, for permission to file a suit in the Civil Court for eviction of the appellant from the premises primarily on the ground that the said premises is required for starting dry-cleaning business by his son. The Rent Controller after holding the necessary enquiry granted the permission asked for but in revision the Commissioner reversed the order of the Rent Controller and rejected the application of respondent No. 2. Thereafter respondent No. 2 took the matter in revision to the State Government under Section 7(F) of the U.P. Rent Control and Eviction Act. The State Government after giving an opportunity to the parties to represent their case reversed the order of the Commissioner and restored that of the Rent Control and Eviction Officer. The appellant challenged the order of the State Government by means of an application under Article 226 of the Constitution before the High Court of Allahabad. The High Court summarily dismissed that writ petition. Thereafter this appeal has been brought after obtaining from the High Court a certificate under Article 133(1)(b) of the Constitution.2. The only ground that appears to have been urged before the High Court against the order of the State Government was that the State Government before passing the order had called for the comments of the Rent Control and Eviction Officer; those comments had not been made available to the appellant before he represented his case to the State Government and therefore the order of the State Government is vitiated as it contravened the principles of natural justice. The High Court before summarily rejecting the writ petition had called for the comments in question. After perusing the same, it found those comments to be innocuous as the Rent Control and Eviction Officer had not expressed any opinion in those comments.3. It was urged before us that the very fact that the State Government had occasion to look into the comments of the Rent Control and Eviction Officer behind the back of the appellant, has vitiated the order made by it as the proceeding before the State Government was a quasi-judicial one as held by this Court in several cases.4. We are unable to accept this contention. This Court has said more than once that the rules of natural justice are not embodied rules. Before coming to the conclusion that any particular procedure adopted had contravened the principles of natural justice, the Court must be satisfied that the procedure adopted was not conducive to reach a just decision. A party is not entitled as of right to have his attention called to any material that may come before a quasi-judicial tribunal unless the material in question is likely to prejudice his case either directly or indirectly. The learned Judges of the High Court before dismissing the writ petition had called for the comments of the Rent Control and Eviction Officer and perused the same. They have come to the conclusion that those comments are innocuous. We are sure that the learned counsel for the appellant before the High Court also must have had an opportunity to look into those comments. It is not mentioned either in the application made to the High Court for certificate or in the petition of appeal that the appellant or his counsel had no opportunity to look into those comments when the same was before the High Court.
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0
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3. It was urged before us that the very fact that the State Government had occasion to look into the comments of the Rent Control and Eviction Officer behind the back of the appellant, has vitiated the order made by it as the proceeding before the State Government was ae as held by this Court in several cases.We are unable to accept this contention. This Court has said more than once that the rules of natural justice are not embodied rules. Before coming to the conclusion that any particular procedure adopted had contravened the principles of natural justice, the Court must be satisfied that the procedure adopted was not conducive to reach a just decision. A party is not entitled as of right to have his attention called to any material that may come before atribunal unless the material in question is likely to prejudice his case either directly or indirectly. The learned Judges of the High Court before dismissing the writ petition had called for the comments of the Rent Control and Eviction Officer and perused the same. They have come to the conclusion that those comments are innocuous. We are sure that the learned counsel for the appellant before the High Court also must have had an opportunity to look into those comments. It is not mentioned either in the application made to the High Court for certificate or in the petition of appeal that the appellant or his counsel had no opportunity to look into those comments when the same was before the High Court.
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State Of Assam And Another Vs. Ajit Kumar Sharma And Others | however no law to prevent the State from prescribing to conditions of such grants by mere executive instructions which have not the force of statutory rules. In the present case the Rules have been framed in order to give revised grants to private colleges to enable them to give higher scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The Rules have been held by the High Court to have no statutory force, and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive instructions conditions on which grants would be made to private colleges to implement the recommendations of the University Grants Commission as to pay scales etc. of teachers of private colleges. Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant- in-aid.13. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grantin-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being - as in this case - merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or nonenforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by a teacher.14. We may in this connection refer to M/s. Raman and Raman v. State of Madras, (1959) Supp (2) SCR 227 : (AIR 1959 SC 694 ) where this Court had to consider certain orders and directions issued under S. 43A of the Motor Vehicles (Madras Amendment) Act, 1948. The question arose whether the orders issued under S. 43A had the status of law or not. This Court held that such orders did not have the status, of law regulating the rights of parties and must partake of the character of administrative orders. It was further held that there could be no right arising out of mere executive instructions, much less a vested right, and if such instructions were changed pending any appeal, there would be no change in the law pending the appeal so as to affect any vested right of a party. That decision in our opinion governs the present case also, for it has been found by the High Court, and it is not disputed before us, that the Rules are mere administrative instructions and have not the force of law as statutory rules. They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under Art. 226 for the enforcement or non-enforcement of any provision of the Rules. The Rules being mere administrative instructions are matters between private colleges and the Government in the matter of grant-in-aid to such colleges, and no teacher of a college has any right under the Rules to ask either for their enforcement or for their non-enforcement. We are therefore of opinion that the High Court was in error when it granted a writ against the State through the Director, by which the Director was asked not to give effect to its letter dated March 20, 1962, against the Governing Body of the College.15. Then we come to the question whether a writ could have been issued against the Governing Body of the College. We find however that there is no appeal by the College against the order of the High Court issuing a writ against it. In these circumstances we do not think that we can interfere with the order of the High Court insofar as it is against the Governing Body of the College. At the same time we should like to make it clear that we should not be taken to have approved of the order of the High Court against the Governing Body of the College in circumstances like the present and that matter may have to be considered in a case where it properly arise.16. Before we leave this case we should like to add that it was stated on behalf of the State before us that even if the decision went in favour of the State, it would not enforce R. 7 insofar as the respondent is concerned, as the State was concerned merely with the clarification of the law on the subject.17. | 1[ds]It seems to us that the High Court was in error in granting a writ of mandamus against the State through the Director once it found that the Rules had no statutory force and were mere administrative instructions for the purpose of giving grant-in-aid to private colleges. What grant the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing to conditions of such grants by mere executive instructions which have not the force of statutory rules. In the present case the Rules have been framed in order to give revised grants to private colleges to enable them to give higher scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The Rules have been held by the High Court to have no statutory force, and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive instructions conditions on which grants would be made to private colleges to implement the recommendations of the University Grants Commission as to pay scales etc. of teachers of private colleges. Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grantin-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being - as in this case - merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or nonenforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by adecision in our opinion governs the present case also, for it has been found by the High Court, and it is not disputed before us, that the Rules are mere administrative instructions and have not the force of law as statutory rules. They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under Art. 226 for the enforcement or non-enforcement of any provision of the Rules. The Rules being mere administrative instructions are matters between private colleges and the Government in the matter of grant-in-aid to such colleges, and no teacher of a college has any right under the Rules to ask either for their enforcement or for their non-enforcement. We are therefore of opinion that the High Court was in error when it granted a writ against the State through the Director, by which the Director was asked not to give effect to its letter dated March 20, 1962, against the Governing Body of thefind however that there is no appeal by the College against the order of the High Court issuing a writ against it. In these circumstances we do not think that we can interfere with the order of the High Court insofar as it is against the Governing Body of the College. At the same time we should like to make it clear that we should not be taken to have approved of the order of the High Court against the Governing Body of the College in circumstances like the present and that matter may have to be considered in a case where it properly arise.Before we leave this case we should like to add that it was stated on behalf of the State before us that even if the decision went in favour of the State, it would not enforce R. 7 insofar as the respondent is concerned, as the State was concerned merely with the clarification of the law on the subject. | 1 | 3,843 | 959 | ### 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:
however no law to prevent the State from prescribing to conditions of such grants by mere executive instructions which have not the force of statutory rules. In the present case the Rules have been framed in order to give revised grants to private colleges to enable them to give higher scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The Rules have been held by the High Court to have no statutory force, and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive instructions conditions on which grants would be made to private colleges to implement the recommendations of the University Grants Commission as to pay scales etc. of teachers of private colleges. Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant- in-aid.13. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grantin-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being - as in this case - merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or nonenforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by a teacher.14. We may in this connection refer to M/s. Raman and Raman v. State of Madras, (1959) Supp (2) SCR 227 : (AIR 1959 SC 694 ) where this Court had to consider certain orders and directions issued under S. 43A of the Motor Vehicles (Madras Amendment) Act, 1948. The question arose whether the orders issued under S. 43A had the status of law or not. This Court held that such orders did not have the status, of law regulating the rights of parties and must partake of the character of administrative orders. It was further held that there could be no right arising out of mere executive instructions, much less a vested right, and if such instructions were changed pending any appeal, there would be no change in the law pending the appeal so as to affect any vested right of a party. That decision in our opinion governs the present case also, for it has been found by the High Court, and it is not disputed before us, that the Rules are mere administrative instructions and have not the force of law as statutory rules. They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under Art. 226 for the enforcement or non-enforcement of any provision of the Rules. The Rules being mere administrative instructions are matters between private colleges and the Government in the matter of grant-in-aid to such colleges, and no teacher of a college has any right under the Rules to ask either for their enforcement or for their non-enforcement. We are therefore of opinion that the High Court was in error when it granted a writ against the State through the Director, by which the Director was asked not to give effect to its letter dated March 20, 1962, against the Governing Body of the College.15. Then we come to the question whether a writ could have been issued against the Governing Body of the College. We find however that there is no appeal by the College against the order of the High Court issuing a writ against it. In these circumstances we do not think that we can interfere with the order of the High Court insofar as it is against the Governing Body of the College. At the same time we should like to make it clear that we should not be taken to have approved of the order of the High Court against the Governing Body of the College in circumstances like the present and that matter may have to be considered in a case where it properly arise.16. Before we leave this case we should like to add that it was stated on behalf of the State before us that even if the decision went in favour of the State, it would not enforce R. 7 insofar as the respondent is concerned, as the State was concerned merely with the clarification of the law on the subject.17.
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1
### Explanation:
It seems to us that the High Court was in error in granting a writ of mandamus against the State through the Director once it found that the Rules had no statutory force and were mere administrative instructions for the purpose of giving grant-in-aid to private colleges. What grant the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing to conditions of such grants by mere executive instructions which have not the force of statutory rules. In the present case the Rules have been framed in order to give revised grants to private colleges to enable them to give higher scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The Rules have been held by the High Court to have no statutory force, and that is not disputed before us. In these circumstances it is clear that the Rules are mere executive instructions conditions on which grants would be made to private colleges to implement the recommendations of the University Grants Commission as to pay scales etc. of teachers of private colleges. Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grantin-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being - as in this case - merely executive instructions confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or nonenforcement of the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such mere administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and cannot in our opinion form the basis of a petition for writ under Art. 226 by adecision in our opinion governs the present case also, for it has been found by the High Court, and it is not disputed before us, that the Rules are mere administrative instructions and have not the force of law as statutory rules. They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under Art. 226 for the enforcement or non-enforcement of any provision of the Rules. The Rules being mere administrative instructions are matters between private colleges and the Government in the matter of grant-in-aid to such colleges, and no teacher of a college has any right under the Rules to ask either for their enforcement or for their non-enforcement. We are therefore of opinion that the High Court was in error when it granted a writ against the State through the Director, by which the Director was asked not to give effect to its letter dated March 20, 1962, against the Governing Body of thefind however that there is no appeal by the College against the order of the High Court issuing a writ against it. In these circumstances we do not think that we can interfere with the order of the High Court insofar as it is against the Governing Body of the College. At the same time we should like to make it clear that we should not be taken to have approved of the order of the High Court against the Governing Body of the College in circumstances like the present and that matter may have to be considered in a case where it properly arise.Before we leave this case we should like to add that it was stated on behalf of the State before us that even if the decision went in favour of the State, it would not enforce R. 7 insofar as the respondent is concerned, as the State was concerned merely with the clarification of the law on the subject.
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Biswanath Banarjee Vs. State Of West Bengal & Ors | Education established under the 1963 Act. Section 3 empowers the State Government as soon as may be after the Act comes into force to establish the Board named the West Bengal Secondary Education Board. The Board shall be a body corporate with perpetual succession and a common seal. Section 4 deals with the composition of the Board which it may be stated is totally different to that which comprised the Board, under the 1950 Act. The appointment of persons in the service of the Board and their condition of service etc., are the subject matter of Section 16, the relevant provisions of which are as follows :(1) The Board shall have a Secretary who shall be appointed by the State Government. (2) The Board may appoint such other officers and servants as it considers necessary for carrying out the purposes of this Act. (3) The terms and conditions of appointment and the scales of pay and allowances, if any shall- (a) as respect the Secretary be such as may be prescribed, and (b) as respect the other officers and servants be such as may be determined by regulations. (4) xx xx xx5. Sub-section (1) of Section 45 empowers the State Government after previous publication, to make rules for carrying out the purposes of this Act and sub-section (2) (f) provides that: "In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- (f) the terms and conditions of appointment the scale of pay and the rules of discipline relating to the Secretary of the Board. It is under the last mentioned provision, 45 (2) (f), that the rules were made, Rule 8 of which we have already extracted It will thus be seen that the 1963 Act constituted an entirely new Board of Secondary Education and after repealing the old Acts it continued the services of the Officers and other persons in the employment of the Board of Education under the old Act until other provision is made. It may be stated that the power of appointment of a Secretary for the Board under Section 16 is not vested in the Board but in the Government as such there can be no validity in the contention of the learned Advocate for the Appellant that the Government has no power to appoint a Secretary in place of the Appellant who according to him still continues as Secretary under the Board. As we read the provisions, we are clear in our minds and it admits of no doubt that the Board has no power to appoint a Secretary, nor has the Appellant a right to the post as such. All that the Act provides is for the continuance of the Employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Government. In our view the appointment of the new Secretary can be traceable to the powers vested in the Government under Section 16 irrespective of the power vested under the rules. The argument that Appellant being an employee of the Board his services could only be terminated by the Board and not by the State Government has no validity in that the old rules have been repealed and the new Board has no power to appoint a Secretary. It has been urged before us that a decision of this court in State of Assam v. Kripanath Sarma, (1967) 1 SCR 499 =(AIR 1967 SO 459), lends support to the contention of the learned Advocate. That case was under the Assam Elementary Education Act, 1962 the relevant provisions of which are not in pari materia with the provisions of the Act which we are called upon to consider. The Respondents in that case were Elementary Education School Teachers appointed under the Assam Basic Education Act, 1954. That Act was repealed by the Assam Elementary Education Act, 1962 under which the Board was to be constituted and in the place of the School Boards functioning under the 1954 Act, the Deputy Inspectors of Schools were made Assistant Secretary of the said Board within their respective jurisdiction. Section 34 (2) provided that all the Elementary School Teachers appointed under the 1954 Act would be taken over by the State Board and who under Section 38 were further deemed to have been employed by the said Board. The statute therefore provided that they were the employees of the Board. Section 46 (2) (c) however merely continues them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was held that the order of termination by the Assistant Secretary was invalid. This case does not help the Appellant. Lastly the learned Advocate sought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417, in which the provisions of Section 46 (2) (c) of the 1963 Act were dealt with in support of his contention that the persons in the employment of Board of Secondary Education under the 1950 Act could only be discharged if an alternative employment is found for them inasmuch as the words until other provision is made justifies that conclusion This point has not been raised in the Writ Petition nor has it been urged either before the Single Bench or before the Division Bench of the High Court and is sought to be raised for the first time before this Court. | 0[ds]It is under the last mentioned provision, 45 (2) (f), that the rules were made, Rule 8 of which we have already extracted It will thus be seen that the 1963 Act constituted an entirely new Board of Secondary Education and after repealing the old Acts it continued the services of the Officers and other persons in the employment of the Board of Education under the old Act until other provision is made. It may be stated that the power of appointment of a Secretary for the Board under Section 16 is not vested in the Board but in the Government as such there can be no validity in the contention of the learned Advocate for the Appellant that the Government has no power to appoint a Secretary in place of the Appellant who according to him still continues as Secretary under the Board. As we read the provisions, we are clear in our minds and it admits of no doubt that the Board has no power to appoint a Secretary, nor has the Appellant a right to the post as such. All that the Act provides is for the continuance of the Employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Government. In our view the appointment of the new Secretary can be traceable to the powers vested in the Government under Section 16 irrespective of the power vested under the rules. The argument that Appellant being an employee of the Board his services could only be terminated by the Board and not by the State Government has no validity in that the old rules have been repealed and the new Board has no power to appoint a Secretary. It has been urged before us that a decision of this court in State of Assam v. Kripanath Sarma, (1967) 1 SCR 499 =(AIR 1967 SO 459), lends support to the contention of the learned Advocate. That case was under the Assam Elementary Education Act, 1962 the relevant provisions of which are not in pari materia with the provisions of the Act which we are called upon to consider. The Respondents in that case were Elementary Education School Teachers appointed under the Assam Basic Education Act, 1954. That Act was repealed by the Assam Elementary Education Act, 1962 under which the Board was to be constituted and in the place of the School Boards functioning under the 1954 Act, the Deputy Inspectors of Schools were made Assistant Secretary of the said Board within their respective jurisdiction. Section 34 (2) provided that all the Elementary School Teachers appointed under the 1954 Act would be taken over by the State Board and who under Section 38 were further deemed to have been employed by the said Board. The statute therefore provided that they were the employees of the Board. Section 46 (2) (c) however merely continues them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was held that the order of termination by the Assistant Secretary was invalid. This case does not help the Appellant. Lastly the learned Advocate sought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417, in which the provisions of Section 46 (2) (c) of the 1963 Act were dealt with in support of his contention that the persons in the employment of Board of Secondary Education under the 1950 Act could only be discharged if an alternative employment is found for them inasmuch as the words until other provision is made justifies that conclusion This point has not been raised in the Writ Petition nor has it been urged either before the Single Bench or before the Division Bench of the High Court and is sought to be raised for the first time before this Court. | 0 | 1,971 | 792 | ### 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:
Education established under the 1963 Act. Section 3 empowers the State Government as soon as may be after the Act comes into force to establish the Board named the West Bengal Secondary Education Board. The Board shall be a body corporate with perpetual succession and a common seal. Section 4 deals with the composition of the Board which it may be stated is totally different to that which comprised the Board, under the 1950 Act. The appointment of persons in the service of the Board and their condition of service etc., are the subject matter of Section 16, the relevant provisions of which are as follows :(1) The Board shall have a Secretary who shall be appointed by the State Government. (2) The Board may appoint such other officers and servants as it considers necessary for carrying out the purposes of this Act. (3) The terms and conditions of appointment and the scales of pay and allowances, if any shall- (a) as respect the Secretary be such as may be prescribed, and (b) as respect the other officers and servants be such as may be determined by regulations. (4) xx xx xx5. Sub-section (1) of Section 45 empowers the State Government after previous publication, to make rules for carrying out the purposes of this Act and sub-section (2) (f) provides that: "In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely- (f) the terms and conditions of appointment the scale of pay and the rules of discipline relating to the Secretary of the Board. It is under the last mentioned provision, 45 (2) (f), that the rules were made, Rule 8 of which we have already extracted It will thus be seen that the 1963 Act constituted an entirely new Board of Secondary Education and after repealing the old Acts it continued the services of the Officers and other persons in the employment of the Board of Education under the old Act until other provision is made. It may be stated that the power of appointment of a Secretary for the Board under Section 16 is not vested in the Board but in the Government as such there can be no validity in the contention of the learned Advocate for the Appellant that the Government has no power to appoint a Secretary in place of the Appellant who according to him still continues as Secretary under the Board. As we read the provisions, we are clear in our minds and it admits of no doubt that the Board has no power to appoint a Secretary, nor has the Appellant a right to the post as such. All that the Act provides is for the continuance of the Employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Government. In our view the appointment of the new Secretary can be traceable to the powers vested in the Government under Section 16 irrespective of the power vested under the rules. The argument that Appellant being an employee of the Board his services could only be terminated by the Board and not by the State Government has no validity in that the old rules have been repealed and the new Board has no power to appoint a Secretary. It has been urged before us that a decision of this court in State of Assam v. Kripanath Sarma, (1967) 1 SCR 499 =(AIR 1967 SO 459), lends support to the contention of the learned Advocate. That case was under the Assam Elementary Education Act, 1962 the relevant provisions of which are not in pari materia with the provisions of the Act which we are called upon to consider. The Respondents in that case were Elementary Education School Teachers appointed under the Assam Basic Education Act, 1954. That Act was repealed by the Assam Elementary Education Act, 1962 under which the Board was to be constituted and in the place of the School Boards functioning under the 1954 Act, the Deputy Inspectors of Schools were made Assistant Secretary of the said Board within their respective jurisdiction. Section 34 (2) provided that all the Elementary School Teachers appointed under the 1954 Act would be taken over by the State Board and who under Section 38 were further deemed to have been employed by the said Board. The statute therefore provided that they were the employees of the Board. Section 46 (2) (c) however merely continues them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was held that the order of termination by the Assistant Secretary was invalid. This case does not help the Appellant. Lastly the learned Advocate sought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417, in which the provisions of Section 46 (2) (c) of the 1963 Act were dealt with in support of his contention that the persons in the employment of Board of Secondary Education under the 1950 Act could only be discharged if an alternative employment is found for them inasmuch as the words until other provision is made justifies that conclusion This point has not been raised in the Writ Petition nor has it been urged either before the Single Bench or before the Division Bench of the High Court and is sought to be raised for the first time before this Court.
### Response:
0
### Explanation:
It is under the last mentioned provision, 45 (2) (f), that the rules were made, Rule 8 of which we have already extracted It will thus be seen that the 1963 Act constituted an entirely new Board of Secondary Education and after repealing the old Acts it continued the services of the Officers and other persons in the employment of the Board of Education under the old Act until other provision is made. It may be stated that the power of appointment of a Secretary for the Board under Section 16 is not vested in the Board but in the Government as such there can be no validity in the contention of the learned Advocate for the Appellant that the Government has no power to appoint a Secretary in place of the Appellant who according to him still continues as Secretary under the Board. As we read the provisions, we are clear in our minds and it admits of no doubt that the Board has no power to appoint a Secretary, nor has the Appellant a right to the post as such. All that the Act provides is for the continuance of the Employees of the previous Board till other arrangements are made, namely till a Secretary is appointed by the Government. In our view the appointment of the new Secretary can be traceable to the powers vested in the Government under Section 16 irrespective of the power vested under the rules. The argument that Appellant being an employee of the Board his services could only be terminated by the Board and not by the State Government has no validity in that the old rules have been repealed and the new Board has no power to appoint a Secretary. It has been urged before us that a decision of this court in State of Assam v. Kripanath Sarma, (1967) 1 SCR 499 =(AIR 1967 SO 459), lends support to the contention of the learned Advocate. That case was under the Assam Elementary Education Act, 1962 the relevant provisions of which are not in pari materia with the provisions of the Act which we are called upon to consider. The Respondents in that case were Elementary Education School Teachers appointed under the Assam Basic Education Act, 1954. That Act was repealed by the Assam Elementary Education Act, 1962 under which the Board was to be constituted and in the place of the School Boards functioning under the 1954 Act, the Deputy Inspectors of Schools were made Assistant Secretary of the said Board within their respective jurisdiction. Section 34 (2) provided that all the Elementary School Teachers appointed under the 1954 Act would be taken over by the State Board and who under Section 38 were further deemed to have been employed by the said Board. The statute therefore provided that they were the employees of the Board. Section 46 (2) (c) however merely continues them and does not deem them to be employees of the Board. What happened in that case was that the Board merely passed a resolution "that all teachers who are not Matriculates or who have not passed the Teachers test but who are working as Teachers in School shall be discharged with effect from 31-3-63". The Assistant Secretary without obtaining specific sanction from the Board issued orders for their discharge which he had no power to do. In those circumstances the power to terminate the services being in the Board, it was held that the order of termination by the Assistant Secretary was invalid. This case does not help the Appellant. Lastly the learned Advocate sought to press in aid a Judgment of a Bench of the Calcutta High Court in Bidyut Kr. Biswas v. West Bengal Board of Secondary Education, (1969) 73 Cal WN 417, in which the provisions of Section 46 (2) (c) of the 1963 Act were dealt with in support of his contention that the persons in the employment of Board of Secondary Education under the 1950 Act could only be discharged if an alternative employment is found for them inasmuch as the words until other provision is made justifies that conclusion This point has not been raised in the Writ Petition nor has it been urged either before the Single Bench or before the Division Bench of the High Court and is sought to be raised for the first time before this Court.
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Bhrigunandan Prasad And Ors Vs. The Appellate Officer & Ors | is no longer a liability. This conclusion based on the words of S. 9 (1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum. 11. Two situations may arise before the Competent Officer in such circumstances when calculating the liability under a mortgage. In one case there may be no decree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Officer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the contract. But even so the words of S. 9 (1) do not give him power to reopen the accounts and whatever has been paid towards interest, if it is not in excess of the contractual rate or interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. We may illustrate this by an example. Suppose a mortgage was entered into on January 1, 1949 and the interest therein is nine per cent per annum. Suppose that interest for the years 1949 and 1950 has been paid at the contractual rate but nothing has been paid thereafter. In such a case, the amount paid in excess of five per cent per annum for 1949 and 1950 will not go to reduce the principal; but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property for what is still due. 12. The second case which may arise before the Competent Officer would be a case where a decree has been passed on the mortgage bond except an ex parte decree passed after August 14, 1947. In such a case also the competent Officer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is not at more than the contractual rate; but as the decree is subject to S. 9 (1), the Competent Officer will have to calculate interest at five per cent per annum simple from the date of the suit and cannot award more interest in calculating the liability still due under the mortgage. Of course in both the cases if before the suit nothing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced, the Competent Officer in calculating the liability still due on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read S. 9 (1), we find no provision in it for reopening the account from the very beginning and utilising any interest paid in excess of five per cent per annum simple but within the contractual rate towards reducing the principal amount. Section 9 (1) only deals with the liability of the mortgaged property which may still be due when the claim is made before the competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of S. 9 (1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate. 13. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of S. 9 (1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e., December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree, i.e., April 25, 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to S. 8 (3), to S. 9 (1). Further from the date of the final decree also to appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under there mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under s. 10 (b) or (c). | 1[ds]It will also be noticed that there is no provision in the Act which specifically provides for reopening of transactions relating to mortgage and taking accounts from the date of the mortgage on the basis of interest provided in S. 9 (1) and for crediting anything paid as interest over and above the rate provided in S. 9 (1) towards principal. Prime facie therefore in the absence of such a provision it cannot be assumed that the legislature intended that a mortgage transaction should be reopened from the date of the mortgage and accounts taken afresh and anything paid in excess of five per cent per annum simple interest applied towards reduction of the principal amount.We have therefore to see whether there is anything in the words of S. 9 (1) which leads to this result in the absence of specific provision to that effect in the ActSimilarly in a case where there is no decree and there is still some liability on the mortgage, the Competent Officer would not be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of five per cent, per annum on the principal amount advanced. But S. 9 (1) clearly shows that it applies only where the liability is still due and there is nothing in the words of S. 9 (1) which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the contract over and above five per cent per annum simple interest as payment towards reduction of the principal amount. S. 9 (1) in our opinion only deals with liability still due and does not contemplate that any payments (sic) mortgaged property it can only take in liability still due, for whatever has interest and partly towards principal if they are above five per cent per annum simple interest. As S. 9(1) speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the contract towards interest is no longer a liability. This conclusion based on the words of S. 9 (1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum11. Two situations may arise before the Competent Officer in such circumstances when calculating the liability under a mortgage. In one case there may be no decree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Officer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the contract. But even so the words of S. 9 (1) do not give him power to reopen the accounts and whatever has been paid towards interest, if it is not in excess of the contractual rate or interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. We may illustrate this by an example. Suppose a mortgage was entered into on January 1, 1949 and the interest therein is nine per cent per annum. Suppose that interest for the years 1949 and 1950 has been paid at the contractual rate but nothing has been paid thereafter. In such a case, the amount paid in excess of five per cent per annum for 1949 and 1950 will not go to reduce the principal; but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property for what is still due12. The second case which may arise before the Competent Officer would be a case where a decree has been passed on the mortgage bond except an ex parte decree passed after August 14, 1947. In such a case also the competent Officer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is not at more than the contractual rate; but as the decree is subject to S. 9 (1), the Competent Officer will have to calculate interest at five per cent per annum simple from the date of the suit and cannot award more interest in calculating the liability still due under the mortgage. Of course in both the cases if before the suit nothing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced, the Competent Officer in calculating the liability still due on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read S. 9 (1), we find no provision in it for reopening the account from the very beginning and utilising any interest paid in excess of five per cent per annum simple but within the contractual rate towards reducing the principal amount. Section 9 (1) only deals with the liability of the mortgaged property which may still be due when the claim is made before the competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of S. 9 (1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate13. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of S. 9 (1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e., December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree, i.e., April 25, 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to S. 8 (3), to S. 9 (1). Further from the date of the final decree also to appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under there mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under s. 10 (b) or (c)S. 9 (1) of the Evacuee Interest (Separation) Act, No. LXIV of 195110. Section 9(1) begin with a non obstanate clause and lays down that it will apply notwithstanding anything to the contrary in any law or contract or any decree or order of a civil Court or other authority. It then provides that where a claim is made by a mortgagee, as in the present case, no mortgaged property of an evacuee shall be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced. The key words in the provision are "no mortgaged property shall be liable". These words indicate that the Competent Officer when he comes to deal with a liability under a mortgage must calculate this liability on the basis that interest should be allowed only on the principal amount and only at the rate of five per cent per annum simple. The liability which the Competent Officer has to determine is with respect to the amount still due to the. Further as the non obstanate clause includes any decree of a civil Court and as such decree is subject to S. 9 (1) in view of the proviso to S 8 (3), the Competent Officer would not be bound by the calculation of interest made by the civil Court and would have to determine the liability still due on the mortgage himself on the basis of simple interest at the rate of five per cent per annum on the principal sum advanced. Any calculation made by the civil Court in arriving at the sum decreed by it on the basis of interest at more than five per cent per annum so far as the liability still due is concerned would not be binding on the Competent Officer and he will have to make his own calculations on the basis of simple interest at the rate of five per cent per annum.Similarly in a case where there is no decree and there is still some liability on the mortgage, the Competent Officer would not be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of five per cent, per annum on the principal amount advanced. But S. 9 (1) clearly shows that it applies only where the liability is still due and there is nothing in the words of S. 9 (1) which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the contract over and above five per cent per annum simple interest as payment towards reduction of the principal amount. S. 9 (1) in our opinion only deals with liability still due and does not contemplate that any payments (sic) mortgaged property it can only take in liability still due, for whatever has interest and partly towards principal if they are above five per cent per annum simple interest. As S. 9(1) speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the contract towards interest is no longer a liability. This conclusion based on the words of S. 9 (1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal | 1 | 3,556 | 2,127 | ### 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:
is no longer a liability. This conclusion based on the words of S. 9 (1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum. 11. Two situations may arise before the Competent Officer in such circumstances when calculating the liability under a mortgage. In one case there may be no decree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Officer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the contract. But even so the words of S. 9 (1) do not give him power to reopen the accounts and whatever has been paid towards interest, if it is not in excess of the contractual rate or interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. We may illustrate this by an example. Suppose a mortgage was entered into on January 1, 1949 and the interest therein is nine per cent per annum. Suppose that interest for the years 1949 and 1950 has been paid at the contractual rate but nothing has been paid thereafter. In such a case, the amount paid in excess of five per cent per annum for 1949 and 1950 will not go to reduce the principal; but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property for what is still due. 12. The second case which may arise before the Competent Officer would be a case where a decree has been passed on the mortgage bond except an ex parte decree passed after August 14, 1947. In such a case also the competent Officer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is not at more than the contractual rate; but as the decree is subject to S. 9 (1), the Competent Officer will have to calculate interest at five per cent per annum simple from the date of the suit and cannot award more interest in calculating the liability still due under the mortgage. Of course in both the cases if before the suit nothing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced, the Competent Officer in calculating the liability still due on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read S. 9 (1), we find no provision in it for reopening the account from the very beginning and utilising any interest paid in excess of five per cent per annum simple but within the contractual rate towards reducing the principal amount. Section 9 (1) only deals with the liability of the mortgaged property which may still be due when the claim is made before the competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of S. 9 (1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate. 13. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of S. 9 (1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e., December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree, i.e., April 25, 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to S. 8 (3), to S. 9 (1). Further from the date of the final decree also to appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under there mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under s. 10 (b) or (c).
### Response:
1
### Explanation:
claim is made before the competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is nothing in the words of S. 9 (1) which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the contractual rate13. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also not quite correct, though it is more in accord with the interpretation of S. 9 (1) which we have indicated above. On the view we have taken the liability will be calculated thus: Any amount paid before the date of the suit i.e., December 11, 1939, provided it is not more than the contractual rate of interest though it may be above five per cent per annum simple will not go to reduce the principal amount. From the date of the suit till the date of the final decree, i.e., April 25, 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to S. 8 (3), to S. 9 (1). Further from the date of the final decree also to appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the costs of the suit which was decreed in their favour, but there will be no interest on such costs. The account will be made up accordingly to determine the liability due under there mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under s. 10 (b) or (c)S. 9 (1) of the Evacuee Interest (Separation) Act, No. LXIV of 195110. Section 9(1) begin with a non obstanate clause and lays down that it will apply notwithstanding anything to the contrary in any law or contract or any decree or order of a civil Court or other authority. It then provides that where a claim is made by a mortgagee, as in the present case, no mortgaged property of an evacuee shall be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced. The key words in the provision are "no mortgaged property shall be liable". These words indicate that the Competent Officer when he comes to deal with a liability under a mortgage must calculate this liability on the basis that interest should be allowed only on the principal amount and only at the rate of five per cent per annum simple. The liability which the Competent Officer has to determine is with respect to the amount still due to the. Further as the non obstanate clause includes any decree of a civil Court and as such decree is subject to S. 9 (1) in view of the proviso to S 8 (3), the Competent Officer would not be bound by the calculation of interest made by the civil Court and would have to determine the liability still due on the mortgage himself on the basis of simple interest at the rate of five per cent per annum on the principal sum advanced. Any calculation made by the civil Court in arriving at the sum decreed by it on the basis of interest at more than five per cent per annum so far as the liability still due is concerned would not be binding on the Competent Officer and he will have to make his own calculations on the basis of simple interest at the rate of five per cent per annum.Similarly in a case where there is no decree and there is still some liability on the mortgage, the Competent Officer would not be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of five per cent, per annum on the principal amount advanced. But S. 9 (1) clearly shows that it applies only where the liability is still due and there is nothing in the words of S. 9 (1) which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the contract over and above five per cent per annum simple interest as payment towards reduction of the principal amount. S. 9 (1) in our opinion only deals with liability still due and does not contemplate that any payments (sic) mortgaged property it can only take in liability still due, for whatever has interest and partly towards principal if they are above five per cent per annum simple interest. As S. 9(1) speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the contract towards interest is no longer a liability. This conclusion based on the words of S. 9 (1) is enforced by the fact that there is no specific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal
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SH. RAM CHANDER (DEAD) THR LRS Vs. UNION OF INDIA | 416/1986 and other allied first appeals, determining the compensation at Rs. 2000/-- per sq. yard relying upon the decision in the case of Bhola Nath (supra), solely on the ground that the decision in the case of Bhola Nath (supra), which has been relied upon by the High Court while passing the judgment and order in RFA No. 416/1986 was set aside by this Court vide order dated 08.12.2010. The appellants herein having come to know about the impugned order dated 12.05.2017, allowing review and recalling judgment and order dated 19.10.2001, immediately preferred a recall application being CMA No. 23091/2017. It was brought to the notice of the Division Bench that on remand again the High Court had enhanced the compensation at Rs. 2000/-- per sq. yard in the case of Bhola Nath (supra) and the SLP against the said judgment and order has been dismissed by the Supreme Court. However, by the impugned order dated 07.07.2017 though the High Court has noted that the aforesaid facts were not brought to the notice of the Court when it heard and allowed the review petition, the Division Bench of the High Court refused to recall the order dated 12.05.2017 allowing Review Petition (R.P.) No. 309/2008 by observing that as the appeal itself was listed before the Roster Bench, it will be open to the original land owners – appellants to place the above facts before the Roster Bench for its consideration. 2.3 Feeling aggrieved and dissatisfied with impugned order dated 12.05.2017 passed by the High Court in R.P. No. 309/2008 allowing the said review application/petition and recalling the judgment and order dated 19.10.2001 passed in RFA No. 416/1986 and dismissing the recall application being CMA No. 23091/2017 by order dated 07.07.2017, the original land owners – appellants before the High Court in RFA No. 416/1986, have preferred the present appeals being Civil Appeal Nos. 2926 and 2927 of 2022. 2.4 Similar order has been passed by the High Court in R.P. No. 310/2008 in Regular First Appeal No. 453/1986, which is the subject matter of Civil Appeal No. 2928/2022. 3. We have heard Shri Yashraj Singh Deora and Ms. Nidhi Mohan Parashar, learned counsel appearing on behalf of the respective appellants and Shri Nachiketa Joshi, learned counsel appearing on behalf of the respondent – Union of India. 4. We have gone through the impugned judgment and order passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 in respective Regular First Appeal Nos. 416/1986 & 453/1986. From the orders passed by the High Court allowing the review applications and recalling the earlier judgment and order dated 19.10.2001 passed in RFA Nos. 416/1986 & 453/1986, it appears that the High Court has recalled the judgment and order dated 19.10.2001 passed in the aforesaid regular first appeals solely on the ground that the judgment in the case of Bhola Nath (supra), which was relied upon while passing judgment and order dated 19.10.2001 in Regular First Appeal No. 416/1986 and other allied first appeals was set aside by this Court vide judgment and order dated 08.12.2010 and the matter was remanded. However, it is required to be noted that during the pendency of the review petitions, on remand again the High Court decided the first appeals in the case of Bhola Nath (supra) vide judgment and order dated 23.03.2016 and again determined the compensation at Rs. 2000/-- per sq. yard. Even against the subsequent judgment and order dated 23.03.2016, the SLP preferred by the DDA has been dismissed by this Court vide order dated 06.04.2017. Therefore, when review applications/petitions were allowed on 12.05.2017 on the ground that pursuant to the decision of this Court in the case of DDA Vs. Bhola Nath Sharma (supra) dated 08.12.2010, the first appeals are remanded and pending, in fact there was already a decision on remand vide judgment and order dated 23.03.2016 and even the SLP was dismissed. Therefore, the ground on which the High Court had allowed the review applications was thereafter not available. Under the circumstances, and in view of the subsequent development, which was even pointed out to the High Court while filing the recall application being CMA No. 23091/2017, the order(s) passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 deserve(s) to be quashed and set aside. 4.1 Even otherwise, it is required to be noted that earlier also while passing judgment and order dated 19.10.2001 and allowing RFA Nos. 416/1986 and 453/1986, enhancing the compensation at Rs. 2240/-- per sq. yard, the High Court relied upon the decision in the case of Bhola Nath (supra). It is true that subsequently vide judgment and order dated 08.12.2010, the decision in the case of Bhola Nath (supra) (First) was set aside and the matter was remanded. However, again on remand, the High Court has enhanced the compensation to Rs. 2000/-- per sq. yard and the said judgment dated 23.03.2016 in the case of Bhola Nath (supra) (second) has been confirmed by this Court as the SLP has been dismissed. Therefore, even if the first appeals preferred by the original land owners are heard again pursuant to the impugned order passed by the High Court in the review petitions, recalling judgment and order dated 19.10.2001, in that case also again the court will have to consider and rely upon the judgment in the case of Bhola Nath (supra) (second), which was earlier also relied upon. Therefore, the same will be nothing but an exercise in futility. In any case, the cause and the reasons on which the High Court has allowed the review petitions and recalled judgment and order dated 19.10.2001 in RFA Nos. 416/1986 and 453/1986, did not exist in view of the subsequent development narrated hereinabove. The impugned judgment(s) and order(s) passed by the High Court allowing review petitions hence deserve to be quashed and set aside and the judgment(s) and order(s) passed by the High Court given in RFA Nos. 416/1986 and 453/1986 are required to be restored. | 1[ds]4. We have gone through the impugned judgment and order passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 in respective Regular First Appeal Nos. 416/1986 & 453/1986. From the orders passed by the High Court allowing the review applications and recalling the earlier judgment and order dated 19.10.2001 passed in RFA Nos. 416/1986 & 453/1986, it appears that the High Court has recalled the judgment and order dated 19.10.2001 passed in the aforesaid regular first appeals solely on the ground that the judgment in the case of Bhola Nath (supra), which was relied upon while passing judgment and order dated 19.10.2001 in Regular First Appeal No. 416/1986 and other allied first appeals was set aside by this Court vide judgment and order dated 08.12.2010 and the matter was remanded. However, it is required to be noted that during the pendency of the review petitions, on remand again the High Court decided the first appeals in the case of Bhola Nath (supra) vide judgment and order dated 23.03.2016 and again determined the compensation at Rs. 2000/-- per sq. yard. Even against the subsequent judgment and order dated 23.03.2016, the SLP preferred by the DDA has been dismissed by this Court vide order dated 06.04.2017. Therefore, when review applications/petitions were allowed on 12.05.2017 on the ground that pursuant to the decision of this Court in the case of DDA Vs. Bhola Nath Sharma (supra) dated 08.12.2010, the first appeals are remanded and pending, in fact there was already a decision on remand vide judgment and order dated 23.03.2016 and even the SLP was dismissed. Therefore, the ground on which the High Court had allowed the review applications was thereafter not available. Under the circumstances, and in view of the subsequent development, which was even pointed out to the High Court while filing the recall application being CMA No. 23091/2017, the order(s) passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 deserve(s) to be quashed and set aside.4.1 Even otherwise, it is required to be noted that earlier also while passing judgment and order dated 19.10.2001 and allowing RFA Nos. 416/1986 and 453/1986, enhancing the compensation at Rs. 2240/-- per sq. yard, the High Court relied upon the decision in the case of Bhola Nath (supra). It is true that subsequently vide judgment and order dated 08.12.2010, the decision in the case of Bhola Nath (supra) (First) was set aside and the matter was remanded. However, again on remand, the High Court has enhanced the compensation to Rs. 2000/-- per sq. yard and the said judgment dated 23.03.2016 in the case of Bhola Nath (supra) (second) has been confirmed by this Court as the SLP has been dismissed. Therefore, even if the first appeals preferred by the original land owners are heard again pursuant to the impugned order passed by the High Court in the review petitions, recalling judgment and order dated 19.10.2001, in that case also again the court will have to consider and rely upon the judgment in the case of Bhola Nath (supra) (second), which was earlier also relied upon. Therefore, the same will be nothing but an exercise in futility. In any case, the cause and the reasons on which the High Court has allowed the review petitions and recalled judgment and order dated 19.10.2001 in RFA Nos. 416/1986 and 453/1986, did not exist in view of the subsequent development narrated hereinabove. The impugned judgment(s) and order(s) passed by the High Court allowing review petitions hence deserve to be quashed and set aside and the judgment(s) and order(s) passed by the High Court given in RFA Nos. 416/1986 and 453/1986 are required to be restored. | 1 | 1,890 | 712 | ### 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:
416/1986 and other allied first appeals, determining the compensation at Rs. 2000/-- per sq. yard relying upon the decision in the case of Bhola Nath (supra), solely on the ground that the decision in the case of Bhola Nath (supra), which has been relied upon by the High Court while passing the judgment and order in RFA No. 416/1986 was set aside by this Court vide order dated 08.12.2010. The appellants herein having come to know about the impugned order dated 12.05.2017, allowing review and recalling judgment and order dated 19.10.2001, immediately preferred a recall application being CMA No. 23091/2017. It was brought to the notice of the Division Bench that on remand again the High Court had enhanced the compensation at Rs. 2000/-- per sq. yard in the case of Bhola Nath (supra) and the SLP against the said judgment and order has been dismissed by the Supreme Court. However, by the impugned order dated 07.07.2017 though the High Court has noted that the aforesaid facts were not brought to the notice of the Court when it heard and allowed the review petition, the Division Bench of the High Court refused to recall the order dated 12.05.2017 allowing Review Petition (R.P.) No. 309/2008 by observing that as the appeal itself was listed before the Roster Bench, it will be open to the original land owners – appellants to place the above facts before the Roster Bench for its consideration. 2.3 Feeling aggrieved and dissatisfied with impugned order dated 12.05.2017 passed by the High Court in R.P. No. 309/2008 allowing the said review application/petition and recalling the judgment and order dated 19.10.2001 passed in RFA No. 416/1986 and dismissing the recall application being CMA No. 23091/2017 by order dated 07.07.2017, the original land owners – appellants before the High Court in RFA No. 416/1986, have preferred the present appeals being Civil Appeal Nos. 2926 and 2927 of 2022. 2.4 Similar order has been passed by the High Court in R.P. No. 310/2008 in Regular First Appeal No. 453/1986, which is the subject matter of Civil Appeal No. 2928/2022. 3. We have heard Shri Yashraj Singh Deora and Ms. Nidhi Mohan Parashar, learned counsel appearing on behalf of the respective appellants and Shri Nachiketa Joshi, learned counsel appearing on behalf of the respondent – Union of India. 4. We have gone through the impugned judgment and order passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 in respective Regular First Appeal Nos. 416/1986 & 453/1986. From the orders passed by the High Court allowing the review applications and recalling the earlier judgment and order dated 19.10.2001 passed in RFA Nos. 416/1986 & 453/1986, it appears that the High Court has recalled the judgment and order dated 19.10.2001 passed in the aforesaid regular first appeals solely on the ground that the judgment in the case of Bhola Nath (supra), which was relied upon while passing judgment and order dated 19.10.2001 in Regular First Appeal No. 416/1986 and other allied first appeals was set aside by this Court vide judgment and order dated 08.12.2010 and the matter was remanded. However, it is required to be noted that during the pendency of the review petitions, on remand again the High Court decided the first appeals in the case of Bhola Nath (supra) vide judgment and order dated 23.03.2016 and again determined the compensation at Rs. 2000/-- per sq. yard. Even against the subsequent judgment and order dated 23.03.2016, the SLP preferred by the DDA has been dismissed by this Court vide order dated 06.04.2017. Therefore, when review applications/petitions were allowed on 12.05.2017 on the ground that pursuant to the decision of this Court in the case of DDA Vs. Bhola Nath Sharma (supra) dated 08.12.2010, the first appeals are remanded and pending, in fact there was already a decision on remand vide judgment and order dated 23.03.2016 and even the SLP was dismissed. Therefore, the ground on which the High Court had allowed the review applications was thereafter not available. Under the circumstances, and in view of the subsequent development, which was even pointed out to the High Court while filing the recall application being CMA No. 23091/2017, the order(s) passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 deserve(s) to be quashed and set aside. 4.1 Even otherwise, it is required to be noted that earlier also while passing judgment and order dated 19.10.2001 and allowing RFA Nos. 416/1986 and 453/1986, enhancing the compensation at Rs. 2240/-- per sq. yard, the High Court relied upon the decision in the case of Bhola Nath (supra). It is true that subsequently vide judgment and order dated 08.12.2010, the decision in the case of Bhola Nath (supra) (First) was set aside and the matter was remanded. However, again on remand, the High Court has enhanced the compensation to Rs. 2000/-- per sq. yard and the said judgment dated 23.03.2016 in the case of Bhola Nath (supra) (second) has been confirmed by this Court as the SLP has been dismissed. Therefore, even if the first appeals preferred by the original land owners are heard again pursuant to the impugned order passed by the High Court in the review petitions, recalling judgment and order dated 19.10.2001, in that case also again the court will have to consider and rely upon the judgment in the case of Bhola Nath (supra) (second), which was earlier also relied upon. Therefore, the same will be nothing but an exercise in futility. In any case, the cause and the reasons on which the High Court has allowed the review petitions and recalled judgment and order dated 19.10.2001 in RFA Nos. 416/1986 and 453/1986, did not exist in view of the subsequent development narrated hereinabove. The impugned judgment(s) and order(s) passed by the High Court allowing review petitions hence deserve to be quashed and set aside and the judgment(s) and order(s) passed by the High Court given in RFA Nos. 416/1986 and 453/1986 are required to be restored.
### Response:
1
### Explanation:
4. We have gone through the impugned judgment and order passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 in respective Regular First Appeal Nos. 416/1986 & 453/1986. From the orders passed by the High Court allowing the review applications and recalling the earlier judgment and order dated 19.10.2001 passed in RFA Nos. 416/1986 & 453/1986, it appears that the High Court has recalled the judgment and order dated 19.10.2001 passed in the aforesaid regular first appeals solely on the ground that the judgment in the case of Bhola Nath (supra), which was relied upon while passing judgment and order dated 19.10.2001 in Regular First Appeal No. 416/1986 and other allied first appeals was set aside by this Court vide judgment and order dated 08.12.2010 and the matter was remanded. However, it is required to be noted that during the pendency of the review petitions, on remand again the High Court decided the first appeals in the case of Bhola Nath (supra) vide judgment and order dated 23.03.2016 and again determined the compensation at Rs. 2000/-- per sq. yard. Even against the subsequent judgment and order dated 23.03.2016, the SLP preferred by the DDA has been dismissed by this Court vide order dated 06.04.2017. Therefore, when review applications/petitions were allowed on 12.05.2017 on the ground that pursuant to the decision of this Court in the case of DDA Vs. Bhola Nath Sharma (supra) dated 08.12.2010, the first appeals are remanded and pending, in fact there was already a decision on remand vide judgment and order dated 23.03.2016 and even the SLP was dismissed. Therefore, the ground on which the High Court had allowed the review applications was thereafter not available. Under the circumstances, and in view of the subsequent development, which was even pointed out to the High Court while filing the recall application being CMA No. 23091/2017, the order(s) passed by the High Court in Review Petition Nos. 309/2008 and 310/2008 deserve(s) to be quashed and set aside.4.1 Even otherwise, it is required to be noted that earlier also while passing judgment and order dated 19.10.2001 and allowing RFA Nos. 416/1986 and 453/1986, enhancing the compensation at Rs. 2240/-- per sq. yard, the High Court relied upon the decision in the case of Bhola Nath (supra). It is true that subsequently vide judgment and order dated 08.12.2010, the decision in the case of Bhola Nath (supra) (First) was set aside and the matter was remanded. However, again on remand, the High Court has enhanced the compensation to Rs. 2000/-- per sq. yard and the said judgment dated 23.03.2016 in the case of Bhola Nath (supra) (second) has been confirmed by this Court as the SLP has been dismissed. Therefore, even if the first appeals preferred by the original land owners are heard again pursuant to the impugned order passed by the High Court in the review petitions, recalling judgment and order dated 19.10.2001, in that case also again the court will have to consider and rely upon the judgment in the case of Bhola Nath (supra) (second), which was earlier also relied upon. Therefore, the same will be nothing but an exercise in futility. In any case, the cause and the reasons on which the High Court has allowed the review petitions and recalled judgment and order dated 19.10.2001 in RFA Nos. 416/1986 and 453/1986, did not exist in view of the subsequent development narrated hereinabove. The impugned judgment(s) and order(s) passed by the High Court allowing review petitions hence deserve to be quashed and set aside and the judgment(s) and order(s) passed by the High Court given in RFA Nos. 416/1986 and 453/1986 are required to be restored.
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Jothi Timber Mart & Others Vs. Corporation Of Callcut & Another | reason to believe that the tax, if any, due thereon has not been paid:* * * * *"4. Power to make bye-laws for sale and seizure of timber in respect of which tax is not paid and for carrying out the provisions relating to the levy of tax is conferred by Section 126 (6) and Section 369 (1) of the Act. The Corporation of Calicut has framed bye-laws relating to the levy and collection of timber tax. It is provided by Clause 3 that the tax on timber shall be paid immediately on timber being brought into the City. Bye-law 7 provides:" (1) If timber is brought into the city and it is claimed that it is in the course of transit to a place outside the city and not for consumption, use or sale within the city and if in the opinion of the authority or officer authorised to collect the tax on timber, such timber brought into the city is not for the purpose of transit but for the purpose of consumption, use or sale therein, such authority or officer may demand from the person claiming exemption an amount equal to the tax leviable for such timber as security.(2) If the person, who has paid the security satisfies the Commissioner within 14 days from the date of payment that the timber in respect of which the amount was paid was brought into the city in the course of transit and not for consumption, use or sale therein the Commissioner shall refund the amount to such person. Otherwise the same shall be appropriated towards tax due on such timber.(3) * * *(4) * * *"The High Court held that timber may be imported within the limits of the Corporation for four purposes - (1) for consumption in the city (2) for use in the city; (3) for sale in the city; and (4) for transit through the city, and since all the four purposes were within the enacting part of the section and the proviso to Section 126 (1) having eliminated the right of the Municipality to levy tax for transit through the city, "the taxing power conferred by Entry 52, List II of the Seventh Schedule was ensured and its constitutional strength and validity upheld" thereby.5. Counsel for the appellants contends that the High Court was in error in holding that entry of timber into the Municipal area may be only for consumption, use, or sale within the Municipality or in the course of transit through the limits of the municipality. He says that the entry may for instance be merely for storage of the goods within the limits of the municipality and a provision levying tax on goods entering the limits of the municipality without specification of the purpose is beyond the legislative power of the State.6. Entry of goods within the local area for consumption, use or sale therein is made taxable by the State Legislature: authority to impose a general levy of tax on entry of goods into a local area is not conferred on the State Legislature by Item 52 of List II of Schedule VII of the Constitution. The Municipality derives its power to tax from the State Legislature and can obviously not have authority more extensive than the authority of the State Legislature. If the State Legislature is competent to levy a tax only on the entry of goods for consumption, use or sale into a local area, the Municipality cannot under a legislation enacted in exercise of the power conferred by Item 52, List II have power to levy tax in respect of goods brought into the local area for purposes other than consumption, use or sale. The authority of the State Legislature itself being subject to a restriction in that behalf, Section 126 may reasonably be read as subject to the same limitations. When the power of the Legislature with limited authority is exercised in respect of a subject- matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution: See In the Hindu Womens Rights to Property Act, 1937, 1941 FCR 12= (AIR 1941 FC 72). To interpret the expression "brought into the city" used in Section 126 (1) as meaning brought into the city for any purpose and without any limitations would, in out judgement, amount to attributing to the Legislature an intention to ignore the constitutional limitations. The expression "brought into the city" in Section 126 was therefore rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of consumption, use or sale and not for any other purpose.7. While we agree with the ultimate conclusion of the High Court we may observe that we do not agree with the assumption made by the High Court that the entry of goods into the city may be only for the four purposes mentioned by the High Court nor do we hold that the proviso exempts from taxation timber brought into the city in the course of transit even when it is not directly removed out of the city by rail, road or water.The proviso, in our judgement, has a limited operation. It merely provides that the municipality shall not be entitled to levy a tax on timber brought into the city in the course of transit to any place outside the city an directly removed out of the city by rail, road or water. But on that account we are unable to hold that the proviso is enacted with the object of bringing to tax all entry of timber which is not brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water. | 0[ds]6. Entry of goods within the local area for consumption, use or sale therein is made taxable by the State Legislature: authority to impose a general levy of tax on entry of goods into a local area is not conferred on the State Legislature by Item 52 of List II of Schedule VII of the Constitution. The Municipality derives its power to tax from the State Legislature and can obviously not have authority more extensive than the authority of the State Legislature. If the State Legislature is competent to levy a tax only on the entry of goods for consumption, use or sale into a local area, the Municipality cannot under a legislation enacted in exercise of the power conferred by Item 52, List II have power to levy tax in respect of goods brought into the local area for purposes other than consumption, use or sale. The authority of the State Legislature itself being subject to a restriction in that behalf, Section 126 may reasonably be read as subject to the same limitations. When the power of the Legislature with limited authority is exercised in respect of a subject- matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution: See In the Hindu Womens Rights to Property Act, 1937, 1941 FCR 12= (AIR 1941 FC 72). To interpret the expression "brought into the city" used in Section 126 (1) as meaning brought into the city for any purpose and without any limitations would, in out judgement, amount to attributing to the Legislature an intention to ignore the constitutional limitations. The expression "brought into the city" in Section 126 was therefore rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of consumption, use or sale and not for any other purpose.While we agree with the ultimate conclusion of the High Court we may observe that we do not agree with the assumption made by the High Court that the entry of goods into the city may be only for the four purposes mentioned by the High Court nor do we hold that the proviso exempts from taxation timber brought into the city in the course of transit even when it is not directly removed out of the city by rail, road or water.The proviso, in our judgement, has a limited operation. It merely provides that the municipality shall not be entitled to levy a tax on timber brought into the city in the course of transit to any place outside the city an directly removed out of the city by rail, road or water. But on that account we are unable to hold that the proviso is enacted with the object of bringing to tax all entry of timber which is not brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water. | 0 | 1,498 | 574 | ### 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:
reason to believe that the tax, if any, due thereon has not been paid:* * * * *"4. Power to make bye-laws for sale and seizure of timber in respect of which tax is not paid and for carrying out the provisions relating to the levy of tax is conferred by Section 126 (6) and Section 369 (1) of the Act. The Corporation of Calicut has framed bye-laws relating to the levy and collection of timber tax. It is provided by Clause 3 that the tax on timber shall be paid immediately on timber being brought into the City. Bye-law 7 provides:" (1) If timber is brought into the city and it is claimed that it is in the course of transit to a place outside the city and not for consumption, use or sale within the city and if in the opinion of the authority or officer authorised to collect the tax on timber, such timber brought into the city is not for the purpose of transit but for the purpose of consumption, use or sale therein, such authority or officer may demand from the person claiming exemption an amount equal to the tax leviable for such timber as security.(2) If the person, who has paid the security satisfies the Commissioner within 14 days from the date of payment that the timber in respect of which the amount was paid was brought into the city in the course of transit and not for consumption, use or sale therein the Commissioner shall refund the amount to such person. Otherwise the same shall be appropriated towards tax due on such timber.(3) * * *(4) * * *"The High Court held that timber may be imported within the limits of the Corporation for four purposes - (1) for consumption in the city (2) for use in the city; (3) for sale in the city; and (4) for transit through the city, and since all the four purposes were within the enacting part of the section and the proviso to Section 126 (1) having eliminated the right of the Municipality to levy tax for transit through the city, "the taxing power conferred by Entry 52, List II of the Seventh Schedule was ensured and its constitutional strength and validity upheld" thereby.5. Counsel for the appellants contends that the High Court was in error in holding that entry of timber into the Municipal area may be only for consumption, use, or sale within the Municipality or in the course of transit through the limits of the municipality. He says that the entry may for instance be merely for storage of the goods within the limits of the municipality and a provision levying tax on goods entering the limits of the municipality without specification of the purpose is beyond the legislative power of the State.6. Entry of goods within the local area for consumption, use or sale therein is made taxable by the State Legislature: authority to impose a general levy of tax on entry of goods into a local area is not conferred on the State Legislature by Item 52 of List II of Schedule VII of the Constitution. The Municipality derives its power to tax from the State Legislature and can obviously not have authority more extensive than the authority of the State Legislature. If the State Legislature is competent to levy a tax only on the entry of goods for consumption, use or sale into a local area, the Municipality cannot under a legislation enacted in exercise of the power conferred by Item 52, List II have power to levy tax in respect of goods brought into the local area for purposes other than consumption, use or sale. The authority of the State Legislature itself being subject to a restriction in that behalf, Section 126 may reasonably be read as subject to the same limitations. When the power of the Legislature with limited authority is exercised in respect of a subject- matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution: See In the Hindu Womens Rights to Property Act, 1937, 1941 FCR 12= (AIR 1941 FC 72). To interpret the expression "brought into the city" used in Section 126 (1) as meaning brought into the city for any purpose and without any limitations would, in out judgement, amount to attributing to the Legislature an intention to ignore the constitutional limitations. The expression "brought into the city" in Section 126 was therefore rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of consumption, use or sale and not for any other purpose.7. While we agree with the ultimate conclusion of the High Court we may observe that we do not agree with the assumption made by the High Court that the entry of goods into the city may be only for the four purposes mentioned by the High Court nor do we hold that the proviso exempts from taxation timber brought into the city in the course of transit even when it is not directly removed out of the city by rail, road or water.The proviso, in our judgement, has a limited operation. It merely provides that the municipality shall not be entitled to levy a tax on timber brought into the city in the course of transit to any place outside the city an directly removed out of the city by rail, road or water. But on that account we are unable to hold that the proviso is enacted with the object of bringing to tax all entry of timber which is not brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water.
### Response:
0
### Explanation:
6. Entry of goods within the local area for consumption, use or sale therein is made taxable by the State Legislature: authority to impose a general levy of tax on entry of goods into a local area is not conferred on the State Legislature by Item 52 of List II of Schedule VII of the Constitution. The Municipality derives its power to tax from the State Legislature and can obviously not have authority more extensive than the authority of the State Legislature. If the State Legislature is competent to levy a tax only on the entry of goods for consumption, use or sale into a local area, the Municipality cannot under a legislation enacted in exercise of the power conferred by Item 52, List II have power to levy tax in respect of goods brought into the local area for purposes other than consumption, use or sale. The authority of the State Legislature itself being subject to a restriction in that behalf, Section 126 may reasonably be read as subject to the same limitations. When the power of the Legislature with limited authority is exercised in respect of a subject- matter, but words of wide and general import are used, it may reasonably be presumed that the Legislature was using the words in regard to that activity in respect of which it is competent to legislate and to no other; and that the Legislature did not intend to transgress the limits imposed by the Constitution: See In the Hindu Womens Rights to Property Act, 1937, 1941 FCR 12= (AIR 1941 FC 72). To interpret the expression "brought into the city" used in Section 126 (1) as meaning brought into the city for any purpose and without any limitations would, in out judgement, amount to attributing to the Legislature an intention to ignore the constitutional limitations. The expression "brought into the city" in Section 126 was therefore rightly interpreted by the High Court as meaning brought into the municipal limits for purposes of consumption, use or sale and not for any other purpose.While we agree with the ultimate conclusion of the High Court we may observe that we do not agree with the assumption made by the High Court that the entry of goods into the city may be only for the four purposes mentioned by the High Court nor do we hold that the proviso exempts from taxation timber brought into the city in the course of transit even when it is not directly removed out of the city by rail, road or water.The proviso, in our judgement, has a limited operation. It merely provides that the municipality shall not be entitled to levy a tax on timber brought into the city in the course of transit to any place outside the city an directly removed out of the city by rail, road or water. But on that account we are unable to hold that the proviso is enacted with the object of bringing to tax all entry of timber which is not brought into the city in the course of transit to any place outside the city and directly removed out of the city by rail, road or water.
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Commissioner of Income Tax-Gujarat-II Vs. Kwality Steel Suppliers Complex | its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over or under valuation is possible".X X X33. We, however, find substance in the second considerations that prevailed with the High Court. The decision in Muhammad Ussain Sahib v. N. Abdul Gaffor Sahib, AIR 1950 Mad 758 ; [1950] 1 ML J 81 correctly sets out the mode of taking accounts regarding the assets of a firm. While the valuation of assets during the subsistence of the partnership would be immaterial and could even be national, the position at the point of dissolution is totally different.(at p. 759):But the situation is totally different when the firm is dissolved or when a partner retires. The settlement of his account must be not on a national basis but on a real basis, that is every asset into money and the account of each partner settled on that basis... The assets have to be valued of course, on basis of the market value on the date of the dissolution..."This applies equally well to assets which constitute stock-in-trade. There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real and not at cost or at their other value appearing in the books."15. It is clear from the above that the judgment in ALA Firms case proceeds on the basis that with the dissolution of the firm, the business of the firm comes to an end and in that situation, the cost method of valuing the stock was not permissible.16. The question is as to whether this situation would apply in the instant case where the partnership firm stood dissolved by the operation of law in view of the death of one of the partners, i.e., the mother, but the business did not come to an end as the other partner, viz., son, who inherited the share of the mother, continued with the business. In a situation like this, there was no question of selling the assets of the firm including stock-in-trade and, therefore, it was not necessary to value stock-in-trade at market price.17. The purpose of adopting a particular valuation of the closing stock is succinctly explained by this Court in the case of Sampatram v. Commissioner of Income Tax, West Bengal [1953 (24) ITR 481 ] as follows:"8. It is wrong to assume that the valuation of the closing stock at market rate has for its object, the bringing into charge any appreciation in the value of such stock. The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the accounts at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transaction on which there have been actual sales in the course of the year showing the profit or loss actually realized on the year trading. As pointed out in paragraph 8 of the Report of the Committee Financial Risks attaching to the holding of the Trading Stocks 1919,as the entry for stock which appears in a trading account is merely intended to cancel the charge for the goods purchased which have not been sold, it should necessarily represent the cost of the goods. If it is more or less than the cost, then the effect is to state sold at the incorrect figure... From this rigid doctrine one exception is very generally recognised on prudential grounds and is now fully sanctioned by custom, viz., the adoption of the market value at the date of making up accounts, if that value is less than cost. It is of course an anticipation of the loss that may be made on those goods in the following year, and may even have the effect, if prices rise again, of attributing to the following years results a greater amount of profit than the actual cost price of the good in question (extracted in paragraph 281 of the report Committee of the Taxation of Trading Profits presented to British Parliament in April 1951).While anticipated loss is thus taken into account, anticipated profit in the shape of appreciated value of the closing stock is not brought into the account, as no prudent trader would care to show increased profit before it actual realization. This is the theory underlying the rule that the closing stock is to be valued at cost or market price whichever is the lower, and it is now generally accepted as an established rule of commercial practise and accountancy. As profits for income tax purposes are to be computed in conformity with the ordinary principles of commercial accounting. Unless of course, such principles have been superseded or modified by legislative enactments, unrealized profits by legislative enactment, unrealized profits in the shape of appreciated value of goods remaining unsold at the end of an accounting year and carried over to the following years account in a business that is continuing are not brought into the charge as a matter of practise, though as already stated loss due to a fall in price below cost is allowed even if such loss has not been actually realized."18. It is this legal position which was reiterated in Sakthi Trading Co. (supra).19. The position which emerges from the aforesaid is that when a business continues, it may not be necessary to follow the market rate to value the closing stock as the reasons because of which the same is to be done are not available.20. When this position becomes clear, it follows that in the instant case the view taken by the Assessing Officer in accepting the book value of the stock-in-trade was a plausible and permissible view. In this scenario, the CIT could not exercise his powers under Section 263 of the Act.21. | 0[ds]It is clear from the above that where two view are possible and the Assessing Officer has taken one view and the CIT again revised the said order on the ground that he does not agree with the view taken by the Assessing Officer, in such circumstances the assessment order cannot be treated as an order erroneous orprejudicial to the interest of the Revenue.Reason is simple. While exercising the revisionary jurisdiction, the CIT is not sitting incan be no doubt that the provisions cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer, it is only when an order is erroneous that the section will be attracted. An incorrect assumption of acts or an incorrect application of law will satisfy the requirements of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind.In the instant case, as already noted above, thewas constituted with two partners viz., mother and son and it came to be dissolved during assessment year because of the demise of one of the partners. The assessee in the return had valued the closing stock at cost price. This method of valuation was accepted by the Assessing Officer. According to CIT, the aforesaid method could not be adopted in the case of a dissolved firm as in such a situation closing stock is to be valued at market rate. If the approach of the Assessing Officer in accepting the cost based valuation of closing stock was totally impermissible, then CIT was perhaps right inasmuch as in such a situation, order of the Assessing Officer becomes erroneous and alsoprejudicial to the interest of the Revenue.It is clear from the above that the judgment in ALA Firms case proceeds on the basis that with the dissolution of the firm, the business of the firm comes to an end and in that situation, the cost method of valuing the stock was nota situation like this, there was no question of selling the assets of the firm includingand, therefore, it was not necessary to valueThe position which emerges from the aforesaid is that when a business continues, it may not be necessary to follow the market rate to value the closing stock as the reasons because of which the same is to be done are not available.When this position becomes clear, it follows that in the instant case the view taken by the Assessing Officer in accepting the book value of thewas a plausible and permissible view. In this scenario, the CIT could not exercise his powers under Section 263 of the Act. | 0 | 3,986 | 474 | ### 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:
its effect can be offset over a period of time. But here, where the business comes to a close, no future adjustment of an over or under valuation is possible".X X X33. We, however, find substance in the second considerations that prevailed with the High Court. The decision in Muhammad Ussain Sahib v. N. Abdul Gaffor Sahib, AIR 1950 Mad 758 ; [1950] 1 ML J 81 correctly sets out the mode of taking accounts regarding the assets of a firm. While the valuation of assets during the subsistence of the partnership would be immaterial and could even be national, the position at the point of dissolution is totally different.(at p. 759):But the situation is totally different when the firm is dissolved or when a partner retires. The settlement of his account must be not on a national basis but on a real basis, that is every asset into money and the account of each partner settled on that basis... The assets have to be valued of course, on basis of the market value on the date of the dissolution..."This applies equally well to assets which constitute stock-in-trade. There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real and not at cost or at their other value appearing in the books."15. It is clear from the above that the judgment in ALA Firms case proceeds on the basis that with the dissolution of the firm, the business of the firm comes to an end and in that situation, the cost method of valuing the stock was not permissible.16. The question is as to whether this situation would apply in the instant case where the partnership firm stood dissolved by the operation of law in view of the death of one of the partners, i.e., the mother, but the business did not come to an end as the other partner, viz., son, who inherited the share of the mother, continued with the business. In a situation like this, there was no question of selling the assets of the firm including stock-in-trade and, therefore, it was not necessary to value stock-in-trade at market price.17. The purpose of adopting a particular valuation of the closing stock is succinctly explained by this Court in the case of Sampatram v. Commissioner of Income Tax, West Bengal [1953 (24) ITR 481 ] as follows:"8. It is wrong to assume that the valuation of the closing stock at market rate has for its object, the bringing into charge any appreciation in the value of such stock. The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the accounts at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transaction on which there have been actual sales in the course of the year showing the profit or loss actually realized on the year trading. As pointed out in paragraph 8 of the Report of the Committee Financial Risks attaching to the holding of the Trading Stocks 1919,as the entry for stock which appears in a trading account is merely intended to cancel the charge for the goods purchased which have not been sold, it should necessarily represent the cost of the goods. If it is more or less than the cost, then the effect is to state sold at the incorrect figure... From this rigid doctrine one exception is very generally recognised on prudential grounds and is now fully sanctioned by custom, viz., the adoption of the market value at the date of making up accounts, if that value is less than cost. It is of course an anticipation of the loss that may be made on those goods in the following year, and may even have the effect, if prices rise again, of attributing to the following years results a greater amount of profit than the actual cost price of the good in question (extracted in paragraph 281 of the report Committee of the Taxation of Trading Profits presented to British Parliament in April 1951).While anticipated loss is thus taken into account, anticipated profit in the shape of appreciated value of the closing stock is not brought into the account, as no prudent trader would care to show increased profit before it actual realization. This is the theory underlying the rule that the closing stock is to be valued at cost or market price whichever is the lower, and it is now generally accepted as an established rule of commercial practise and accountancy. As profits for income tax purposes are to be computed in conformity with the ordinary principles of commercial accounting. Unless of course, such principles have been superseded or modified by legislative enactments, unrealized profits by legislative enactment, unrealized profits in the shape of appreciated value of goods remaining unsold at the end of an accounting year and carried over to the following years account in a business that is continuing are not brought into the charge as a matter of practise, though as already stated loss due to a fall in price below cost is allowed even if such loss has not been actually realized."18. It is this legal position which was reiterated in Sakthi Trading Co. (supra).19. The position which emerges from the aforesaid is that when a business continues, it may not be necessary to follow the market rate to value the closing stock as the reasons because of which the same is to be done are not available.20. When this position becomes clear, it follows that in the instant case the view taken by the Assessing Officer in accepting the book value of the stock-in-trade was a plausible and permissible view. In this scenario, the CIT could not exercise his powers under Section 263 of the Act.21.
### Response:
0
### Explanation:
It is clear from the above that where two view are possible and the Assessing Officer has taken one view and the CIT again revised the said order on the ground that he does not agree with the view taken by the Assessing Officer, in such circumstances the assessment order cannot be treated as an order erroneous orprejudicial to the interest of the Revenue.Reason is simple. While exercising the revisionary jurisdiction, the CIT is not sitting incan be no doubt that the provisions cannot be invoked to correct each and every type of mistake or error committed by the Assessing Officer, it is only when an order is erroneous that the section will be attracted. An incorrect assumption of acts or an incorrect application of law will satisfy the requirements of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind.In the instant case, as already noted above, thewas constituted with two partners viz., mother and son and it came to be dissolved during assessment year because of the demise of one of the partners. The assessee in the return had valued the closing stock at cost price. This method of valuation was accepted by the Assessing Officer. According to CIT, the aforesaid method could not be adopted in the case of a dissolved firm as in such a situation closing stock is to be valued at market rate. If the approach of the Assessing Officer in accepting the cost based valuation of closing stock was totally impermissible, then CIT was perhaps right inasmuch as in such a situation, order of the Assessing Officer becomes erroneous and alsoprejudicial to the interest of the Revenue.It is clear from the above that the judgment in ALA Firms case proceeds on the basis that with the dissolution of the firm, the business of the firm comes to an end and in that situation, the cost method of valuing the stock was nota situation like this, there was no question of selling the assets of the firm includingand, therefore, it was not necessary to valueThe position which emerges from the aforesaid is that when a business continues, it may not be necessary to follow the market rate to value the closing stock as the reasons because of which the same is to be done are not available.When this position becomes clear, it follows that in the instant case the view taken by the Assessing Officer in accepting the book value of thewas a plausible and permissible view. In this scenario, the CIT could not exercise his powers under Section 263 of the Act.
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ARSHNOOR SINGH Vs. HARPAL KAUR | the male issue [§ 221, sub¬§ (4)]. (emphasis supplied) 7.11. This Court in Valliammai Achi v. Nagappa Chettiar and Ors., AIR 1967 SC 1153 held that: 10. … It is well settled that the share which a co¬sharer obtains on partition of ancestral . property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. (emphasis supplied) 7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son – the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985. Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property. 8. The second issue which has arisen for consideration is whether the two Sale Deeds dated 01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not. 8.1. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. (Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520 ; Mulla on Hindu Law (22 nd Edition), Pg. 372.) The onus for establishing the existence of legal necessity is on the alienee. In Rani & Anr. v. Santa Bala Debnath & Ors., (1970) 3 SCC 722. this Court held that : 10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. (emphasis supplied) 8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same 8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoever. Dharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without consideration. Hence, the ground of legal necessity or benefit of the estate falls through. 8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds. 9. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 either. The subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property. (T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370 ) The Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and void, is hereby cancelled. 10. The Plaintiff/Appellant being a male coparcener in the suit property, was vitally affected by the purported sale of the suit property by his father Dharam Singh. The Appellant therefore had the locus to file the Suit for a Declaration that the suit property being coparcenary property, could not have been sold by his father Dharam Singh without legal necessity, or for the benefit of the estate. As a consequence, the Appellant was entitled to move the Court for a Declaration that the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1 were illegal, null and void. 10.1. The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show that the suit property was sold without any legal necessity. Being coparcenary property, it could not have . been sold without legal necessity, or for the benefit of the estate. 10.2. The non¬production of the Jamabandis would make no difference, as it did not affect the title/ownership of the suit property. | 1[ds]7. With respect to the first issue, it is the admitted position that Inder Singh had inherited the entire suit property from his father Lal Singh upon his death. As per the Mutation Entry dated 16.01.1956 produced by Respondent No. 1, Lal Singhs death took place in 1951. Therefore, the succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when Inder Singh succeeded to his father Lals Singhs property in accordance with the old Hindu Mitakshara law7.3. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, if a person inherits a self¬acquired property from his paternal ancestors, the said property becomes his self¬ acquired property, and does not remain coparcenary property7.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis¬à-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 19567.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singhs sons would remain as coparcenary property qua their male descendants upto three degrees below them7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the court vide a decree of partition dated 04.11.1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition continued to remain coparcenary property qua the Appellant7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son – the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoeverDharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without considerationHence, the ground of legal necessity or benefit of the estate falls through8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds9. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 eitherThe subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property. (T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370 ) The Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and void, is hereby cancelled10. The Plaintiff/Appellant being a male coparcener in the suit property, was vitally affected by the purported sale of the suit property by his father Dharam SinghThe Appellant therefore had the locus to file the Suit for a Declaration that the suit property being coparcenary property, could not have been sold by his father Dharam Singh without legal necessity, or for the benefit of the estateAs a consequence, the Appellant was entitled to move the Court for a Declaration that the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1 were illegal, null and void10.1. The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show that the suit property was sold without any legal necessity. Being coparcenary property, it could not have . been sold without legal necessity, or for the benefit of the estate10.2. The non¬production of the Jamabandis would make no difference, as it did not affect the title/ownership of the suit property. | 1 | 4,467 | 1,058 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the male issue [§ 221, sub¬§ (4)]. (emphasis supplied) 7.11. This Court in Valliammai Achi v. Nagappa Chettiar and Ors., AIR 1967 SC 1153 held that: 10. … It is well settled that the share which a co¬sharer obtains on partition of ancestral . property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. (emphasis supplied) 7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son – the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985. Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property. 8. The second issue which has arisen for consideration is whether the two Sale Deeds dated 01.09.1999 executed by Dharam Singh in favour of Respondent No. 1, were valid or not. 8.1. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. (Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520 ; Mulla on Hindu Law (22 nd Edition), Pg. 372.) The onus for establishing the existence of legal necessity is on the alienee. In Rani & Anr. v. Santa Bala Debnath & Ors., (1970) 3 SCC 722. this Court held that : 10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. (emphasis supplied) 8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same 8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoever. Dharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without consideration. Hence, the ground of legal necessity or benefit of the estate falls through. 8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds. 9. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 either. The subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property. (T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370 ) The Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and void, is hereby cancelled. 10. The Plaintiff/Appellant being a male coparcener in the suit property, was vitally affected by the purported sale of the suit property by his father Dharam Singh. The Appellant therefore had the locus to file the Suit for a Declaration that the suit property being coparcenary property, could not have been sold by his father Dharam Singh without legal necessity, or for the benefit of the estate. As a consequence, the Appellant was entitled to move the Court for a Declaration that the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1 were illegal, null and void. 10.1. The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show that the suit property was sold without any legal necessity. Being coparcenary property, it could not have . been sold without legal necessity, or for the benefit of the estate. 10.2. The non¬production of the Jamabandis would make no difference, as it did not affect the title/ownership of the suit property.
### Response:
1
### Explanation:
7. With respect to the first issue, it is the admitted position that Inder Singh had inherited the entire suit property from his father Lal Singh upon his death. As per the Mutation Entry dated 16.01.1956 produced by Respondent No. 1, Lal Singhs death took place in 1951. Therefore, the succession in this case opened in 1951 prior to the commencement of the Hindu Succession Act, 1956 when Inder Singh succeeded to his father Lals Singhs property in accordance with the old Hindu Mitakshara law7.3. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, if a person inherits a self¬acquired property from his paternal ancestors, the said property becomes his self¬ acquired property, and does not remain coparcenary property7.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis¬à-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 19567.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by Inder Singhs sons would remain as coparcenary property qua their male descendants upto three degrees below them7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the court vide a decree of partition dated 04.11.1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the property allotted to Dharam Singh in partition continued to remain coparcenary property qua the Appellant7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son – the Appellant herein, who became a coparcener in the suit property on his birth i.e. on 22.08.1985Dharam Singh purportedly executed the two Sale Deeds on 01.09.1999 in favour of Respondent No. 1 after the Appellant became a coparcener in the suit property8.2. In the present case, the onus was on the alienee i.e. Respondent No. 1 to prove that there was a legal necessity, or benefit to the estate, or that she had made bona fide enquiries on the existence of the same8.3. Respondent No. 1 has completely failed to discharge the burden of proving that Dharam Singh had executed the two Sale Deeds dated 01.09.1999 in her favour out of legal necessity or for the benefit of the estate. In fact, it has come on record that the Sale Deeds were without any consideration whatsoeverDharam Singh had deposed before the Trial Court that he sold the suit property to Respondent No. 1 without any consideration. Respondent No. 1 had also admitted before the Collector, Ferozepur that the Sale Deeds were without considerationHence, the ground of legal necessity or benefit of the estate falls through8.4. As a consequence, the Sale Deeds dated 01.09.1999 are hereby cancelled as being illegal, null and void. Dharam Singh could not have sold the coparcenary suit property, in which the Appellant was a coparcener, by the aforesaid alleged Sale Deeds9. Since Respondent No. 1 has not obtained a valid and legal title to the suit property through the Sale Deeds dated 01.09.1999, she could not have passed on a better title to Respondent Nos. 2 & 3 eitherThe subsequent Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 is hit by the doctrine of lis pendens. The underlying principle of the doctrine of lis pendens is that if a property is transferred pendente lite, and the transferor is held to have no right or title in that property, the transferee will not have any title to the property. (T.G. Ashok Kumar v. Govindammal & Ors., (2010) 14 SCC 370 ) The Sale Deed dated 30.10.2007 executed by Respondent No. 1 in favour of Respondent Nos. 2 & 3 being null and void, is hereby cancelled10. The Plaintiff/Appellant being a male coparcener in the suit property, was vitally affected by the purported sale of the suit property by his father Dharam SinghThe Appellant therefore had the locus to file the Suit for a Declaration that the suit property being coparcenary property, could not have been sold by his father Dharam Singh without legal necessity, or for the benefit of the estateAs a consequence, the Appellant was entitled to move the Court for a Declaration that the two Sale Deeds dated 01.09.1999 executed by his father Dharam Singh in favour of Respondent No. 1 were illegal, null and void10.1. The very fact that the Sale Deeds dated 01.09.1999 were executed without any consideration, would itself show that the suit property was sold without any legal necessity. Being coparcenary property, it could not have . been sold without legal necessity, or for the benefit of the estate10.2. The non¬production of the Jamabandis would make no difference, as it did not affect the title/ownership of the suit property.
|
Vodafone India Services (P) Ltd Vs. Union of India | petitioner appended a note thereto as under : Note 1 : The company has issued equity shares of Rs. 10 each fully at a premium. As per s. 92(1) of the IT Act, 1961 any income arising from an international transaction shall be computed having regard to the ALP. This transaction of issue of equity shares does not affect income of the company. However, out of abundant caution, the same is reported here. The company has also received share application money for issue of equity shares.(e) Respondent No. 3-AO issued notice dt. 27th Aug., 2011 under s. 143(2) of the Act, directing the petitioner to submit certain details for carrying out a scrutiny assessment under s. 143(3) of the Act; (f) Thereafter on 28th March. 2012, the AO made a reference to the TPO under s. 92CA(1) of the Act to determine the ALP with reference to transaction reported in Form 3CEB; (g) On 17th Jan., 2014, the TPO issued a show-cause notice to the petitioner to show cause why the transfer price as fixed at Rs. 7,110 and Rs. 6,447 per share in respect of equity shares issued in asst. yr. 2009-10 should not be adjusted taking into account the ALP at Rs. 60,445 per share; and (h) The petitioner filed its preliminary reply dt. 22nd Jan., 2014 objecting to the jurisdiction of the Department to initiate any proceeding under Chapter X of the Act. In the circumstances, the petitioner requested the TPO to decide the preliminary issue of jurisdiction viz.,: whether Chapter X of the Act is at all applicable in respect of issue of shares by the petitioner to its non-resident holding company. 2. The present petition was filed on 27th Jan., 2014, challenging the show-cause notice dt. 17th Jan., 2014, as being without jurisdiction. At the hearing of the petition, on 30th Jan., 2014, learned counsel for the respondents stated that the TPO had already decided the show-cause notice dt. 17th Jan., 2014 by an order on 29th Jan., 2014. In the circumstances, the petitioner was granted leave to amend the petition to mount a challenge to the order dt. 29th Jan., 2014 of TPO. Accordingly, petitioner amended the petition by challenging the order dt. 29th March (sic--Jan.), 2014 of the TPO, making the following adjustments : 3. It is not necessary to set out any other fact or to refer to the grounds on which the TPO passed the above order, as the controversy which is the subject-matter of the present petition was also subject-matter of Writ Petn. No. 871 of 2014 filed by this petitioner in respect of the asst. yr. 2009-10. In the asst. yr. 2009-10 the petitioner had issued 2,89,224 equity shares of face value of Rs. 10 at a premium of Rs. 8509 per share to its holding company and had thus received a total consideration of Rs. 246.28 crores from its holding company. The AO referred the matter to the TPO who passed an order on 28th Jan., 2013, taking a view that the petitioner ought to have valued each equity share at Rs. 53,775 resulting in shortfall to the extent of Rs. 45,256 per share, aggregating to Rs. 1,308.91 crores. TPO further held that this difference between the ALP and the issue price (including premium) was required to be treated as deemed loan given by the petitioner to its holding company and deemed interest on such deemed loan at Rs. 88.35 crores was also treated as interest income. The issue of jurisdiction was decided as a preliminary issue by the Dispute Resolution Panel (DRP) by its order dt. 11th Feb., 2014 in favour of the respondent-Revenue. 4. After hearing the learned counsel for the petitioner and the learned Solicitor General of India, this Court by judgment dt. 10th Oct., 2014 [reported as Vodafone India Services (P) Ltd. v. Union of India (2014) 271 CTR (Bom) 488 : (2014) 110 DTR (Bom) 1- Ed.] has held that issue of shares at premium by the petitioner to its non-resident holding company does not give rise to income in an international transaction. In the circumstance, the application of Chapter X of the Act to such transaction is without jurisdiction. Accordingly, this Court quashed and set aside the order of reference made by the AO to the TPO, the order of the TPO, the draft assessment order under s. 144C(1) of the Act and order dt. 11th Feb., 2014 of the DRP. 5. Since the petitioner challenged the order dt. 29th Jan., 2014 of the TPO and this Court granted interim relief against further proceeding, the matter did not reach the stage of draft assessment order under s. 144C(1) of the Act or the stage of DRP. 6. Learned counsel for the parties agree that the controversy raised in the present petition is squarely covered by the aforesaid judgment dt. 10th Oct., 2014. 7. In the aforesaid judgment, we have inter alia, held that: (i) The sine qua non to apply Chapter X of the Act would be arising of income under the Act out of an international transaction. This income should be chargeable under the Act, before Chapter X can be applied; (ii) The definition of income does not include within its scope capital receipts arising out of capital account transaction unless so specified in s. 2(24) of the Act as income; (iii) There is no charge in the Act to tax amounts received and/or arising on account of issue of shares by an Indian entity to a non-resident entity in ss. 4, 5, 15, 22, 28, 45 and 56 of the Act. This is as it arises out of capital accounts transaction and, therefore, is not income; (iv) Chapter X of the Act does not contain any charging provision but is a machinery provision to arrive at ALP of a transaction between AE; and (v) Chapter X of the Act does not change the character of the receipts but only permits re-qualification of income uninfluenced by the relationship between the AEs. | 1[ds]6. Learned counsel for the parties agree that the controversy raised in the present petition is squarely covered by the aforesaid judgment dt. 10th Oct., 2014.7. In the aforesaid judgment, we have inter alia, held that:(i) The sine qua non to apply Chapter X of the Act would be arising of income under the Act out of an international transaction. This income should be chargeable under the Act, before Chapter X can be applied;(ii) The definition of income does not include within its scope capital receipts arising out of capital account transaction unless so specified in s. 2(24) of the Act as income;(iii) There is no charge in the Act to tax amounts received and/or arising on account of issue of shares by an Indian entity to a non-resident entity in ss. 4, 5, 15, 22, 28, 45 and 56 of the Act. This is as it arises out of capital accounts transaction and, therefore, is not income;(iv) Chapter X of the Act does not contain any charging provision but is a machinery provision to arrive at ALP of a transaction between AE; and(v) Chapter X of the Act does not change the character of the receipts but only permits re-qualification of income uninfluenced by the relationship between the AEs. | 1 | 1,472 | 255 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
petitioner appended a note thereto as under : Note 1 : The company has issued equity shares of Rs. 10 each fully at a premium. As per s. 92(1) of the IT Act, 1961 any income arising from an international transaction shall be computed having regard to the ALP. This transaction of issue of equity shares does not affect income of the company. However, out of abundant caution, the same is reported here. The company has also received share application money for issue of equity shares.(e) Respondent No. 3-AO issued notice dt. 27th Aug., 2011 under s. 143(2) of the Act, directing the petitioner to submit certain details for carrying out a scrutiny assessment under s. 143(3) of the Act; (f) Thereafter on 28th March. 2012, the AO made a reference to the TPO under s. 92CA(1) of the Act to determine the ALP with reference to transaction reported in Form 3CEB; (g) On 17th Jan., 2014, the TPO issued a show-cause notice to the petitioner to show cause why the transfer price as fixed at Rs. 7,110 and Rs. 6,447 per share in respect of equity shares issued in asst. yr. 2009-10 should not be adjusted taking into account the ALP at Rs. 60,445 per share; and (h) The petitioner filed its preliminary reply dt. 22nd Jan., 2014 objecting to the jurisdiction of the Department to initiate any proceeding under Chapter X of the Act. In the circumstances, the petitioner requested the TPO to decide the preliminary issue of jurisdiction viz.,: whether Chapter X of the Act is at all applicable in respect of issue of shares by the petitioner to its non-resident holding company. 2. The present petition was filed on 27th Jan., 2014, challenging the show-cause notice dt. 17th Jan., 2014, as being without jurisdiction. At the hearing of the petition, on 30th Jan., 2014, learned counsel for the respondents stated that the TPO had already decided the show-cause notice dt. 17th Jan., 2014 by an order on 29th Jan., 2014. In the circumstances, the petitioner was granted leave to amend the petition to mount a challenge to the order dt. 29th Jan., 2014 of TPO. Accordingly, petitioner amended the petition by challenging the order dt. 29th March (sic--Jan.), 2014 of the TPO, making the following adjustments : 3. It is not necessary to set out any other fact or to refer to the grounds on which the TPO passed the above order, as the controversy which is the subject-matter of the present petition was also subject-matter of Writ Petn. No. 871 of 2014 filed by this petitioner in respect of the asst. yr. 2009-10. In the asst. yr. 2009-10 the petitioner had issued 2,89,224 equity shares of face value of Rs. 10 at a premium of Rs. 8509 per share to its holding company and had thus received a total consideration of Rs. 246.28 crores from its holding company. The AO referred the matter to the TPO who passed an order on 28th Jan., 2013, taking a view that the petitioner ought to have valued each equity share at Rs. 53,775 resulting in shortfall to the extent of Rs. 45,256 per share, aggregating to Rs. 1,308.91 crores. TPO further held that this difference between the ALP and the issue price (including premium) was required to be treated as deemed loan given by the petitioner to its holding company and deemed interest on such deemed loan at Rs. 88.35 crores was also treated as interest income. The issue of jurisdiction was decided as a preliminary issue by the Dispute Resolution Panel (DRP) by its order dt. 11th Feb., 2014 in favour of the respondent-Revenue. 4. After hearing the learned counsel for the petitioner and the learned Solicitor General of India, this Court by judgment dt. 10th Oct., 2014 [reported as Vodafone India Services (P) Ltd. v. Union of India (2014) 271 CTR (Bom) 488 : (2014) 110 DTR (Bom) 1- Ed.] has held that issue of shares at premium by the petitioner to its non-resident holding company does not give rise to income in an international transaction. In the circumstance, the application of Chapter X of the Act to such transaction is without jurisdiction. Accordingly, this Court quashed and set aside the order of reference made by the AO to the TPO, the order of the TPO, the draft assessment order under s. 144C(1) of the Act and order dt. 11th Feb., 2014 of the DRP. 5. Since the petitioner challenged the order dt. 29th Jan., 2014 of the TPO and this Court granted interim relief against further proceeding, the matter did not reach the stage of draft assessment order under s. 144C(1) of the Act or the stage of DRP. 6. Learned counsel for the parties agree that the controversy raised in the present petition is squarely covered by the aforesaid judgment dt. 10th Oct., 2014. 7. In the aforesaid judgment, we have inter alia, held that: (i) The sine qua non to apply Chapter X of the Act would be arising of income under the Act out of an international transaction. This income should be chargeable under the Act, before Chapter X can be applied; (ii) The definition of income does not include within its scope capital receipts arising out of capital account transaction unless so specified in s. 2(24) of the Act as income; (iii) There is no charge in the Act to tax amounts received and/or arising on account of issue of shares by an Indian entity to a non-resident entity in ss. 4, 5, 15, 22, 28, 45 and 56 of the Act. This is as it arises out of capital accounts transaction and, therefore, is not income; (iv) Chapter X of the Act does not contain any charging provision but is a machinery provision to arrive at ALP of a transaction between AE; and (v) Chapter X of the Act does not change the character of the receipts but only permits re-qualification of income uninfluenced by the relationship between the AEs.
### Response:
1
### Explanation:
6. Learned counsel for the parties agree that the controversy raised in the present petition is squarely covered by the aforesaid judgment dt. 10th Oct., 2014.7. In the aforesaid judgment, we have inter alia, held that:(i) The sine qua non to apply Chapter X of the Act would be arising of income under the Act out of an international transaction. This income should be chargeable under the Act, before Chapter X can be applied;(ii) The definition of income does not include within its scope capital receipts arising out of capital account transaction unless so specified in s. 2(24) of the Act as income;(iii) There is no charge in the Act to tax amounts received and/or arising on account of issue of shares by an Indian entity to a non-resident entity in ss. 4, 5, 15, 22, 28, 45 and 56 of the Act. This is as it arises out of capital accounts transaction and, therefore, is not income;(iv) Chapter X of the Act does not contain any charging provision but is a machinery provision to arrive at ALP of a transaction between AE; and(v) Chapter X of the Act does not change the character of the receipts but only permits re-qualification of income uninfluenced by the relationship between the AEs.
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Municipal Board, Sumerpur Vs. Kundanmal & Others | Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 09.03.2006 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal No. 92 of 2006 whereby the High Court dismissed the special appeal filed by the appellant herein and affirmed the judgment/order dated 02.08.2005 of the Single Judge in S.B.C.W.P. No.1403 of 2004.2. Facts of the case need not be mentioned in detail except to the extent necessary for the disposal of this appeal.3. The appellant - a Municipal Board, Sumerpur (writ petitioner) filed a writ petition being Civil Writ No. 1403 of 2004 against the respondents challenging therein the order dated 30.09.2003 passed by the Collector, Pali in Municipal Appeal No.03/2001. The Single Judge of the High Court dismissed the writ petition in limine by order dated 02.08.2005 which reads as under:"Heard learned counsel for the parties.The order impugned, Annex.8 has been passed in compliance of the order passed by Division Bench of this Court dated 15.1.2001 passed inter-parties being Annex.7. It is not shown, as to how the order, Annex.8 is not in accordance with the directions contained in Annex.7. In that view of the matter, I do not find any ground to interfere. The writ petition is, therefore, dismissed summarily."4. The appellant, felt aggrieved, filed writ appeal before the Division Bench. By impugned order, the Division Bench dismissed the appeal in limine. The impugned order reads as under:"Having heard learned counsel for the appellant we are of the opinion that no interference is called for in this appeal in the judgment of learned Single Judge who has rightly exercised his discretion in not interfering with the order passed by the Collector as the learned counsel has not been able to show how the impugned order is contrary to direction of Division Bench.In essence learned counsel for the appellant tried to urge that the decision rendered in Hotechads case in the light of which the Division Bench in his earlier decision has directed to decide his representation, was erroneous. That is not permissible."5. Felt aggrieved, the appellant (writ petitioner) has filed appeal by way of special leave before this Court.6. Heard Mr. Puneet Jain, learned counsel for the appellant and Mr. Varinder Kumar Sharma, learned counsel for the respondents.7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal in part and while setting aside the impugned order also of the writ Court, restore the appellants writ petition to its file for its decision on merits in accordance with law.8. In our considered opinion, the need to remand the case to the writ Court has occasioned due to the reason that both, i.e., the writ Court and the Appellate Court did not set out even the factual controversy nor dealt with the submissions urged by the appellant and nor examined the issues in the context of relevant provisions of the Act which governed the controversy.9. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which is expected of is that the order which decides the lis between the parties should contain the brief facts involved in the case, the grounds on which the action is impugned, the stand of the parties defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.10. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.11. Having regard to the nature of controversy involved in the case in hand, in our view, the writ Court should have issued notice of the writ petition to the respondents and then decided the writ petition on merits by reasoned order rather than to dismiss it in limine.12. The Appellate Court too while dismissing the appeal in limine did not deal with any of the submissions raised by the appellant and nor assigned any reason much less in detail thereby depriving the Appellate Court to examine the issues arising in the case in its proper perspective.13. It is for these reasons, we cannot concur with the conclusion arrived at by the two Courts below and consider it proper in the facts of this case to remand it to the writ Court for deciding the writ petition on merits in accordance with law.14. Since we have formed an opinion to remand the case, we have refrained from recording any finding on merits on any of the issues arising in the case. | 1[ds]7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal in part and while setting aside the impugned order also of the writ Court, restore the appellants writ petition to its file for its decision on merits in accordance with law.8. In our considered opinion, the need to remand the case to the writ Court has occasioned due to the reason that both, i.e., the writ Court and the Appellate Court did not set out even the factual controversy nor dealt with the submissions urged by the appellant and nor examined the issues in the context of relevant provisions of the Act which governed the controversy.9. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which is expected of is that the order which decides the lis between the parties should contain the brief facts involved in the case, the grounds on which the action is impugned, the stand of the parties defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.10. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.11. Having regard to the nature of controversy involved in the case in hand, in our view, the writ Court should have issued notice of the writ petition to the respondents and then decided the writ petition on merits by reasoned order rather than to dismiss it in limine.12. The Appellate Court too while dismissing the appeal in limine did not deal with any of the submissions raised by the appellant and nor assigned any reason much less in detail thereby depriving the Appellate Court to examine the issues arising in the case in its proper perspective.13. It is for these reasons, we cannot concur with the conclusion arrived at by the two Courts below and consider it proper in the facts of this case to remand it to the writ Court for deciding the writ petition on merits in accordance with law.14. Since we have formed an opinion to remand the case, we have refrained from recording any finding on merits on any of the issues arising in the case. | 1 | 872 | 448 | ### 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:
Abhay Manohar Sapre, J.1. This appeal is filed against the final judgment and order dated 09.03.2006 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal No. 92 of 2006 whereby the High Court dismissed the special appeal filed by the appellant herein and affirmed the judgment/order dated 02.08.2005 of the Single Judge in S.B.C.W.P. No.1403 of 2004.2. Facts of the case need not be mentioned in detail except to the extent necessary for the disposal of this appeal.3. The appellant - a Municipal Board, Sumerpur (writ petitioner) filed a writ petition being Civil Writ No. 1403 of 2004 against the respondents challenging therein the order dated 30.09.2003 passed by the Collector, Pali in Municipal Appeal No.03/2001. The Single Judge of the High Court dismissed the writ petition in limine by order dated 02.08.2005 which reads as under:"Heard learned counsel for the parties.The order impugned, Annex.8 has been passed in compliance of the order passed by Division Bench of this Court dated 15.1.2001 passed inter-parties being Annex.7. It is not shown, as to how the order, Annex.8 is not in accordance with the directions contained in Annex.7. In that view of the matter, I do not find any ground to interfere. The writ petition is, therefore, dismissed summarily."4. The appellant, felt aggrieved, filed writ appeal before the Division Bench. By impugned order, the Division Bench dismissed the appeal in limine. The impugned order reads as under:"Having heard learned counsel for the appellant we are of the opinion that no interference is called for in this appeal in the judgment of learned Single Judge who has rightly exercised his discretion in not interfering with the order passed by the Collector as the learned counsel has not been able to show how the impugned order is contrary to direction of Division Bench.In essence learned counsel for the appellant tried to urge that the decision rendered in Hotechads case in the light of which the Division Bench in his earlier decision has directed to decide his representation, was erroneous. That is not permissible."5. Felt aggrieved, the appellant (writ petitioner) has filed appeal by way of special leave before this Court.6. Heard Mr. Puneet Jain, learned counsel for the appellant and Mr. Varinder Kumar Sharma, learned counsel for the respondents.7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal in part and while setting aside the impugned order also of the writ Court, restore the appellants writ petition to its file for its decision on merits in accordance with law.8. In our considered opinion, the need to remand the case to the writ Court has occasioned due to the reason that both, i.e., the writ Court and the Appellate Court did not set out even the factual controversy nor dealt with the submissions urged by the appellant and nor examined the issues in the context of relevant provisions of the Act which governed the controversy.9. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which is expected of is that the order which decides the lis between the parties should contain the brief facts involved in the case, the grounds on which the action is impugned, the stand of the parties defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.10. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.11. Having regard to the nature of controversy involved in the case in hand, in our view, the writ Court should have issued notice of the writ petition to the respondents and then decided the writ petition on merits by reasoned order rather than to dismiss it in limine.12. The Appellate Court too while dismissing the appeal in limine did not deal with any of the submissions raised by the appellant and nor assigned any reason much less in detail thereby depriving the Appellate Court to examine the issues arising in the case in its proper perspective.13. It is for these reasons, we cannot concur with the conclusion arrived at by the two Courts below and consider it proper in the facts of this case to remand it to the writ Court for deciding the writ petition on merits in accordance with law.14. Since we have formed an opinion to remand the case, we have refrained from recording any finding on merits on any of the issues arising in the case.
### Response:
1
### Explanation:
7. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow the appeal in part and while setting aside the impugned order also of the writ Court, restore the appellants writ petition to its file for its decision on merits in accordance with law.8. In our considered opinion, the need to remand the case to the writ Court has occasioned due to the reason that both, i.e., the writ Court and the Appellate Court did not set out even the factual controversy nor dealt with the submissions urged by the appellant and nor examined the issues in the context of relevant provisions of the Act which governed the controversy.9. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which is expected of is that the order which decides the lis between the parties should contain the brief facts involved in the case, the grounds on which the action is impugned, the stand of the parties defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.10. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.11. Having regard to the nature of controversy involved in the case in hand, in our view, the writ Court should have issued notice of the writ petition to the respondents and then decided the writ petition on merits by reasoned order rather than to dismiss it in limine.12. The Appellate Court too while dismissing the appeal in limine did not deal with any of the submissions raised by the appellant and nor assigned any reason much less in detail thereby depriving the Appellate Court to examine the issues arising in the case in its proper perspective.13. It is for these reasons, we cannot concur with the conclusion arrived at by the two Courts below and consider it proper in the facts of this case to remand it to the writ Court for deciding the writ petition on merits in accordance with law.14. Since we have formed an opinion to remand the case, we have refrained from recording any finding on merits on any of the issues arising in the case.
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AUTHORISED OFFICER, STATE BANK OF INDIA Vs. M/S ALLWYN ALLOYS PVT. LT | pleadings and for full and complete adjudication of the matters in issue, it is apposite to give liberty to the writ petitioners to contest the matter before a proper forum where all the issues could be agitated. For, indisputably, respondent No.5 (writ petitioner No.1) is in physical possession of the stated flat. The High Court proceeded to pass the following operative order in the said writ petition: 6] Accordingly, we dispose of the writ petition with the following directions: a] Period of 8 weeks is granted for the writ petitioners to approach proper forum to get adjudication of the rights of the writ petitioners as contended in the writ petition and within the said period of 8 weeks, they shall file and seek proper interim relief in their favour. Till expiry of 8 weeks, the 1 st respondent bank shall not proceed with the matter in terms of the order obtained by them before Debts Recovery Tribunal so far as the property in question; b] Amount of Rs.25 Lacs shall be deposited in an interest earning deposit, by the respondent No.1 bank and profits of the said deposit shall enure to the benefits of the parties, who become successful in the litigation; and c] No order as to costs. 4. The Bank has assailed the aforesaid decision of the High Court primarily on the ground that all issues concerning the mortgaged/secured property are required to be decided only by the DRT; and not in any civil proceedings as has been observed by the High Court in the impugned judgment. For, filing of a civil suit in respect of secured assets is barred by law. Secondly, the DRT as well as DRAT have examined the merits of the controversy and justly answered the same against the writ petitioners. The concurrent finding of fact recorded by the said Tribunals is that the writ petitioners have failed to establish any right, title or interest in the subject flat. That finding has neither been disturbed nor is it assailable. According to the Bank, the High Court judgment under appeal is untenable and deserves to be set aside. 5. The contesting respondent Nos.5 and 6 (writ petitioners), however, supported the view taken by the High Court and would contend that it is indisputable that respondent No.5 (writ petitioner No.1) is in physical possession of the subject flat and was entitled to pursue his claim about the right, title and interest in the subject flat in view of the Memorandum of Understanding dated 13 th March, 2011, executed between the writ petitioners and respondent Nos.2 to 4 regarding re-sale of the subject flat in their (writ petitioners) favour. The respondent Nos.5 and 6 would also contend that the original share certificate and few receipts of payments made to the Society were still in their possession and that the entries effected in the Societys record to transfer the share certificate in favour of respondent Nos. 2 to 4 are fabricated. 6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and a full-fledged trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law. 7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forum. The respondent Nos.5 and 6 (writ petitioners) would, however, contend that crucial aspects have been glossed over by the DRT and DRAT including the effect of admitted position that respondent No.5 (writ petitioner No.1) is in possession of the subject property and also having custody of the original share certificate and few receipts issued by the Society. In these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law. 8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for. | 0[ds]6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and ad trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forumIn these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for. | 0 | 1,688 | 485 | ### 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:
pleadings and for full and complete adjudication of the matters in issue, it is apposite to give liberty to the writ petitioners to contest the matter before a proper forum where all the issues could be agitated. For, indisputably, respondent No.5 (writ petitioner No.1) is in physical possession of the stated flat. The High Court proceeded to pass the following operative order in the said writ petition: 6] Accordingly, we dispose of the writ petition with the following directions: a] Period of 8 weeks is granted for the writ petitioners to approach proper forum to get adjudication of the rights of the writ petitioners as contended in the writ petition and within the said period of 8 weeks, they shall file and seek proper interim relief in their favour. Till expiry of 8 weeks, the 1 st respondent bank shall not proceed with the matter in terms of the order obtained by them before Debts Recovery Tribunal so far as the property in question; b] Amount of Rs.25 Lacs shall be deposited in an interest earning deposit, by the respondent No.1 bank and profits of the said deposit shall enure to the benefits of the parties, who become successful in the litigation; and c] No order as to costs. 4. The Bank has assailed the aforesaid decision of the High Court primarily on the ground that all issues concerning the mortgaged/secured property are required to be decided only by the DRT; and not in any civil proceedings as has been observed by the High Court in the impugned judgment. For, filing of a civil suit in respect of secured assets is barred by law. Secondly, the DRT as well as DRAT have examined the merits of the controversy and justly answered the same against the writ petitioners. The concurrent finding of fact recorded by the said Tribunals is that the writ petitioners have failed to establish any right, title or interest in the subject flat. That finding has neither been disturbed nor is it assailable. According to the Bank, the High Court judgment under appeal is untenable and deserves to be set aside. 5. The contesting respondent Nos.5 and 6 (writ petitioners), however, supported the view taken by the High Court and would contend that it is indisputable that respondent No.5 (writ petitioner No.1) is in physical possession of the subject flat and was entitled to pursue his claim about the right, title and interest in the subject flat in view of the Memorandum of Understanding dated 13 th March, 2011, executed between the writ petitioners and respondent Nos.2 to 4 regarding re-sale of the subject flat in their (writ petitioners) favour. The respondent Nos.5 and 6 would also contend that the original share certificate and few receipts of payments made to the Society were still in their possession and that the entries effected in the Societys record to transfer the share certificate in favour of respondent Nos. 2 to 4 are fabricated. 6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and a full-fledged trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law. 7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forum. The respondent Nos.5 and 6 (writ petitioners) would, however, contend that crucial aspects have been glossed over by the DRT and DRAT including the effect of admitted position that respondent No.5 (writ petitioner No.1) is in possession of the subject property and also having custody of the original share certificate and few receipts issued by the Society. In these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law. 8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for.
### Response:
0
### Explanation:
6. After having considered the rival submissions of the parities, we have no hesitation in acceding to the argument urged on behalf of the Bank that the mandate of Section 13 and, in particular, Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the 2002 Act), clearly bars filing of a civil suit. For, no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which a DRT or DRAT is empowered by or under this Act to determine and no injunction can be granted by any Court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The fact that the stated flat is the subject matter of a registered sale deed executed by the respondent Nos. 5 and 6 (writ petitioners) in favour of respondent Nos. 2 to 4 and which sale deed has been deposited with the Bank along with the share certificate and other documents for creating an equitable mortgage and the Bank has initiated action in that behalf under the 2002 Act, is indisputable. If so, the question of permitting the respondent Nos.5 and 6 (writ petitioners) to approach any other forum for adjudication of issues raised by them concerning the right, title and interest in relation to the said property, cannot be countenanced. The High Court has not analysed the efficacy of the concurrent finding of fact recorded by the DRT and DRAT but opined that the same involved factual issues warranting production of evidence and ad trial. The approach of the High Court as already noted hitherto is completely fallacious and untenable in law7. The learned counsel appearing on behalf of the Bank persuaded us to decide the merits of the controversy between the parties but as noted earlier, the High Court has not analysed the same at all but chose to dispose of the writ petition by giving liberty to the writ petitioners to pursue their remedy before a proper forumIn these circumstances, we deem it appropriate to relegate the parties before the High Court by setting aside the impugned judgment and leaving all questions open, to be decided by the High Court on its own merits and in accordance with law8. We find force in the submission made on behalf of the Bank that the High Court could not have directed the Bank to deposit Rs.25 Lacs in an interest earning deposit and the profits of the said deposit to enure to the benefit of the successful party. Such a direction, in our view, was wholly uncalled for.
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Vision Millennium Exports Private Limited Vs. M/S. Stride Multitrade Private Limited & Others | Petition for winding up. Paragraph 21 of the said report is material and is reproduced herein under:21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 S.J. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantity the debt precisely (See Re. Tweeds Garages Ltd. 1962 Ch.406. (3) The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends. In IBA Health (I) Pvt. Ltds case (supra) the Apex Court has held that solvency of a company might not constitute a stand alone ground for setting aside a notice under Section 434(1)(a), meaning thereby, if a debt is undisputedly owing, then it has to be paid. Paragraph 24 of the said report is material and reproduced herein under:24. Appellant company raised a contention that it is commercially solvent and, in such a situation, the question may arise that the factum of commercial solvency, as such, would be sufficient to reject the petition for winding up, unless substantial grounds for its rejection are made out. A determination of examination of the companys insolvency may be a useful aid in deciding whether the refusal to pay is a result of the bona fide dispute as to liability or whether it reflects an inability to pay, in such a situation, solvency is relevant not as a separate ground. If there is no dispute as to the companys liability, the solvency of the company might not constitute a stand alone ground for setting aside a notice under Section 434(1)(a), meaning thereby, if a debt is undisputedly owing, then it has to be paid. If the company refuses to pay on no genuine and substantial grounds, it should not be able to avoid the statutory demand. The law should be allowed to proceed and if demand is not met and an application for liquidation is filed under Section 439 in reliance of the presumption under Section 434(1)(a) that the company is unable to pay it debts, the law should take its own course and the company of course will have an opportunity on the liquidation application to rebut that presumption. Apart from the aforesaid legal position, it is sought to be pointed out on behalf of the Petitioners that the net worth of the Respondent as per its last balance sheet is much lesser than outstanding debts of the Petitioners. It is further sought to be pointed out that the amount lying in the bank account of the Respondent is also not sufficient to pay off the outstanding debts.24. Now lastly coming to the issue as to whether this Court should interfere with the impugned order passed by the learned Single Judge. In the said context it is necessary to make a reference to the judgment of the Apex Court in Wonder Ltds case. (supra). Paragraph 14 of the said report is material and is reproduced herein under:14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (1960) 3 SCR 713 : AIR 1960 SC 1156 : (SCR 721) ...... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston [1942 AC 130] . the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle. Hence going by the test laid down by the Apex Court in Wander Ltd.s case (supra), the view taken by the learned Single Judge being a possible view taken in the facts and circumstances of the instant case, the same does not merit any interference in the Appellate Jurisdiction.25. In our view, the Respondent i.e. the Appellant herein has not raised any substantial or genuine grounds to avoid the payment and the defences raised on behalf of the Respondent are therefore not bonafide. In our view, the learned Single Judge has in the facts and circumstances rightly issued the directions which are contained in the operative part of the impugned order. | 0[ds]The cause for issuing the said direction as can be seen from the impugned order is that the defence raised by the Respondent was not found to be genuine, bonafide and plausible one by the learned Single Judge and therefore the learned Single Judge deemed it appropriate to put the Respondent to terms. It is required to be noted that the only defence taken by the Respondent in the reply to the statutory notice and in the affidavit in reply to the above Company Petitions is the defence that there were never any contracts for purchase of Soyabean Meal but the contracts were for purchase of Guar Seeds. Though the said defence was taken by the Respondent, significantly the Respondent has not produced the alleged Guar Seeds contracts before the learned Single Judge or in the Review Petition filed against the order passed in the Company Petition being No.586 of 2014 filed by the Petitioner M/s. Nova Trading Pvt. Ltd. or even in the instant Appeal and an attempt has now been made to bring on record the said Guar Seeds contracts by way of an application filed under Order XLI Rule 27 of the Code of Civil Procedure being Notice of Motion (L) No.1548 of 2017 which is filed in the instant Appeal. Hence the defence which was sought to be taken by the Respondent admittedly has not been buttressed by producing any cogent material in that regard. In so far as the Petitioners i.e. the Respondents herein are concerned, they have produced emails which according to them have been received from the Respondent comprising 5 contracts for purchase of Soyabean Meal. The Petitioner has also produced the bank statements evidencing the payment of advances of Rs.51,00,00,000/to the Respondent by RTGS. Hence the Petitioner has discharged the burden which was initially lying on it. However, on the burden shifting to the Respondent, the Respondent has not discharged the said burden by producing material which was the fulcrum of its defence.13. The Appellant herein i.e. the original Respondent has filed an Application to produce additional evidence being Notice of Motion (L) No.1548 of 2017. The additional evidence which is sought to be produced interalia contain the alleged Guar Seeds contracts. Hence it is for the first time at the Appellate stage that the Guar Seeds contracts are sought to be produced. By an order passed today the said Notice of Motion (L) No.1548 of 2017 has been dismissed for the reasons stated in the said order.14. In so far as the 5 Soyabean Meal contracts which have been received by email by the Petitioner is concerned, each contract bears the signature and rubber stamp of the Respondent. Each contract identifies the quantity, rate, payment terms, delivery date. The Petitioner has given inspection of the emails to the Respondent. In so far as the said contracts are concerned, in the affidavit in reply though the authenticity of the email is sought to be disputed the denial is bare and bereft of particulars. The same can be seen by the averments made in paragraph 20 which are reproduced herein under:The Respondent states that the alleged contracts annexed by the Petitioners are also fabricated. The date are created to match the existing position of credit balance with the Respondent Company. The Respondent denies having sent any mail as annexed by the Petitioner. The following error is patent in the contracts.Hence a reading of the said paragraph indicates that though the Respondent has alleged that the contracts are fabricated and the dates are created to mach the existing position of credit balance, on the other hand the Respondent has denied of having sent any email as annexed by the Petitioner to the Company Petition. Significantly the Respondent has not disputed the signatures on the contracts nor has disputed the authenticity of the rubber stamp affixed over the signature in the Sales Confirmation Note.15. In so far as the alleged Guar Seeds contracts are concerned, the Respondent has not mentioned in any pleadings as to how the said Guar Seeds contracts were sent to the Petitioners. There is no reference to any email/ letter/correspondence by which the said Guar Seeds contracts were sent to the Petitioners.16. Another aspect which dents the case of the Respondent in so far as the said defence is concerned is that its Director Mr. D Narsimhan and the representative of the Chartered Accountants of the Respondent Mr. P Bhargava have admitted before this Court that the amounts paid by the Petitioners are shown as advance received in the account of the Respondent which fact has been recorded in the order dated 23/02/2015 and 27/02/2015 passed in one of the connected Company Petition being No.16 of 2014. The case of the Respondent that the Petitioners failed to make payment on account of sharp fall in price of Guar Seeds between the settlement date and the delivery date also appears to be unacceptable in view of the fact that the Petitioners made payment of Rs.6,00,00,000/on 26/07/2011 a day prior to the delivery date.17. In so far as email dated 15/02/2012 addressed by Mr. Rajkumar Goyal to the Respondent is concerned, it is required to be noted that the said email is dated 14/02/2012 whereas the alleged Guar Seeds contracts are also dated prior in point of time. A reading of the said email indicates that the said email is in the nature of the proposal to the Respondent that the advances can be adjusted against the Gaur Seeds. The alleged Guar Seeds contracts are all prior in point of time to the email. Hence there would be no question of Mr. Rajkumar Goyal making a proposal for purchase of Guar Seeds to be adjusted with the advances provided by the Petitioner. The said email therefore does not in any manner support the case of the Respondent that the amount advanced by the Petitioner was towards the purchase of Guar Seeds. The factum of supply of Guar Seeds to 5 entities which are sister concerns of the Petitioner also does not further case of the Respondent in so far as contracts being for purchase Guar Seeds and not for purchase of Soyabean Meal is concerned. The contracts relating to Guar Seeds, according to the Respondent are dated 14/01/2012 whilst the Guar Seeds are alleged to have been supplied even prior to the contract date i.e. 28/11/2011. It is only in respect of the alleged Guar Seeds contract between the Respondent and M/s. Nova Trading Pvt. Ltd. (one of the Respondents in the companion Appeals) that the contract date is prior to the delivery date. Hence the aforesaid fact also does not support the case of the Respondent that the contracts were in respect of purchase of Guar Seeds and not for purchase of Soyabean Meal.18. Now coming to the report of the DG CCI on which much reliance was sought to be placed on behalf of the Respondent in support of its case that the contracts were in respect of supply of Guar Seeds and not for Soyabean Meal. The said report has been submitted by the DG CCI after undertaking an inquiry under Section 26 of the Competition Act 2002. The statutory scheme comprising the said Act indicates that the investigation carried out by the DG CCI is a preliminary fact finding inquiry and is not by way ofproceeding. In the said fact finding inquiry there is no opportunity given to the concerned parties to make submissions but only statements are recorded and material considered. In so far as the instant report of the DG CCI is concerned, reading of paragraphs 5.12.10, 5.12.11 and 5.12.14 indicate that the DG CCIs finding is solely based on the bank statements of the parties. The DG CCI did not have the benefit of the material facts which are necessary to determine the inter se disputes between the parties. In so far as the instant case is concerned, the DG CCI did not have access to the Soyabean Meal contracts bearing the signature and rubber stamp of the Respondent i.e. the Appellant herein, the email through which the Respondent forwarded the Soyabean Meal contracts to the Petitioners, admissions of Mr. D Narsimhan the Director of the Respondent and, Mr. P Bhargava the representative of the Chartered Accountants of the Respondent wherein they have stated that the amount paid by the Petitioner was shown as advance in the account of the Respondent. The DG CCI cannot be said to be conducting any inquiry as regards the inter se disputes between the Petitioner and the Respondent but was only conducting the inquiry into whether there was any monopolistic activities being carried out in the sale of Guar Seeds.19. In our view, though the learned Single Judge has not expressed any opinion one way or the other as regards the efficacy of any of the findings recorded by the DG CCI, no evidentiary value could be attached to the said report of the DG CCI. Reliance placed on the judgment of Raymond Woollen Mills Ltd.s case (supra) seems to be apposite. In the said case the Apex Court was concerned with the investigation report under the provisions of Section 11 of the Monopolies Restrictive Trade Practices Act, 1969 which provisions can be said to be almostto Section 26 of the present Competition Act, 2002. The Apex Court held that any reference to the contents of the said report which have not been put in evidence and subjected to cross examination cannot be looked into. Paragraph 36 of the said report is material and is reproduced herein under:36. The learned senior counsel for the respondents referred to the "preliminary investigation report" submitted by the Director GeneralThe preliminary investigation report cannot be taken into consideration as it is not produced in evidence. It is only a report submitted in terms of Section 11 of the MRTP Act for initiating the enquiry. Only those facts contained therein, which are proved on record by evidence, can be looked into. The preliminary investigation report, as such, is not evidence on record. As such, any reference to the contents thereof, which have not been put in evidence and subjected to cross examination, cannot be looked into. This is without prejudice to the contention that there is nothing stated in the preliminary investigation report, which in any way establishes that any competition was affected within the meaning of Section 2(o) of the Act and that competition was affected to any "material degree" in the relevant trade or industry, as contemplated under Clause (h) of Section 38(1) of the Act. In our view, therefore the findings of the DG CCI as contained in its report do not further the case of the Respondent i.e. the Appellant herein.20. In so far as the discrepancies in the Soyabean Meal contracts alleged by the Respondent are concerned, it is required to be noted that the Soyabean Meal contracts bear the signature and rubber stamp of the Respondent. As indicated above the Respondent has not denied the authenticity of the signature and its rubber stamp on the Soyabean Meal contracts. Since the Soyabean Meal contracts have originated from the Respondent, the discrepancies if any cannot lie at the door of the Petitioner and it is for the Respondent therefore to explain such discrepancies. Hence the case of the Respondent that the Soyabean Meal contracts are fabricated and that the Respondent did not send any email does not seem to be bonafide and is devoid of merits as rightly held by the learned Single Judge. In our view, merely because the Petitioner did not enter into correspondence though breach was committed by the Respondent would not dent the case of the Petitioner in so far as their claim based on Soyabean Meal contracts is concerned. Since the parties had a running business relationship, it may be possible that the parties were trying to work out and in the said process time might have elapsed. In the said context it is required to be noted that even in respect of the Guar Seed contracts the delivery date as per the said contracts was 27/07/2012. The Respondent did not address any correspondence for almost a year before addressing the letter dated 15/06/2013. Hence the aforesaid fact suggests that the parties being in continuous business relationship did not desire to precipitate the matter and were trying to resolve the same.21. The contention as urged on behalf of the Respondent that the emails do not contain the signature made on behalf of the Petitioner and therefore the said fact impinges upon whether there were any contracts for purchase of Soyabean Meal. In our view, the said contention misses the point that the said contract was acted upon inasmuch as the Petitioner had made payment of the advance which constituted 50% of the contracted amount i.e. the sum of Rs.51,00,00,000/and hence in terms of Section 8 of the Contract Act the same constitutes an acceptance.22. In so far as the order passed by the Madhya Pradesh High Court is concerned, it seems that the parties and the contracts in issue before the Madhya Pradesh High Court were different. In the said case it appears that the Respondent therein Betul Oils Ltd had produced the contract for purchase of Guar Seeds bearing the signature of M/s. Nova Trading Pvt. Ltd.; whereas in the instant case the Respondent has failed to produce any such Guar Seeds contracts. Further before the Madhya Pradesh High Court there was no admissions as are in the present case by the Director Mr. D Narsimhan and the representative of the Chartered Accountants Mr. P Bhargava. In so far as the said order passed by the Madhya Pradesh High Court is concerned, it is required to be noted that the Review Petition being No.1 of 2017 filed in Company Petition No.586 of 2014 came to be filed by the Respondent on the said very ground i.e. placing reliance on the order passed by the Madhya Pradesh High Court dismissing the Company Petition. The said Review Petition came to be dismissed by the learned Single Judge by the order dated 24/02/2017. In our view, therefore, the order passed by the Madhya Pradesh High Court does not in any manner aid the Respondent to deny that it owes any debt to the Petitioner in the Company Petition.23. In so far as the contention that urged on behalf of the Respondent that the Respondent is commercial solvent and therefore the order of the nature passed by the learned Single Judge was not required to be passed. In the said context, reference could be made to the judgment of the Apex Court in M/s. Madhusudan GordhandasCo.s case (supra) and IBA Health (I) Pvt. Ltd.s case (supra) . In Madhusudan GordhandasCo.s case (supra), the Apex Court held that mere ability to pay but choosing not to pay cannot be a defence in a Petition for winding up. Paragraph 21 of the said report is material and is reproduced herein under:21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 S.J. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantity the debt precisely (See Re. Tweeds Garages Ltd. 1962 Ch.406. (3) The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends. In IBA Health (I) Pvt. Ltds case (supra) the Apex Court has held that solvency of a company might not constitute a stand alone ground for setting aside a notice under Section 434(1)(a), meaning thereby, if a debt is undisputedly owing, then it has to be paid. Paragraph 24 of the said report is material and reproduced hereinIn our view, the Respondent i.e. the Appellant herein has not raised any substantial or genuine grounds to avoid the payment and the defences raised on behalf of the Respondent are therefore not bonafide. In our view, the learned Single Judge has in the facts and circumstances rightly issued the directions which are contained in the operative part of the impugned order. | 0 | 8,940 | 2,975 | ### Instruction:
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Petition for winding up. Paragraph 21 of the said report is material and is reproduced herein under:21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 S.J. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantity the debt precisely (See Re. Tweeds Garages Ltd. 1962 Ch.406. (3) The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends. In IBA Health (I) Pvt. Ltds case (supra) the Apex Court has held that solvency of a company might not constitute a stand alone ground for setting aside a notice under Section 434(1)(a), meaning thereby, if a debt is undisputedly owing, then it has to be paid. Paragraph 24 of the said report is material and reproduced herein under:24. Appellant company raised a contention that it is commercially solvent and, in such a situation, the question may arise that the factum of commercial solvency, as such, would be sufficient to reject the petition for winding up, unless substantial grounds for its rejection are made out. A determination of examination of the companys insolvency may be a useful aid in deciding whether the refusal to pay is a result of the bona fide dispute as to liability or whether it reflects an inability to pay, in such a situation, solvency is relevant not as a separate ground. If there is no dispute as to the companys liability, the solvency of the company might not constitute a stand alone ground for setting aside a notice under Section 434(1)(a), meaning thereby, if a debt is undisputedly owing, then it has to be paid. If the company refuses to pay on no genuine and substantial grounds, it should not be able to avoid the statutory demand. The law should be allowed to proceed and if demand is not met and an application for liquidation is filed under Section 439 in reliance of the presumption under Section 434(1)(a) that the company is unable to pay it debts, the law should take its own course and the company of course will have an opportunity on the liquidation application to rebut that presumption. Apart from the aforesaid legal position, it is sought to be pointed out on behalf of the Petitioners that the net worth of the Respondent as per its last balance sheet is much lesser than outstanding debts of the Petitioners. It is further sought to be pointed out that the amount lying in the bank account of the Respondent is also not sufficient to pay off the outstanding debts.24. Now lastly coming to the issue as to whether this Court should interfere with the impugned order passed by the learned Single Judge. In the said context it is necessary to make a reference to the judgment of the Apex Court in Wonder Ltds case. (supra). Paragraph 14 of the said report is material and is reproduced herein under:14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (1960) 3 SCR 713 : AIR 1960 SC 1156 : (SCR 721) ...... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston [1942 AC 130] . the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle. Hence going by the test laid down by the Apex Court in Wander Ltd.s case (supra), the view taken by the learned Single Judge being a possible view taken in the facts and circumstances of the instant case, the same does not merit any interference in the Appellate Jurisdiction.25. In our view, the Respondent i.e. the Appellant herein has not raised any substantial or genuine grounds to avoid the payment and the defences raised on behalf of the Respondent are therefore not bonafide. In our view, the learned Single Judge has in the facts and circumstances rightly issued the directions which are contained in the operative part of the impugned order.
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our view, therefore the findings of the DG CCI as contained in its report do not further the case of the Respondent i.e. the Appellant herein.20. In so far as the discrepancies in the Soyabean Meal contracts alleged by the Respondent are concerned, it is required to be noted that the Soyabean Meal contracts bear the signature and rubber stamp of the Respondent. As indicated above the Respondent has not denied the authenticity of the signature and its rubber stamp on the Soyabean Meal contracts. Since the Soyabean Meal contracts have originated from the Respondent, the discrepancies if any cannot lie at the door of the Petitioner and it is for the Respondent therefore to explain such discrepancies. Hence the case of the Respondent that the Soyabean Meal contracts are fabricated and that the Respondent did not send any email does not seem to be bonafide and is devoid of merits as rightly held by the learned Single Judge. In our view, merely because the Petitioner did not enter into correspondence though breach was committed by the Respondent would not dent the case of the Petitioner in so far as their claim based on Soyabean Meal contracts is concerned. Since the parties had a running business relationship, it may be possible that the parties were trying to work out and in the said process time might have elapsed. In the said context it is required to be noted that even in respect of the Guar Seed contracts the delivery date as per the said contracts was 27/07/2012. The Respondent did not address any correspondence for almost a year before addressing the letter dated 15/06/2013. Hence the aforesaid fact suggests that the parties being in continuous business relationship did not desire to precipitate the matter and were trying to resolve the same.21. The contention as urged on behalf of the Respondent that the emails do not contain the signature made on behalf of the Petitioner and therefore the said fact impinges upon whether there were any contracts for purchase of Soyabean Meal. In our view, the said contention misses the point that the said contract was acted upon inasmuch as the Petitioner had made payment of the advance which constituted 50% of the contracted amount i.e. the sum of Rs.51,00,00,000/and hence in terms of Section 8 of the Contract Act the same constitutes an acceptance.22. In so far as the order passed by the Madhya Pradesh High Court is concerned, it seems that the parties and the contracts in issue before the Madhya Pradesh High Court were different. In the said case it appears that the Respondent therein Betul Oils Ltd had produced the contract for purchase of Guar Seeds bearing the signature of M/s. Nova Trading Pvt. Ltd.; whereas in the instant case the Respondent has failed to produce any such Guar Seeds contracts. Further before the Madhya Pradesh High Court there was no admissions as are in the present case by the Director Mr. D Narsimhan and the representative of the Chartered Accountants Mr. P Bhargava. In so far as the said order passed by the Madhya Pradesh High Court is concerned, it is required to be noted that the Review Petition being No.1 of 2017 filed in Company Petition No.586 of 2014 came to be filed by the Respondent on the said very ground i.e. placing reliance on the order passed by the Madhya Pradesh High Court dismissing the Company Petition. The said Review Petition came to be dismissed by the learned Single Judge by the order dated 24/02/2017. In our view, therefore, the order passed by the Madhya Pradesh High Court does not in any manner aid the Respondent to deny that it owes any debt to the Petitioner in the Company Petition.23. In so far as the contention that urged on behalf of the Respondent that the Respondent is commercial solvent and therefore the order of the nature passed by the learned Single Judge was not required to be passed. In the said context, reference could be made to the judgment of the Apex Court in M/s. Madhusudan GordhandasCo.s case (supra) and IBA Health (I) Pvt. Ltd.s case (supra) . In Madhusudan GordhandasCo.s case (supra), the Apex Court held that mere ability to pay but choosing not to pay cannot be a defence in a Petition for winding up. Paragraph 21 of the said report is material and is reproduced herein under:21. Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 S.J. 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantity the debt precisely (See Re. Tweeds Garages Ltd. 1962 Ch.406. (3) The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends. In IBA Health (I) Pvt. Ltds case (supra) the Apex Court has held that solvency of a company might not constitute a stand alone ground for setting aside a notice under Section 434(1)(a), meaning thereby, if a debt is undisputedly owing, then it has to be paid. Paragraph 24 of the said report is material and reproduced hereinIn our view, the Respondent i.e. the Appellant herein has not raised any substantial or genuine grounds to avoid the payment and the defences raised on behalf of the Respondent are therefore not bonafide. In our view, the learned Single Judge has in the facts and circumstances rightly issued the directions which are contained in the operative part of the impugned order.
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Union of India & Others Vs. N.K. Private Limited & Another | on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorised to enter into a contract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary, Special Secretary etc. to the Central Government in the appropriate Ministry or Department and not that the Sectary to any Department or office of the Government of India is empowered thereunder. It is however contended that the Secretary to the Railway Board is a Joint Secretary to the Government of India and as such under the above provision the acceptance letter should be considered to have been executed on behalf of the President. Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did not have any status as Secretary to the Central Government. The status of a Joint Secretary was only conferred on him by a notification by the Government of India in the Ministry of Railways for the first time on 15-9-1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board (Ministry of Railways) has been filed before us setting out the above fact and enclosing the said notification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary communicated the acceptance could enter into a binding contract. This submission also is without force because there is no material before us to conclude that the Board was so authorised. In these circumstances, even if the correspondence shows that the formalities necessary for a concluded contract have been satisfied and the parties were ad idem by the time the letter of acceptance of the 15th July 1968 was written, about which we do not wish to express any opinion, there is no valid or binding contract because the letter of acceptance, on the evidence before us, is not by a person authorised to execute the contracts for and on behalf of the President of India.12. On the evening before the day the judgment in the case was due to be delivered an application dated 7-2-1972 was filed enclosing an affidavit of R.N. Mubayi who was Director, Railway Stores, between 18-12-1965 to 30-9-1969 as also an affidavit of R.B. Lal, Managing Director of the Respondent No.1 to take them in evidence and consider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re-hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P.C. Oak to convey the acceptance of the offer of Messrs. N. K. Private Limited, that the acceptance was conveyed by Shri P.C. Oak to the said company. The affidavit of R.B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did not have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has not denied that the Secretary did not have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law. a Director is authorised to accept offers.13. Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P. C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R.B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15-7-1968, the Secretary Railway Board did not have the status of the Director under Part XLI of the Notification of the Ministry, of law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15-7-1968, Shri Oak made the following endorsement: "Reference to Boards orders at page 38/N, draft letter accepting Messrs. N. K. (P) Ltd., offer is being issued today. D.R.S. may kindly see before issue," and this endorsement was merely signed by R. N. Mubayi. We are not here referring to the other proceedings on the file as to whether the execution of a formal contract was a condition precedent and as one of the terms of the contract but even the above endorsement does not show that the letter of acceptance of 15-7-1968 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even draft letter issued does not contain his initials or his signature in token of his having seen or approved it. The letter of acceptance not having been issued on the orders of the Director, Railway Stores, there was no concluded contract as on that date, by a person authorised to enter into a contract. There is also nothing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R.B. Lal. | 1[ds]It also reiterated its stand earlier taken that the letter dated 15-7-1968 written by Oak on behalf of the Secretary, Railway Board, was not a letter of acceptance of the offer of the Respondents so as to amount to a concluded contract binding on the Union of India nor could it be construed as such in view of the mandatory provisions of Article 299 of the Constitution of India. The contention was that unless and until a formal instrument of contract was executed in the manner required by Art.299 of the Constitution and by the relevant notifications, there would not be a contract binding on the Union of India and at any rate no such agreement was entered into as it was alleged that though interviews had taken place at various times between the plaintiffs and the several officers of the Railway Board, no agreement had been reached on vital terms and conditions.We do not for the present consider it necessary to go into the question whether and to what extent the requirements of Article 299 have been complied with in this case. What we have to first ascertain is whether apart from the contention relating to Article 299, a concluded contract has come into existence as alleged by the Respondents. Before us detailed arguments were addressed on behalf of the appellants to show that notwithstanding the letter of acceptance of 15th July 1968, no concluded contract had in fact come into existence and though that letter accepted certain terms, there were other essential terms of the contract which had to be agreed to and were the subject-matter of further negotiations between the parties; that it was the intention of the parties that all those terms were to be embodied in a formal contract to be executed which contract alone was to be binding between the parties; and that in any case the letter of acceptance and the subsequent letters were not by the Director Railway Stores but by the Secretary to the Railway Board who was not a person authorised to enter into the agreement between the President of India represented by the Ministry of Railways and the Respondents. On the other hand, the stand taken by the Respondents was that all the essential terms of the contract were agreed to and the contract was concluded on 15th July 1968, though at the instance of the Director, Railway Stores further terms with respect to the execution of the contract were the subject-matter of negotiations between the parties and in any case these did not pertain to the essential terms and could not on that account detract from the binding nature of a concluded contract. It was also contended that the letter of acceptance by P. C. Oak though signed on behalf of the Secretary, Railway Board was in fact on behalf of the said Board which was authorised to enter into such a contract. It is in our view unnecessary to consider the several contentions as to whether all the essential terms of the contract had been agreed to or that the contract was concluded by the acceptance letter of 15th July, 1968 or whether the parties intended it to be a term of the contract that a formal contract should be entered into between them in order to bind the parties. In this case, we are of the view that the Secretary to the Railway Board, on whose behalf the offer of the Respondents was accepted, was not the person authorised to enter into a contract on behalf of the President of India. As can be seen from the various documents already extracted that the tender notice invited offers to be addressed to the President of India through the Director of Railway Stores, Railway Board. Under the general conditions the seller was defined to mean the President of India acting through the Director, Railway Stores and in the default clause it was provided that where the buyer fails to execute the contract, the seller shall have power under the hand of the Director, Railway Stores, Railway Board, to declare the contract at an end. In the letter written by Oak on 25-5-1968, as earlier noticed, it was pointed out to the Respondents that their offer was not addressed to the President of India as required under clause 1 (3) of the Instructions to the Tenderers and, therefore, the Respondents were required to confirm that their offer can be deemed to have been addressed to the President and is open for acceptance on behalf of the President and their reply should be addressed to the President of India, through the Director of Railway Stores, Railway Board, Even the draft contract dated 27-8-1968 in terms of which the Respondents were insisting on a final contract to be issued to them by the appellants was to be executed by the Respondents as buyers on the one part and the President of India acting through the Director, Railway Stores, Ministry of Railways (Railway Board) as the sellers, on the other. There is little doubt that the only person authorised to enter into the contract on behalf of the President is the Director. Railway Stores. It is true that the notification of the Ministry of Law issued in exercise of the powers under clause 1 of Article 299 of the Constitution shows that the President directed the authorities named therein to execute on his behalf the contracts and assurances of property specified therein. But notwithstanding this, the President is fully empowered to direct the execution of any specified contract or class of contracts on ad hoc basis by authorities other than those specified in the said notification. This Court had in Bhikraj Jaipuria v. Union of India, (1962) 2 SCR 880 =(AIR 1962 SC 113 )earlier held that the authority to execute contracts may be conferred on a person not only by rules expressly framed and by formal notifications issued in this behalf but may also be specifically conferred. In this case the letter of acceptance dated 15-7-1968 was on behalf of the Secretary, railway Board, who is not authorised to enter into a contract on behalf of the President.10. It is contended that clause 43 of Part XVIII and Part XII empower the Secretary, Railway Board to enter into such contracts. Clause 43 of Part XVIII provides that all deeds and instruments other than those specified in that part may be executed by the Secretary or the Joint Secretary or the deputy Secretary or the Under Secretary in the Railway Board or a Director, Joint Director, Deputy Director or Assistant Director in the Railway Board. It is submitted that as nothing has been specified in Part XVIII relating to the contracts of the type we are considering, the Secretary, Railway Board is authorised to enter into a contract on behalf of the President. This submission is untenable because clause 9 specifically provides for the contracts connected with the sale of scrap, ashes, coal, dust, empty containers and stores. The tender, it will be observed, is for rails which are scarp as well as rerollable and relayable but it is urged that relayable rails are not stores nor can they be considered as scrap and as these are not covered by clause 9, the Secretary, Railway Board is fully empowered by the President to enter into a contract on his behalf. We cannot accept this argument because in our view relayable rails are part of the stores. It may be that some of these rails which are part of the stores may be considered to be in a condition which the authorities concerned think should be disposed of. The contracts relating to the goods of the nature specified in the tender notice are, therefore, dealt with by clause I as such clause 43 will have no application. Part XLI empowers the Secretaries to the Central Government in the appropriate Ministries or Departments to execute any contract or assurance of property relating to any matter whatsoever and is in theseanything herein before contained any contract or assurance of property relating to any matter whatsoever may be executed by the Secretary or the Special Secretary or the Additional Secretary or a Joint secretary or a Director or where there is no Additional Secretary or a Joint Secretary or a Director, a Deputy Secretary to the Central Government in the appropriate Ministry or Department and in the case of.......The contention on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorised to enter into a contract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary, Special Secretary etc. to the Central Government in the appropriate Ministry or Department and not that the Sectary to any Department or office of the Government of India is empowered thereunder. It is however contended that the Secretary to the Railway Board is a Joint Secretary to the Government of India and as such under the above provision the acceptance letter should be considered to have been executed on behalf of the President. Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did not have any status as Secretary to the Central Government. The status of a Joint Secretary was only conferred on him by a notification by the Government of India in the Ministry of Railways for the first time on 15-9-1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board (Ministry of Railways) has been filed before us setting out the above fact and enclosing the said notification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary communicated the acceptance could enter into a binding contract. This submission also is without force because there is no material before us to conclude that the Board was so authorised. In these circumstances, even if the correspondence shows that the formalities necessary for a concluded contract have been satisfied and the parties were ad idem by the time the letter of acceptance of the 15th July 1968 was written, about which we do not wish to express any opinion, there is no valid or binding contract because the letter of acceptance, on the evidence before us, is not by a person authorised to execute the contracts for and on behalf of the President of India.12. On the evening before the day the judgment in the case was due to be delivered an application dated 7-2-1972 was filed enclosing an affidavit of R.N. Mubayi who was Director, Railway Stores, between 18-12-1965 to 30-9-1969 as also an affidavit of R.B. Lal, Managing Director of the Respondent No.1 to take them in evidence and consider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re-hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P.C. Oak to convey the acceptance of the offer of Messrs. N. K. Private Limited, that the acceptance was conveyed by Shri P.C. Oak to the said company. The affidavit of R.B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did not have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has not denied that the Secretary did not have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law. a Director is authorised to accept offers.13. Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P. C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R.B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15-7-1968, the Secretary Railway Board did not have the status of the Director under Part XLI of the Notification of the Ministry, of law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15-7-1968, Shri Oak made the following endorsement: "Reference to Boards orders at page 38/N, draft letter accepting Messrs. N. K. (P) Ltd., offer is being issued today. D.R.S. may kindly see before issue," and this endorsement was merely signed by R. N. Mubayi. We are not here referring to the other proceedings on the file as to whether the execution of a formal contract was a condition precedent and as one of the terms of the contract but even the above endorsement does not show that the letter of acceptance of 15-7-1968 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even draft letter issued does not contain his initials or his signature in token of his having seen or approved it. The letter of acceptance not having been issued on the orders of the Director, Railway Stores, there was no concluded contract as on that date, by a person authorised to enter into a contract. There is also nothing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R.B. Lal. | 1 | 5,407 | 2,579 | ### Instruction:
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on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorised to enter into a contract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary, Special Secretary etc. to the Central Government in the appropriate Ministry or Department and not that the Sectary to any Department or office of the Government of India is empowered thereunder. It is however contended that the Secretary to the Railway Board is a Joint Secretary to the Government of India and as such under the above provision the acceptance letter should be considered to have been executed on behalf of the President. Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did not have any status as Secretary to the Central Government. The status of a Joint Secretary was only conferred on him by a notification by the Government of India in the Ministry of Railways for the first time on 15-9-1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board (Ministry of Railways) has been filed before us setting out the above fact and enclosing the said notification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary communicated the acceptance could enter into a binding contract. This submission also is without force because there is no material before us to conclude that the Board was so authorised. In these circumstances, even if the correspondence shows that the formalities necessary for a concluded contract have been satisfied and the parties were ad idem by the time the letter of acceptance of the 15th July 1968 was written, about which we do not wish to express any opinion, there is no valid or binding contract because the letter of acceptance, on the evidence before us, is not by a person authorised to execute the contracts for and on behalf of the President of India.12. On the evening before the day the judgment in the case was due to be delivered an application dated 7-2-1972 was filed enclosing an affidavit of R.N. Mubayi who was Director, Railway Stores, between 18-12-1965 to 30-9-1969 as also an affidavit of R.B. Lal, Managing Director of the Respondent No.1 to take them in evidence and consider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re-hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P.C. Oak to convey the acceptance of the offer of Messrs. N. K. Private Limited, that the acceptance was conveyed by Shri P.C. Oak to the said company. The affidavit of R.B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did not have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has not denied that the Secretary did not have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law. a Director is authorised to accept offers.13. Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P. C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R.B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15-7-1968, the Secretary Railway Board did not have the status of the Director under Part XLI of the Notification of the Ministry, of law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15-7-1968, Shri Oak made the following endorsement: "Reference to Boards orders at page 38/N, draft letter accepting Messrs. N. K. (P) Ltd., offer is being issued today. D.R.S. may kindly see before issue," and this endorsement was merely signed by R. N. Mubayi. We are not here referring to the other proceedings on the file as to whether the execution of a formal contract was a condition precedent and as one of the terms of the contract but even the above endorsement does not show that the letter of acceptance of 15-7-1968 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even draft letter issued does not contain his initials or his signature in token of his having seen or approved it. The letter of acceptance not having been issued on the orders of the Director, Railway Stores, there was no concluded contract as on that date, by a person authorised to enter into a contract. There is also nothing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R.B. Lal.
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on behalf of the Respondents is that since Railway Board is a Department of the Government, the Secretary to the Department is authorised to enter into a contract under the above provision. This submission in our view, is equally misconceived because reading the above requirement carefully it will appear that the persons there mentioned should be Secretary, Special Secretary etc. to the Central Government in the appropriate Ministry or Department and not that the Sectary to any Department or office of the Government of India is empowered thereunder. It is however contended that the Secretary to the Railway Board is a Joint Secretary to the Government of India and as such under the above provision the acceptance letter should be considered to have been executed on behalf of the President. Even this submission lacks validity because as pointed out on behalf of the appellant, at the relevant time the Secretary to the Railway Board did not have any status as Secretary to the Central Government. The status of a Joint Secretary was only conferred on him by a notification by the Government of India in the Ministry of Railways for the first time on 15-9-1969 with effect from that date. An affidavit of the Deputy Secretary to the Railway Board (Ministry of Railways) has been filed before us setting out the above fact and enclosing the said notification. Then again it was urged that the members of the Railway Board were Secretaries to the Central Government and hence the Board on whose behalf the Secretary communicated the acceptance could enter into a binding contract. This submission also is without force because there is no material before us to conclude that the Board was so authorised. In these circumstances, even if the correspondence shows that the formalities necessary for a concluded contract have been satisfied and the parties were ad idem by the time the letter of acceptance of the 15th July 1968 was written, about which we do not wish to express any opinion, there is no valid or binding contract because the letter of acceptance, on the evidence before us, is not by a person authorised to execute the contracts for and on behalf of the President of India.12. On the evening before the day the judgment in the case was due to be delivered an application dated 7-2-1972 was filed enclosing an affidavit of R.N. Mubayi who was Director, Railway Stores, between 18-12-1965 to 30-9-1969 as also an affidavit of R.B. Lal, Managing Director of the Respondent No.1 to take them in evidence and consider the facts stated therein before judgment is delivered, and if necessary, to call for the file and give a re-hearing. The affidavit of Mubayi states that only after he recorded on the relevant file and issued instructions to his Deputy Director, Shri P.C. Oak to convey the acceptance of the offer of Messrs. N. K. Private Limited, that the acceptance was conveyed by Shri P.C. Oak to the said company. The affidavit of R.B. Lal says that though the affidavit filed by P. Lal, Deputy Secretary, Railway Board stating that the Secretary, Railway Board, did not have the status of Secretary, Special Secretary, Additional Secretary, Joint Secretary or Deputy Secretary to the Government of India in the Ministry of Railway, he has not denied that the Secretary did not have the status of a Director. It is further submitted in that affidavit that the Secretary of the Board had the status of a Director at the relevant time and as mentioned in Part XLI of the Notification of the Ministry of Law. a Director is authorised to accept offers.13. Apart from the question whether we should admit additional evidence at this stage in this case and though we had rejected an earlier submission to call for the files, having regard to the facts stated by R. N. Mubayi, Director of Railway Stores during the relevant period that it was he who had asked P. C. Oak to accept the offer and had so endorsed it on the file, as also the affidavit of R.B. Lal that the Secretary to the Board was the Director of Railway Stores, we withheld the judgment and called for the file to satisfy ourselves. The file has been submitted to us by the appellants along with an affidavit of R. Srinivasan, Joint Director, Railway Board in which it is categorically averred that at the relevant time, namely, 15-7-1968, the Secretary Railway Board did not have the status of the Director under Part XLI of the Notification of the Ministry, of law or at all. A perusal of the relevant file relating to the letter of acceptance would show that on 15-7-1968, Shri Oak made the following endorsement: "Reference to Boards orders at page 38/N, draft letter accepting Messrs. N. K. (P) Ltd., offer is being issued today. D.R.S. may kindly see before issue," and this endorsement was merely signed by R. N. Mubayi. We are not here referring to the other proceedings on the file as to whether the execution of a formal contract was a condition precedent and as one of the terms of the contract but even the above endorsement does not show that the letter of acceptance of 15-7-1968 was issued on the orders and directions of Mubayi as alleged by him in the affidavit. What it in fact shows is that it is the Board that issued the orders of acceptance and that the acceptance letter was only to be seen by him. Even draft letter issued does not contain his initials or his signature in token of his having seen or approved it. The letter of acceptance not having been issued on the orders of the Director, Railway Stores, there was no concluded contract as on that date, by a person authorised to enter into a contract. There is also nothing to show that the Secretary to the Board was the Director, Railway Board as further alleged in the affidavit of R.B. Lal.
|
Krishna Ram Mahale (Dead), By His Lrs Vs. Mrs. Shobha Venkat Rao | and hence, the possession of the plaintiff even after the period of licence was not in any way unlawful or without authority of law 8. Mr. Tarkunde, learned counsel for defendant 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the trial court or the High Court or the factual conclusions drawn by them. It was however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh ((1968) 2 SCR 203 , 208-210 : AIR 1968 SC 620 ). This Court in that judgment cited with approval the well known passage from the leading Privy Council case of Midnapur Zamindari Company Limited v. Naresh Narayan Roy (51 IA 293, 299 : AIR 1924 PC 144 : 23 ALJ 76) where it has been observed (p. 208) "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." 9. The proposition was also accepted by a Division Bench of this Court in Ram Rattan v. State of Uttar Pradesh ((1977) 1 SCC 188 : 1977 SCC (Cri) 85 : (1977) 2 SCR 232 ). The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a tresspasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plaintiff and defendant 3 amounted to a licence or a sub-lease 10. Even apart from what we have observed above, we feel that in this case the conduct of defendant 3 is such that we should decline to entertain his appeal by special leave under Article 136 of the Constitution. In the first place, he has unlawfully taken possession of the business and the premises thereof by collusion and behind the back of the plaintiff. He made every attempt to retrain this possession by every means, right or wrong. It is interesting to note that even after his appeal was dismissed by a Division Bench of the Bombay High Court, instead of complying with the decree or coming by way of a special leave immediately, in order to avoid compliance with the decree and to delay matters, he chose to file a suit, which can only be described as bogus, in the High Court being Suit No. 297 of 1974 for a declaration that the respondent herein (referred to by us "the plaintiff) who was a defendant in that suit had no right, title or interest in the said premises or the business as from May 1, 1965 and for a permanent injunction restraining her from executing the decree for possession obtained by her in the Bombay City Civil Court which was confirmed by the High Court. He took out a Notice of Motion for an interlocutory injunction in that suit which was dismissed by order dated April 23, 1974. He led evidence which has been totally disbelieved by both the Courts below. On a previous occasion when this appeal was taken up for hearing learned counsel for defendant 3, on instructions, made a statement that the plaintiff, who is the respondent before us, was dead. Without going into details as to how that statement came to be made, we can only say that, in any event instructions to make this statement seem to have been given recklessly and without any attempt to find out the truth thereof. The provisions of Article 136 are not intended to come to the assistance of such a party. In our opinion, this is certainly not an appeal in which any interference is called four under Article 136 of the Constitution | 0[ds]10. Even apart from what we have observed above, we feel that in this case the conduct of defendant 3 is such that we should decline to entertain his appeal by special leave under Article 136 of the Constitution. In the first place, he has unlawfully taken possession of the business and the premises thereof by collusion and behind the back of the plaintiff. He made every attempt to retrain this possession by every means, right or wrong. It is interesting to note that even after his appeal was dismissed by a Division Bench of the Bombay High Court, instead of complying with the decree or coming by way of a special leave immediately, in order to avoid compliance with the decree and to delay matters, he chose to file a suit, which can only be described as bogus, in the High Court being Suit No. 297 of 1974 for a declaration that the respondent herein (referred to by us "the plaintiff) who was a defendant in that suit had no right, title or interest in the said premises or the business as from May 1, 1965 and for a permanent injunction restraining her from executing the decree for possession obtained by her in the Bombay City Civil Court which was confirmed by the High Court. He took out a Notice of Motion for an interlocutory injunction in that suit which was dismissed by order dated April 23, 1974. He led evidence which has been totally disbelieved by both the Courts below. On a previous occasion when this appeal was taken up for hearing learned counsel for defendant 3, on instructions, made a statement that the plaintiff, who is the respondent before us, was dead. Without going into details as to how that statement came to be made, we can only say that, in any event instructions to make this statement seem to have been given recklessly and without any attempt to find out the truth thereof. The provisions of Article 136 are not intended to come to the assistance of such a party. In our opinion, this is certainly not an appeal in which any interference is called four under Article 136 of the Constitution | 0 | 2,892 | 402 | ### Instruction:
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and hence, the possession of the plaintiff even after the period of licence was not in any way unlawful or without authority of law 8. Mr. Tarkunde, learned counsel for defendant 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the trial court or the High Court or the factual conclusions drawn by them. It was however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh ((1968) 2 SCR 203 , 208-210 : AIR 1968 SC 620 ). This Court in that judgment cited with approval the well known passage from the leading Privy Council case of Midnapur Zamindari Company Limited v. Naresh Narayan Roy (51 IA 293, 299 : AIR 1924 PC 144 : 23 ALJ 76) where it has been observed (p. 208) "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." 9. The proposition was also accepted by a Division Bench of this Court in Ram Rattan v. State of Uttar Pradesh ((1977) 1 SCC 188 : 1977 SCC (Cri) 85 : (1977) 2 SCR 232 ). The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a tresspasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case. It was pointed out by Mr. Tarkunde that some of the observations referred to above were in connection with a suit filed under Section 6 of the Specific Relief Act, 1963 or analogous provisions in the earlier Specific Relief Act, 1877. To our mind, this makes no difference in this case as the suit has been filed only a few weeks of the plaintiff being unlawfully deprived of possession of the said business and the premises and much before the period of six months expired. In view of the aforesaid conclusions arrived at by us, we do not propose to consider the question whether the agreement between the plaintiff and defendant 3 amounted to a licence or a sub-lease 10. Even apart from what we have observed above, we feel that in this case the conduct of defendant 3 is such that we should decline to entertain his appeal by special leave under Article 136 of the Constitution. In the first place, he has unlawfully taken possession of the business and the premises thereof by collusion and behind the back of the plaintiff. He made every attempt to retrain this possession by every means, right or wrong. It is interesting to note that even after his appeal was dismissed by a Division Bench of the Bombay High Court, instead of complying with the decree or coming by way of a special leave immediately, in order to avoid compliance with the decree and to delay matters, he chose to file a suit, which can only be described as bogus, in the High Court being Suit No. 297 of 1974 for a declaration that the respondent herein (referred to by us "the plaintiff) who was a defendant in that suit had no right, title or interest in the said premises or the business as from May 1, 1965 and for a permanent injunction restraining her from executing the decree for possession obtained by her in the Bombay City Civil Court which was confirmed by the High Court. He took out a Notice of Motion for an interlocutory injunction in that suit which was dismissed by order dated April 23, 1974. He led evidence which has been totally disbelieved by both the Courts below. On a previous occasion when this appeal was taken up for hearing learned counsel for defendant 3, on instructions, made a statement that the plaintiff, who is the respondent before us, was dead. Without going into details as to how that statement came to be made, we can only say that, in any event instructions to make this statement seem to have been given recklessly and without any attempt to find out the truth thereof. The provisions of Article 136 are not intended to come to the assistance of such a party. In our opinion, this is certainly not an appeal in which any interference is called four under Article 136 of the Constitution
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0
### Explanation:
10. Even apart from what we have observed above, we feel that in this case the conduct of defendant 3 is such that we should decline to entertain his appeal by special leave under Article 136 of the Constitution. In the first place, he has unlawfully taken possession of the business and the premises thereof by collusion and behind the back of the plaintiff. He made every attempt to retrain this possession by every means, right or wrong. It is interesting to note that even after his appeal was dismissed by a Division Bench of the Bombay High Court, instead of complying with the decree or coming by way of a special leave immediately, in order to avoid compliance with the decree and to delay matters, he chose to file a suit, which can only be described as bogus, in the High Court being Suit No. 297 of 1974 for a declaration that the respondent herein (referred to by us "the plaintiff) who was a defendant in that suit had no right, title or interest in the said premises or the business as from May 1, 1965 and for a permanent injunction restraining her from executing the decree for possession obtained by her in the Bombay City Civil Court which was confirmed by the High Court. He took out a Notice of Motion for an interlocutory injunction in that suit which was dismissed by order dated April 23, 1974. He led evidence which has been totally disbelieved by both the Courts below. On a previous occasion when this appeal was taken up for hearing learned counsel for defendant 3, on instructions, made a statement that the plaintiff, who is the respondent before us, was dead. Without going into details as to how that statement came to be made, we can only say that, in any event instructions to make this statement seem to have been given recklessly and without any attempt to find out the truth thereof. The provisions of Article 136 are not intended to come to the assistance of such a party. In our opinion, this is certainly not an appeal in which any interference is called four under Article 136 of the Constitution
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Narendra Bahadur Tandon Vs. Shankerlal (Since Deceased) By Lrs. And Anr | winding up and to call a general meeting of the company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The liquidator was then required to send to the Registrar a copy of the account and to make a return to him of the holding of the meetings. The Registrar on receiving the accounts and the returns was required to register them an on the expiration of three months of registration the company was to be deemed as dissolved. The only duty cast upon the liquidator thereafter was that under s. 244(B). It was that the liquidator should on t he dissolution of the company pay into the Reserve Bank of India, to the credit of the Central Government in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provisions of the Companies Act, 1913, after the dissolution of the company. We are, therefore, unable to agree with the submission of the learned counsel that the liquidator had the jurisdiction to execute the deed of sale dated January 28, 1941 after the company had been dissolved. 6. The next question which we must consider is what was the effect of the dissolution of the company on the lease-hold interest which the company had in the land. No term of the lease has been brought to our notice by which the lease would stand extinguished on the dissolution of the company. If the company had a subsisting interest in the lease on the date of dissolution such interest must necessarily vest in the Government by escheat or as bona vacantia. In India the law is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantia. Of course such property will be subject to trusts and charges, if any, previously effecting its vide M/s. Pierce Leslie &Co. Ltd., v. Violat Ouchterlong Wapshare &Ors.(1). It is also to be noticed here that s. 244(B) of the Companies Act 1913, as well as s. 555(2) of the Companies Act 1956 expressly enjoin a duty on the liquidator to deposit, on the dissolution of the company, into an account in the Reserve Bank of India know n as the Companies Liquidation Account any money representing unpaid dividend or undisputed assets lying in his hands at the time of dissolution. The learned counsel for the appellant relied upon the decisions of the Allahabad High Court in Tulshi Ram Sahu &Anr. v. Gur Dayal Singh &Anr.(2) and Mussamat Ramman Bibi v. Mathura Prasad &Anr.(3). Both were cases of fixed rate tenancies. As pointed out by the Full Bench in Tulsi Ram Sahu &Anr. v. Gur Dayal Singh &Anr., (1) one of the incidents of a fixed rate tenancy was that provided by s. 18 of the Agra Tenancy Act 1901 which prescribed that a right of occupancy would stand extinguished when a fixed-rate tenant died leaving no heir entitled under the Act to inherit the right of occupancy. It followed therefrom that the land had to revert to the landlord and could not go to the Government by escheat. On the other hand in Sonet Kooer v. Himmat Bahadur &ors.(2). The Privy Council held that on the failure of heirs to a tenant holding land under Mukerrori Tenure there was nothing in the nature of the tenure which prevented the Crown from taking the Mukerrori by escheat, subject to the payment of rent to the Zamindar. If the lease-hold interest of the company in the land became vested in the government on the dissolution of the company it must follow that the suit at the instance of the plaintiffs was not maintainable. 7. The next question for consideration is whether the plaintiffs were estopped from denying the validity of the sale in favour of the Benaras Bank Ltd., and the character of the possession of the Benaras Bank. Ltd., and its successors in interest. As already mentioned by us Budhsingh and Jialal sent a notice dated January 11, 1941, through their lawyer demanding of the liquidator of the Benaras Bank Ltd., payment of arrears of rent for four years and asserting that the lease was forfeited consequent on the lessees failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. The liquidator paid the rent and it was accepted by Budh Singh and Jialal. Later also the evidence shows that Jugal Kishore the purchaser from Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. This course of conduct of Budh Singh and Jialal and their successor Jugal Kishore clearly indicates the acceptance , by them, of the position that the Benaras Bank Ltd. had succeeded to the rights of the company in the lease-hold interest. Further, the official liquidator of the Benaras Bank Ltd. said first tried to sell the lease-hold interest by public auction. When that sale did not fructify because of the failure of the highest bidder to deposit the sale price, the lease-hold interest was sold to the defendant with the sanction of the Company Judge. At no point of time did the predecessors-in-interest of the plaintiffs raise the slightest objection to the sale of the leas-hold interest. It was thereafter that the defendant obtained the permission of the Municipal Board, Saharanpur, and raised construction on the land. The plaintiffs themselves admittedly reside near about the land in dispute. They did not raise any objection to the raising of the constructions. The plaintiffs as well as the defendants appeared to proceed on the common understanding that the defendants had succeeded to the interest of Patel Mills Ltd., in the lease-hold interest. | 1[ds]We do not think that s. 53A of the Transfer of Property Act is attracted to the facts of the present case. The right under s. 53A is available against the transferor (effecting the incomplete transfer) and any person claiming under him. It is difficult to understand how the successor-in-interest of a lessor can ever be said to a person claiming under a lessee making an incomplete transfer of the lease-hold interest. Nor do we find force in the submission of the learned counsel that the voluntary liquidator had legal authority, after dissolution of the company to execute the deed of sale so as to formally complete the transaction which had already been entered into.In that case a liquidator was guilty of gross dereliction of duty. In the words of Farwell J., "A more gross dereliction of duty by a liquidator I have seldom heard of". Though in possession of sufficient assets of the liquidating company to pay all its debts in full the liquidator took no steps to ascertain the creditors of the liquidating company or to see that they were paid. Instead he sold the business and assets of the company to a purchasing company who covenanted to pay all the debts and liabilities of the liquidating company. The purchasing company did not pay the debts. The liquidating company was dissolved. The creditors had no remedy by which they could recover their debts. A creditor of the liquidating company sued the liquidator for recovery of damages. It was held that the liquidator was guilty of negligence in the discharge of his statutory duty and was liable in damages to the unpaid creditors of the liquidating company. What was decided in the case was not that a liquidator could represent the erstwhile company after it was dissolved but that a liquidator could be sued in damage s for breach of a statutory duty which he had failed to perform while functioning as liquidator. We do not think that this case is of any assistance to the appellant. We are unable to appreciate how after the company was dissolved the liquidator could still claim to represent the company and execute a registered deed of sale. Once the company was dissolved it ceased to exist and the liquidator could not represent a non-existing company. If the liquidator was to discharge any duty or perform any function on behalf of the dissolved company he should have express statutory authority. The Companies Act 1913 contained no provision enabling the liquidator to do any act on behalf of a dissolved company. S. 209(H) ofthe Companies Act, 1913 enjoined the liquidator as soon as the affairs of the company were wound up to make up an account of the winding up and to call a general meeting of the company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The liquidator was then required to send to the Registrar a copy of the account and to make a return to him of the holding of the meetings. The Registrar on receiving the accounts and the returns was required to register them an on the expiration of three months of registration the company was to be deemed as dissolved. The only duty cast upon the liquidator thereafter was that under s. 244(B). It was that the liquidator should on t he dissolution of the company pay into the Reserve Bank of India, to the credit of the Central Government in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provisions ofthe Companies Act, 1913, after the dissolution of the company. We are, therefore, unable to agree with the submission of the learned counsel that the liquidator had the jurisdiction to execute the deed of sale dated January 28, 1941 after the company had been dissolvedNo term of the lease has been brought to our notice by which the lease would stand extinguished on the dissolution of the company. If the company had a subsisting interest in the lease on the date of dissolution such interest must necessarily vest in the Government by escheat or as bona vacantia. In India the law is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantiaIt is also to be noticed here that s. 244(B) of the Companies Act 1913, as well as s. 555(2) of the Companies Act 1956 expressly enjoin a duty on the liquidator to deposit, on the dissolution of the company, into an account in the Reserve Bank of India know n as the Companies Liquidation Account any money representing unpaid dividend or undisputed assets lying in his hands at the time of dissolutionAs already mentioned by us Budhsingh and Jialal sent a notice dated January 11, 1941, through their lawyer demanding of the liquidator of the Benaras Bank Ltd., payment of arrears of rent for four years and asserting that the lease was forfeited consequent on the lessees failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. The liquidator paid the rent and it was accepted by Budh Singh and Jialal. Later also the evidence shows that Jugal Kishore the purchaser from Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. This course of conduct of Budh Singh and Jialal and their successor Jugal Kishore clearly indicates the acceptance , by them, of the position that the Benaras Bank Ltd. had succeeded to the rights of the company in the lease-hold interest. Further, the official liquidator of the Benaras Bank Ltd. said first tried to sell the lease-hold interest by public auction. When that sale did not fructify because of the failure of the highest bidder to deposit the sale price, the lease-hold interest was sold to the defendant with the sanction of the Company Judge. At no point of time did the predecessors-in-interest of the plaintiffs raise the slightest objection to the sale of the leas-hold interest. It was thereafter that the defendant obtained the permission of the Municipal Board, Saharanpur, and raised construction on the land. The plaintiffs themselves admittedly reside near about the land in dispute. They did not raise any objection to the raising of the constructions. The plaintiffs as well as the defendants appeared to proceed on the common understanding that the defendants had succeeded to the interest of Patel Mills Ltd., in the lease-hold interest. | 1 | 2,746 | 1,209 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
winding up and to call a general meeting of the company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The liquidator was then required to send to the Registrar a copy of the account and to make a return to him of the holding of the meetings. The Registrar on receiving the accounts and the returns was required to register them an on the expiration of three months of registration the company was to be deemed as dissolved. The only duty cast upon the liquidator thereafter was that under s. 244(B). It was that the liquidator should on t he dissolution of the company pay into the Reserve Bank of India, to the credit of the Central Government in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provisions of the Companies Act, 1913, after the dissolution of the company. We are, therefore, unable to agree with the submission of the learned counsel that the liquidator had the jurisdiction to execute the deed of sale dated January 28, 1941 after the company had been dissolved. 6. The next question which we must consider is what was the effect of the dissolution of the company on the lease-hold interest which the company had in the land. No term of the lease has been brought to our notice by which the lease would stand extinguished on the dissolution of the company. If the company had a subsisting interest in the lease on the date of dissolution such interest must necessarily vest in the Government by escheat or as bona vacantia. In India the law is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantia. Of course such property will be subject to trusts and charges, if any, previously effecting its vide M/s. Pierce Leslie &Co. Ltd., v. Violat Ouchterlong Wapshare &Ors.(1). It is also to be noticed here that s. 244(B) of the Companies Act 1913, as well as s. 555(2) of the Companies Act 1956 expressly enjoin a duty on the liquidator to deposit, on the dissolution of the company, into an account in the Reserve Bank of India know n as the Companies Liquidation Account any money representing unpaid dividend or undisputed assets lying in his hands at the time of dissolution. The learned counsel for the appellant relied upon the decisions of the Allahabad High Court in Tulshi Ram Sahu &Anr. v. Gur Dayal Singh &Anr.(2) and Mussamat Ramman Bibi v. Mathura Prasad &Anr.(3). Both were cases of fixed rate tenancies. As pointed out by the Full Bench in Tulsi Ram Sahu &Anr. v. Gur Dayal Singh &Anr., (1) one of the incidents of a fixed rate tenancy was that provided by s. 18 of the Agra Tenancy Act 1901 which prescribed that a right of occupancy would stand extinguished when a fixed-rate tenant died leaving no heir entitled under the Act to inherit the right of occupancy. It followed therefrom that the land had to revert to the landlord and could not go to the Government by escheat. On the other hand in Sonet Kooer v. Himmat Bahadur &ors.(2). The Privy Council held that on the failure of heirs to a tenant holding land under Mukerrori Tenure there was nothing in the nature of the tenure which prevented the Crown from taking the Mukerrori by escheat, subject to the payment of rent to the Zamindar. If the lease-hold interest of the company in the land became vested in the government on the dissolution of the company it must follow that the suit at the instance of the plaintiffs was not maintainable. 7. The next question for consideration is whether the plaintiffs were estopped from denying the validity of the sale in favour of the Benaras Bank Ltd., and the character of the possession of the Benaras Bank. Ltd., and its successors in interest. As already mentioned by us Budhsingh and Jialal sent a notice dated January 11, 1941, through their lawyer demanding of the liquidator of the Benaras Bank Ltd., payment of arrears of rent for four years and asserting that the lease was forfeited consequent on the lessees failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. The liquidator paid the rent and it was accepted by Budh Singh and Jialal. Later also the evidence shows that Jugal Kishore the purchaser from Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. This course of conduct of Budh Singh and Jialal and their successor Jugal Kishore clearly indicates the acceptance , by them, of the position that the Benaras Bank Ltd. had succeeded to the rights of the company in the lease-hold interest. Further, the official liquidator of the Benaras Bank Ltd. said first tried to sell the lease-hold interest by public auction. When that sale did not fructify because of the failure of the highest bidder to deposit the sale price, the lease-hold interest was sold to the defendant with the sanction of the Company Judge. At no point of time did the predecessors-in-interest of the plaintiffs raise the slightest objection to the sale of the leas-hold interest. It was thereafter that the defendant obtained the permission of the Municipal Board, Saharanpur, and raised construction on the land. The plaintiffs themselves admittedly reside near about the land in dispute. They did not raise any objection to the raising of the constructions. The plaintiffs as well as the defendants appeared to proceed on the common understanding that the defendants had succeeded to the interest of Patel Mills Ltd., in the lease-hold interest.
### Response:
1
### Explanation:
Farwell J., "A more gross dereliction of duty by a liquidator I have seldom heard of". Though in possession of sufficient assets of the liquidating company to pay all its debts in full the liquidator took no steps to ascertain the creditors of the liquidating company or to see that they were paid. Instead he sold the business and assets of the company to a purchasing company who covenanted to pay all the debts and liabilities of the liquidating company. The purchasing company did not pay the debts. The liquidating company was dissolved. The creditors had no remedy by which they could recover their debts. A creditor of the liquidating company sued the liquidator for recovery of damages. It was held that the liquidator was guilty of negligence in the discharge of his statutory duty and was liable in damages to the unpaid creditors of the liquidating company. What was decided in the case was not that a liquidator could represent the erstwhile company after it was dissolved but that a liquidator could be sued in damage s for breach of a statutory duty which he had failed to perform while functioning as liquidator. We do not think that this case is of any assistance to the appellant. We are unable to appreciate how after the company was dissolved the liquidator could still claim to represent the company and execute a registered deed of sale. Once the company was dissolved it ceased to exist and the liquidator could not represent a non-existing company. If the liquidator was to discharge any duty or perform any function on behalf of the dissolved company he should have express statutory authority. The Companies Act 1913 contained no provision enabling the liquidator to do any act on behalf of a dissolved company. S. 209(H) ofthe Companies Act, 1913 enjoined the liquidator as soon as the affairs of the company were wound up to make up an account of the winding up and to call a general meeting of the company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The liquidator was then required to send to the Registrar a copy of the account and to make a return to him of the holding of the meetings. The Registrar on receiving the accounts and the returns was required to register them an on the expiration of three months of registration the company was to be deemed as dissolved. The only duty cast upon the liquidator thereafter was that under s. 244(B). It was that the liquidator should on t he dissolution of the company pay into the Reserve Bank of India, to the credit of the Central Government in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provisions ofthe Companies Act, 1913, after the dissolution of the company. We are, therefore, unable to agree with the submission of the learned counsel that the liquidator had the jurisdiction to execute the deed of sale dated January 28, 1941 after the company had been dissolvedNo term of the lease has been brought to our notice by which the lease would stand extinguished on the dissolution of the company. If the company had a subsisting interest in the lease on the date of dissolution such interest must necessarily vest in the Government by escheat or as bona vacantia. In India the law is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantiaIt is also to be noticed here that s. 244(B) of the Companies Act 1913, as well as s. 555(2) of the Companies Act 1956 expressly enjoin a duty on the liquidator to deposit, on the dissolution of the company, into an account in the Reserve Bank of India know n as the Companies Liquidation Account any money representing unpaid dividend or undisputed assets lying in his hands at the time of dissolutionAs already mentioned by us Budhsingh and Jialal sent a notice dated January 11, 1941, through their lawyer demanding of the liquidator of the Benaras Bank Ltd., payment of arrears of rent for four years and asserting that the lease was forfeited consequent on the lessees failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. The liquidator paid the rent and it was accepted by Budh Singh and Jialal. Later also the evidence shows that Jugal Kishore the purchaser from Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. This course of conduct of Budh Singh and Jialal and their successor Jugal Kishore clearly indicates the acceptance , by them, of the position that the Benaras Bank Ltd. had succeeded to the rights of the company in the lease-hold interest. Further, the official liquidator of the Benaras Bank Ltd. said first tried to sell the lease-hold interest by public auction. When that sale did not fructify because of the failure of the highest bidder to deposit the sale price, the lease-hold interest was sold to the defendant with the sanction of the Company Judge. At no point of time did the predecessors-in-interest of the plaintiffs raise the slightest objection to the sale of the leas-hold interest. It was thereafter that the defendant obtained the permission of the Municipal Board, Saharanpur, and raised construction on the land. The plaintiffs themselves admittedly reside near about the land in dispute. They did not raise any objection to the raising of the constructions. The plaintiffs as well as the defendants appeared to proceed on the common understanding that the defendants had succeeded to the interest of Patel Mills Ltd., in the lease-hold interest.
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Commr.Of Income Tax-Iv,Delhi Vs. M/S Hcl Comnet Systems & Services Ld | Item Nos.(a) to (f) of the said Explanation if they are debited to the profit and loss account and from such profit Item Nos.(i) to (ix) of the Explanation are to be reduced. The figure arrived at after the above exercise is the book profit of the assessee for the relevant previous years. 6. This Court has examined the powers of the AO while computing the book profits for the purposes of Section 115J in the case of Apollo Tyres Ltd. v. Commissioner of Income-tax - [2002] 255 ITR 273 (SC) which reads as under: "The Assessing Officer, while computing the book profits of a company under Section 115-J of the Income-tax Act, 1961, has only the power of examining whether the books of account are certified by the authorities under the Companies Act as having been properly maintained in accordance with the Companies Act. The Assessing Officer, thereafter, has the limited power of making increases and reductions as provided for in the Explanation to section 115J. The Assessing Officer does not have the jurisdiction to go behind the net profits shown in the profit and loss account except to the extent provided in the Explanation. The use of the words "in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act" in section 115J was made for the limited purpose of empowering the Assessing Officer to rely upon the authentic statement of accounts of the company. While so looking into the accounts of the company, the Assessing Officer has to accept the authenticity of the accounts with reference to the provisions of the Companies Act, which obligate the company to maintain its accounts in a manner provided by that Act and the same to be scrutinized and certified by statutory auditors and approved by the company in general meeting and thereafter to be filed before the Registrar of Companies who has a statutory obligation also to examine and be satisfied that the accounts of the company are maintained in accordance with the requirements of the Companies Act. Sub-section (1A) of Section 115J does not empower the Assessing Officer to embark upon a fresh enquiry in regard to the entries made in the books of account of the company." 7. From the above, it is evident that the AO has to accept the authenticity of the accounts maintained in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, which are certified by the Auditors and pressed by the company in the general meeting. The AO has only the power of examining whether the books of accounts are duly certified by the authorities under the Companies Act and whether such books have been properly maintained in accordance with the Companies Act. The AO does not have the jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the Explanation. Thereafter, the AO has to make adjustment permissible under the Explanation given in Section 115JA of the 1961 Act. It may be noted, that the adjustments required to be made to the net profit disclosed in the profit and loss account for the purposes of Section 349 of the Companies Act are quite different from the adjustment required to be made under the Explanation to Section 115JA of the 1961 Act. For the purposes of Section 115JA, the AO can increase the net profit determined as per the profit and loss account prepared as per Parts II and III of Schedule VI to the Companies Act only to the extent permissible under the Explanation thereto. As stated above, the said Explanation has provided six items, i.e., Item Nos.(a) to (f) which if debited to the profit and loss account can be added back to the net profit for computing the book profit. In this case, we are concerned with Item No. (c) which refers to the provision for bad and doubtful debt. The provision for bad and doubtful debt can be added back to the net profit only if Item (c) stands attracted. Item (c) deals with amount(s) set aside as provision made for meeting liabilities, other than ascertained liabilities. The assessees case would, therefore, fall within the ambit of Item (c) only if the amount is set aside as provision; the provision is made for meeting a liability; and the provision should be for other than ascertained liability, i.e., it should be for an unascertained liability. In other words, all the ingredients should be satisfied to attract Item (c) of the Explanation to Section 115JA. In our view, Item (c) is not attracted. There are two types of "debt". A debt payable by the assessee is different from a debt receivable by the assessee. A debt is payable by the assessee where the assessee has to pay the amount to others whereas the debt receivable by the assessee is an amount which the assessee has to receive from others. In the present case "debt" under consideration is "debt receivable" by the assessee. The provision for bad and doubtful debt, therefore, is made to cover up the probable diminution in the value of asset, i.e., debt which is an amount receivable by the assessee. Therefore, such a provision cannot be said to be a provision for liability, because even if a debt is not recoverable no liability could be fastened upon the assessee. In the present case, the debt is the amount receivable by the assessee and not any liability payable by the assessee and, therefore, any provision made towards irrecoverability of the debt cannot be said to be a provision for liability. Therefore, in our view Item (c) of the Explanation is not attracted to the facts of the present case. In the circumstances, the AO was not justified in adding back the provision for doubtful debts of Rs.92,15,187/- under clause (c) of the Explanation to Section 115JA of the 1961 Act.8. For the aforestated reasons, there | 0[ds]it is evident that the AO has to accept the authenticity of the accounts maintained in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, which are certified by the Auditors and pressed by the company in the general meeting. The AO has only the power of examining whether the books of accounts are duly certified by the authorities under the Companies Act and whether such books have been properly maintained in accordance with the Companies Act. The AO does not have the jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the Explanation. Thereafter, the AO has to make adjustment permissible under the Explanation given in Section 115JA of the 1961 Act. It may be noted, that the adjustments required to be made to the net profit disclosed in the profit and loss account for the purposes of Section 349 of the Companies Act are quite different from the adjustment required to be made under the Explanation to Section 115JA of the 1961 Act. For the purposes of Section 115JA, the AO can increase the net profit determined as per the profit and loss account prepared as per Parts II and III of Schedule VI to the Companies Act only to the extent permissible under the Explanation thereto. As stated above, the said Explanation has provided six items, i.e., Item Nos.(a) to (f) which if debited to the profit and loss account can be added back to the net profit for computing the book profit. In this case, we are concerned with Item No. (c) which refers to the provision for bad and doubtful debt. The provision for bad and doubtful debt can be added back to the net profit only if Item (c) stands attracted. Item (c) deals with amount(s) set aside as provision made for meeting liabilities, other than ascertained liabilities. The assessees case would, therefore, fall within the ambit of Item (c) only if the amount is set aside as provision; the provision is made for meeting a liability; and the provision should be for other than ascertained liability, i.e., it should be for an unascertained liability. In other words, all the ingredients should be satisfied to attract Item (c) of the Explanation to Section 115JA. In our view, Item (c) is not attracted. There are two types of "debt". A debt payable by the assessee is different from a debt receivable by the assessee. A debt is payable by the assessee where the assessee has to pay the amount to others whereas the debt receivable by the assessee is an amount which the assessee has to receive from others. In the present case "debt" under consideration is "debt receivable" by the assessee. The provision for bad and doubtful debt, therefore, is made to cover up the probable diminution in the value of asset, i.e., debt which is an amount receivable by the assessee. Therefore, such a provision cannot be said to be a provision for liability, because even if a debt is not recoverable no liability could be fastened upon the assessee. In the present case, the debt is the amount receivable by the assessee and not any liability payable by the assessee and, therefore, any provision made towards irrecoverability of the debt cannot be said to be a provision for liability. Therefore, in our view Item (c) of the Explanation is not attracted to the facts of the present case. In the circumstances, the AO was not justified in adding back the provision for doubtful debts of Rs.92,15,187/- under clause (c) of the Explanation to Section 115JA of the 1961 Act. | 0 | 2,072 | 704 | ### 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:
Item Nos.(a) to (f) of the said Explanation if they are debited to the profit and loss account and from such profit Item Nos.(i) to (ix) of the Explanation are to be reduced. The figure arrived at after the above exercise is the book profit of the assessee for the relevant previous years. 6. This Court has examined the powers of the AO while computing the book profits for the purposes of Section 115J in the case of Apollo Tyres Ltd. v. Commissioner of Income-tax - [2002] 255 ITR 273 (SC) which reads as under: "The Assessing Officer, while computing the book profits of a company under Section 115-J of the Income-tax Act, 1961, has only the power of examining whether the books of account are certified by the authorities under the Companies Act as having been properly maintained in accordance with the Companies Act. The Assessing Officer, thereafter, has the limited power of making increases and reductions as provided for in the Explanation to section 115J. The Assessing Officer does not have the jurisdiction to go behind the net profits shown in the profit and loss account except to the extent provided in the Explanation. The use of the words "in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act" in section 115J was made for the limited purpose of empowering the Assessing Officer to rely upon the authentic statement of accounts of the company. While so looking into the accounts of the company, the Assessing Officer has to accept the authenticity of the accounts with reference to the provisions of the Companies Act, which obligate the company to maintain its accounts in a manner provided by that Act and the same to be scrutinized and certified by statutory auditors and approved by the company in general meeting and thereafter to be filed before the Registrar of Companies who has a statutory obligation also to examine and be satisfied that the accounts of the company are maintained in accordance with the requirements of the Companies Act. Sub-section (1A) of Section 115J does not empower the Assessing Officer to embark upon a fresh enquiry in regard to the entries made in the books of account of the company." 7. From the above, it is evident that the AO has to accept the authenticity of the accounts maintained in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, which are certified by the Auditors and pressed by the company in the general meeting. The AO has only the power of examining whether the books of accounts are duly certified by the authorities under the Companies Act and whether such books have been properly maintained in accordance with the Companies Act. The AO does not have the jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the Explanation. Thereafter, the AO has to make adjustment permissible under the Explanation given in Section 115JA of the 1961 Act. It may be noted, that the adjustments required to be made to the net profit disclosed in the profit and loss account for the purposes of Section 349 of the Companies Act are quite different from the adjustment required to be made under the Explanation to Section 115JA of the 1961 Act. For the purposes of Section 115JA, the AO can increase the net profit determined as per the profit and loss account prepared as per Parts II and III of Schedule VI to the Companies Act only to the extent permissible under the Explanation thereto. As stated above, the said Explanation has provided six items, i.e., Item Nos.(a) to (f) which if debited to the profit and loss account can be added back to the net profit for computing the book profit. In this case, we are concerned with Item No. (c) which refers to the provision for bad and doubtful debt. The provision for bad and doubtful debt can be added back to the net profit only if Item (c) stands attracted. Item (c) deals with amount(s) set aside as provision made for meeting liabilities, other than ascertained liabilities. The assessees case would, therefore, fall within the ambit of Item (c) only if the amount is set aside as provision; the provision is made for meeting a liability; and the provision should be for other than ascertained liability, i.e., it should be for an unascertained liability. In other words, all the ingredients should be satisfied to attract Item (c) of the Explanation to Section 115JA. In our view, Item (c) is not attracted. There are two types of "debt". A debt payable by the assessee is different from a debt receivable by the assessee. A debt is payable by the assessee where the assessee has to pay the amount to others whereas the debt receivable by the assessee is an amount which the assessee has to receive from others. In the present case "debt" under consideration is "debt receivable" by the assessee. The provision for bad and doubtful debt, therefore, is made to cover up the probable diminution in the value of asset, i.e., debt which is an amount receivable by the assessee. Therefore, such a provision cannot be said to be a provision for liability, because even if a debt is not recoverable no liability could be fastened upon the assessee. In the present case, the debt is the amount receivable by the assessee and not any liability payable by the assessee and, therefore, any provision made towards irrecoverability of the debt cannot be said to be a provision for liability. Therefore, in our view Item (c) of the Explanation is not attracted to the facts of the present case. In the circumstances, the AO was not justified in adding back the provision for doubtful debts of Rs.92,15,187/- under clause (c) of the Explanation to Section 115JA of the 1961 Act.8. For the aforestated reasons, there
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it is evident that the AO has to accept the authenticity of the accounts maintained in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, which are certified by the Auditors and pressed by the company in the general meeting. The AO has only the power of examining whether the books of accounts are duly certified by the authorities under the Companies Act and whether such books have been properly maintained in accordance with the Companies Act. The AO does not have the jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the Explanation. Thereafter, the AO has to make adjustment permissible under the Explanation given in Section 115JA of the 1961 Act. It may be noted, that the adjustments required to be made to the net profit disclosed in the profit and loss account for the purposes of Section 349 of the Companies Act are quite different from the adjustment required to be made under the Explanation to Section 115JA of the 1961 Act. For the purposes of Section 115JA, the AO can increase the net profit determined as per the profit and loss account prepared as per Parts II and III of Schedule VI to the Companies Act only to the extent permissible under the Explanation thereto. As stated above, the said Explanation has provided six items, i.e., Item Nos.(a) to (f) which if debited to the profit and loss account can be added back to the net profit for computing the book profit. In this case, we are concerned with Item No. (c) which refers to the provision for bad and doubtful debt. The provision for bad and doubtful debt can be added back to the net profit only if Item (c) stands attracted. Item (c) deals with amount(s) set aside as provision made for meeting liabilities, other than ascertained liabilities. The assessees case would, therefore, fall within the ambit of Item (c) only if the amount is set aside as provision; the provision is made for meeting a liability; and the provision should be for other than ascertained liability, i.e., it should be for an unascertained liability. In other words, all the ingredients should be satisfied to attract Item (c) of the Explanation to Section 115JA. In our view, Item (c) is not attracted. There are two types of "debt". A debt payable by the assessee is different from a debt receivable by the assessee. A debt is payable by the assessee where the assessee has to pay the amount to others whereas the debt receivable by the assessee is an amount which the assessee has to receive from others. In the present case "debt" under consideration is "debt receivable" by the assessee. The provision for bad and doubtful debt, therefore, is made to cover up the probable diminution in the value of asset, i.e., debt which is an amount receivable by the assessee. Therefore, such a provision cannot be said to be a provision for liability, because even if a debt is not recoverable no liability could be fastened upon the assessee. In the present case, the debt is the amount receivable by the assessee and not any liability payable by the assessee and, therefore, any provision made towards irrecoverability of the debt cannot be said to be a provision for liability. Therefore, in our view Item (c) of the Explanation is not attracted to the facts of the present case. In the circumstances, the AO was not justified in adding back the provision for doubtful debts of Rs.92,15,187/- under clause (c) of the Explanation to Section 115JA of the 1961 Act.
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Bhaichand Amoluk and Company Vs. Commissioner of Income Tax, Bombay City I | his mother, an employee and an agent of the firm, with the benefits of the partnership to his two minor sons, that the New India Assurance Company lent its support to a practice by which insurance business was being done, in addition to being an employee of the company, that Manibai, mother of Chhotalal, was not capable of taking any part in the business and had signed documents as desired by Chhotalal, and that the assessee perhaps attended to the business personally outside office hours. The Tribunal also stated that there was no reason why the goodwill of the firm was assigned to Manibai, whose only qualification was that she was Chhotalals mother. When the Tribunal rejected the application for a reference, it again adverted to some of these reasons, adding that Manibai was examined, hinting thereby that her statement was not satisfactory. When the High Court called for a reference, it presumably considered the finding of the Tribunal, which was recorded in the following words" In order to get over the legal difficulty, the assessee converted the old business into a partnership concern by taking the two employees as working partners. These employees were given only three annas share which perhaps at the material time was the approximate remuneration earned by them in a preceding year. It is in reality a partnership between the assessee, Premchand and Khambatta. Manibai and the two minor sons are bogus parties...."The High Court, therefore, raised the question whether the order of the Income-tax Officer could be restored in toto in view of this finding, because the Income-tax Officer had taken the whole of the income of the firm into Chhotalals individual assessment5. In this appeal, it is contended that the High Court was in error in not calling for a reference, because (a) there were no materials on which the finding that the firm seeking registration was a pretence, could be rested, and (b) in any event, the Tribunal having acted on suspicions, conjectures and surmises, its decision is erroneous, in view of the decisions of this court reported in Dhirajlal Girdharilal v. Commissioner of Income-tax, Omar Salay Mohamed Sait v. Commissioner of Income-tax, and Lalchand Bhagat Ambica Ram v. Commissioner of Income-tax. Reference was also made to Umacharan Shaw & Bros. v. Commissioner of Income-tax. The respondent relied upon a recent pronouncement of this court in Homi Jehangir Gheesta v. Commissioner of Income-tax6. Regarding the first ground, it is quite obvious that there was material on which the finding could be based. If Chhotalal withdrew from the business, his wife, Lalitabai, would be left as the sole proprietor. No mention of her interest whatever was made in the subsequent deed, and she seems to have disappeared completely. On the termination of the old firm and the setting up of the new firm, one would expect some adjustment entries in the books of account, and these were singularly lacking. One would also expect a communication by the new agents to the various insurance companies in writing about the change of principal agents and an appointment letter in the name of the new firm by them. The bank accounts would have been transferred to the new partnership firm, and the power-of-attorney in favour of Premchand and Khambatta would have been cancelled and the new firm would have been authorised to deal with the accounts. Without any such action, the decision of the Tribunal, that the firm which asked for registration was not a real firm, cannot be said to be founded on no materialIn so far as the addition of certain other reasons, which are characterised as surmises, conjectures and suspicions, is concerned, this court has observed in Gheestas case as follows" We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee has been considered fairly and with due care ; whether the evidence pro and con has been considered in reaching the final conclusion ; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. Commissioner of Income-tax, or Omar Salay Mohamed Sait v. Commissioner of Income-tax. We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. "7. The Tribunal was trying to unravel the motive for the formation of the new firm with an old lady and two minor sons in place of Chhotalal, and what was observed by the Tribunal was in connection with the motive which suggested itself to it, and was not based on any material. Even if the Tribunal mentioned those suspicions, we do not think that they entered into the solution of the problem before it. Suspicions and surmises are best avoided ; but in the present case, the order of the Tribunal proceeded on such solid facts that the speculation about the motive of Chhotalal did not make any material difference to the finding reached, though we cannot help saying that the Tribunal would have been well-advised to leave speculation out altogether. We are of opinion that this case falls within the ruling in Gheestas case | 0[ds]Regarding the first ground, it is quite obvious that there was material on which the finding could be based. If Chhotalal withdrew from the business, his wife, Lalitabai, would be left as the sole proprietor. No mention of her interest whatever was made in the subsequent deed, and she seems to have disappeared completely. On the termination of the old firm and the setting up of the new firm, one would expect some adjustment entries in the books of account, and these were singularly lacking. One would also expect a communication by the new agents to the various insurance companies in writing about the change of principal agents and an appointment letter in the name of the new firm by them. The bank accounts would have been transferred to the new partnership firm, and thein favour of Premchand and Khambatta would have been cancelled and the new firm would have been authorised to deal with the accounts. Without any such action, the decision of the Tribunal, that the firm which asked for registration was not a real firm, cannot be said to be founded on no materialIn so far as the addition of certain other reasons, which are characterised as surmises, conjectures and suspicions, is concerned, this court has observed in Gheestas case as follows" We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee has been considered fairly and with due care ; whether the evidence pro and con has been considered in reaching the final conclusion ; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. Commissioner ofar Salay Mohamed Sait v. Commissioner ofWe must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.Tribunal was trying to unravel the motive for the formation of the new firm with an old lady and two minor sons in place of Chhotalal, and what was observed by the Tribunal was in connection with the motive which suggested itself to it, and was not based on any material. Even if the Tribunal mentioned those suspicions, we do not think that they entered into the solution of the problem before it. Suspicions and surmises are best avoided ; but in the present case, the order of the Tribunal proceeded on such solid facts that the speculation about the motive of Chhotalal did not make any material difference to the finding reached, though we cannot help saying that the Tribunal would have beento leave speculation out altogether. We are of opinion that this case falls within the ruling in Gheestas case | 0 | 2,662 | 632 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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his mother, an employee and an agent of the firm, with the benefits of the partnership to his two minor sons, that the New India Assurance Company lent its support to a practice by which insurance business was being done, in addition to being an employee of the company, that Manibai, mother of Chhotalal, was not capable of taking any part in the business and had signed documents as desired by Chhotalal, and that the assessee perhaps attended to the business personally outside office hours. The Tribunal also stated that there was no reason why the goodwill of the firm was assigned to Manibai, whose only qualification was that she was Chhotalals mother. When the Tribunal rejected the application for a reference, it again adverted to some of these reasons, adding that Manibai was examined, hinting thereby that her statement was not satisfactory. When the High Court called for a reference, it presumably considered the finding of the Tribunal, which was recorded in the following words" In order to get over the legal difficulty, the assessee converted the old business into a partnership concern by taking the two employees as working partners. These employees were given only three annas share which perhaps at the material time was the approximate remuneration earned by them in a preceding year. It is in reality a partnership between the assessee, Premchand and Khambatta. Manibai and the two minor sons are bogus parties...."The High Court, therefore, raised the question whether the order of the Income-tax Officer could be restored in toto in view of this finding, because the Income-tax Officer had taken the whole of the income of the firm into Chhotalals individual assessment5. In this appeal, it is contended that the High Court was in error in not calling for a reference, because (a) there were no materials on which the finding that the firm seeking registration was a pretence, could be rested, and (b) in any event, the Tribunal having acted on suspicions, conjectures and surmises, its decision is erroneous, in view of the decisions of this court reported in Dhirajlal Girdharilal v. Commissioner of Income-tax, Omar Salay Mohamed Sait v. Commissioner of Income-tax, and Lalchand Bhagat Ambica Ram v. Commissioner of Income-tax. Reference was also made to Umacharan Shaw & Bros. v. Commissioner of Income-tax. The respondent relied upon a recent pronouncement of this court in Homi Jehangir Gheesta v. Commissioner of Income-tax6. Regarding the first ground, it is quite obvious that there was material on which the finding could be based. If Chhotalal withdrew from the business, his wife, Lalitabai, would be left as the sole proprietor. No mention of her interest whatever was made in the subsequent deed, and she seems to have disappeared completely. On the termination of the old firm and the setting up of the new firm, one would expect some adjustment entries in the books of account, and these were singularly lacking. One would also expect a communication by the new agents to the various insurance companies in writing about the change of principal agents and an appointment letter in the name of the new firm by them. The bank accounts would have been transferred to the new partnership firm, and the power-of-attorney in favour of Premchand and Khambatta would have been cancelled and the new firm would have been authorised to deal with the accounts. Without any such action, the decision of the Tribunal, that the firm which asked for registration was not a real firm, cannot be said to be founded on no materialIn so far as the addition of certain other reasons, which are characterised as surmises, conjectures and suspicions, is concerned, this court has observed in Gheestas case as follows" We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee has been considered fairly and with due care ; whether the evidence pro and con has been considered in reaching the final conclusion ; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. Commissioner of Income-tax, or Omar Salay Mohamed Sait v. Commissioner of Income-tax. We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. "7. The Tribunal was trying to unravel the motive for the formation of the new firm with an old lady and two minor sons in place of Chhotalal, and what was observed by the Tribunal was in connection with the motive which suggested itself to it, and was not based on any material. Even if the Tribunal mentioned those suspicions, we do not think that they entered into the solution of the problem before it. Suspicions and surmises are best avoided ; but in the present case, the order of the Tribunal proceeded on such solid facts that the speculation about the motive of Chhotalal did not make any material difference to the finding reached, though we cannot help saying that the Tribunal would have been well-advised to leave speculation out altogether. We are of opinion that this case falls within the ruling in Gheestas case
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Regarding the first ground, it is quite obvious that there was material on which the finding could be based. If Chhotalal withdrew from the business, his wife, Lalitabai, would be left as the sole proprietor. No mention of her interest whatever was made in the subsequent deed, and she seems to have disappeared completely. On the termination of the old firm and the setting up of the new firm, one would expect some adjustment entries in the books of account, and these were singularly lacking. One would also expect a communication by the new agents to the various insurance companies in writing about the change of principal agents and an appointment letter in the name of the new firm by them. The bank accounts would have been transferred to the new partnership firm, and thein favour of Premchand and Khambatta would have been cancelled and the new firm would have been authorised to deal with the accounts. Without any such action, the decision of the Tribunal, that the firm which asked for registration was not a real firm, cannot be said to be founded on no materialIn so far as the addition of certain other reasons, which are characterised as surmises, conjectures and suspicions, is concerned, this court has observed in Gheestas case as follows" We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee has been considered fairly and with due care ; whether the evidence pro and con has been considered in reaching the final conclusion ; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal v. Commissioner ofar Salay Mohamed Sait v. Commissioner ofWe must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.Tribunal was trying to unravel the motive for the formation of the new firm with an old lady and two minor sons in place of Chhotalal, and what was observed by the Tribunal was in connection with the motive which suggested itself to it, and was not based on any material. Even if the Tribunal mentioned those suspicions, we do not think that they entered into the solution of the problem before it. Suspicions and surmises are best avoided ; but in the present case, the order of the Tribunal proceeded on such solid facts that the speculation about the motive of Chhotalal did not make any material difference to the finding reached, though we cannot help saying that the Tribunal would have beento leave speculation out altogether. We are of opinion that this case falls within the ruling in Gheestas case
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Solapur Municipal Corporation Vs. Shivaji Works Limited | substantial right of the person concerned. Applying this well settled test, it is obvious that the requirement of giving public notice under Rule 13 cannot be held to be mandatory. The object of giving public notice is informing the owners of buildings or land about the preparation of assessment-book under Rule 9 and to enable the property owners to inspect the same if so desired. There is no obligation cast upon the property owners to inspect the same because the failure to do so does not result into any consequences adversely affecting the owners. The rule is merely an enabling one and the Commissioner is required to give public notice only to inform the owners about the preparation of assessment-book. In our judgment, the rule cannot be held to be a mandatory one and it is obviously directory one and consequently, the breach thereof cannot vitiate the entire process of assessment of rateable value. In this connection, it would be appropriate to distinguish between the provisions of Rule 13 and Rule 15. Rule 15 also demands that the Commissioner shall give a public notice and this notice is to be given to the property owners to enable them to lodge complaints against the amount of rateable value. Sub-rule (2) of Rule 15 demands the Commissioner to serve special notice in case the rateable value is increased. The failure to give public notice under Rule 15 (1) or special notice under sub-rule (2) of Rule 15 clearly affects the right of a property owner to lodge complaint and in that case the requirement of public notice has to be treated as mandatory. In our judgment, the two authorities below overlooked the object and the purpose of Rule 13 and erroneously proceeded to conclude that requirements of Rule 13 are mandatory because of the use of the expression shall. The decision of the two authorities below holding that the entire process of determination of rateable value is null and void for failure to give notice contemplated under Rule 13, therefore cannot be sustained. It would not be out of place to state that the failure to give public notice under Rule 13 has in no manner adversely affected the interest of the company. The learned counsel for the company very fairly stated that notice under sub-rule (2) of Rule 15 was served and consequently the company did lodge co plaint against the amount of rateable value. In by the Corporation in determining rateable value in respect of properties which were originally situated within village Kumathe and which were subsequently included within the city limits of Corporation cannot be faulted with.( 5 ) SHRI Chandrachud, learned counsel appearing on behalf of the company, referred to the decision of Supreme Court reported in AIR 1975 SC 2172 : (1975 Tax LR 2110) (Vishakhapatnam Municipality v. Kandregula Nukraju and others) to urge that the requirement of Rule 13 is obligatory. The submission is not correct and the reliance on the decision of the Supreme Court is not appropriate. The Supreme Court was examining provisions of Sections 81 and 83 of Andhra Pradesh Municipalities Act which provided for levy of tax for the first time. The proviso to Sub-Section (2) of Section 81 prescribes that before passing a resolution imposing a tax for the first time, the council shall publish a notice in the prescribed manner declaring the requisite intention. The council has to invite objections and to consider the objections received within the stipulated time. While considering the ambit of this proviso, the Supreme Court held that it is obligatory upon the council to invite objections and consider the same before proceeding to levy tax for the first time. The decision of the Supreme Court has no bearing to the facts of the present case. As mentioned hereinabove, the requirement of giving public notice was not a basis for levy of tax, nor failure to give such notice has affected any interest of any property owner. In the case before the Supreme Court, the power to levy tax for the first time arose only after the objections were invited and determined. Such is not the case in respect of Rule 13 and therefore, the decision of the Supreme Court has no application to the facts of the present case. Shri Chandrachud then submitted that for a part of the assessed area, the company had already paid property tax to Kumathe Village panchayat. The learned counsel pointed out that the transitory provisions in Appendix IV of the Schedule prescribes that during the period the taxes are determined by the municipal corporation, the liability of the company to pay taxes to the village panchayat is not superseded and accordingly the company had paid taxes demanded by village panchayat. Shri Chandrachud submitted that it is not open for the corporation to demand taxes for the official year ignoring the amount paid by the company to the village panchayat. The submission is correct and deserves acceptance. The company is entitled to the credit of the amount of tax which was paid to the village panchayat and the companys liability is limited only to the excess amount determined by the Corporation. Shri Chandrachud also made a faint attempt to urge that the corporation cannot recover taxes for the expired period of the official year. We are unable to find any merit in this submission. It is now well settled that the right of Corporation to demand property taxes cannot travel beyond the current official year or in other words, the tax cannot be recovered with retrospective effect. It is not open for the tax payer to claim that the tax cannot be recovered for the period of the official year. The tax payer is given facility to pay the tax by instalment but that cannot enable the tax payer to claim that the Corporation cannot recover the tax for the expired period of the official year. In our judgment, the claim of Shri Chandrachaud on this count cannot be accepted. | 1[ds]As mentioned hereinabove, the determination of rateable value in respect of the properties of the company was undertaken for the first time after the area of village Kumathe was included within the limits of Municipal Corporation. As rateable value was determined for the first time, it was incumbent upon the Corporation to follow taxation rules set out in Chapter VIII of the Schedule to the Act. It is not in dispute that the Commissioner had published a notice under(1) of Rule 15 to enable the owners of the property including company to lodge a complaint against the amount of rateable value entered into assessment book. It is also not in dispute that the special notice contemplated under(2) of Rule 15 was served on the company and the premises of the company were assessed for property tax on the first occasion and the rate of tax was more than a tax which the company was paying to the village panchayat. The sole grievance of the company is that the entire procedure of levy of rateable value and recovery of tax was vitiated for failure to strictly comply with the requirement of(1) of Rule 13. In our judgment, the two authorities below were clearly in error in proceeding to strike down the exercise carried out by the Corporation to levy property tax on assumption that the requirements of(1) of Rule 13 are mandatory. The plain reading of themakes it clear that after the entries required to be made by clauses (a), (b), (c) and (d) of Rule 9 have been completed, the Commissioner shall give public notice thereof and of the place where the wardmay be inspected. The public notice contemplated under thisis to give notice to the owners of various properties that an assessment book prepared under Rule 9 is available for inspection at a particular place. The public notice is required to be given by advertisement in the local newspapers and also by posting placards in conspicuous places. The two authorities below proceeded to hold that the requirement of giving public notice is mandatory because of the use of expression shall. The conclusion reached by the authorities below is clearly erroneous. It is now well settled by catena of decisions of the Supreme Court and this Court that whether the provision is mandatory or directory is not dependent upon the use of expression shall or may. What is required to be ascertained is the purpose or the object of the rule and whether any breach in following the rule affects substantial right of the person concerned. Applying this well settled test, it is obvious that the requirement of giving public notice under Rule 13 cannot be held to be mandatory. The object of giving public notice is informing the owners of buildings or land about the preparation ofunder Rule 9 and to enable the property owners to inspect the same if so desired. There is no obligation cast upon the property owners to inspect the same because the failure to do so does not result into any consequences adversely affecting the owners. The rule is merely an enabling one and the Commissioner is required to give public notice only to inform the owners about the preparation ofIn our judgment, the rule cannot be held to be a mandatory one and it is obviously directory one and consequently, the breach thereof cannot vitiate the entire process of assessment of rateable value. In this connection, it would be appropriate to distinguish between the provisions of Rule 13 and Rule 15. Rule 15 also demands that the Commissioner shall give a public notice and this notice is to be given to the property owners to enable them to lodge complaints against the amount of rateable value.(2) of Rule 15 demands the Commissioner to serve special notice in case the rateable value is increased. The failure to give public notice under Rule 15 (1) or special notice under(2) of Rule 15 clearly affects the right of a property owner to lodge complaint and in that case the requirement of public notice has to be treated as mandatory. In our judgment, the two authorities below overlooked the object and the purpose of Rule 13 and erroneously proceeded to conclude that requirements of Rule 13 are mandatory because of the use of the expression shall. The decision of the two authorities below holding that the entire process of determination of rateable value is null and void for failure to give notice contemplated under Rule 13, therefore cannot be sustained. It would not be out of place to state that the failure to give public notice under Rule 13 has in no manner adversely affected the interest of the company. The learned counsel for the company very fairly stated that notice under(2) of Rule 15 was served and consequently the company did lodge co plaint against the amount of rateable value. In by the Corporation in determining rateable value in respect of properties which were originally situated within village Kumathe and which were subsequently included within the city limits of Corporation cannot be faultedcouncil has to invite objections and to consider the objections received within the stipulated time. While considering the ambit of this proviso, the Supreme Court held that it is obligatory upon the council to invite objections and consider the same before proceeding to levy tax for the first time. The decision of the Supreme Court has no bearing to the facts of the present case. As mentioned hereinabove, the requirement of giving public notice was not a basis for levy of tax, nor failure to give such notice has affected any interest of any property owner. In the case before the Supreme Court, the power to levy tax for the first time arose only after the objections were invited and determined. Such is not the case in respect of Rule 13 and therefore, the decision of the Supreme Court has no application to the facts of the present case. Shri Chandrachud then submitted that for a part of the assessed area, the company had already paid property tax to Kumathe Village panchayat. The learned counsel pointed out that the transitory provisions in Appendix IV of the Schedule prescribes that during the period the taxes are determined by the municipal corporation, the liability of the company to pay taxes to the village panchayat is not superseded and accordingly the company had paid taxes demanded by village panchayat. Shri Chandrachud submitted that it is not open for the corporation to demand taxes for the official year ignoring the amount paid by the company to the village panchayat. The submission is correct and deserves acceptance. The company is entitled to the credit of the amount of tax which was paid to the village panchayat and the companys liability is limited only to the excess amount determined by the Corporation. Shri Chandrachud also made a faint attempt to urge that the corporation cannot recover taxes for the expired period of the official year. We are unable to find any merit in this submission. It is now well settled that the right of Corporation to demand property taxes cannot travel beyond the current official year or in other words, the tax cannot be recovered with retrospective effect. It is not open for the tax payer to claim that the tax cannot be recovered for the period of the official year. The tax payer is given facility to pay the tax by instalment but that cannot enable the tax payer to claim that the Corporation cannot recover the tax for the expired period of the official year. In our judgment, the claim of Shri Chandrachaud on this count cannot be accepted. | 1 | 2,631 | 1,391 | ### 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:
substantial right of the person concerned. Applying this well settled test, it is obvious that the requirement of giving public notice under Rule 13 cannot be held to be mandatory. The object of giving public notice is informing the owners of buildings or land about the preparation of assessment-book under Rule 9 and to enable the property owners to inspect the same if so desired. There is no obligation cast upon the property owners to inspect the same because the failure to do so does not result into any consequences adversely affecting the owners. The rule is merely an enabling one and the Commissioner is required to give public notice only to inform the owners about the preparation of assessment-book. In our judgment, the rule cannot be held to be a mandatory one and it is obviously directory one and consequently, the breach thereof cannot vitiate the entire process of assessment of rateable value. In this connection, it would be appropriate to distinguish between the provisions of Rule 13 and Rule 15. Rule 15 also demands that the Commissioner shall give a public notice and this notice is to be given to the property owners to enable them to lodge complaints against the amount of rateable value. Sub-rule (2) of Rule 15 demands the Commissioner to serve special notice in case the rateable value is increased. The failure to give public notice under Rule 15 (1) or special notice under sub-rule (2) of Rule 15 clearly affects the right of a property owner to lodge complaint and in that case the requirement of public notice has to be treated as mandatory. In our judgment, the two authorities below overlooked the object and the purpose of Rule 13 and erroneously proceeded to conclude that requirements of Rule 13 are mandatory because of the use of the expression shall. The decision of the two authorities below holding that the entire process of determination of rateable value is null and void for failure to give notice contemplated under Rule 13, therefore cannot be sustained. It would not be out of place to state that the failure to give public notice under Rule 13 has in no manner adversely affected the interest of the company. The learned counsel for the company very fairly stated that notice under sub-rule (2) of Rule 15 was served and consequently the company did lodge co plaint against the amount of rateable value. In by the Corporation in determining rateable value in respect of properties which were originally situated within village Kumathe and which were subsequently included within the city limits of Corporation cannot be faulted with.( 5 ) SHRI Chandrachud, learned counsel appearing on behalf of the company, referred to the decision of Supreme Court reported in AIR 1975 SC 2172 : (1975 Tax LR 2110) (Vishakhapatnam Municipality v. Kandregula Nukraju and others) to urge that the requirement of Rule 13 is obligatory. The submission is not correct and the reliance on the decision of the Supreme Court is not appropriate. The Supreme Court was examining provisions of Sections 81 and 83 of Andhra Pradesh Municipalities Act which provided for levy of tax for the first time. The proviso to Sub-Section (2) of Section 81 prescribes that before passing a resolution imposing a tax for the first time, the council shall publish a notice in the prescribed manner declaring the requisite intention. The council has to invite objections and to consider the objections received within the stipulated time. While considering the ambit of this proviso, the Supreme Court held that it is obligatory upon the council to invite objections and consider the same before proceeding to levy tax for the first time. The decision of the Supreme Court has no bearing to the facts of the present case. As mentioned hereinabove, the requirement of giving public notice was not a basis for levy of tax, nor failure to give such notice has affected any interest of any property owner. In the case before the Supreme Court, the power to levy tax for the first time arose only after the objections were invited and determined. Such is not the case in respect of Rule 13 and therefore, the decision of the Supreme Court has no application to the facts of the present case. Shri Chandrachud then submitted that for a part of the assessed area, the company had already paid property tax to Kumathe Village panchayat. The learned counsel pointed out that the transitory provisions in Appendix IV of the Schedule prescribes that during the period the taxes are determined by the municipal corporation, the liability of the company to pay taxes to the village panchayat is not superseded and accordingly the company had paid taxes demanded by village panchayat. Shri Chandrachud submitted that it is not open for the corporation to demand taxes for the official year ignoring the amount paid by the company to the village panchayat. The submission is correct and deserves acceptance. The company is entitled to the credit of the amount of tax which was paid to the village panchayat and the companys liability is limited only to the excess amount determined by the Corporation. Shri Chandrachud also made a faint attempt to urge that the corporation cannot recover taxes for the expired period of the official year. We are unable to find any merit in this submission. It is now well settled that the right of Corporation to demand property taxes cannot travel beyond the current official year or in other words, the tax cannot be recovered with retrospective effect. It is not open for the tax payer to claim that the tax cannot be recovered for the period of the official year. The tax payer is given facility to pay the tax by instalment but that cannot enable the tax payer to claim that the Corporation cannot recover the tax for the expired period of the official year. In our judgment, the claim of Shri Chandrachaud on this count cannot be accepted.
### Response:
1
### Explanation:
to give notice to the owners of various properties that an assessment book prepared under Rule 9 is available for inspection at a particular place. The public notice is required to be given by advertisement in the local newspapers and also by posting placards in conspicuous places. The two authorities below proceeded to hold that the requirement of giving public notice is mandatory because of the use of expression shall. The conclusion reached by the authorities below is clearly erroneous. It is now well settled by catena of decisions of the Supreme Court and this Court that whether the provision is mandatory or directory is not dependent upon the use of expression shall or may. What is required to be ascertained is the purpose or the object of the rule and whether any breach in following the rule affects substantial right of the person concerned. Applying this well settled test, it is obvious that the requirement of giving public notice under Rule 13 cannot be held to be mandatory. The object of giving public notice is informing the owners of buildings or land about the preparation ofunder Rule 9 and to enable the property owners to inspect the same if so desired. There is no obligation cast upon the property owners to inspect the same because the failure to do so does not result into any consequences adversely affecting the owners. The rule is merely an enabling one and the Commissioner is required to give public notice only to inform the owners about the preparation ofIn our judgment, the rule cannot be held to be a mandatory one and it is obviously directory one and consequently, the breach thereof cannot vitiate the entire process of assessment of rateable value. In this connection, it would be appropriate to distinguish between the provisions of Rule 13 and Rule 15. Rule 15 also demands that the Commissioner shall give a public notice and this notice is to be given to the property owners to enable them to lodge complaints against the amount of rateable value.(2) of Rule 15 demands the Commissioner to serve special notice in case the rateable value is increased. The failure to give public notice under Rule 15 (1) or special notice under(2) of Rule 15 clearly affects the right of a property owner to lodge complaint and in that case the requirement of public notice has to be treated as mandatory. In our judgment, the two authorities below overlooked the object and the purpose of Rule 13 and erroneously proceeded to conclude that requirements of Rule 13 are mandatory because of the use of the expression shall. The decision of the two authorities below holding that the entire process of determination of rateable value is null and void for failure to give notice contemplated under Rule 13, therefore cannot be sustained. It would not be out of place to state that the failure to give public notice under Rule 13 has in no manner adversely affected the interest of the company. The learned counsel for the company very fairly stated that notice under(2) of Rule 15 was served and consequently the company did lodge co plaint against the amount of rateable value. In by the Corporation in determining rateable value in respect of properties which were originally situated within village Kumathe and which were subsequently included within the city limits of Corporation cannot be faultedcouncil has to invite objections and to consider the objections received within the stipulated time. While considering the ambit of this proviso, the Supreme Court held that it is obligatory upon the council to invite objections and consider the same before proceeding to levy tax for the first time. The decision of the Supreme Court has no bearing to the facts of the present case. As mentioned hereinabove, the requirement of giving public notice was not a basis for levy of tax, nor failure to give such notice has affected any interest of any property owner. In the case before the Supreme Court, the power to levy tax for the first time arose only after the objections were invited and determined. Such is not the case in respect of Rule 13 and therefore, the decision of the Supreme Court has no application to the facts of the present case. Shri Chandrachud then submitted that for a part of the assessed area, the company had already paid property tax to Kumathe Village panchayat. The learned counsel pointed out that the transitory provisions in Appendix IV of the Schedule prescribes that during the period the taxes are determined by the municipal corporation, the liability of the company to pay taxes to the village panchayat is not superseded and accordingly the company had paid taxes demanded by village panchayat. Shri Chandrachud submitted that it is not open for the corporation to demand taxes for the official year ignoring the amount paid by the company to the village panchayat. The submission is correct and deserves acceptance. The company is entitled to the credit of the amount of tax which was paid to the village panchayat and the companys liability is limited only to the excess amount determined by the Corporation. Shri Chandrachud also made a faint attempt to urge that the corporation cannot recover taxes for the expired period of the official year. We are unable to find any merit in this submission. It is now well settled that the right of Corporation to demand property taxes cannot travel beyond the current official year or in other words, the tax cannot be recovered with retrospective effect. It is not open for the tax payer to claim that the tax cannot be recovered for the period of the official year. The tax payer is given facility to pay the tax by instalment but that cannot enable the tax payer to claim that the Corporation cannot recover the tax for the expired period of the official year. In our judgment, the claim of Shri Chandrachaud on this count cannot be accepted.
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IAN PETER MORRIS Vs. ASSTT. COMMNR. OF INCOME TAX | 1. Leave granted. 2. The appellant Assessee along with three others had promoted a Company, namely, Log in Systems Innovations Private Limited (the Acquiree Company) in the year 1990. The said Company was acquired by one Synergy Credit Corporation Limited (the Acquirer Company). The appellant was offered the position of Executive Director in the Acquirer Company for a gross compensation of Rs.1,77,200/- per annum. This was by appointment order dated 8th October, 1993. On 15th October, 1993, an Acquisition Agreement was executed between the Acquirer Company and the Acquiree Company on a going concern basis for a total consideration of Rs.6,00,000/-. On the same date i.e. 15th October, 1993, a Non-Compete Agreement was signed between the appellant Assessee and the Acquirer Company imposing a restriction on the appellant from carrying on any business of Computer Software development and marketing for a period of five years for which the appellant Assessee was paid a sum of Rs.21,00,000/-. The question that arose in the proceedings commencing with the Assessment Order is whether the aforesaid amount of Rs.21 lakhs is on account of salary or the same is a capital receipt. The High Court in the order under appeal took the view that the said amount is salary amount on which interest would be chargeable/leviable under Section 234B and 234C of the Income Tax Act, 1961 (for short the Act). Aggrieved, the present appeal has been filed. 3. A limited notice was issued in the present case confining the scrutiny of the Court to correctness of levy of interest as ordered/affirmed by the High Court. The aforesaid limited notice, therefore, has to be understood to have concluded the issue with regard to the nature of the receipt, namely, that the same was salary. 4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary. | 1[ds]4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary. | 1 | 556 | 235 | ### 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. The appellant Assessee along with three others had promoted a Company, namely, Log in Systems Innovations Private Limited (the Acquiree Company) in the year 1990. The said Company was acquired by one Synergy Credit Corporation Limited (the Acquirer Company). The appellant was offered the position of Executive Director in the Acquirer Company for a gross compensation of Rs.1,77,200/- per annum. This was by appointment order dated 8th October, 1993. On 15th October, 1993, an Acquisition Agreement was executed between the Acquirer Company and the Acquiree Company on a going concern basis for a total consideration of Rs.6,00,000/-. On the same date i.e. 15th October, 1993, a Non-Compete Agreement was signed between the appellant Assessee and the Acquirer Company imposing a restriction on the appellant from carrying on any business of Computer Software development and marketing for a period of five years for which the appellant Assessee was paid a sum of Rs.21,00,000/-. The question that arose in the proceedings commencing with the Assessment Order is whether the aforesaid amount of Rs.21 lakhs is on account of salary or the same is a capital receipt. The High Court in the order under appeal took the view that the said amount is salary amount on which interest would be chargeable/leviable under Section 234B and 234C of the Income Tax Act, 1961 (for short the Act). Aggrieved, the present appeal has been filed. 3. A limited notice was issued in the present case confining the scrutiny of the Court to correctness of levy of interest as ordered/affirmed by the High Court. The aforesaid limited notice, therefore, has to be understood to have concluded the issue with regard to the nature of the receipt, namely, that the same was salary. 4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary.
### Response:
1
### Explanation:
4. A perusal of the relevant provisions of Chapter VII of the Act [Part A, B, C and F of Chapter VII] would go to show that against salary a deduction, at the requisite rate at which income tax is to be paid by the person entitled to receive the salary, is required to be made by the employer failing which the employer is liable to pay simple interest thereon. The provisions relating to payment of advance tax is contained in Part C and interest thereon in Part F of Chapter VII of the Act. In cases where receipt is by way of salary, deductions under Section 192 of the Act is required to be made. No question of payment of advance tax under Part C of Chapter VII of the Act can arise in cases of receipt by way of salary. If that is so, Part F of Chapter VII dealing with interest chargeable in certain cases (Section 234B Interest for defaults in payment of advance tax and Section 234C Interest for deferment of advance tax) would have no application to the present situation in view of the finality that has to be attached to the decision that what was received by the appellant assessee under the Non-Compete Agreement was by way of salary.
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Ram Lal & Ors Vs. Piare Lal Gobindram & Ors | main residential house of a judgment-debtor ceases to enjoy immunity from attachment, in case that portion is let out by the Judgment-debtor to a tenant, it would necessarily follow that the shop portion of a building, the other part of which is being used for residential purpose would not be exempt from attachment. It appears to us that this conclusion does not follow from the Judgment of the Full Bench or from the language of the statute. It is obvious that what clause (ccc) exempts is the main residential house. There is no doubt that the building is the main residential house of the insolvents. The judgment of the Full Bench proceeds on the basis that when a portion of even a main residential house is let out to a tenant by the judgment-debtor that portion is not occupied by him and as occupation of the residential house by the Judgment-debtor is one of the requirements of the statute in order to qualify for exemption from attachment the portion let out cannot be said to be occupied by the judgment-debtor and therefore does not qualify for exemption. Therefore, the decision of the Full Bench gives no guidance in interpreting the question that has to be considered in this case.5. The question for decision in this case is whether if a portion of the residential house is occupied by the judgment-debtor himself for the purposes of a shop that portion ceases to be part of the residential house. It appears to us clear that it does not. In the circumstances and social conditions of this country it would be difficult to Justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house. As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocates library might occupy one of the rooms of his house. The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house. The Punjab High Court has taken the same view at least from the year 1951. In Agha Jafar Ali Khan v. Radha Kishan, AIR 1951 Punj 433, it was held that"where the whole building is being used for the purposes of residence, the mere fact that there is a shop on the ground floor will not convert the building into something different from a residential house."The judgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment-debtor or was rented out by him. A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except the owner. In Firm Ganga Ram v. Firm Jai Ram, AIR l957 Punj 293 where the ground floor of a building with three floors was being used for commercial purposes and the first and the second floors for residential purposes it was held that the judgment-debtors can claim immunity from attachment or sale, with respect to the entire house under the provisions of Section 60 (1) clause (ccc), where it is the only residential house belonging to them and occupied by them. It is instructive to refer to a portion of the discussion:"The conditions in our country are such which admit of a composite user of the same building. A part of the same house is used for dwelling, and the other part is meant for commercial or business purpose and sometimes even the latter portion, particularly after the business hours, is used for dwelling."........Having regard to the mode of living of the people in this country, their habits and customs, it is not possible generally to designate a particular building as one, which is used exclusively for a residential purpose in contradistinction to a commercial purpose."..........On this basis, residential building of a medical practitioner, will not be exempt from liability to attachment or sale, if in a portion he receives or treats his patient."Similarly, where in his house, an Iron-smith works on his forge, a shoemaker makes shoes on his last, a potter turns his wheel, or any other artisan spreads his tools, to make a living or a petty trader keeps his wares for sale, according to the interpretation, which the learned counsel for the respondent, asks me to put on the words occurring in the Code, the provisions will be powerless in extending any effective protection. This construction will result in defeating the very purpose of the law."We completely agree with the learned Judges observations. It is interesting to note that in Punjab Mercantile Bank Ltd. (in liquidation) Jullundur City v. General Typewriter Co., Jullundur City, 64 Pun LR 1081= (AIR 1963 Punj 205 Tek Chand, J. who gave the above judgment held that where the judgment-debtor was residing in the greater part of the house two chabaras on the first floor let out to tenants were not exempt from attachment and sale. To the same effect is the judgment of the Full Bench relied on by the Division Bench in this case. Tek Chand, J. has kept clear in his mind the distinction between a case where a portion of the residential house is let out and a portion used by the owner himself, though for a purpose other than residential. Such use does not make the residential house cease to be a residential house or the portion so used as not part of the residential house.6. There is no doubt that this was the main residential house of the insolvents and it was occupied by them. The facts of the case bring it squarely within the scope of the section and the whole building is, therefore, exempt from attachment. | 1[ds]4. We have carefully considered the facts of this case and are in agreement with the view of the learned District Judge as well as the learned Single Judge of the High Court that the building is a single one with a portion opens on the chowk Mandi Dabwali and there is another opening for regular entrance from a public street. There is no evidence that any portion of the upstairs is being used for the purpose of the shop. Therefore, there is no warrant for the finding of the Insolvency Judge that the building is in two distinct portions. Indeed the learned Judges of the Division Bench did not differ from the finding of the first appellate court and the second appellate court on this point. They seem to accept this finding and proceed on that basis. Their reasoning was that if a portion of the main residential house of a judgment-debtor ceases to enjoy immunity from attachment, in case that portion is let out by the Judgment-debtor to a tenant, it would necessarily follow that the shop portion of a building, the other part of which is being used for residential purpose would not be exempt from attachment. It appears to us that this conclusion does not follow from the Judgment of the Full Bench or from the language of the statute. It is obvious that what clause (ccc) exempts is the main residential house. There is no doubt that the building is the main residential house of the insolvents. The judgment of the Full Bench proceeds on the basis that when a portion of even a main residential house is let out to a tenant by the judgment-debtor that portion is not occupied by him and as occupation of the residential house by the Judgment-debtor is one of the requirements of the statute in order to qualify for exemption from attachment the portion let out cannot be said to be occupied by the judgment-debtor and therefore does not qualify for exemption. Therefore, the decision of the Full Bench gives no guidance in interpreting the question that has to be considered in thisjudgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment-debtor or was rented out by him. A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except the owner. In Firm Ganga Ram v. Firm Jai Ram, AIR l957 Punj 293 where the ground floor of a building with three floors was being used for commercial purposes and the first and the second floors for residential purposes it was held that the judgment-debtors can claim immunity from attachment or sale, with respect to the entire house under the provisions of Section 60 (1) clause (ccc), where it is the only residential house belonging to them and occupied bycompletely agree with the learned Judges observations. It is interesting to note that in Punjab Mercantile Bank Ltd. (in liquidation) Jullundur City v. General Typewriter Co., Jullundur City, 64 Pun LR 1081= (AIR 1963 Punj 205 Tek Chand, J. who gave the above judgment held that where the judgment-debtor was residing in the greater part of the house two chabaras on the first floor let out to tenants were not exempt from attachment and sale. To the same effect is the judgment of the Full Bench relied on by the Division Bench in this case. Tek Chand, J. has kept clear in his mind the distinction between a case where a portion of the residential house is let out and a portion used by the owner himself, though for a purpose other than residential. Such use does not make the residential house cease to be a residential house or the portion so used as not part of the residential house.6. There is no doubt that this was the main residential house of the insolvents and it was occupied by them. The facts of the case bring it squarely within the scope of the section and the whole building is, therefore, exempt fromappears to us clear that it does not.In the circumstances and social conditions of this country it would be difficult to Justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house. As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocates library might occupy one of the rooms of his house. The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house. The Punjab High Court has taken the same view at least from the year 1951. | 1 | 2,120 | 887 | ### 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:
main residential house of a judgment-debtor ceases to enjoy immunity from attachment, in case that portion is let out by the Judgment-debtor to a tenant, it would necessarily follow that the shop portion of a building, the other part of which is being used for residential purpose would not be exempt from attachment. It appears to us that this conclusion does not follow from the Judgment of the Full Bench or from the language of the statute. It is obvious that what clause (ccc) exempts is the main residential house. There is no doubt that the building is the main residential house of the insolvents. The judgment of the Full Bench proceeds on the basis that when a portion of even a main residential house is let out to a tenant by the judgment-debtor that portion is not occupied by him and as occupation of the residential house by the Judgment-debtor is one of the requirements of the statute in order to qualify for exemption from attachment the portion let out cannot be said to be occupied by the judgment-debtor and therefore does not qualify for exemption. Therefore, the decision of the Full Bench gives no guidance in interpreting the question that has to be considered in this case.5. The question for decision in this case is whether if a portion of the residential house is occupied by the judgment-debtor himself for the purposes of a shop that portion ceases to be part of the residential house. It appears to us clear that it does not. In the circumstances and social conditions of this country it would be difficult to Justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house. As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocates library might occupy one of the rooms of his house. The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house. The Punjab High Court has taken the same view at least from the year 1951. In Agha Jafar Ali Khan v. Radha Kishan, AIR 1951 Punj 433, it was held that"where the whole building is being used for the purposes of residence, the mere fact that there is a shop on the ground floor will not convert the building into something different from a residential house."The judgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment-debtor or was rented out by him. A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except the owner. In Firm Ganga Ram v. Firm Jai Ram, AIR l957 Punj 293 where the ground floor of a building with three floors was being used for commercial purposes and the first and the second floors for residential purposes it was held that the judgment-debtors can claim immunity from attachment or sale, with respect to the entire house under the provisions of Section 60 (1) clause (ccc), where it is the only residential house belonging to them and occupied by them. It is instructive to refer to a portion of the discussion:"The conditions in our country are such which admit of a composite user of the same building. A part of the same house is used for dwelling, and the other part is meant for commercial or business purpose and sometimes even the latter portion, particularly after the business hours, is used for dwelling."........Having regard to the mode of living of the people in this country, their habits and customs, it is not possible generally to designate a particular building as one, which is used exclusively for a residential purpose in contradistinction to a commercial purpose."..........On this basis, residential building of a medical practitioner, will not be exempt from liability to attachment or sale, if in a portion he receives or treats his patient."Similarly, where in his house, an Iron-smith works on his forge, a shoemaker makes shoes on his last, a potter turns his wheel, or any other artisan spreads his tools, to make a living or a petty trader keeps his wares for sale, according to the interpretation, which the learned counsel for the respondent, asks me to put on the words occurring in the Code, the provisions will be powerless in extending any effective protection. This construction will result in defeating the very purpose of the law."We completely agree with the learned Judges observations. It is interesting to note that in Punjab Mercantile Bank Ltd. (in liquidation) Jullundur City v. General Typewriter Co., Jullundur City, 64 Pun LR 1081= (AIR 1963 Punj 205 Tek Chand, J. who gave the above judgment held that where the judgment-debtor was residing in the greater part of the house two chabaras on the first floor let out to tenants were not exempt from attachment and sale. To the same effect is the judgment of the Full Bench relied on by the Division Bench in this case. Tek Chand, J. has kept clear in his mind the distinction between a case where a portion of the residential house is let out and a portion used by the owner himself, though for a purpose other than residential. Such use does not make the residential house cease to be a residential house or the portion so used as not part of the residential house.6. There is no doubt that this was the main residential house of the insolvents and it was occupied by them. The facts of the case bring it squarely within the scope of the section and the whole building is, therefore, exempt from attachment.
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4. We have carefully considered the facts of this case and are in agreement with the view of the learned District Judge as well as the learned Single Judge of the High Court that the building is a single one with a portion opens on the chowk Mandi Dabwali and there is another opening for regular entrance from a public street. There is no evidence that any portion of the upstairs is being used for the purpose of the shop. Therefore, there is no warrant for the finding of the Insolvency Judge that the building is in two distinct portions. Indeed the learned Judges of the Division Bench did not differ from the finding of the first appellate court and the second appellate court on this point. They seem to accept this finding and proceed on that basis. Their reasoning was that if a portion of the main residential house of a judgment-debtor ceases to enjoy immunity from attachment, in case that portion is let out by the Judgment-debtor to a tenant, it would necessarily follow that the shop portion of a building, the other part of which is being used for residential purpose would not be exempt from attachment. It appears to us that this conclusion does not follow from the Judgment of the Full Bench or from the language of the statute. It is obvious that what clause (ccc) exempts is the main residential house. There is no doubt that the building is the main residential house of the insolvents. The judgment of the Full Bench proceeds on the basis that when a portion of even a main residential house is let out to a tenant by the judgment-debtor that portion is not occupied by him and as occupation of the residential house by the Judgment-debtor is one of the requirements of the statute in order to qualify for exemption from attachment the portion let out cannot be said to be occupied by the judgment-debtor and therefore does not qualify for exemption. Therefore, the decision of the Full Bench gives no guidance in interpreting the question that has to be considered in thisjudgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment-debtor or was rented out by him. A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except the owner. In Firm Ganga Ram v. Firm Jai Ram, AIR l957 Punj 293 where the ground floor of a building with three floors was being used for commercial purposes and the first and the second floors for residential purposes it was held that the judgment-debtors can claim immunity from attachment or sale, with respect to the entire house under the provisions of Section 60 (1) clause (ccc), where it is the only residential house belonging to them and occupied bycompletely agree with the learned Judges observations. It is interesting to note that in Punjab Mercantile Bank Ltd. (in liquidation) Jullundur City v. General Typewriter Co., Jullundur City, 64 Pun LR 1081= (AIR 1963 Punj 205 Tek Chand, J. who gave the above judgment held that where the judgment-debtor was residing in the greater part of the house two chabaras on the first floor let out to tenants were not exempt from attachment and sale. To the same effect is the judgment of the Full Bench relied on by the Division Bench in this case. Tek Chand, J. has kept clear in his mind the distinction between a case where a portion of the residential house is let out and a portion used by the owner himself, though for a purpose other than residential. Such use does not make the residential house cease to be a residential house or the portion so used as not part of the residential house.6. There is no doubt that this was the main residential house of the insolvents and it was occupied by them. The facts of the case bring it squarely within the scope of the section and the whole building is, therefore, exempt fromappears to us clear that it does not.In the circumstances and social conditions of this country it would be difficult to Justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house. As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocates library might occupy one of the rooms of his house. The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house. The Punjab High Court has taken the same view at least from the year 1951.
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Mugneeram Bangur & Co Vs. Sardar Gurbachan Singh | / occupier of the said land :(a) shall place the said land at the disposal and under the control of the Military Estates Officer Bengal Circle on and from the 14th November, 1941 at 1 P.M. Bengal time until six months after the termination of the present was unless relinquished earlier. "In consequence of this order the company lost possession of the land and automatically lost access there to. Without getting on to the land the company would not carry out its obligation to the purchasers of constructing the roads and drains. If, in disobedience of this order, the companys servants, agents or contractors were to carry on the work of construction of the roads and drains by entering on the land of which the possession was with the Government, they would have been liable to punishment under sub-r.(7) of R. 75(a) of the Defence of India Rules and also the company. We were informed that the land was used by the Government for military purposes. It is, therefore, possible that the land might have been declared as a protected place under R.7 of the Defence of India Rules. Even, however, without such a declaration, we agree with Mr. Sen that it would not have been possible for the company, its agents, servants or contractors to go on the land during the continuance in force of the order of requisition without being rendered liable at law.8. Even so it is clear that all that had become unlawful was to construct roads and drains while the land was bound to be given up by the Government sometime or other and, therefore, in essence the activities which were rendered unlawful were not forbidden for all time but only temporarily. It may be that the duration of the embargo was uncertain but not permanent. It would, therefore, be relevant to enquire whether a contract could properly be held to be frustrated because for a certain period of time . its performance has become unlawful. According to Mr. Sen the moment it became unlawful for one of the parties to the contract, to continue with the performance, the contract was discharged and in this connection he referred us to certain observations of Lord Wright in Denny Mott and Dickson Ltd. v. James B. Fraser and Co. Ltd., 1944 AC 265 (274), and certain other portions of the report. We put to him the question as to what would be the effect of a requisitioning, say, for a period of one month. Would that operate as discharge of the contract? To that his answer was in the negative and we think that the answer was right. The question then would be : would it make any difference if unlawfulness would attach to the performance of the contract for an indeterminate period? In our judgment, if time is of the essence of the contract or if time for performance is set out in the contract it may be that the contract would stand discharged even though its performance may have been rendered unlawful for an indeterminate time provided unlawfulness attached to the performance of the contract at the time when the contract ought to have been performed. Thus, where the performance of a contract had been rendered unlawful by reason of some subsequent event the contract would stand discharged but such discharge will take place not necessarily from the date on which the further performance was rendered unlawful, unless further performance was rendered unlawful for all time. If the performance of the contract is rendered unlawful either for a determinate period of time or for an indeterminate period of time the contract would not stand discharged unless the ban on its performance existed on the day or during the time in which it has to be performed. Here it is pointed out by Mr. Sen that the respondent had made time the essence of the contract but that only applies to the grant of conveyance after the completion of the roads and drains. As already pointed out, parties were wholly silent as to the time within which the roads and drains were to be completed. Therefore, in so far as this aspect, of the contract is concerned time was in no sense made the essence of the contract. According to Mr. Sen, however, where the parties have failed to specify in the contract time within which it has to be performed S.46 of the Contract Act comes in and the parties may be presumed to have agreed that the contract will be performed within, reasonable time. To that the answer would be the same as that given in the earlier case, that is, the parties whew they entered into the contract, knew the prevailing circumstances and must have borne in mind the possibility that something like what actually happened may happen and, therefore, did not specify the time within which the land had to be developed. In other words, the parties intended to exclude from the computation of reasonable time such time as was taken up in procuring the necessary material which was not easy to obtain and such as may be taken up if the land were requisitioned by Government. Thus, in our view it cannot be said that because of the requisitioning orders which had the effect of making the entry by or on behalf of the company on the land illegal during the subsistence of the period of requisitioning the contract stood discharged.9. Then remains the other point argued by Mr. Sen. He said that the suit for specific performance was premature because under the agreement the respondent did not get a right to obtain a sale-deed till after the development of the land comprised in the scheme, was completed. That is perfectly true. But the fact remains that this work had been completed when the appeal was heard by the High Court. The Court would in such a case be justified in taking notice of subsequent events in moulding its relief accordingly. | 0[ds]6. In so far as discharge of contract by reason of frustration is concerned there is no question of implying a term in the contract a term fundamental for its performance, as is done by the Courts in England because we have here the provisions of S. 56 as well as those of S. 32 of the Contract Act. This is what was held by this Court in the earlier case and that decision binds us. No doubt, a contract can be frustrated either because of supervening impossibility of performance or because performance has become unlawful by reason of circumstances for which neither of the parties was responsible. In the earlier case this Court has held that where the performance of an essential condition of the contract has become impossible due to supervening circumstances the contract would be discharged. This Court has further held that the impossibility need not be an absolute one but it is sufficient if further performance becomes impracticable by some cause for which neither of the parties was responsible. It, however, held that the mere fact that the performance of an essential term of the contract, that is to say, of undertaking development of the area under the scheme could not be undertaken because the land had been requisitioned, did not have the effect of frustrating the contract. For though the term regarding development was an essential term of the contract, the requisitioning of the land was only for a temporary period. Further the parties had deliberately not placed any time limit within which roads and drains had to be made apparently because they were aware of the difficulties in carrying on the work on account of scarcity of materials and the various restrictions which the Government had placed on suchconsequence of this order the company lost possession of the land and automatically lost access there to. Without getting on to the land the company would not carry out its obligation to the purchasers of constructing the roads and drains. If, in disobedience of this order, the companys servants, agents or contractors were to carry on the work of construction of the roads and drains by entering on the land of which the possession was with the Government, they would have been liable to punishment under sub-r.(7) of R. 75(a) of the Defence of India Rules and also the company. We were informed that the land was used by the Government for military purposes. It is, therefore, possible that the land might have been declared as a protected place under R.7 of the Defence of India Rules. Even, however, without such a declaration, we agree with Mr. Sen that it would not have been possible for the company, its agents, servants or contractors to go on the land during the continuance in force of the order of requisition without being rendered liable at law.8. Even so it is clear that all that had become unlawful was to construct roads and drains while the land was bound to be given up by the Government sometime or other and, therefore, in essence the activities which were rendered unlawful were not forbidden for all time but only temporarily. It may be that the duration of the embargo was uncertain but not permanent. It would, therefore, be relevant to enquire whether a contract could properly be held to be frustrated because for a certain period of time . its performance has becomewhere the performance of a contract had been rendered unlawful by reason of some subsequent event the contract would stand discharged but such discharge will take place not necessarily from the date on which the further performance was rendered unlawful, unless further performance was rendered unlawful for all time. If the performance of the contract is rendered unlawful either for a determinate period of time or for an indeterminate period of time the contract would not stand discharged unless the ban on its performance existed on the day or during the time in which it has to bethat the answer would be the same as that given in the earlier case, that is, the parties whew they entered into the contract, knew the prevailing circumstances and must have borne in mind the possibility that something like what actually happened may happen and, therefore, did not specify the time within which the land had to be developed. In other words, the parties intended to exclude from the computation of reasonable time such time as was taken up in procuring the necessary material which was not easy to obtain and such as may be taken up if the land were requisitioned by Government. Thus, in our view it cannot be said that because of the requisitioning orders which had the effect of making the entry by or on behalf of the company on the land illegal during the subsistence of the period of requisitioning the contract stoodthe fact remains that this work had been completed when the appeal was heard by the High Court. The Court would in such a case be justified in taking notice of subsequent events in moulding its relief accordingly. | 0 | 3,058 | 916 | ### 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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/ occupier of the said land :(a) shall place the said land at the disposal and under the control of the Military Estates Officer Bengal Circle on and from the 14th November, 1941 at 1 P.M. Bengal time until six months after the termination of the present was unless relinquished earlier. "In consequence of this order the company lost possession of the land and automatically lost access there to. Without getting on to the land the company would not carry out its obligation to the purchasers of constructing the roads and drains. If, in disobedience of this order, the companys servants, agents or contractors were to carry on the work of construction of the roads and drains by entering on the land of which the possession was with the Government, they would have been liable to punishment under sub-r.(7) of R. 75(a) of the Defence of India Rules and also the company. We were informed that the land was used by the Government for military purposes. It is, therefore, possible that the land might have been declared as a protected place under R.7 of the Defence of India Rules. Even, however, without such a declaration, we agree with Mr. Sen that it would not have been possible for the company, its agents, servants or contractors to go on the land during the continuance in force of the order of requisition without being rendered liable at law.8. Even so it is clear that all that had become unlawful was to construct roads and drains while the land was bound to be given up by the Government sometime or other and, therefore, in essence the activities which were rendered unlawful were not forbidden for all time but only temporarily. It may be that the duration of the embargo was uncertain but not permanent. It would, therefore, be relevant to enquire whether a contract could properly be held to be frustrated because for a certain period of time . its performance has become unlawful. According to Mr. Sen the moment it became unlawful for one of the parties to the contract, to continue with the performance, the contract was discharged and in this connection he referred us to certain observations of Lord Wright in Denny Mott and Dickson Ltd. v. James B. Fraser and Co. Ltd., 1944 AC 265 (274), and certain other portions of the report. We put to him the question as to what would be the effect of a requisitioning, say, for a period of one month. Would that operate as discharge of the contract? To that his answer was in the negative and we think that the answer was right. The question then would be : would it make any difference if unlawfulness would attach to the performance of the contract for an indeterminate period? In our judgment, if time is of the essence of the contract or if time for performance is set out in the contract it may be that the contract would stand discharged even though its performance may have been rendered unlawful for an indeterminate time provided unlawfulness attached to the performance of the contract at the time when the contract ought to have been performed. Thus, where the performance of a contract had been rendered unlawful by reason of some subsequent event the contract would stand discharged but such discharge will take place not necessarily from the date on which the further performance was rendered unlawful, unless further performance was rendered unlawful for all time. If the performance of the contract is rendered unlawful either for a determinate period of time or for an indeterminate period of time the contract would not stand discharged unless the ban on its performance existed on the day or during the time in which it has to be performed. Here it is pointed out by Mr. Sen that the respondent had made time the essence of the contract but that only applies to the grant of conveyance after the completion of the roads and drains. As already pointed out, parties were wholly silent as to the time within which the roads and drains were to be completed. Therefore, in so far as this aspect, of the contract is concerned time was in no sense made the essence of the contract. According to Mr. Sen, however, where the parties have failed to specify in the contract time within which it has to be performed S.46 of the Contract Act comes in and the parties may be presumed to have agreed that the contract will be performed within, reasonable time. To that the answer would be the same as that given in the earlier case, that is, the parties whew they entered into the contract, knew the prevailing circumstances and must have borne in mind the possibility that something like what actually happened may happen and, therefore, did not specify the time within which the land had to be developed. In other words, the parties intended to exclude from the computation of reasonable time such time as was taken up in procuring the necessary material which was not easy to obtain and such as may be taken up if the land were requisitioned by Government. Thus, in our view it cannot be said that because of the requisitioning orders which had the effect of making the entry by or on behalf of the company on the land illegal during the subsistence of the period of requisitioning the contract stood discharged.9. Then remains the other point argued by Mr. Sen. He said that the suit for specific performance was premature because under the agreement the respondent did not get a right to obtain a sale-deed till after the development of the land comprised in the scheme, was completed. That is perfectly true. But the fact remains that this work had been completed when the appeal was heard by the High Court. The Court would in such a case be justified in taking notice of subsequent events in moulding its relief accordingly.
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6. In so far as discharge of contract by reason of frustration is concerned there is no question of implying a term in the contract a term fundamental for its performance, as is done by the Courts in England because we have here the provisions of S. 56 as well as those of S. 32 of the Contract Act. This is what was held by this Court in the earlier case and that decision binds us. No doubt, a contract can be frustrated either because of supervening impossibility of performance or because performance has become unlawful by reason of circumstances for which neither of the parties was responsible. In the earlier case this Court has held that where the performance of an essential condition of the contract has become impossible due to supervening circumstances the contract would be discharged. This Court has further held that the impossibility need not be an absolute one but it is sufficient if further performance becomes impracticable by some cause for which neither of the parties was responsible. It, however, held that the mere fact that the performance of an essential term of the contract, that is to say, of undertaking development of the area under the scheme could not be undertaken because the land had been requisitioned, did not have the effect of frustrating the contract. For though the term regarding development was an essential term of the contract, the requisitioning of the land was only for a temporary period. Further the parties had deliberately not placed any time limit within which roads and drains had to be made apparently because they were aware of the difficulties in carrying on the work on account of scarcity of materials and the various restrictions which the Government had placed on suchconsequence of this order the company lost possession of the land and automatically lost access there to. Without getting on to the land the company would not carry out its obligation to the purchasers of constructing the roads and drains. If, in disobedience of this order, the companys servants, agents or contractors were to carry on the work of construction of the roads and drains by entering on the land of which the possession was with the Government, they would have been liable to punishment under sub-r.(7) of R. 75(a) of the Defence of India Rules and also the company. We were informed that the land was used by the Government for military purposes. It is, therefore, possible that the land might have been declared as a protected place under R.7 of the Defence of India Rules. Even, however, without such a declaration, we agree with Mr. Sen that it would not have been possible for the company, its agents, servants or contractors to go on the land during the continuance in force of the order of requisition without being rendered liable at law.8. Even so it is clear that all that had become unlawful was to construct roads and drains while the land was bound to be given up by the Government sometime or other and, therefore, in essence the activities which were rendered unlawful were not forbidden for all time but only temporarily. It may be that the duration of the embargo was uncertain but not permanent. It would, therefore, be relevant to enquire whether a contract could properly be held to be frustrated because for a certain period of time . its performance has becomewhere the performance of a contract had been rendered unlawful by reason of some subsequent event the contract would stand discharged but such discharge will take place not necessarily from the date on which the further performance was rendered unlawful, unless further performance was rendered unlawful for all time. If the performance of the contract is rendered unlawful either for a determinate period of time or for an indeterminate period of time the contract would not stand discharged unless the ban on its performance existed on the day or during the time in which it has to bethat the answer would be the same as that given in the earlier case, that is, the parties whew they entered into the contract, knew the prevailing circumstances and must have borne in mind the possibility that something like what actually happened may happen and, therefore, did not specify the time within which the land had to be developed. In other words, the parties intended to exclude from the computation of reasonable time such time as was taken up in procuring the necessary material which was not easy to obtain and such as may be taken up if the land were requisitioned by Government. Thus, in our view it cannot be said that because of the requisitioning orders which had the effect of making the entry by or on behalf of the company on the land illegal during the subsistence of the period of requisitioning the contract stoodthe fact remains that this work had been completed when the appeal was heard by the High Court. The Court would in such a case be justified in taking notice of subsequent events in moulding its relief accordingly.
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State of Punjab & Others Vs. Guru Nanak Flour & Oil Mills & Others | dealt with by this Court in its decision in State of Punjab v. Sansari Mal Puran Chand (1968) 1 SCR 336 = (AIR 1968 SC 331 ). This Court, after an elaborate reference to the provisions of the Act, as well as to the Constitution (Sixth Amendment) Act, with effect from September 11, 1956, held that the Act and the notification issued thereunder effectively imposed tax on sales of edible oils from September 11, 1956 and not before. Accordingly, this Court held that the notification dated August 5, 1954 issued by the State Government was valid from September 11, 1956 and as such the assessees were liable to pay tax on all sales of edible oils effected by them after September 11, 1956. This Court further held that the dealers were not liable to pay tax on their sales made before September 11, 1956. As there is a very elaborate discussion in the judgment of this Court for upholding the validity of the notification after the date mentioned above, we do not think it necessary to cover the ground over again. Therefore, it must be held that the view of the High Court, in the appeal before us, that the impugned notification is invalid and that the substituted entry 57 in Schedule B of the Act is not operative, cannot be sustained. There does not appear to have been any controversy that the assessees before us are producing edible oils not in the manner referred to under entry 57 but by a mechanical process. Therefore, it follows that their claim for exemption on the basis of entry 57, as it existed previously, falls to the ground.15. As the judgment of the High Court has been exclusively based on its previous decision in Ganga Ram Suraj Parkash (1963) 14 STC 476 (Punj), which has been overruled by this Court, it follows that part of the judgment and order of the High Court will have to be set aside.16. But the matter does not end there. We have to deal with the second point, which has already been set out. The question that arises is whether the assessment orders are in conflict with the decision of this Court in Bhawani Cotton Mills Ltd (1967) 3 SCR 577 = (AIR 1967 SC 1616 ), we have already referred to the fact that the assessees were permitted by the High Court to amend their writ petitions by raising an attack on the levy of purchases tax under the Act, as it stood on April 1, 1960, on purchases of oil seeds, on the ground that such levy is opposed to the provisions of the Central Act. That contention has no doubt not been considered by the High Court. But in view of the decision of this Court in Bhawani Cotton Mills Ltd., the contention of the assessees in this regard will have to be accepted. But it is not clear from the assessment orders or the record whether and at what stage the purchase tax has been levied in respect of oil seeds. In fact, it appears from the grounds taken by the State in the special leave petitions that the articles (which will include both oil seeds and edible oils) are declared goods. On this matter, without further materials, it is not possible for us to express any opinion.17. Even in the applications filed before the High Court for grant of certificate, as also in the grounds raised before this Court the State has specifically referred to the ordinance Nos. 1 and 12 of 1967 issued by the Governor of Punjab, in view of the decision of this Court in Bhawani Cotton Mills Ltd. (1967) 3 SCR 577 = (AIR 1967 SC 1616 ) and also to the Punjab General Sales Tax (Amendment and Validation) Act, 1967 (hereinafter to be referred as the Amendment Act), which replaced the Ordinances. Even in their statement of case, the appellant herein, have referred to the Amendment Act and in particular to the new Section 11 AA incorporated in the Act. On this basis they have raised a contention that the assessing authority will have to exercise his jurisdiction afresh in respect of the orders of assessment already passed regarding declared goods and pass fresh orders in accordance with the provisions of the Act as amended by the Amendment Act.18. We have elaborately considered in Civil Appeals Nos. 2319 and 2320 of 1968 etc. (SC) the changes introduced regarding the levy of sales tax on declared goods by the Amendment Act and in particular the obligation cast upon the assessing authority to reconsider the orders of assessment under Section 11 AA. We have delivered judgment in those appeals earlier in the day. Therefore we do not think it necessary to cover the ground over again. Having due regard to the principles laid down by us in those appeals, the assessing authority is directed to exercise his jurisdiction under Section 11 AA of the Act as it now stands and vary or revise the orders of assessment in all these appeals already made, so as to bring them in conformity with the provisions of the Act, as amended by the Amendment Act. If any assessment has not been completed, it is needless to state that the fresh order of assessment will have to be made by him, in accordance with the principles laid down by us in those decisions read along with the provisions of the Act, as it now stands, after the amendment, introduced thereunder by the Amendment Act.19. The appeals are allowed in part and the judgments and orders of the High Court are modified by declaring that the impugned notification is valid and it has effect from September 11, 1956 and sales tax on edible oils can be levied after that date. In other respect the appeals are dismissed, subject to the directions given to the assessing authority in the earlier part of the judgment. Parties will bear their own costs in all these appeals.20. | 1[ds]8. At this stage it may be mentioned that though in the writ petition, as originally filed, an attack was made only on the notification dated August 5, 1954 regarding sales tax on edible oils, the assessees filed applications before the High Court for amending the writ petitions by making certain further allegations. In these applications, the firms challenged the levy of purchase tax, under the Act, on purchases of oil seeds on the ground that such levy is opposed to the provisions of the Central Sales Tax Act, 1956 (Act No. 74 of 1956) (hereinafter to be referred as the Central Act), in view of the decision that had been given by this Court in Bhawani Cotton Mills Ltd. v. State of Punjab (1967) 3 SCR 577 = (AIR 1967 SC 1616 ) holding that levy of sales tax under the Act, as it stood on April 1, 1960, in respect of declared goods, is illegal and invalid. In fact, the decision of this Court is referred to in the applications filed for amending the writ petitions. Therefore, the assessees added a further prayer that the assessment orders passed or orders proposed to be made are illegal and void, both on the ground that they are in conflict with the decision in Ganga Ram Suraj Parkash (1963) 14 STC 476 (Punj) and also the decision of this Court in Bhawani Cotton Mills Ltd.We have elaborately considered in Civil Appeals Nos. 2319 and 2320 of 1968 etc. (SC) the changes introduced regarding the levy of sales tax on declared goods by the Amendment Act and in particular the obligation cast upon the assessing authority to reconsider the orders of assessment under Section 11 AA. We have delivered judgment in those appeals earlier in the day. Therefore we do not think it necessary to cover the ground over again. Having due regard to the principles laid down by us in those appeals, the assessing authority is directed to exercise his jurisdiction under Section 11 AA of the Act as it now stands and vary or revise the orders of assessment in all these appeals already made, so as to bring them in conformity with the provisions of the Act, as amended by the Amendment Act. If any assessment has not been completed, it is needless to state that the fresh order of assessment will have to be made by him, in accordance with the principles laid down by us in those decisions read along with the provisions of the Act, as it now stands, after the amendment, introduced thereunder by the Amendment Act.19. The appeals are allowed in part and the judgments and orders of the High Court are modified by declaring that the impugned notification is valid and it has effect from September 11, 1956 and sales tax on edible oils can be levied after that date. In other respect the appeals are dismissed, subject to the directions given to the assessing authority in the earlier part of the judgment. Parties will bear their own costs in all these appeals. | 1 | 2,938 | 568 | ### 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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dealt with by this Court in its decision in State of Punjab v. Sansari Mal Puran Chand (1968) 1 SCR 336 = (AIR 1968 SC 331 ). This Court, after an elaborate reference to the provisions of the Act, as well as to the Constitution (Sixth Amendment) Act, with effect from September 11, 1956, held that the Act and the notification issued thereunder effectively imposed tax on sales of edible oils from September 11, 1956 and not before. Accordingly, this Court held that the notification dated August 5, 1954 issued by the State Government was valid from September 11, 1956 and as such the assessees were liable to pay tax on all sales of edible oils effected by them after September 11, 1956. This Court further held that the dealers were not liable to pay tax on their sales made before September 11, 1956. As there is a very elaborate discussion in the judgment of this Court for upholding the validity of the notification after the date mentioned above, we do not think it necessary to cover the ground over again. Therefore, it must be held that the view of the High Court, in the appeal before us, that the impugned notification is invalid and that the substituted entry 57 in Schedule B of the Act is not operative, cannot be sustained. There does not appear to have been any controversy that the assessees before us are producing edible oils not in the manner referred to under entry 57 but by a mechanical process. Therefore, it follows that their claim for exemption on the basis of entry 57, as it existed previously, falls to the ground.15. As the judgment of the High Court has been exclusively based on its previous decision in Ganga Ram Suraj Parkash (1963) 14 STC 476 (Punj), which has been overruled by this Court, it follows that part of the judgment and order of the High Court will have to be set aside.16. But the matter does not end there. We have to deal with the second point, which has already been set out. The question that arises is whether the assessment orders are in conflict with the decision of this Court in Bhawani Cotton Mills Ltd (1967) 3 SCR 577 = (AIR 1967 SC 1616 ), we have already referred to the fact that the assessees were permitted by the High Court to amend their writ petitions by raising an attack on the levy of purchases tax under the Act, as it stood on April 1, 1960, on purchases of oil seeds, on the ground that such levy is opposed to the provisions of the Central Act. That contention has no doubt not been considered by the High Court. But in view of the decision of this Court in Bhawani Cotton Mills Ltd., the contention of the assessees in this regard will have to be accepted. But it is not clear from the assessment orders or the record whether and at what stage the purchase tax has been levied in respect of oil seeds. In fact, it appears from the grounds taken by the State in the special leave petitions that the articles (which will include both oil seeds and edible oils) are declared goods. On this matter, without further materials, it is not possible for us to express any opinion.17. Even in the applications filed before the High Court for grant of certificate, as also in the grounds raised before this Court the State has specifically referred to the ordinance Nos. 1 and 12 of 1967 issued by the Governor of Punjab, in view of the decision of this Court in Bhawani Cotton Mills Ltd. (1967) 3 SCR 577 = (AIR 1967 SC 1616 ) and also to the Punjab General Sales Tax (Amendment and Validation) Act, 1967 (hereinafter to be referred as the Amendment Act), which replaced the Ordinances. Even in their statement of case, the appellant herein, have referred to the Amendment Act and in particular to the new Section 11 AA incorporated in the Act. On this basis they have raised a contention that the assessing authority will have to exercise his jurisdiction afresh in respect of the orders of assessment already passed regarding declared goods and pass fresh orders in accordance with the provisions of the Act as amended by the Amendment Act.18. We have elaborately considered in Civil Appeals Nos. 2319 and 2320 of 1968 etc. (SC) the changes introduced regarding the levy of sales tax on declared goods by the Amendment Act and in particular the obligation cast upon the assessing authority to reconsider the orders of assessment under Section 11 AA. We have delivered judgment in those appeals earlier in the day. Therefore we do not think it necessary to cover the ground over again. Having due regard to the principles laid down by us in those appeals, the assessing authority is directed to exercise his jurisdiction under Section 11 AA of the Act as it now stands and vary or revise the orders of assessment in all these appeals already made, so as to bring them in conformity with the provisions of the Act, as amended by the Amendment Act. If any assessment has not been completed, it is needless to state that the fresh order of assessment will have to be made by him, in accordance with the principles laid down by us in those decisions read along with the provisions of the Act, as it now stands, after the amendment, introduced thereunder by the Amendment Act.19. The appeals are allowed in part and the judgments and orders of the High Court are modified by declaring that the impugned notification is valid and it has effect from September 11, 1956 and sales tax on edible oils can be levied after that date. In other respect the appeals are dismissed, subject to the directions given to the assessing authority in the earlier part of the judgment. Parties will bear their own costs in all these appeals.20.
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8. At this stage it may be mentioned that though in the writ petition, as originally filed, an attack was made only on the notification dated August 5, 1954 regarding sales tax on edible oils, the assessees filed applications before the High Court for amending the writ petitions by making certain further allegations. In these applications, the firms challenged the levy of purchase tax, under the Act, on purchases of oil seeds on the ground that such levy is opposed to the provisions of the Central Sales Tax Act, 1956 (Act No. 74 of 1956) (hereinafter to be referred as the Central Act), in view of the decision that had been given by this Court in Bhawani Cotton Mills Ltd. v. State of Punjab (1967) 3 SCR 577 = (AIR 1967 SC 1616 ) holding that levy of sales tax under the Act, as it stood on April 1, 1960, in respect of declared goods, is illegal and invalid. In fact, the decision of this Court is referred to in the applications filed for amending the writ petitions. Therefore, the assessees added a further prayer that the assessment orders passed or orders proposed to be made are illegal and void, both on the ground that they are in conflict with the decision in Ganga Ram Suraj Parkash (1963) 14 STC 476 (Punj) and also the decision of this Court in Bhawani Cotton Mills Ltd.We have elaborately considered in Civil Appeals Nos. 2319 and 2320 of 1968 etc. (SC) the changes introduced regarding the levy of sales tax on declared goods by the Amendment Act and in particular the obligation cast upon the assessing authority to reconsider the orders of assessment under Section 11 AA. We have delivered judgment in those appeals earlier in the day. Therefore we do not think it necessary to cover the ground over again. Having due regard to the principles laid down by us in those appeals, the assessing authority is directed to exercise his jurisdiction under Section 11 AA of the Act as it now stands and vary or revise the orders of assessment in all these appeals already made, so as to bring them in conformity with the provisions of the Act, as amended by the Amendment Act. If any assessment has not been completed, it is needless to state that the fresh order of assessment will have to be made by him, in accordance with the principles laid down by us in those decisions read along with the provisions of the Act, as it now stands, after the amendment, introduced thereunder by the Amendment Act.19. The appeals are allowed in part and the judgments and orders of the High Court are modified by declaring that the impugned notification is valid and it has effect from September 11, 1956 and sales tax on edible oils can be levied after that date. In other respect the appeals are dismissed, subject to the directions given to the assessing authority in the earlier part of the judgment. Parties will bear their own costs in all these appeals.
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Vishesh Kumar Vs. Shanti Prasad | covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court. What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant. But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of s. 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal and others and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in s. 115 does not cover orders passed in revision.We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under s. 115, Code of Civil Procedure-over a revisional order made by the District Court under that section.6. We shall now advert to the second question, whether a revisional order of the District Court under s. 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Court under s. 115, Code of Civil Procedure. Section 25 originally provided:"25. The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit."7. Section 25 was amended in its application to the State of Uttar Pradesh from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdi ction of a Judge of Small Causes the power of revision under s. 25 would vest in the High Court. The question before us arises in those cases only where the District Judge has exercised revisional power under s. 25. Is an order so made open to revision by the High Court under s. 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient code so far as the present enquiry is concerned. For t he purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under s. 24 and s. 25 respectively. Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned. A complete set of superior remedies has been incorporated in the Act. Moreover, s. 27 of the Act provides"27. Finality of decrees and orders.-Save as provide d by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final."8. The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject on ly to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s. 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under s. 25, and no question could have arisen of invoking the revisional power of the High Court under s. 115 of the Code. All the indications point to the conclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure. By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Lt d. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115, Code of Civil Procedure. | 1[ds]The basis for determining that question flows from the principle incorporated in the bifurcation of the revisional jurisdiction. And legislative history comes to our aid. The consistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise that jurisdiction. That purpose was sought to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose. In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. It seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The intent behind the bifurcation of jurisdiction-to reduce the number of revision petitions filed in the High Court-would be frustrated . The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs. 20, 000/-, a fundamental contradict ion would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20, 000/-. That was never intended at all.In Phoolwati (supra), considerable importance was attached to the proviso introduced in s. 115 by the U.P. Civil Laws Amendment Act, 1973. The proviso declared that "in respect of.... .. all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section". What it said was that no matter what the valuation of the original suit, be it R s. 20, 000/- and above or below Rs. 20, 000/-, if a case arising out of such suit was decided by the District Court, the case would be amenable to the revisional power of the High Court. We are already familiar with the category of cases where the High Court wields revisional jurisdiction over cases arising out of original suits of a value of Rs. 20, 000/- or more. That is the category already covered by the substantive provision in s. 115. The other category covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court. What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant. But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of s. 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal and others and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in s. 115 does not cover orders passed in revision.We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under s. 115,Code of CivilProcedure-over a revisional order made by the District Court under that25 was amended in its application to the State of Uttar Pradesh from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdi ction of a Judge of Small Causes the power of revision under s. 25 would vest in the HighLegislature clearly intended that a decree or order made by a Court of Small Causes should be final subject on ly to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s. 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under s. 25, and no question could have arisen of invoking the revisional power of the High Court under s. 115 of the Code. All the indications point to the conclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by theCode of CivilProcedure. By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Lt d. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115,Code of Civilregards the first question, it will be noticed that a revisional power was formerly entrusted exclusively to the highest court in the state, the High Court. The State amendments now divided it between the High Court and the District Court. The amendment effect by the U.P. Civil Laws (Amendment) Act, 1970 conferred exclusive jurisdiction under s. 115 in the High Court in cases arising out of original suits of the value of Rs. 20, 000/and above, and in other cases the revisional jurisdiction was concurrently shared between the High Court and the District Court. It was apparently supposed that the average litigant would prefer the less expensive and more convenient forum of the District Court. The measure, it seems, did not bring the relief expected, and the State Legislature found it necessary, by enacting the U.P. Civil Laws (Amendment) Act, 1972 to make adivision of jurisdiction between the High Court and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out o f original suits of the value of Rs. 20, 000/and above, and exclusive jurisdiction under s. 115 to the District Court in other cases. There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court now enjoyed mutually exclusive revisional powers. A controversy arose whether a revisional order under s. 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section. The point was considered by a full Bench of the High Court in Har Parasad Singh and others v. Ram Swarup and others and it was held that no such revision petition was maintainable before the High Court. Further State amendments were made to s. 115 without materially disturbing the division of power. But a proviso added to s. 115 by the U.P. Civil Laws (Amendment) Act, 1973, followed by the U.P. Presidents Actswith Modifications) Act, 1974 stated:"rovided that in respect of cases decided before the 20th day of September, 1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under thisare of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Lt d. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115,Code of CivilProcedure. In our opinion, the view taken by the High Court is not correct.Accordingly, we hold that an order passed under s. 25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Court under s. 115,Code of Civilare unable to accept that prayer. A revision petition under s. 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other. | 1 | 3,843 | 1,881 | ### 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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covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court. What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant. But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of s. 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Fund (Pvt.) Ltd. v. Dwarka Diesh Dayal and others and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in s. 115 does not cover orders passed in revision.We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under s. 115, Code of Civil Procedure-over a revisional order made by the District Court under that section.6. We shall now advert to the second question, whether a revisional order of the District Court under s. 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Court under s. 115, Code of Civil Procedure. Section 25 originally provided:"25. The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit."7. Section 25 was amended in its application to the State of Uttar Pradesh from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdi ction of a Judge of Small Causes the power of revision under s. 25 would vest in the High Court. The question before us arises in those cases only where the District Judge has exercised revisional power under s. 25. Is an order so made open to revision by the High Court under s. 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient code so far as the present enquiry is concerned. For t he purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under s. 24 and s. 25 respectively. Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned. A complete set of superior remedies has been incorporated in the Act. Moreover, s. 27 of the Act provides"27. Finality of decrees and orders.-Save as provide d by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final."8. The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject on ly to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s. 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under s. 25, and no question could have arisen of invoking the revisional power of the High Court under s. 115 of the Code. All the indications point to the conclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure. By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Lt d. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115, Code of Civil Procedure.
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District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdi ction of a Judge of Small Causes the power of revision under s. 25 would vest in the HighLegislature clearly intended that a decree or order made by a Court of Small Causes should be final subject on ly to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s. 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under s. 25, and no question could have arisen of invoking the revisional power of the High Court under s. 115 of the Code. All the indications point to the conclusion that a case falling within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by theCode of CivilProcedure. By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Lt d. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115,Code of Civilregards the first question, it will be noticed that a revisional power was formerly entrusted exclusively to the highest court in the state, the High Court. The State amendments now divided it between the High Court and the District Court. The amendment effect by the U.P. Civil Laws (Amendment) Act, 1970 conferred exclusive jurisdiction under s. 115 in the High Court in cases arising out of original suits of the value of Rs. 20, 000/and above, and in other cases the revisional jurisdiction was concurrently shared between the High Court and the District Court. It was apparently supposed that the average litigant would prefer the less expensive and more convenient forum of the District Court. The measure, it seems, did not bring the relief expected, and the State Legislature found it necessary, by enacting the U.P. Civil Laws (Amendment) Act, 1972 to make adivision of jurisdiction between the High Court and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out o f original suits of the value of Rs. 20, 000/and above, and exclusive jurisdiction under s. 115 to the District Court in other cases. There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court now enjoyed mutually exclusive revisional powers. A controversy arose whether a revisional order under s. 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section. The point was considered by a full Bench of the High Court in Har Parasad Singh and others v. Ram Swarup and others and it was held that no such revision petition was maintainable before the High Court. Further State amendments were made to s. 115 without materially disturbing the division of power. But a proviso added to s. 115 by the U.P. Civil Laws (Amendment) Act, 1973, followed by the U.P. Presidents Actswith Modifications) Act, 1974 stated:"rovided that in respect of cases decided before the 20th day of September, 1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under thisare of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Lt d. that a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115,Code of CivilProcedure. In our opinion, the view taken by the High Court is not correct.Accordingly, we hold that an order passed under s. 25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Court under s. 115,Code of Civilare unable to accept that prayer. A revision petition under s. 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other.
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Singhal Ajit Kumar & Another Vs. Ujayarsingh And Others | accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative fathers entire self-acquired property in the absence of a son, widow, daughter or daughters son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widows death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent. The opinion expressed in Maynes Hindu Law is sought to be supported by the author by reference to a decision of the Madras High Court in Karuppayee Ammal .v. Ramaswami. ILR 55 Mad 856 : (AIR 1932 Mad 440 ). But a reference to that judgment shows that no such proposition has been laid down therein. There the facts were that on the death of a Sudra, the last male owner of an estate, his widow succeeded to a moiety thereof and his illegitimate son to the other moiety; the widow then died leaving behind her a son of the daughter of the last male owner and the illegitimate son above mentioned. The Madras High Court held that the daughters son was entitled to the moiety that had vested in the widow and the illegitimate son was not entitled to any portion thereof . The reason for that conclusion is found at p. 868 (of ILR Mad): (at p. 444 of AIR) and it is:The principle underlying the doctrine of reverter referred to is that the last maleholders estate is inherited by females who have no free right to alienation and who hold a peculiar kind of estate called "womans estate and on whose death the then heir of the last male-holder succeeds to the last maleholders estate. From its very nature, the doctrine could not apply legitimately to a case where the last male-holders estate vested on his death no in a female heir but in a male heir also. In such a case, the doctrine as such would not strictly apply, nor has it been, so far as we are aware, applied to such a case."The reason of the decision is therefore clear and that is when a daughters son succeeds to an estate, there is no further scope for the application of the doctrine of reverter. The learned Judges expressly left open the present question when they said, "We are not now concerned with the question as to what would become of the property if the last of the daughters died without leaving a daughters son, in such circumstances." This decision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applied the illegitimate son is excluded from succession. On the other hand, the Nagpur High Court in Bhagwantrao v. Punjaram. ILR (1938 ) Nag 255: (AIR 1938 Nag 1) rightly came to the conclusion that where on a partition between a legitimate and an illegitimate son, the widow was allotted a share, on her death the illegitimate son was entitled to a share in the property. We, therefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein. Succeeded to the other half share of the estate of his putative father Raja Ajit Singh.8. It is next contended that the widows acquired an absolute interest in the estate of Raja Ajit Singh by adverse possession and, therefore, the property would devolve not on Raja Ajit Singhs heirs but on the heirs of the widows. On the question of adverse possession also, both the courts below have held against the appellant. But learned counsel argued that in the circumstances of this case the said finding was a mixed question of fact and law. It was said that the courts below missed the point that the court of Wards, representing the widows, held the Estate adversely to Ramraghurai Singh in respect of his half share and, therefore, the fact that during its management the widows did not deny the title of Ramraghuraj Singh or the fact that they admitted his title could not affect the question of adverse possession. Assuming that learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the widows limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to be reversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non-suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate, i.e., in regard to their half share they held it as widows estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only to a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention. | 0[ds]6. It is the usual practice of this Court to accept the concurrent findings of the courts below. There are no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice. We, therefore, accept the concurrent findings, namely, that Raja Ajit Singh was a member of the Sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a continuously and exclusively kept concubine named Raj Dulari, who passed into his concubinage after the death of herregret our inability to accept this proposition, for, if accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative fathers entire self-acquired property in the absence of a son, widow, daughter or daughters son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widows death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock ofa reference to that judgment shows that no such proposition has been laid downdecision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applied the illegitimate son is excluded fromtherefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein. Succeeded to the other half share of the estate of his putative father Raja Ajitthat learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the widows limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to be reversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non-suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate, i.e., in regard to their half share they held it as widows estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only to a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention. | 0 | 3,827 | 605 | ### Instruction:
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accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative fathers entire self-acquired property in the absence of a son, widow, daughter or daughters son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widows death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent. The opinion expressed in Maynes Hindu Law is sought to be supported by the author by reference to a decision of the Madras High Court in Karuppayee Ammal .v. Ramaswami. ILR 55 Mad 856 : (AIR 1932 Mad 440 ). But a reference to that judgment shows that no such proposition has been laid down therein. There the facts were that on the death of a Sudra, the last male owner of an estate, his widow succeeded to a moiety thereof and his illegitimate son to the other moiety; the widow then died leaving behind her a son of the daughter of the last male owner and the illegitimate son above mentioned. The Madras High Court held that the daughters son was entitled to the moiety that had vested in the widow and the illegitimate son was not entitled to any portion thereof . The reason for that conclusion is found at p. 868 (of ILR Mad): (at p. 444 of AIR) and it is:The principle underlying the doctrine of reverter referred to is that the last maleholders estate is inherited by females who have no free right to alienation and who hold a peculiar kind of estate called "womans estate and on whose death the then heir of the last male-holder succeeds to the last maleholders estate. From its very nature, the doctrine could not apply legitimately to a case where the last male-holders estate vested on his death no in a female heir but in a male heir also. In such a case, the doctrine as such would not strictly apply, nor has it been, so far as we are aware, applied to such a case."The reason of the decision is therefore clear and that is when a daughters son succeeds to an estate, there is no further scope for the application of the doctrine of reverter. The learned Judges expressly left open the present question when they said, "We are not now concerned with the question as to what would become of the property if the last of the daughters died without leaving a daughters son, in such circumstances." This decision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applied the illegitimate son is excluded from succession. On the other hand, the Nagpur High Court in Bhagwantrao v. Punjaram. ILR (1938 ) Nag 255: (AIR 1938 Nag 1) rightly came to the conclusion that where on a partition between a legitimate and an illegitimate son, the widow was allotted a share, on her death the illegitimate son was entitled to a share in the property. We, therefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein. Succeeded to the other half share of the estate of his putative father Raja Ajit Singh.8. It is next contended that the widows acquired an absolute interest in the estate of Raja Ajit Singh by adverse possession and, therefore, the property would devolve not on Raja Ajit Singhs heirs but on the heirs of the widows. On the question of adverse possession also, both the courts below have held against the appellant. But learned counsel argued that in the circumstances of this case the said finding was a mixed question of fact and law. It was said that the courts below missed the point that the court of Wards, representing the widows, held the Estate adversely to Ramraghurai Singh in respect of his half share and, therefore, the fact that during its management the widows did not deny the title of Ramraghuraj Singh or the fact that they admitted his title could not affect the question of adverse possession. Assuming that learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the widows limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to be reversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non-suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate, i.e., in regard to their half share they held it as widows estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only to a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention.
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6. It is the usual practice of this Court to accept the concurrent findings of the courts below. There are no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice. We, therefore, accept the concurrent findings, namely, that Raja Ajit Singh was a member of the Sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a continuously and exclusively kept concubine named Raj Dulari, who passed into his concubinage after the death of herregret our inability to accept this proposition, for, if accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative fathers entire self-acquired property in the absence of a son, widow, daughter or daughters son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widows death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock ofa reference to that judgment shows that no such proposition has been laid downdecision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applied the illegitimate son is excluded fromtherefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein. Succeeded to the other half share of the estate of his putative father Raja Ajitthat learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the widows limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to be reversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non-suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate, i.e., in regard to their half share they held it as widows estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only to a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention.
|
Ranjit Dam Vs. State of West Bengal | Board. The reason given in this counter-affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory. But as nothing turns on that fact we need say no more about it for the present. The counter-affidavit affirms the fact of the Government having received the petitioners said representation on July 9, 1971, as also the fact of the State Government having considered and rejected it. The counter-affidavit, however, does not set out the dates when the Government rejected the said representation. Indeed, it leaves the date blank, and only states that after such rejection the Government forwarded that representation to the Advisory Board for its consideration. The counter-affidavit thus does not throw any light as to the date when the Government disposed of the said representation, nor the date when it sent it to the Board. 7. for the respondent-State, however, was good enough to produce the Government file in connection with the petitioner. That file showed that the Government had sent the said representation to the Board of July 27, 1971, for its consideration. This fact read along with the counter-affidavit would show that the Government must have considered and rejected the said representation on or before July 27, 1971. The date of such rejection being kept blank in the counter-affidavit, it is not possible, however, to say when exactly the Government passed its order rejecting the representation. The counter-affidavit also did not explain why the Government took time between July 9 and 27, 1971, in disposing of the said representation. Thus, the delay, prima facie, of 19 days has remained unexplained by reason of the counter-affidavit keeping silence about the date of rejection. 8. The question is whether such delay can be considered in the circumstances of the case to be undue delay as contended by counsel. 9. In Khairul Haque v. State of West Bengal (Writ Petition No. 246 of 1969, decided on September 10, 1969.), this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation in the light of all the facts and circumstances of the case considered by an Advisory Board. The principle on which such a right was deduced was that the fact Article 22(5) enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such a representation must, when made, be considered and disposed of as expeditiously as possible. For, otherwise the obligation to furnish the earliest opportunity to make a representation would lose both its purpose and meaning. Next, in Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) , Ray, J., in emphasising the need of expedition in considering a detenus representation said that since in such cases the personal liberty of a citizen was at stake, delay in such consideration would be unconstitutional because the Constitution enshrined the fundamental right of a detenu to have his representation considered and it was imperative that when the liberty of a person was in peril immediate action should be taken by the relevant authorities. He, however, added that no definite time could be laid down within which such representations should be dealt with save and except that it was a constitutional right of a detenu to have his representation considered as expeditiously as possible. It would, thus, depend upon the facts and circumstances of each case whether the appropriate Government had disposed of the representation expeditiously. Following these decisions, this Court held in Prof. Khaidem Ibocha Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , that an unexplained delay of 17 days was enough to render the detention illegal. Similarly, in Durga Show v. State of West Bengal (Writ Petition Nos. 198-205 of 1969, decided on September 2, 1969 : (1970) 3 SCC 696.) , delay of 16 days was held to have vitiated the detention. Recently, in Baidya Nath Chunnakar v. State of West Bengal (Writ Petition No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , delay of 29 days not accounted for by the State was considered enough to entitle a detenu to have his detention declared illegal. In Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) , on the other hand, although 34 days intervened between the receipt by Government of the representation and its disposal by it, the delay was held not to be undue as it was satisfactorily explained. Thus the Court would look into the facts and circumstances of each case and decide whether the detaining authority, in exercise of its extraordinary power to detain a person without trial, has discharged its duty with sufficient alacrity and without any undue tardiness. 10. There is no doubt that in the present case there was delay in considering the petitioners representation. The counter-affidavit filed by the State kept blank the data when it was dealt with and disposed of by the Government. The only thing that counsel could gather from the file relating to the detenu was that the Government received it on July 9, 1971 and submitted it to the Board on July 27, 1971. But counsel could not say either from the counter-affidavit from the said file the precise date of its disposal by Government. The Government must have known from the decisions referred to earlier that it had to explain the delay and yet kept the date of the disposal blank in the affidavit and did not also offer any explanation for the intervening period of 19 days. In the circumstances of the case we are constrained to hold that there was delay of 19 days which remained unexplained and which in view of the decisions referred to above rendered the petitioners detention illegal. | 1[ds]6. The petition was resisted by the Government who filed at of the Assistant Secretary, Home (Special) Department. The Assistant Secretary was authorised, it appears, to file it as the District Magistrate who passed the impugned order was at the time not available as he had since then been appointed the Secretary of the State Electricity Board. The reason given in thist for the District Magistrate not making the affidavit himself does not appear to be satisfactory. But as nothing turns on that fact we need say no more about it for the present. Thet affirms the fact of the Government having received the petitioners said representation on July 9, 1971, as also the fact of the State Government having considered and rejected it. The, however, does not set out the dates when the Government rejected the said representation. Indeed, it leaves the date blank, and only states that after such rejection the Government forwarded that representation to the Advisory Board for its consideration. Thet thus does not throw any light as to the date when the Government disposed of the said representation, nor the date when it sent it to the Board7. for the, however, was good enough to produce the Government file in connection with the petitioner. That file showed that the Government had sent the said representation to the Board of July 27, 1971, for its consideration. This fact read along with thet would show that the Government must have considered and rejected the said representation on or before July 27, 1971. The date of such rejection being kept blank in the, it is not possible, however, to say when exactly the Government passed its order rejecting the representation. Thet also did not explain why the Government took time between July 9 and 27, 1971, in disposing of the said representation. Thus, the delay, prima facie, of 19 days has remained unexplained by reason of thet keeping silence about the date of rejection10. There is no doubt that in the present case there was delay in considering the petitioners representation. Thet filed by the State kept blank the data when it was dealt with and disposed of by the Government. The only thing that counsel could gather from the file relating to the detenu was that the Government received it on July 9, 1971 and submitted it to the Board on July 27, 1971. But counsel could not say either from thet from the said file the precise date of its disposal by Government. The Government must have known from the decisions referred to earlier that it had to explain the delay and yet kept the date of the disposal blank in the affidavit and did not also offer any explanation for the intervening period of 19 days. In the circumstances of the case we are constrained to hold that there was delay of 19 days which remained unexplained and which in view of the decisions referred to above rendered the petitioners detention illegal. | 1 | 1,937 | 549 | ### Instruction:
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Board. The reason given in this counter-affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory. But as nothing turns on that fact we need say no more about it for the present. The counter-affidavit affirms the fact of the Government having received the petitioners said representation on July 9, 1971, as also the fact of the State Government having considered and rejected it. The counter-affidavit, however, does not set out the dates when the Government rejected the said representation. Indeed, it leaves the date blank, and only states that after such rejection the Government forwarded that representation to the Advisory Board for its consideration. The counter-affidavit thus does not throw any light as to the date when the Government disposed of the said representation, nor the date when it sent it to the Board. 7. for the respondent-State, however, was good enough to produce the Government file in connection with the petitioner. That file showed that the Government had sent the said representation to the Board of July 27, 1971, for its consideration. This fact read along with the counter-affidavit would show that the Government must have considered and rejected the said representation on or before July 27, 1971. The date of such rejection being kept blank in the counter-affidavit, it is not possible, however, to say when exactly the Government passed its order rejecting the representation. The counter-affidavit also did not explain why the Government took time between July 9 and 27, 1971, in disposing of the said representation. Thus, the delay, prima facie, of 19 days has remained unexplained by reason of the counter-affidavit keeping silence about the date of rejection. 8. The question is whether such delay can be considered in the circumstances of the case to be undue delay as contended by counsel. 9. In Khairul Haque v. State of West Bengal (Writ Petition No. 246 of 1969, decided on September 10, 1969.), this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation in the light of all the facts and circumstances of the case considered by an Advisory Board. The principle on which such a right was deduced was that the fact Article 22(5) enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly mean that such a representation must, when made, be considered and disposed of as expeditiously as possible. For, otherwise the obligation to furnish the earliest opportunity to make a representation would lose both its purpose and meaning. Next, in Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) , Ray, J., in emphasising the need of expedition in considering a detenus representation said that since in such cases the personal liberty of a citizen was at stake, delay in such consideration would be unconstitutional because the Constitution enshrined the fundamental right of a detenu to have his representation considered and it was imperative that when the liberty of a person was in peril immediate action should be taken by the relevant authorities. He, however, added that no definite time could be laid down within which such representations should be dealt with save and except that it was a constitutional right of a detenu to have his representation considered as expeditiously as possible. It would, thus, depend upon the facts and circumstances of each case whether the appropriate Government had disposed of the representation expeditiously. Following these decisions, this Court held in Prof. Khaidem Ibocha Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , that an unexplained delay of 17 days was enough to render the detention illegal. Similarly, in Durga Show v. State of West Bengal (Writ Petition Nos. 198-205 of 1969, decided on September 2, 1969 : (1970) 3 SCC 696.) , delay of 16 days was held to have vitiated the detention. Recently, in Baidya Nath Chunnakar v. State of West Bengal (Writ Petition No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , delay of 29 days not accounted for by the State was considered enough to entitle a detenu to have his detention declared illegal. In Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) , on the other hand, although 34 days intervened between the receipt by Government of the representation and its disposal by it, the delay was held not to be undue as it was satisfactorily explained. Thus the Court would look into the facts and circumstances of each case and decide whether the detaining authority, in exercise of its extraordinary power to detain a person without trial, has discharged its duty with sufficient alacrity and without any undue tardiness. 10. There is no doubt that in the present case there was delay in considering the petitioners representation. The counter-affidavit filed by the State kept blank the data when it was dealt with and disposed of by the Government. The only thing that counsel could gather from the file relating to the detenu was that the Government received it on July 9, 1971 and submitted it to the Board on July 27, 1971. But counsel could not say either from the counter-affidavit from the said file the precise date of its disposal by Government. The Government must have known from the decisions referred to earlier that it had to explain the delay and yet kept the date of the disposal blank in the affidavit and did not also offer any explanation for the intervening period of 19 days. In the circumstances of the case we are constrained to hold that there was delay of 19 days which remained unexplained and which in view of the decisions referred to above rendered the petitioners detention illegal.
### Response:
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### Explanation:
6. The petition was resisted by the Government who filed at of the Assistant Secretary, Home (Special) Department. The Assistant Secretary was authorised, it appears, to file it as the District Magistrate who passed the impugned order was at the time not available as he had since then been appointed the Secretary of the State Electricity Board. The reason given in thist for the District Magistrate not making the affidavit himself does not appear to be satisfactory. But as nothing turns on that fact we need say no more about it for the present. Thet affirms the fact of the Government having received the petitioners said representation on July 9, 1971, as also the fact of the State Government having considered and rejected it. The, however, does not set out the dates when the Government rejected the said representation. Indeed, it leaves the date blank, and only states that after such rejection the Government forwarded that representation to the Advisory Board for its consideration. Thet thus does not throw any light as to the date when the Government disposed of the said representation, nor the date when it sent it to the Board7. for the, however, was good enough to produce the Government file in connection with the petitioner. That file showed that the Government had sent the said representation to the Board of July 27, 1971, for its consideration. This fact read along with thet would show that the Government must have considered and rejected the said representation on or before July 27, 1971. The date of such rejection being kept blank in the, it is not possible, however, to say when exactly the Government passed its order rejecting the representation. Thet also did not explain why the Government took time between July 9 and 27, 1971, in disposing of the said representation. Thus, the delay, prima facie, of 19 days has remained unexplained by reason of thet keeping silence about the date of rejection10. There is no doubt that in the present case there was delay in considering the petitioners representation. Thet filed by the State kept blank the data when it was dealt with and disposed of by the Government. The only thing that counsel could gather from the file relating to the detenu was that the Government received it on July 9, 1971 and submitted it to the Board on July 27, 1971. But counsel could not say either from thet from the said file the precise date of its disposal by Government. The Government must have known from the decisions referred to earlier that it had to explain the delay and yet kept the date of the disposal blank in the affidavit and did not also offer any explanation for the intervening period of 19 days. In the circumstances of the case we are constrained to hold that there was delay of 19 days which remained unexplained and which in view of the decisions referred to above rendered the petitioners detention illegal.
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Ramesh Chandra Vs. Randhir Singh & Others | was at Rs. 79, 200 and that being lump sum payment determined at Rs. 55, 000 to be adequate compensation for the permanent disability suffered by the claimant. Besides the Tribunal granted Rs. 3, 000 on account of expenses of treatment. Under the head of general damages for pain, suffering and loss of enjoyment of life the Tribunal awarded a sum of Rs. 20, 000 as compensation. Thus a total ward of Rs. 78, 000 was made in favor of the claimant. Rs. 50, 000 was ordered to be paid by the insurance company as its liability was found to be limited to that extent. The remaining Rs. 28, 000 was ordered to be paid by the owner. The claimant also got three-fourth of his costs. 4. Three separate appeals were filed before the High Court; one by the dissatisfied claimant; the second by the aggrieved truck owner and the third by the aggrieved insurance company. The High Court dealt with the matter in equal elaboration. It affirmed the view of the Tribunal in granting compensation under the three heads aforementioned. However, the award was improved to the extent that the claimant also got interest at the rate of 6 per cent per annum on the amount of compensation from November 11, 1972, the date on which the claim petition was filed up to the date of the payment thereof; subject of course to suitable adjustments in the event of any payment having already been made to the claimant. 5. In Civil Appeal No. 1188 of 1977, preferred by the owner of the truck, leave was granted limited to grounds II and XIX of the special leave petition. In ground II the question raised was that when the claimant had not claimed interest in the application, and the Tribunal had not awarded any, the High Court was in error in granting interest under Section 110-CC of the Motor Vehicles Act where the power of the court or the Tribunal was discretionary. In ground No. XIX, the question raised was that a sum of Rs. 20, 000 on account of mental agony, pain and suffering etc. was arbitrarily granted, and thus ought to have been taken to be covered by the compensation granted on account of loss earning. In Special Leave Petition No. 5344 of 1977 the claimant has asked for more compensation, interest etc. on each count. 6. We have heard learned counsel for the parties and have perused the appeal papers, in particular regard of the limited nature of appeal of the truck owner. Section 110-CC, as it stood on the date of the accident, provided that where any court or Claims Tribunal allows a claim for compensation made under the Act, such court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. The caption of the provision is "Award of interest where any claim is allowed". The question of award of interest is dependent on the claim being allowed. Should the claim be not allowed, the question of grant of interest would not arise, and if awardable it is in addition to the amount of compensation. The court or Tribunal, in these circumstances, should determine, in the first instance, claim for compensation and in the event of its being allowed can further exercise the discretion to grant simple interest in terms thereof, but as an additive to the amount of compensation. So the addition of interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, in our view, specifically need be laid in so many words in the claim petition. The grant of interest, in our view, is not dependent on any pleading in that regard and can even be orally asked if the contingency arises. Thus, in our view, there is no substance in ground II of the special leave petition and the attack to the grant of interest is negatived. 7. With regard to ground XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs. 20, 000 to the claimant represent that solace. Money solace is the answer discovered by the law of torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quit a part from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grunt of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of a persons capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them. 8. With regard to further enhancement of compensation and further enhancement of interest, as claimed in the special leave petition by the claimant, we find in the facts and circumstances of this case, no scope in that regard. | 0[ds]6. We have heard learned counsel for the parties and have perused the appeal papers, in particular regard of the limited nature of appeal of the truck owner. Section 110-CC, as it stood on the date of the accident, provided that where any court or Claims Tribunal allows a claim for compensation made under the Act, such court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. The caption of the provision is "Award of interest where any claim is allowed". The question of award of interest is dependent on the claim being allowed. Should the claim be not allowed, the question of grant of interest would not arise, and if awardable it is in addition to the amount of compensation. The court or Tribunal, in these circumstances, should determine, in the first instance, claim for compensation and in the event of its being allowed can further exercise the discretion to grant simple interest in terms thereof, but as an additive to the amount of compensation. So the addition of interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, in our view, specifically need be laid in so many words in the claim petition. The grant of interest, in our view, is not dependent on any pleading in that regard and can even be orally asked if the contingency arises. Thus, in our view, there is no substance in ground II of the special leave petition and the attack to the grant of interest is negatived7. With regard to ground XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs. 20, 000 to the claimant represent that solace. Money solace is the answer discovered by the law of torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quit a part from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grunt of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of a persons capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them. | 0 | 1,451 | 620 | ### Instruction:
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was at Rs. 79, 200 and that being lump sum payment determined at Rs. 55, 000 to be adequate compensation for the permanent disability suffered by the claimant. Besides the Tribunal granted Rs. 3, 000 on account of expenses of treatment. Under the head of general damages for pain, suffering and loss of enjoyment of life the Tribunal awarded a sum of Rs. 20, 000 as compensation. Thus a total ward of Rs. 78, 000 was made in favor of the claimant. Rs. 50, 000 was ordered to be paid by the insurance company as its liability was found to be limited to that extent. The remaining Rs. 28, 000 was ordered to be paid by the owner. The claimant also got three-fourth of his costs. 4. Three separate appeals were filed before the High Court; one by the dissatisfied claimant; the second by the aggrieved truck owner and the third by the aggrieved insurance company. The High Court dealt with the matter in equal elaboration. It affirmed the view of the Tribunal in granting compensation under the three heads aforementioned. However, the award was improved to the extent that the claimant also got interest at the rate of 6 per cent per annum on the amount of compensation from November 11, 1972, the date on which the claim petition was filed up to the date of the payment thereof; subject of course to suitable adjustments in the event of any payment having already been made to the claimant. 5. In Civil Appeal No. 1188 of 1977, preferred by the owner of the truck, leave was granted limited to grounds II and XIX of the special leave petition. In ground II the question raised was that when the claimant had not claimed interest in the application, and the Tribunal had not awarded any, the High Court was in error in granting interest under Section 110-CC of the Motor Vehicles Act where the power of the court or the Tribunal was discretionary. In ground No. XIX, the question raised was that a sum of Rs. 20, 000 on account of mental agony, pain and suffering etc. was arbitrarily granted, and thus ought to have been taken to be covered by the compensation granted on account of loss earning. In Special Leave Petition No. 5344 of 1977 the claimant has asked for more compensation, interest etc. on each count. 6. We have heard learned counsel for the parties and have perused the appeal papers, in particular regard of the limited nature of appeal of the truck owner. Section 110-CC, as it stood on the date of the accident, provided that where any court or Claims Tribunal allows a claim for compensation made under the Act, such court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. The caption of the provision is "Award of interest where any claim is allowed". The question of award of interest is dependent on the claim being allowed. Should the claim be not allowed, the question of grant of interest would not arise, and if awardable it is in addition to the amount of compensation. The court or Tribunal, in these circumstances, should determine, in the first instance, claim for compensation and in the event of its being allowed can further exercise the discretion to grant simple interest in terms thereof, but as an additive to the amount of compensation. So the addition of interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, in our view, specifically need be laid in so many words in the claim petition. The grant of interest, in our view, is not dependent on any pleading in that regard and can even be orally asked if the contingency arises. Thus, in our view, there is no substance in ground II of the special leave petition and the attack to the grant of interest is negatived. 7. With regard to ground XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs. 20, 000 to the claimant represent that solace. Money solace is the answer discovered by the law of torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quit a part from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grunt of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of a persons capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them. 8. With regard to further enhancement of compensation and further enhancement of interest, as claimed in the special leave petition by the claimant, we find in the facts and circumstances of this case, no scope in that regard.
### Response:
0
### Explanation:
6. We have heard learned counsel for the parties and have perused the appeal papers, in particular regard of the limited nature of appeal of the truck owner. Section 110-CC, as it stood on the date of the accident, provided that where any court or Claims Tribunal allows a claim for compensation made under the Act, such court or Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. The caption of the provision is "Award of interest where any claim is allowed". The question of award of interest is dependent on the claim being allowed. Should the claim be not allowed, the question of grant of interest would not arise, and if awardable it is in addition to the amount of compensation. The court or Tribunal, in these circumstances, should determine, in the first instance, claim for compensation and in the event of its being allowed can further exercise the discretion to grant simple interest in terms thereof, but as an additive to the amount of compensation. So the addition of interest to the compensation, by judicial discretion, is sequential in the eye of law and no claim in that regard, in our view, specifically need be laid in so many words in the claim petition. The grant of interest, in our view, is not dependent on any pleading in that regard and can even be orally asked if the contingency arises. Thus, in our view, there is no substance in ground II of the special leave petition and the attack to the grant of interest is negatived7. With regard to ground XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs. 20, 000 to the claimant represent that solace. Money solace is the answer discovered by the law of torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quit a part from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grunt of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of a persons capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them.
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Nathiya & Another Vs. State Rep. By Inspector of Police, Bagayam Police Station, Vellore | deceased Gurunathan. 9. The place of occurrence is a well, away from the residence of the deceased for which any definitive presumption against his wife Nathiya, as a conspirator of the crime, cannot be drawn without the risk of going wrong to cast a burden on her, as contemplated under Section 106 of the Evidence Act. The closest circumstance bearing on the incident is, discernible from the testimony of PW3 Packiammal who stated to have heard the shrieks of the deceased, followed by a loud sound of a fall inside the well. There is no evidence that immediately thereafter, the appellants were seen in the vicinity of the well. Noticeably, the chappals of the deceased were found by the side of the well. The evidence of PW4 Dinakaran is, however, to the effect that when the dead body was recovered thereafter from the well, both the appellants were present and Nathiya, the wife of the deceased, was seen weeping by his side. The medical evidence does not refer to any external injury indicative of use of any external force on the deceased, resulting in his ante-mortem suffocation and loss of consciousness, to be thereafter dispatched into the well. The possibility that the cause of death i.e. grievous head injury, suffocation and heart failure were post fall manifestations, also cannot be ruled out as the medical evidence admits of such an eventuality as well. The inexplicable omission on the part of the prosecution to produce and prove the alleged confessional statements made by the appellants and reduced into writing by PW9 and witnessed by PW10 substantially denudes its case of necessary credence to incriminate them. The oral testimony of these witnesses to the effect that such confessional statements had been recorded, ipso facto is of no consequence. Not only the contention that the supposed disclosure by the deceased to PWs 1 and 2 about the immoral conduct of the appellants is discardable being hearsay in nature, deserves some reflection, it is noticeable that PW2, in his cross-examination, did admit that he had not divulged the above fact to the police. PW10, as well, did concede that he had not revealed to anybody about the confessional statements made by the accused persons. The recovery of a saree produced by Nathiya said to have been gifted to her by Suresh and their joint photograph, in the attendant facts and circumstances and in the face of the other evidence on record, does not clinch the issue in favour of the prosecution. 10. The defence proposition that PW1 being the cousin brother of the deceased had framed the appellants so as to wrest his property in absence of his legal heirs in the above factual premise, also cannot be lost sight of. The imputation of sustained unchaste conduct and the activities of the wife, if true, the possibility of the deceased committing suicide as an extreme step in a unbearable anguished state of mind also cannot be wholly excluded. 11. On an analysis of the overall fact situation, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record do raise a needle of suspicion towards them, the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. 12. The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116. The relevant excerpts from paragraph 153 of the decision is assuredly apposite: “153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.* * *(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” As recently as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43 , it has been propounded that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded.13. Tested on the touchstone of the above judicially laid parameters, defining the quality and content of the circumstantial evidence, essential to bring home the guilt of an accused person on a criminal charge, we are of the unhesitant opinion that the prosecution, in the case in hand, has failed to meet the same. The materials on record admit of substantial doubt vis-a-vis the complicity of the appellants in the crime.14. Having regard to the evidence adduced, it would be wholly unsafe to sustain their conviction. They are thus entitled to the benefit of doubt. | 1[ds]11. On an analysis of the overall fact situation, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record do raise a needle of suspicion towards them, the prosecution has failed to elevate its case from the realm ofto the plane ofas is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substituterecently as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43 , it has been propounded that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded.13. Tested on the touchstone of the above judicially laid parameters, defining the quality and content of the circumstantial evidence, essential to bring home the guilt of an accused person on a criminal charge, we are of the unhesitant opinion that the prosecution, in the case in hand, has failed to meet the same. The materials on record admit of substantial doubt vis-a-vis the complicity of the appellants in the crime.14. Having regard to the evidence adduced, it would be wholly unsafe to sustain their conviction. They are thus entitled to the benefit of doubt. | 1 | 3,821 | 385 | ### Instruction:
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deceased Gurunathan. 9. The place of occurrence is a well, away from the residence of the deceased for which any definitive presumption against his wife Nathiya, as a conspirator of the crime, cannot be drawn without the risk of going wrong to cast a burden on her, as contemplated under Section 106 of the Evidence Act. The closest circumstance bearing on the incident is, discernible from the testimony of PW3 Packiammal who stated to have heard the shrieks of the deceased, followed by a loud sound of a fall inside the well. There is no evidence that immediately thereafter, the appellants were seen in the vicinity of the well. Noticeably, the chappals of the deceased were found by the side of the well. The evidence of PW4 Dinakaran is, however, to the effect that when the dead body was recovered thereafter from the well, both the appellants were present and Nathiya, the wife of the deceased, was seen weeping by his side. The medical evidence does not refer to any external injury indicative of use of any external force on the deceased, resulting in his ante-mortem suffocation and loss of consciousness, to be thereafter dispatched into the well. The possibility that the cause of death i.e. grievous head injury, suffocation and heart failure were post fall manifestations, also cannot be ruled out as the medical evidence admits of such an eventuality as well. The inexplicable omission on the part of the prosecution to produce and prove the alleged confessional statements made by the appellants and reduced into writing by PW9 and witnessed by PW10 substantially denudes its case of necessary credence to incriminate them. The oral testimony of these witnesses to the effect that such confessional statements had been recorded, ipso facto is of no consequence. Not only the contention that the supposed disclosure by the deceased to PWs 1 and 2 about the immoral conduct of the appellants is discardable being hearsay in nature, deserves some reflection, it is noticeable that PW2, in his cross-examination, did admit that he had not divulged the above fact to the police. PW10, as well, did concede that he had not revealed to anybody about the confessional statements made by the accused persons. The recovery of a saree produced by Nathiya said to have been gifted to her by Suresh and their joint photograph, in the attendant facts and circumstances and in the face of the other evidence on record, does not clinch the issue in favour of the prosecution. 10. The defence proposition that PW1 being the cousin brother of the deceased had framed the appellants so as to wrest his property in absence of his legal heirs in the above factual premise, also cannot be lost sight of. The imputation of sustained unchaste conduct and the activities of the wife, if true, the possibility of the deceased committing suicide as an extreme step in a unbearable anguished state of mind also cannot be wholly excluded. 11. On an analysis of the overall fact situation, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record do raise a needle of suspicion towards them, the prosecution has failed to elevate its case from the realm of “may be true” to the plane of “must be true” as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof. 12. The classic enunciation of the law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable to the decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116. The relevant excerpts from paragraph 153 of the decision is assuredly apposite: “153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.* * *(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” As recently as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43 , it has been propounded that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded.13. Tested on the touchstone of the above judicially laid parameters, defining the quality and content of the circumstantial evidence, essential to bring home the guilt of an accused person on a criminal charge, we are of the unhesitant opinion that the prosecution, in the case in hand, has failed to meet the same. The materials on record admit of substantial doubt vis-a-vis the complicity of the appellants in the crime.14. Having regard to the evidence adduced, it would be wholly unsafe to sustain their conviction. They are thus entitled to the benefit of doubt.
### Response:
1
### Explanation:
11. On an analysis of the overall fact situation, we are of the considered opinion that the chain of circumstantial evidence relied upon by the prosecution to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record do raise a needle of suspicion towards them, the prosecution has failed to elevate its case from the realm ofto the plane ofas is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substituterecently as in Sujit Biswas vs. State of Assam (2013) 12 SCC 406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43 , it has been propounded that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically propounded.13. Tested on the touchstone of the above judicially laid parameters, defining the quality and content of the circumstantial evidence, essential to bring home the guilt of an accused person on a criminal charge, we are of the unhesitant opinion that the prosecution, in the case in hand, has failed to meet the same. The materials on record admit of substantial doubt vis-a-vis the complicity of the appellants in the crime.14. Having regard to the evidence adduced, it would be wholly unsafe to sustain their conviction. They are thus entitled to the benefit of doubt.
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M/s. Goodyear India Ltd Vs. State of Haryana and Another | interpretation, as it should be, it would be clear that the Constitutional changes introduced by the 46th Amendment in Art.269 read with the Entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament. The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If the Parliament in exercise of its plenary power under Entry 92B of List I imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. Taxable event cannot be postponed to the occurrence of the subsequent condition. In that event, it would be the subsequent condition the occurrence of which would attract the charge which will be taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustained. 74. As mentioned hereinbefore, the section. has been challenged as being violative of Art.14 of the Constitution. This attack is based on the discrimination between the two types of taxes but in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that S.13AA of the Act is violative of Art.301 of the Constitution. It makes a discrimination between the dealer/ manufacturer who despatches the goods outside the State and the other dealer/ manufacturer. Both the dealer/ manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/ manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus he is discriminated as compared to the other dealer/ manufacturer who purchases the raw material on payment of 4% purchase tax, but despatches the raw material straight outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of Art.301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam, (1961) 1 SCR 809 : (AIR 1961 SC 232 ); Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, (1963) 1 SCR 491 : (AIR 1962 SC 1406 ); Andhra Sugars Ltd. v. State of Andhra Pradesh (AIR 1968 SC 599 ) (supra); State of Madras v. N. R. Natraja Mudaliar, (1968) 3 SCR 829 : (AIR 1969 SC 147 ) and State of Kerala v. A. B. Abdul Khadir, (1970) 1 SCR 700 : (AIR 1970 SC 1912 ). 75. One has to determine: does the impugned provision amount to restriction directly and immediately on the trade or commerce movement? As was observed by this Court in Kalyani Stores v. State of Orissa, (1966) 1 SCR 865 : (AIR 1966 SC 1686 ), imposition of a duty or tax in every case would not tantamount per se to any infringement of Art.301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by Art.301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the Court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Art.301 the further question as to whether the Statute is saved under Art.304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a free flow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of Art.301 cannot be sustained and, therefore, no question whether such imposition is saved under Art. 304(b) of the Constitution arises. 76. In the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case (1983) 53 STC 163 (Punj and Har) as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana, (1984) 54 STC 226: (1984 Tax LR are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case (1985 Tax LR 2882) (Punj and Har) (FB) (supra) are incorrect for the reasons mentioned hereinbefore. The last mentioned judgment and the judgment and orders following passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, civil appeals Nos. 1166-72/85 (M/s. Goodyear India Ltd. v. State of Haryana and Anr.), civil appeal No. 1173-77 (NT)/ 85 (Gedore (I) Pvt. Ltd. v. State of Haryana and Anr.), civil appeal No. 2674/ 86 (M/ s. Kelvinator of India Ltd. and Another v. State of Haryana and others), civil appeal No. 1633 (NT)/85 (The F.C.I. v. The State of Haryana and Anr.) and civil appeal No. 3033 (NT)/86 (The F.C.I., Karnal v. The State of Haryana and others) are allowed and the judgment and order of the High Court are set aside. | 0[ds]12. In my opinion, the High Court correctly noted in the said decision that the provisions of constitutional change have to be construed, and such problems should not be viewed in narrow isolationism but on a much wider spectrum and the principles laid down in Heydons case (1984) 3 Co Rep 7a are instructive. Hence, in a situation of this nature, it was just and proper to see what was the position before the 46th Amendment of the Constitution, and find out what was the mischief that was sought to be remedied and then discover the true rationale for such a remedy. InBlack claws on International Ltd. v. Papierwerke waldhof-Aschaffenburg Ag. (1975) 1 All ER, Lord Reid observed as follows :"One must first read the words in the context of the Act as a whole, but one is entitled to go beyond that. The general rule in construing any document is that one should put oneself in the shoes of the maker or makers and take into account relevant facts known to them when the document was made. The same must apply to Acts of Parliament subject to one qualification. An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time. That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mindIt has always been said to be important to consider the mischief which the Act was apparently intended to remedy. The word mischief traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act ........"13. The state of affairs that the Parliament has sought to remedy by the 46th Amendment of the Constitution, was that prior to the promulgation each State attempted to subject the same transaction to tax on the nexus doctrine under its sales tax laws. Consequently, on the basis of one or the other element of the territorial nexus, the same transaction had to suffer tax in different States with the inevitable hardship to trade and consumers in the same or different States. The framers of the Constitution being fully aware of the problems sought to check the same by a somewhat complex constitutional scheme and by imposing restrictions on the States power with regard to levy tax on the sale or purchase of goods under Art.286. The High Court in the judgment referred to hereinbefore, mentioned these factors. It is in this background that Art.269 was amended and clause (3) was added to it. The effect, inter alia, is that the power to levy tax on the sale or purchase of goods is now referable to the legislative power vested in the States by virtue of Entry 54 in List II of the 7th Schedule. However, this legislative authority of the States is restricted by three limitations contained in Arts. 286(1)(a), 286(1)(b) and 286(3) of the Constitution. It may be mentioned that Parliament by the 6th Amendment to the Constitution, enactedthe Central Sales Tax Act,, with the object to formulate principles for determining when a sale or purchase of goods takes place in the course of inter State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distribution of taxes on sales of goods in the course of inter State trade or commerce and to declare certain goods to be of, special. importance and specify the restrictions and conditions to which State laws imposing taxes on the sale of purchase of such goods shall be subject. In this connection, the High Court referred to the various propositions as mentioned by the Law Commission in its 61st Report rendered in May, 1974. It is not necessary to set out the same in detail. It was in the aforesaid historical background that the High Court construed the provisions in question and came to the conclusion that plain reading of these would leave little manner of doubt that the legislative power to tax consignment transfers of goods from one branch of an institution to another branch thereof outside the State and all matters incidental, ancillary or complementary thereto were then declared to be vested in the Union of India to the total exclusion of the States. The High Court referred to the observations of this Court in Khyerbari Tea Co Ltd. v. State of Assam, AIR 1964 SC 925 , Navinchandra Mafatlal v. Commer. of Income tax, Bombay City, 1955 SCR 829 : (AIR 1955 SC 58 ) and Waverly Jute Mills Co. Ltd. v. Raymon and Co. (1) Pvt. Ltd. (1963) 3 SCR 209 : (AIR 1963 SC 90 ), and concluded that Entry 92B enabled the Union of India not only to tax the consignment of goods in the strict sense but also embraced all ancillary and complementary areas as well to the exclusion of the State Legislature therefrom. In the aforesaid light the High Court construed S.9(1)(b) of the Haryana Act, 1983. Analysing the provisions in detail it observed that S.9 of the Act was a charging section for the levy of purchase tax. It imposed liability for payment of purchase tax, therefore, it should be distinguished from the machinery section. The High Court examined the real nature of the business outside the State and found that there was merely a change in the physical sites of the goods without any change in the basic incident of ownership and control. Therefore, in its true nature a mere despatch of goods outside the State to another branch of the original institution is not and never can be the equivalent of a sale either as a term of art in the existing sales tax legislation and not remotely so in common parlance, and construing S.9(1)(b) of the Act, the High Court was of the view that the real taxing event is the despatch of the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce26. To accept the submissions advanced by Mr. Tewatia, assumptions and presumptions are to be made. It is not permissible to do so in a fiscal provision. See in this connection the observations of this Court in C.S.T., U.P. v. The Modi Sugar Mills Ltd. (1961) 2 SCR 189 : (AIR 1961 SC 1047 ) and Baidyanath Ayurved Bhawan (P) Ltd., Jhansi v. Excise Commissioner, U.P. (1971) 2 SCR 590 at p. 592: (AIR 197 : SC 378 at p. 380). In that background it must be noted that S.9 of the Act nowhere makes a reference to S.24 or any declaration furnished by the purchasing dealer on the basis of which he was granted temporary exemption and thereby revival of the original purchase tax on the breach of declaration as such. S.9 of the Act opens with the expression "Where a dealer liable to pay tax under this Act" and not "Whether a dealer has paid tax or has not paid tax". The phrase liable to pay tax under the Act must relate to liability to pay sales tax on such purchases27. It is well settled that the main test for determining the taxable event is that on the happening of which the charge is affixed. The realisation often is postponed to further date The quantification of the levy and the recovery of tax are also postponed in some cases. It is well settled that there are three stages in the imposition of tax. There is the declaration of liability, that is the part of the Statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment, that ex hypothesis has already been fixed. But assessment particularises the exact sum which a person is liable to pay. Lastly comes the method of recovery if the person taxed does not voluntarily pay. Reference may be made to the observations of Lord Dunedin inWhitney v. Commissioner of Inland Revenue (1926) AC 37 at p. 52and of the Federal Court in Chatturam v. CIT, Bihar (1947) 15 ITR 302 at p. 308: (AIR 1947 FC 32 at p. 35)34. This ingredient was neither argued nor was considered, so the passing reference based on the phraseology of the section is not the dictum of Kandaswamis case (AIR 1975 SC 1871 ). Secondly, in S.9, in the instant case, the raw materials purchased or used in the manufacture of new goods and thereafter those new goods were despatched outside the State of Haryana whereupon the tax was levied. This important factor is Wholly missing in S.7A of the Tamil Nadu Act, which was considered in Kandaswarnis case (AIR 1975 SC 1871 ). In that decision, this Court approved the Kerala High Courts decision in Malabar Fruit Products (1972 Tax LR 2202) (supra), which was confined to the interpretation of the words goods, the sale or purchase under the Act. A decision on a question which has not been argued cannot be treated as a precedent. See the observations of this Court in Rajput Ruda Maha v. State of Gujarat (1980) 2 SCR 353 at p. 356 : (AIR 1980 SC 1707 at p. 1708). The decision of the Division Bench of the Kerala High Court in Yusuf Shabeer v. State of Kerala. (1973) 32 STC 359 : (1974 Tax LR 1730) is clearly distinguishable. In Ganesh Prasad Dixits case (AIR 1969 SC 1276 ) (supra) the question of constitutional validity was not argued. A reference was made by Mr. Tewatia to the decision of the High Court in theCoffee Board v. commr of Commercial Taxes. (1985) 60 STC 142 (Kant)and the decision of this Court in Coffee Board, Karnataka v. commr of Commercial Taxes, Karnataka (1988) 70 STC 162 : (AIR 1988 SC 1487 ). In these cases the question involved was the acquisition of coffee by the Coffee Board under compulsory acquisition or purchase or sale of goods. That question is entirely different from the question with which we are concerned in these appealsIn case of latter, the State Legislature will have no power to impose any tax on such consignment or despatch of goods outside the State. If it is the former, then it will be valid. The question is that under the true constructions of S.13AA of the Act, on which the imposition of tax is made, or in other words, what is the incidence of that taxation or taxable event?In both these appeals, namely, civil appeals No. 4162/ 88 and 4163 / 88, the appellants M/ s Wipro Products Ltd. and Hindustan Lever Ltd. are contending that the levy isbad.The issue involved in both the appeals is the constitutional validity and legality of the provisions of S.13AA of the Act, which was introduced into the Act by the Maharashtra Act XXVIII of1982. Theappellant had a factory at Amalner in Jalgaon district in the State of Maharashtra wherein it uses non essential oil purchased by it for the manufacture and transport. The finished products, namely, vanaspati manufactured by the appellant used to be despatched to their various marketing. depots in the State of Maharashtra, Madhya Pradesh, Karnataka, Andhra Pradesh, U.P., Tamil Nadu and Kerala etc. On July 1, 1981 the rate of purchase tax payable on VNE oils (falling under Schedule C, part 1 at Entry 35) purchased within the State of Maharashtra from non registered dealers increased from 3% to 4%, by the Maharashtra Act 32 of 198165. The power to tax the sale or purchase of goods is different from the right to impose taxes on use or consumption. According to Dr. Pal, such power to levy sales tax cannot be exercised at the earlier stage of import or manufacture/ production nor the said power can be exercised at the later stage of use or consumption but only at the stage of sale or purchase. In respect of sales tax, the right to levy duty would not at all come into being before the time of sale/purchase. Sales tax cannot be imposed unless the goods are actually sold and may not be leviable if there is a transfer in some other form. See in this connection the observations of the Federal Court in Mukunda Murari Chakravarti v. Pabitramoy Ghosh AIR 1945 FC 1 at p. 22. Therefore, in this case it is necessary to ascertain what is the taxable event under S.13AA of the Act which attracts duty. A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax.,71. It is well settled that reasonable construction should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act. See Commr. of Wealth tax, Bihar and Orissa v. Kripashankar Dayashanker Worah (1971) 81 ITR 763 at p. 768 : (AIR 1971 SC 2463 at pp. 2466-67), and Income tax Commissioners for city of London v. Gibbs (1942) 10 ITR (Suppl) 121 at p. 132 (HL). Mr. Dholakia further submitted that the Statement of Objects and Reasons also helps this construction. In our opinion, he rightly submitted that because the accounts had to be maintained in a particular manner is no criterion or evidence for determining when the liability arises. The law is that the liability to tax would be determined with reference to the interpretation of the Statute which creates it. It cannot be determined by referring to another Statute. As contended by both the sides, it is well settled that the doctrine of pith and substance means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be invalid merely because it incidentally encroaches upon matters assigned to another Legislature. See Kerala State Electricity Board v. Indian Aluminium Co., (1976) 1 SCR 552 : (AIR 1976 SC 1031 ) and Praffulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60 at p. 6572. Therefore, the proper question which one should address to oneself is, whether S.13AA is in pith and substance, not levying tax on purchase but one levying tax on consignment. Depending upon the answer to the question, the validity of the action can be judged. Mr. Dholakia submitted that the Act is in pith and substance an Act levying tax on purchase and not one levying tax on consignment, and referred to the observations of this Court in State of Karnataka v. Ranganatha Reddy, (1978) 1 SCR 641 : (AIR 1978 SC 215 ). According to him, the consignment contemplated in S.13AA is only manufactured goods and no tax is levied under S.13AA in respect of such manufactured goods. He emphasised as aforesaid It is well settled that while determining nature of a tax, though the standard or the measure on which the tax is levied may be a relevant consideration, it is not the conclusive consideration. One must have regard to such other matters as decided by the Privy Council in Governor General in Council v. Province of Madras (AIR 1945 PC 98 ) (supra) not by the name of tax but to its real nature, its pith and substance which must determine into what category it falls. See the observations of R. R. Engineering Co. v. Zila Parishad, Bareilly, (1980) 3 SCR 1 : (AIR 1980 SC 1088 ), in re: A reference under the Govt. of Ireland Act, 1920 (1936) AC 352 at p. 358 and Navnitlal C. Javeri v. K. K. Sen, Appellate Asstt. Commr. of Income-tax, D Range, Bombay, (1965) 1 SCR 909 at p. 915 : (AIR 1965 SC 1375 at Pp. 1379-80)73. On an analysis we find that the goods which are despatched are different products from the goods on the purchase of which purchase tax was paid. The Maharashtra legislation has to be viewed in the context of 46th Amendment to the Constitution. The 46th Amendment introduced Art.269(1)(h) which lays down that the proceeds of the tax on consignment of goods (whether the consignment is to the person making it or to any other person) where such consignment takes place in the course of inter State trade or commerce will be assigned to the States. The said Amendment also introduced Entry No. 92B in List I of the 7th Schedule. The said Amendment was made on the consideration of the 61st Report of the Law Commission. Entry 92B in List I of the 7th Schedule and Art.269(1)(h) of the Constitution bring within its sweep the consignment of goods by a person either to himself or to any other person in the course of inter State trade or commerce. Art.269(3) gives the power to Parliament to formulate the principles for determining when a consignment of goods takes place in the course of inter State trade or commerce. If Entry 92B in List I is to be given the widest interpretation, as it should be, it would be clear that the Constitutional changes introduced by the 46th Amendment in Art.269 read with the Entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament. The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If the Parliament in exercise of its plenary power under Entry 92B of List I imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. Taxable event cannot be postponed to the occurrence of the subsequent condition. In that event, it would be the subsequent condition the occurrence of which would attract the charge which will be taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustained74. As mentioned hereinbefore, the section. has been challenged as being violative of Art.14 of the Constitution. This attack is based on the discrimination between the two types of taxes but in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that S.13AA of the Act is violative of Art.301 of the Constitution. It makes a discrimination between the dealer/ manufacturer who despatches the goods outside the State and the other dealer/ manufacturer. Both the dealer/ manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/ manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus he is discriminated as compared to the other dealer/ manufacturer who purchases the raw material on payment of 4% purchase tax, but despatches the raw material straight outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of Art.301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam, (1961) 1 SCR 809 : (AIR 1961 SC 232 ); Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, (1963) 1 SCR 491 : (AIR 1962 SC 1406 ); Andhra Sugars Ltd. v. State of Andhra Pradesh (AIR 1968 SC 599 ) (supra); State of Madras v. N. R. Natraja Mudaliar, (1968) 3 SCR 829 : (AIR 1969 SC 147 ) and State of Kerala v. A. B. Abdul Khadir, (1970) 1 SCR 700 : (AIR 1970 SC 1912 )75. One has to determine: does the impugned provision amount to restriction directly and immediately on the trade or commerce movement? As was observed by this Court in Kalyani Stores v. State of Orissa, (1966) 1 SCR 865 : (AIR 1966 SC 1686 ), imposition of a duty or tax in every case would not tantamount per se to any infringement of Art.301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by Art.301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the Court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Art.301 the further question as to whether the Statute is saved under Art.304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a free flow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of Art.301 cannot be sustained and, therefore, no question whether such imposition is saved under Art. 304(b) of the Constitution arises76. In the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case (1983) 53 STC 163 (Punj and Har) as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana, (1984) 54 STC 226: (1984 Tax LR are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case (1985 Tax LR 2882) (Punj and Har) (FB) (supra) are incorrect for the reasons mentioned hereinbefore. The last mentioned judgment and the judgment and orders following passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, civil appeals Nos. 1166-72/85 (M/s. Goodyear India Ltd. v. State of Haryana and Anr.), civil appeal No. 1173-77 (NT)/ 85 (Gedore (I) Pvt. Ltd. v. State of Haryana and Anr.), civil appeal No. 2674/ 86 (M/ s. Kelvinator of India Ltd. and Another v. State of Haryana and others), civil appeal No. 1633 (NT)/85 (The F.C.I. v. The State of Haryana and Anr.) and civil appeal No. 3033 (NT)/86 (The F.C.I., Karnal v. The State of Haryana and others) are allowed and the judgment and order of the High Court are set aside80. RANGANATHAN, J :I agree but wish to add a few words81. The question raised in these appeals is a fairly ticklish one. Simply stated, S.9 of the Haryana General Sales Tax Act, 1974 as well as S.13AA of the Bombay Sales Tax Act, 1959, purport only to levy a purchase tax. The tax, however, becomes exigible not on the occasion or event of purchase but only later. It materialises only if the purchaser (a) utilises the goods purchased in the manufacture of taxable goods and (b) despatches the goods so manufactured (otherwise than by way of sale) to a place of business situated outside the State. The legislation, however, is careful to impose the tax only on the price at which the raw materials are purchased and not on the value of the manufactured goods consigned outside the State. The States describe the tax as one levied on the purchase of a class of goods viz. those purchased in the State and utilised as raw material in the manufacture of goods which are consigned outside the State otherwise than by way of sale. On the other hand, according to the respondents assessees this is nothing but a tax on consignment of goods manufactured in the State to places outside the State, camouflaged as a purchase tax, by quantifying the levy of the tax with reference to the purchase price of the goods purchased in the State and utilised in the manufacture. To me it appeared as plausible to describe the levy as a tax on purchase of goods inside the State (which attaches itself only in certain eventualities) as to describe it as a tax on goods consigned outside the State but limited to the value of the raw material purchased inside the State and utilised therein. I, therefore. had considerable doubts not only during the arguments but even some time thereafter as to whether so long as the tax purports to be a tax on purchases and has a nexus, though a little distant, with purchase of goods in the State, the State Governments competent to impose such a tax should not be upheld. But, on deeper thought, I am inclined to agree with the conclusion of my learned brother. It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied is described in a particular manner (vide, Andhra Sugars Ltd. v. State, (1968) 1 SCR 705 : (AIR 1968 SC 599 ) and a case like the present where the tax, though described as purchase tax, actually becomes effective with reference to a totally different class of goods and, that too, only on the happening of an event which is unrelated to the act of purchase. The "taxable event", if one might use the expression often used in this context is the consignment of the manufactured goods and not the purchase. I also agree with my learned brother that the decision in State of Tamil Nadu v. Kandaswami, (1975) 36 STC 191 : (AIR 1975 SC 1871 ),though rendered in the context of an analogous provision does not touch the issue in the present case82. The above distinction becomes significant particularly in the background of the constitutional amendments referred to in the judgment of my learned brother. These indicate that there were efforts at sales tax avoidance by sending goods manufactured in a State out of raw materials purchased inside other States by way of consignments rather than by way of sales attracting tax. This situation lends force to the contention of the assessees that the States unable to tax the exodus directly, attempted to do so indirectly by linking the levy ostensibly to the "purchases" in the State16. It is well settled that what is the taxable event or what necessitates taxation in an appropriate Statute, must be found out by, construing the provisions. The essential task is to find out what is the taxable event. In what is considered to be indirect tax, there is a marked distinction between the consequence of manufacture and the consequence of sale17. It is well to remember that in construing the expressions of the Constitution to judge whether the provisions like S.9(1)(b) of the Act, are within the competence of the State Legislature, one must bear in mind that the Constitution is to be construed not in a narrow or pedantic sense. Constitution is not to be construed as mere law but as the machinery by which laws are to be made30. It is, therefore, necessary in all cases to find out what is the essence of the duty which is attracted. A taxable event is that which is closely related to imposition, In the instant section, there is such close relationship only with despatch. Therefore, the goods purchased are used in manufacture of new independent commodity and thereafter the said manufactured goods are despatched outside the State of Haryana. In this series of transactions the original transaction is completely eclipsed or ceases to exist when the levy is imposed at the third stage of despatch of manufacture. In the instant case the levy has no direct connection with the transaction of purchase of raw materials, it has only a remote connection of lineage. It may be indirectly and very remotely connected with the transaction of the purchase of raw material wherein the present levy would lose its character of purchase tax on the said transaction41. Therefore, the nomenclature given by the Haryana Legislature is not decisive. One has to find out whether in pith and substance, a consignment tax is sought to be imposed, a tax on despatch in the course of inter State trade or commerce. I have no hesitation in holding that it is a tax on despatch. Inter State trade or commerce, it has been emphasised, is of great national importance and is vital to the federal structure of our country. As the imposition of consignment tax requires very deep consideration of all its aspects and certain amount of consensus among the States concerned, especially with regard to the rates, grant of exemption, and ratio relating to distribution of proceeds amongst the States inter se, the actual imposition of tax is bound to take some time till an agreeable solution is found, but that would not make the consignment tax to be in suspended animation in the State, and make us hold that a tax which is in essence a tax on consignment should be taxed by the States by the plea either that otherwise there is ample scope of evasion and further states are without much resources in these days when there is such a tremendous demand on the revenue of the States42. It is well settled that the Entries in the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative powers as such. The tax on despatch of goods outside the territory of the State certainly is in the course of inter State trade or commerce, and in other words, amounts to imposition of consignment tax, and hence the latter part of S.9(1)(b) is ultra vires and void44. In this connection, it may be mentioned that before the Full Bench of the Punjab and Haryana High Court on behalf of the State, a statement was made, which has been recorded in (1985) 58 STC 393 at p. 408: (1985 Tax LR 2882 at p. 2890), as follows:"Counsel appearing for the State of Haryana made a statement that if the Full Bench held that Bata India Limiteds case (1983) 54 STC 226 : (1984 Tax LR 2982) did not lay down the correct law and the amendment effected by Act No. 11 of 1984 to S.9 was intra vires, then the provision of sub-section (3) of S.24 regarding the rate of tax shall not be enforced and only the old rate will be leviable."In view of the aforesaid statement, no higher rate except the old rate admissible factually would be applicable46. S.24(3) was introduced by the Haryana Act with retrospective effect from May 27, 1971, which is as follows:"Notwithstanding any other provisions of this Act or any judgment, decree or order of any Court or other authority to the contrary if a dealer who purchases goods, without payment of tax under sub-section (1) and fails to use the goods so purchased for the purpose specified therein he shall be liable to pay tax on the purchase value of such goods, at the rates notified under S.15 without prejudice to the provisions of S.50 provided that the tax shall not be levied where tax is payable on such goods under any other provision of this Act."This provision without making any. change in the substantive provision purports to give a direction to ignore the judgment, in other words, purports to overrule the judgments, namely, Goodyear (1983-53 STC 163 (Punj and Hry) and Bata India (1984 Tax LR 2982) (Punj and Hry)), which is beyond the legislative competence of the State Legislature and this provision is void in view of the decision of this Court. See Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283 at p. 286 : (AIR 1970 SC 192 at p. 194). For the same reason, applying the main section instead of S.9(1), S.24 should also fail as amended. Civil appeal No. 1515/84 is also liable to be dismissed in view of the judgment of this Court in Dy. Commr. of Sales Tax (Law), Board of Revenue (Taxes) v. Thomas Stephen and Co. Ltd., Quilon (1988) 2 SCC 264 : (AIR 1988 SC 997 ), where this Court observed that "disposal means transfer of title in the goods to any other person", and therefore it would not include mere despatch to own self or to its agents or to its branch offices or depots. In the premises, the decision of the Punjab and Haryana High Court in Goodyear India Ltd. (1983) 53 STC 163 is correct on merits as well48. In the aforesaid view of the matter, it cannot be held that S.9(1) and sub-S.(3) of S.24 are constitutionally valid52. No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India. No tax is therefore payable in regard to export outside India but the tax is payable for sale in the course of inter State trade and commerce i.e. under the Central Sales Tax Act. It is only when the goods are despatched/ consigned to the depots of the FCI in other States that tax is levied under S.9 of the Haryana Act. This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States. On perusal of S.14 and 15 ofthe Central Sales Tax Act,it becomes clear that wheat is one of the commodities specified as declared goods and in respect of which the intention is clear that the tax is payable only once on the declared goods. In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State sales. On these transactions no tax is leviable in the recipient State, while in case of inter State despatches, the tax is leviable twice. The appeals of the M are confined to S.9(1)(c), which insofar as it purports to tax export, is beyond the legislative competence of the State of Haryana65. The power to tax the sale or purchase of goods is different from the right to impose taxes on use or consumption. According to Dr. Pal, such power to levy sales tax cannot be exercised at the earlier stage of import or manufacture/ production nor the said power can be exercised at the later stage of use or consumption but only at the stage of sale or purchase. In respect of sales tax, the right to levy duty would not at all come into being before the time of sale/purchase. Sales tax cannot be imposed unless the goods are actually sold and may not be leviable if there is a transfer in some other form. See in this connection the observations of the Federal Court in Mukunda Murari Chakravarti v. Pabitramoy Ghosh AIR 1945 FC 1 at p. 22. Therefore, in this case it is necessary to ascertain what is the taxable event under S.13AA of the Act which attracts duty. A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax.,66. In the fiscal legislations normally a charge is created. The mischief of taxation occurs on the happening of the taxable event. Different taxes have different taxable events. In the instant case, Dr. Pal canvassed before as that the incidence of the levy of additional tax of two paise in the rupee is not on the purchase of goods but such a levy is attracted only when (a) the goods which so purchased on payment of purchase tax are used in the manufacture of taxable goods; and (b) the goods so manufactured are despatched to his own place of business or to his agents place of business outside the State. Therefore, the incidence of tax is attracted not merely on the purchase but only when the goods so purchased are used in the manufacture of taxable goods and are despatched outside the State. In our opinion, it was rightly submitted that it is the effect of S.13AA of the Act. It was further highlighted by Dr. Pal on behalf of the assessee that additional tax is not levied on the goods purchased on payment of purchase tax and despatched outside the State. The goods which are purchased on payment of purchase tax are used in the manufacture of taxable goods. What is despatched is not the raw material which have been purchased on payment of purchase tax but a completely different commodity, namely, vanaspati and soap. If the raw materials as such purchased on payment of purchase tax are despatched outside the State, the additional tax under S.13AA of the Act is not attracted. Hence, the incidence of additional tax has no nexus with the purchase of the raw materials, as was contended by Mr. S. K. Dholakia, appearing for the State and as held by the High Court. | 0 | 19,043 | 7,084 | ### Instruction:
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interpretation, as it should be, it would be clear that the Constitutional changes introduced by the 46th Amendment in Art.269 read with the Entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament. The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act. If the Parliament in exercise of its plenary power under Entry 92B of List I imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so. It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. The argument on the construction of the enactment is misconceived. The charging event is the event the occurrence of which immediately attracts the charge. Taxable event cannot be postponed to the occurrence of the subsequent condition. In that event, it would be the subsequent condition the occurrence of which would attract the charge which will be taxable event. If that is so, then it is a duty on despatch. In that view of the matter, this charge cannot be sustained. 74. As mentioned hereinbefore, the section. has been challenged as being violative of Art.14 of the Constitution. This attack is based on the discrimination between the two types of taxes but in the way we have construed the section, in our opinion, this question does not survive. It was further submitted by Dr. Pal that S.13AA of the Act is violative of Art.301 of the Constitution. It makes a discrimination between the dealer/ manufacturer who despatches the goods outside the State and the other dealer/ manufacturer. Both the dealer/ manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods. The incidence of additional tax on the purchase of goods is attracted only when such manufactured goods are despatched outside the State. If a dealer/ manufacturer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus he is discriminated as compared to the other dealer/ manufacturer who purchases the raw material on payment of 4% purchase tax, but despatches the raw material straight outside the State and uses them in the manufacture of goods outside the State. The High Court held that there was no violation of Art.301 of the Constitution. Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. v. State of Assam, (1961) 1 SCR 809 : (AIR 1961 SC 232 ); Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, (1963) 1 SCR 491 : (AIR 1962 SC 1406 ); Andhra Sugars Ltd. v. State of Andhra Pradesh (AIR 1968 SC 599 ) (supra); State of Madras v. N. R. Natraja Mudaliar, (1968) 3 SCR 829 : (AIR 1969 SC 147 ) and State of Kerala v. A. B. Abdul Khadir, (1970) 1 SCR 700 : (AIR 1970 SC 1912 ). 75. One has to determine: does the impugned provision amount to restriction directly and immediately on the trade or commerce movement? As was observed by this Court in Kalyani Stores v. State of Orissa, (1966) 1 SCR 865 : (AIR 1966 SC 1686 ), imposition of a duty or tax in every case would not tantamount per se to any infringement of Art.301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by Art.301. A tax in certain cases may directly and immediately restrict or hamper the flow of trade, but every imposition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the Court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Art.301 the further question as to whether the Statute is saved under Art.304(b) does not arise. The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a free flow of trade. On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of Art.301 cannot be sustained and, therefore, no question whether such imposition is saved under Art. 304(b) of the Constitution arises. 76. In the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd.s case (1983) 53 STC 163 (Punj and Har) as well as the views expressed by the High Court in Bata India Ltd. v. State of Haryana, (1984) 54 STC 226: (1984 Tax LR are correct and are affirmed. The views of the High Court expressed in Des Raj Pushap Kumar Gulatis case (1985 Tax LR 2882) (Punj and Har) (FB) (supra) are incorrect for the reasons mentioned hereinbefore. The last mentioned judgment and the judgment and orders following passed by the Punjab and Haryana High Court are, therefore, set aside. In the premises, civil appeals Nos. 1166-72/85 (M/s. Goodyear India Ltd. v. State of Haryana and Anr.), civil appeal No. 1173-77 (NT)/ 85 (Gedore (I) Pvt. Ltd. v. State of Haryana and Anr.), civil appeal No. 2674/ 86 (M/ s. Kelvinator of India Ltd. and Another v. State of Haryana and others), civil appeal No. 1633 (NT)/85 (The F.C.I. v. The State of Haryana and Anr.) and civil appeal No. 3033 (NT)/86 (The F.C.I., Karnal v. The State of Haryana and others) are allowed and the judgment and order of the High Court are set aside.
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the rates notified under S.15 without prejudice to the provisions of S.50 provided that the tax shall not be levied where tax is payable on such goods under any other provision of this Act."This provision without making any. change in the substantive provision purports to give a direction to ignore the judgment, in other words, purports to overrule the judgments, namely, Goodyear (1983-53 STC 163 (Punj and Hry) and Bata India (1984 Tax LR 2982) (Punj and Hry)), which is beyond the legislative competence of the State Legislature and this provision is void in view of the decision of this Court. See Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283 at p. 286 : (AIR 1970 SC 192 at p. 194). For the same reason, applying the main section instead of S.9(1), S.24 should also fail as amended. Civil appeal No. 1515/84 is also liable to be dismissed in view of the judgment of this Court in Dy. Commr. of Sales Tax (Law), Board of Revenue (Taxes) v. Thomas Stephen and Co. Ltd., Quilon (1988) 2 SCC 264 : (AIR 1988 SC 997 ), where this Court observed that "disposal means transfer of title in the goods to any other person", and therefore it would not include mere despatch to own self or to its agents or to its branch offices or depots. In the premises, the decision of the Punjab and Haryana High Court in Goodyear India Ltd. (1983) 53 STC 163 is correct on merits as well48. In the aforesaid view of the matter, it cannot be held that S.9(1) and sub-S.(3) of S.24 are constitutionally valid52. No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India. No tax is therefore payable in regard to export outside India but the tax is payable for sale in the course of inter State trade and commerce i.e. under the Central Sales Tax Act. It is only when the goods are despatched/ consigned to the depots of the FCI in other States that tax is levied under S.9 of the Haryana Act. This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States. On perusal of S.14 and 15 ofthe Central Sales Tax Act,it becomes clear that wheat is one of the commodities specified as declared goods and in respect of which the intention is clear that the tax is payable only once on the declared goods. In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State sales. On these transactions no tax is leviable in the recipient State, while in case of inter State despatches, the tax is leviable twice. The appeals of the M are confined to S.9(1)(c), which insofar as it purports to tax export, is beyond the legislative competence of the State of Haryana65. The power to tax the sale or purchase of goods is different from the right to impose taxes on use or consumption. According to Dr. Pal, such power to levy sales tax cannot be exercised at the earlier stage of import or manufacture/ production nor the said power can be exercised at the later stage of use or consumption but only at the stage of sale or purchase. In respect of sales tax, the right to levy duty would not at all come into being before the time of sale/purchase. Sales tax cannot be imposed unless the goods are actually sold and may not be leviable if there is a transfer in some other form. See in this connection the observations of the Federal Court in Mukunda Murari Chakravarti v. Pabitramoy Ghosh AIR 1945 FC 1 at p. 22. Therefore, in this case it is necessary to ascertain what is the taxable event under S.13AA of the Act which attracts duty. A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax.,66. In the fiscal legislations normally a charge is created. The mischief of taxation occurs on the happening of the taxable event. Different taxes have different taxable events. In the instant case, Dr. Pal canvassed before as that the incidence of the levy of additional tax of two paise in the rupee is not on the purchase of goods but such a levy is attracted only when (a) the goods which so purchased on payment of purchase tax are used in the manufacture of taxable goods; and (b) the goods so manufactured are despatched to his own place of business or to his agents place of business outside the State. Therefore, the incidence of tax is attracted not merely on the purchase but only when the goods so purchased are used in the manufacture of taxable goods and are despatched outside the State. In our opinion, it was rightly submitted that it is the effect of S.13AA of the Act. It was further highlighted by Dr. Pal on behalf of the assessee that additional tax is not levied on the goods purchased on payment of purchase tax and despatched outside the State. The goods which are purchased on payment of purchase tax are used in the manufacture of taxable goods. What is despatched is not the raw material which have been purchased on payment of purchase tax but a completely different commodity, namely, vanaspati and soap. If the raw materials as such purchased on payment of purchase tax are despatched outside the State, the additional tax under S.13AA of the Act is not attracted. Hence, the incidence of additional tax has no nexus with the purchase of the raw materials, as was contended by Mr. S. K. Dholakia, appearing for the State and as held by the High Court.
|
Keshavlal Mulchand Mody Vs. National Textile Corporation | question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been denied. However, it is urged on behalf of the Respondents that the juniors have not been employed by the 1st Respondent but by an institution "the Sankalp Division", which is an institution of the 1st Respondent, and this Sankalp Division came into existence in 1984. Therefore, it does not behove the 1st Respondent to state that the 1st Respondent did not have any hand in the employment of these individuals. Curiously enough, though the petition was filed in 1986 and the same was served upon the Respondents, they filed their Vakalatnama in 1987. The Respondents did not care to file any affidavit-in-reply. The same has been filed at this stage, that is to say, at the time of the hearing of the writ petition, and it is dated 25th October 1994, wherein the Respondents have set out various contentions with regard to whether the petitioner reported for the work and whether the Department where the petitioner was working was restarted. The question also arises as to whether the deponent who has made this affidavit-in-reply, there is a statement to the effect that the deponent has made this affidavit-in-reply, on the basis of his information, personal knowledge and the record to which the deponent has access and which he had perused and on the basis of information which he believed to be true, he has filed this affidavit-in-reply.( 13 ) AT this stage, it is contended on behalf of the Respondents that the question as to whether the petitioner did return for work and the question whether the Department where he was working was already started after taking over the management with effect from October 1983 is a question of fact and is required to be gone into by leading oral evidence.( 14 ) NO doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled to re-instatement, the petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief of re-instatement, and for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of back wages.( 15 ) SO far as the question of back wages is concerned, it was urged on behalf of the 1st Respondent that the 1st Respondent is also a sick unit that the question of payment of back wages to the petitioner, the same will have to be recovered from the Union of India. So far as the question of payment of wages is concerned, the same will have to be computed under section 33c (2) of the Industrial Disputes Act, 1947. | 1[ds]( 12 ) HOWEVER, so far as these particulars are concerned, it is pertinent to note that the Respondents have furnished only the particulars of his employment, after the period of his retirement, that is to say,to May 1992 when according to the Respondents the petitioner would have retired with effect fromThough the petitioner was employed with M/s. Patel Ghanshyamdas and Company from May 1987, this does not lend support to the case of Respondents that the petitioner was employed during the period 1983 to 1987 when, according to the petitioner, he was jobless. So far as the case of the petitioner is concerned, one fact is clear and that is that the petitioner by his letter datedaddressed to the 1st Respondent, the petitioner approached the 1st Respondent seeking employment with the 1st Respondent. In the said letter, the petitioner has, in terms, recorded the fact that the management of the Mills was taken over frombut he was not allowed to work along with the other employees on the ground that the 1st Respondent did not have funds to restart the Mills and that the was informed that as and when the work of the Mill will be in proper shape and the same would function in amanner that they will recall the employees according to the seniority and the requirements. Curiously enough, in the said letter, the petitioner has also, in terms, set out that junior salesman have been employed, but he was not permitted to join his duties and that the action of the 1st Respondent was illegal. However, though his letter was received by the 1st Respondent, curiously enough, the 1st Respondent did not care to give any reply to the contents of the said letter or to deny the same, which is sought to be done by the Respondents at this stage by the affidavit datedfiled by one Madhukar Narayan Revdekar, Deputy Manager, Labour and Welfare Department, of the 1st Respondent. So far as this affidavit is concerned, in the said affidavit, the Respondents have admitted the receipt of the letter, but they have denied the contents of the said letter. In the said letter, there is also reference to the affect that the petitioner has addressed a letter datedwhich aspect has also not been clarified by the Respondents as the Respondents have, apart from admitting the receipt of the letter, chosen to categorically deny the contents of the said letter. At this stage, the Respondents have sought to remain content by raising arguments to the affect that the petitioner did not attend and, therefore, there is not question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been14 ) NO doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled tothe petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief ofand for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of backfar as the question of payment of wages is concerned, the same will have to be computed under section 33c (2) of the Industrial Disputes Act, 1947. | 1 | 2,545 | 1,169 | ### Instruction:
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question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been denied. However, it is urged on behalf of the Respondents that the juniors have not been employed by the 1st Respondent but by an institution "the Sankalp Division", which is an institution of the 1st Respondent, and this Sankalp Division came into existence in 1984. Therefore, it does not behove the 1st Respondent to state that the 1st Respondent did not have any hand in the employment of these individuals. Curiously enough, though the petition was filed in 1986 and the same was served upon the Respondents, they filed their Vakalatnama in 1987. The Respondents did not care to file any affidavit-in-reply. The same has been filed at this stage, that is to say, at the time of the hearing of the writ petition, and it is dated 25th October 1994, wherein the Respondents have set out various contentions with regard to whether the petitioner reported for the work and whether the Department where the petitioner was working was restarted. The question also arises as to whether the deponent who has made this affidavit-in-reply, there is a statement to the effect that the deponent has made this affidavit-in-reply, on the basis of his information, personal knowledge and the record to which the deponent has access and which he had perused and on the basis of information which he believed to be true, he has filed this affidavit-in-reply.( 13 ) AT this stage, it is contended on behalf of the Respondents that the question as to whether the petitioner did return for work and the question whether the Department where he was working was already started after taking over the management with effect from October 1983 is a question of fact and is required to be gone into by leading oral evidence.( 14 ) NO doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled to re-instatement, the petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief of re-instatement, and for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of back wages.( 15 ) SO far as the question of back wages is concerned, it was urged on behalf of the 1st Respondent that the 1st Respondent is also a sick unit that the question of payment of back wages to the petitioner, the same will have to be recovered from the Union of India. So far as the question of payment of wages is concerned, the same will have to be computed under section 33c (2) of the Industrial Disputes Act, 1947.
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during the period 1983 to 1987 when, according to the petitioner, he was jobless. So far as the case of the petitioner is concerned, one fact is clear and that is that the petitioner by his letter datedaddressed to the 1st Respondent, the petitioner approached the 1st Respondent seeking employment with the 1st Respondent. In the said letter, the petitioner has, in terms, recorded the fact that the management of the Mills was taken over frombut he was not allowed to work along with the other employees on the ground that the 1st Respondent did not have funds to restart the Mills and that the was informed that as and when the work of the Mill will be in proper shape and the same would function in amanner that they will recall the employees according to the seniority and the requirements. Curiously enough, in the said letter, the petitioner has also, in terms, set out that junior salesman have been employed, but he was not permitted to join his duties and that the action of the 1st Respondent was illegal. However, though his letter was received by the 1st Respondent, curiously enough, the 1st Respondent did not care to give any reply to the contents of the said letter or to deny the same, which is sought to be done by the Respondents at this stage by the affidavit datedfiled by one Madhukar Narayan Revdekar, Deputy Manager, Labour and Welfare Department, of the 1st Respondent. So far as this affidavit is concerned, in the said affidavit, the Respondents have admitted the receipt of the letter, but they have denied the contents of the said letter. In the said letter, there is also reference to the affect that the petitioner has addressed a letter datedwhich aspect has also not been clarified by the Respondents as the Respondents have, apart from admitting the receipt of the letter, chosen to categorically deny the contents of the said letter. At this stage, the Respondents have sought to remain content by raising arguments to the affect that the petitioner did not attend and, therefore, there is not question of his not being allowed to work on the ground that the management had no funds to start the company. This issue has been raised at this stage in October 1994 when the petition was filed as far back as in October 1986 by the petitioner herein. We find it difficult to accept the contention of the Respondents that the petitioner did not attend for duty as the petitioner has been a permanent employee since January 1962 and has continued to work for the Kohinoor Mills Company Limited till 18th October 1983. It is difficult to accept the contention that the petitioner did not attend or did not demand employment with the Respondents, more particularly when the petitioner has been a devoted worker with the Kohinoor Mills Company Limited as he has not participated in the general strike and during the strike period from 18th January 1982 till 18th October 1983, the petitioner has continued to work for the Kohinoor Mills Company Limited. The fact that juniors have been employed by the 1st Respondent has not been14 ) NO doubt, the petitioner did have the remedy available to him of applying before the Labour Court. However, the petitioner chose to adopt the remedy by filing the writ petition under Article 226 of the Constitution of India. Merely because he had adopted this remedy, it does not mean that he is not entitled to any reliefs, more particularly since it is an admitted position that the petitioner has worked for the Kohinoor Mills Company Limited from 1962 till 1983 and has been a faithful employee of the Company inasmuch as even during the strike period the petitioner did not take part in the strike and continued to remain in the Mills which fact has not been denied by the Respondents. So far as the Respondents are concerned, no doubt, the Respondents have employed the services of other junior clerks because they attended and made applications before the Sankalp Division. So far as these appointments are concerned, they are also contrary to the contention of the Respondents, namely, whether the Department in which the petitioner was working was at all restarted after the take over of the management by the 1st Respondent with effect from 18th October 1983. This has not been the basis of the employment given to others by the Sankalp Division. Therefore, we are of the opinion that it is not open for the Respondents to contend that employment was given to those employees when the working of the Department restarted after the takeover of the management by the 1st Respondent on 18th October 1983. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to reinstatement for the period from 18th October 1983 to April 1987 and, being entitled tothe petitioner is also entitled to full back wages. So far as this petitioner is concerned, we are also of the opinion that the 1st Respondent has at no point of time terminated the services of the petitioner, though the 1st Respondent took over the management of the Kohinoor Mills Company Limited under the Textile Undertakings (Taking over of Management) Ordinance, 1983, nor have the Respondents issued any show cause notice to the petitioner as to why action should not be taken in view of the fact that the petitioner has not cared to report for duty as contended by them. So far as the petitioner is concerned, we are of the opinion that the petitioner is entitled to the relief ofand for back wages. However, in view of the fact that the petitioner has reached the age of superannuation, the relief that he is entitled to is only the relied of backfar as the question of payment of wages is concerned, the same will have to be computed under section 33c (2) of the Industrial Disputes Act, 1947.
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Mahesh Choudhary Vs. State Of Rajasthan | therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been made out. While saying so, we are not unmindful of the limitations of the courts power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole. In Kamaladevi Agarwal vs. State of W.B. & ors. [(2002) 1 SCC 555] , this Court opined: "7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction." It was furthermore observed that the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there would always be some element of civil nature. 16. This Court in B.Suresh Yadav vs. Sharifa Bee & anr. [(2007) 13 SCC 107] opined as under: "13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so." 17. Recently in R. Kalyani vs. Janak C. Mehta & ors. [2008 (14) SCALE 85 ], this Court laid down the law in the following terms: "9. Propositions of law which emerge from the said decisions are:(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.10. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint." 18. The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders. 19. We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled. 20. In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may seem fit and proper. 21. In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant. 22. | 0[ds]The complainant in terms of the said agreement was not only entitled to inspect the documents maintained by the accused but also to get the same audited. It is, therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been made out. While saying so, we are not unmindful of the limitations of the courts power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole.The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders.We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled.In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may seem fit and proper.In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant. | 0 | 2,811 | 382 | ### Instruction:
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therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been made out. While saying so, we are not unmindful of the limitations of the courts power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole. In Kamaladevi Agarwal vs. State of W.B. & ors. [(2002) 1 SCC 555] , this Court opined: "7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction." It was furthermore observed that the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there would always be some element of civil nature. 16. This Court in B.Suresh Yadav vs. Sharifa Bee & anr. [(2007) 13 SCC 107] opined as under: "13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so." 17. Recently in R. Kalyani vs. Janak C. Mehta & ors. [2008 (14) SCALE 85 ], this Court laid down the law in the following terms: "9. Propositions of law which emerge from the said decisions are:(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.10. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint." 18. The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders. 19. We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled. 20. In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may seem fit and proper. 21. In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant. 22.
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The complainant in terms of the said agreement was not only entitled to inspect the documents maintained by the accused but also to get the same audited. It is, therefore, difficult to hold as has rightly been opined by the Investigating Officer that a case for imposing a criminal liability on the accused on that score has been made out. While saying so, we are not unmindful of the limitations of the courts power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole.The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders.We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled.In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may seem fit and proper.In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant.
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DHARMAJI SHANKAR SHINDE Vs. RAJARAM SHRIPAD JOSHI (DEAD) THROUGH LRS | case, the defendant thereon did not take any step for mutation of the land for three long years and the plaintiff thereon specifically objected to mutation in the name of respondent-defendant. The case in hand is clearly distinguishable on facts. 23. In the present case, there are no averments in the plaint as to the market value of the property and as to the inadequacy of the consideration. In his evidence, PW-1 has stated that the transaction of absolute sale could have been worth Rs.60,000- 70,000/- in the year 1967; but the respondents-plaintiffs have not produced the certificate of valuation of the land or the circle rate of the property at the time when Ex.P-73 was executed. The appellants contended that the suit property was sold for a proper consideration and relied upon the transaction that took place in the village in the year 1957 to establish that the sale consideration is appropriate. The trial court while deciding issue No.4 has held that the respondents-plaintiffs have failed to adduce any evidence to show that the market value of the suit property in the year 1967 was much more than what was paid by the appellants-defendants. 24. The respondents-plaintiffs have placed much reliance upon Ex.P-69-receipt to show that Shripad Joshi paid an amount of Rs.800/- to Shankar Shinde who in turn executed the receipt dated 26.07.1972 in favour of his father and at that time, PW-1 was also present. The appellants-defendants contend that Ex.P- 69-receipt is forged. Admittedly, neither parties to Ex.P-69-receipt nor the scribe who wrote the receipt are alive. In the light of defence plea questioning the correctness of Ex.P-69, the burden of proof is on the respondents-plaintiffs to adduce the best possible evidence to prove Ex.P-69-receipt. The respondents- plaintiffs examined PW-2-Prabhakar, son of the scribe-Gopal Tukaram Shivade to identify the handwriting and signature of the scribe of Ex.P-69. In his evidence, PW-2 stated that he is acquainted with the handwriting and signature of his father and that Ex.P-69-receipt was written by his father. 25. Gopal Tukaram Shivade-scribe, father of PW-2, was a Police Patil of Kudal for ten years and he expired in the year 1990. Ex.P-69-receipt was of the year 1972 and PW-2 was examined in the year 1994. After perusal of Ex.P-69-receipt, the trial court held that there are glaring defects in the said receipt i.e. faded and incomplete thumb impression of Shankar Shinde on the revenue stamp. The trial court has observed that except the evidence of PW-2, no other evidence has been adduced by the respondents-plaintiffs to prove Ex.P-69-receipt. Since the scribe was a Police Patil of Kudal, it was very much possible for the respondents-plaintiffs to prove the execution of the document by producing the admitted handwriting of the scribe so as to compare them with the questioned writing in the receipt. The trial court also pointed out that though PW-1-Rajaram Joshi claims that he was present at the time of execution of Ex.P-69, PW-1 had not signed in it nor attested it, so PW-1s evidence is of no help to prove the execution of the receipt. Be it noted that though Ex.P-69-receipt was of the year 1972, during his life time, based on Ex.P-69-receipt, Shripad Joshi had not taken any step to redeem the property. Even after death of Shripad Joshi in 1973, Ex.P-69-receipt did not see the light of the day till 1980 when the notice was said to have been issued by the respondents-plaintiffs. In these factual circumstances, it cannot be said that the plaintiffs have discharged the burden in proving Ex.P-69-receipt as genuine to hold that the parties had intended that Ex.P-73- document is only a mortgage by conditional sale and not a sale with condition to repurchase. The receipt Ex.P-69 cannot be relied upon as corroborative piece of evidence to hold that part payment was made by Shripad Joshi and that the parties treated Ex.P-73 as a mortgage by conditional sale. 26. When Ex.P-73 is clear and unambiguous, the first Appellate Court erred in relying upon Ex.P-69-receipt to draw inference as to the intention of the parties. The first Appellate Court did not keep in view that the appellants-defendants have denied Ex.P-69- receipt, hence, burden lies upon the plaintiffs to prove the contents of Ex.P-69 to bring in the intention of the parties that the transaction between the parties was only a mortgage by conditional sale. When the recitals in Ex.P-73-document is sufficient to gather the intention of the parties, the first Appellate Court erred in placing reliance on Ex.P-69-receipt to ascertain the intention of the parties to upset the findings of fact recorded by the trial court. The findings of the first Appellate Court and the High Court in placing reliance upon Ex.P-69-receipt to conclude that the transaction was a mortgage and not a sale are erroneous and the same cannot be sustained. 27. Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside. | 1[ds]14. The question in each case is the determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous then in the light of the evidence of the surrounding circumstances, it must be given their true legal effect. If there is any ambiguity in the language employed, the intention is to be ascertained from the contents of the deed and the language of the deed is to be taken into consideration to ascertain the intention of the parties. Evidence of contemporaneous conduct of the parties is to be taken into consideration as the surrounding circumstances16. Intention of the parties as seen from the recitals of Ex.P-73:- By perusal of Ex.P-73, it is clear that eight days prior to Ex.P-73, Shripad Joshi has borrowed orally a sum of Rs.700/- for the purpose of marriage of his daughter. At the time of execution of Ex.P-73 (28.07.1967), Shirpad Joshi required more money for the same reason and he executed Ex.P-73-document titled as mortgage by conditional sale for a consideration of Rs.2500/- and on the date of execution of the said document, Shripad Joshi received only a sum of Rs.1800/-. The earlier borrowed amount of Rs.700/- was thus adjusted from the sale consideration of Rs.2500/-. The intention of the parties in putting an end to the debtor-creditor relationship with respect to the sum of Rs.700/- is clear from the recitals of the document i.e. adjustment of Rs.700/- from the total consideration of Rs.2500/- and parties intending to create a relationship of vendor and vendee by transfer of the suit property for a consideration of Rs.2500/-. Period of five years was fixed in Ex.P-73 within which Shirpad Joshi-father of the respondents-plaintiffs was to repay the said amount. On the date of execution of the document (Ex.P-73), the possession of the property was handed over to the appellants-defendants for cultivation. Further, recitals are to the effect that if the consideration amount is paid within five years, Shripad Joshi- executant will get the mortgage redeemed. In case, the amount is not paid within the stipulated period of five years, the mortgage shall be treated as an absolute sale and thereafter Shankar Shinde to pay the land revenue to the government and all other charges for which executant will have no complaint. The recitals of the document make clear the intention of the parties that if the amount is not repaid within the stipulated period of five years, the transferee will have absolute right and the mortgage will be treated as an absolute sale and the transferee to pay the land revenue and the other charges. These clauses in Ex.P-73, in our view, are consistent with the intention of the parties making the transaction a conditional sale with an option to repurchase17. Admittedly, executant of Ex.P-73, Shripad Joshi expired in the year 1973 and till his life time, he never took any action or step to get the property reconveyed. After death of Shripad Joshi in the year 1973, no immediate action was taken by his successor. Obviously, all the legal action were started in the year 1980 by the present plaintiffs based upon a receipt-Ex.P-69 dated 26.07.1972 under which an amount of Rs.800/- is said to have been paid to Shankar Shinde. Much emphasis has been placed by the respondents-plaintiffs on Ex.P-69-receipt which we would refer a little later. When being confronted with the recitals in Ex.P-73, in his cross-examination, PW-1-Rajaram Joshi admitted that the transaction was that of sale with the condition of repurchase and neither parties are described therein as mortgagor or mortgagee. Admission of PW-1 is a formidable evidence indicating the intention of the parties. Having not paid the amount within the stipulated period of five years, the plaintiffs have lost their right to repurchase18. Mention of borrowed a sum of Rs.700/- in the document is incidental. Mere incorporation of the word borrowed and mortgage by conditional sale cannot by itself establish that there is a debtor-creditor relationship. In fact, as pointed out earlier, the recitals of the document make it clear that the parties expressed their intention to put an end to the debtor-creditor relationship with respect to the sum of Rs.700/- that existed prior to the execution of Ex.P-73 and creating a relationship of vendor and vendee by transfer of the suit property for consideration of Rs.2500/-. As rightly observed by the trial court, in Ex.P-73, there is no mention of the rate of interest, right of foreclosure that are essential in a deed of mortgage19. The contention of the respondents is that in view of the mandatory provisions of the proviso to clause (c) of Section 58 of the Act, since the sale and the agreement to repurchase are embodied in the same document (Ex.P-73), the transaction is to be taken as a mortgage and the conditions enumerated in proviso to Section 58(c) of the Transfer of Property Act have been satisfied in the present case. On behalf of the respondents, it was submitted that the existence of creditor-debtor relationship can be derived from the recital in the document I have borrowed. As pointed out earlier, there are no recitals in the document to establish creditor-debtor relationship; nor does it contain the right of foreclosure, payment of interest etc. which are essential requirements in a deed of mortgage20. As per Section 58(a) of the Transfer of Property Act, the mortgage is the transfer of an interest in specific immovable property as security for the repayment of the debt; but such interest itself is immovable property. In the case in hand, non- mention of the mortgage amount for which the interest in the immovable property was created as security, indicate that the parties have never intended to create a mortgage deed. If really the parties have intended the transaction to be a mortgage, while handing over possession of the property to Shankar Shinde for cultivation, the parties would have stated that the cultivation and enjoyment of usufructs are in lieu of the interest payable by Shripad Joshi on the amount. But that was not to be so. The transfer of possession and right to cultivate the suit land could be conceived as the intention of the executant to transfer the right, title and interest in the property which are essentials in any transaction of a sale21. Moreover, as per the clauses in Ex.P-73-document, the possession of the suit property was also handed over to Shankar Shinde-father of the appellants. Though, it is stated that the transferee-Shankar Shinde was to pay the revenue to the government after five years, according to the appellants, ever since 1967, land revenue was paid by the father of the appellants. In his evidence, PW-1 admitted that revenue cess of the suit property has been paid by Shankar Shinde from 1967 and after his demise, by his legal heirs. Likewise, a mutation was also effected in the name of Shankar Shinde even in the year 1967. During his life time, father of the respondents-Shripad Joshi has not raised any objection to the mutation nor for the payment of the revenue cess by Shankar Shinde. Considering the contemporaneous conduct of the parties, it is clear that Shankar Shinde and thereafter the appellants were dealing with the suit property as if they were the owners of the land. The clause in Ex.P-73 that if the amount is not paid within a period of five years, the transaction will become a permanent sale deed and thereafter, the transferee will have the absolute right over the property are consistent with the express intention of parties making the transaction a conditional sale with option to repurchase22. The respondents-plaintiffs contended that the market value of the suit property was higher than the transaction value and therefore, Ex.P-73 is to be construed as a mortgage. In support of their contention, reliance was placed upon the judgment in Vithal Tukaram.The facts in Vithal Tukaram are clearly distinguishable with the facts and evidence on record in the present case. In that case, the value of the land was Rs.3500/- far in excess of the amount of Rs.700/- mentioned in the document. Considering the evidence of the respondent- defendant thereon and the facts of the said case, the Supreme Court held that the value of the land was far in excess of Rs.700/- mentioned in the agreement. Further, in the said case, the defendant thereon did not take any step for mutation of the land for three long years and the plaintiff thereon specifically objected to mutation in the name of respondent-defendant. The case in hand is clearly distinguishable on facts23. In the present case, there are no averments in the plaint as to the market value of the property and as to the inadequacy of the consideration. In his evidence, PW-1 has stated that the transaction of absolute sale could have been worth Rs.60,000- 70,000/- in the year 1967; but the respondents-plaintiffs have not produced the certificate of valuation of the land or the circle rate of the property at the time when Ex.P-73 was executed.The appellants contended that the suit property was sold for a proper consideration and relied upon the transaction that took place in the village in the year 1957 to establish that the sale consideration is appropriate.The trial court while deciding issue No.4 has held that the respondents-plaintiffs have failed to adduce any evidence to show that the market value of the suit property in the year 1967 was much more than what was paid by the appellants-defendantsIn these factual circumstances, it cannot be said that the plaintiffs have discharged the burden in proving Ex.P-69-receipt as genuine to hold that the parties had intended that Ex.P-73- document is only a mortgage by conditional sale and not a sale with condition to repurchase. The receipt Ex.P-69 cannot be relied upon as corroborative piece of evidence to hold that part payment was made by Shripad Joshi and that the parties treated Ex.P-73 as a mortgage by conditional sale26. When Ex.P-73 is clear and unambiguous, the first Appellate Court erred in relying upon Ex.P-69-receipt to draw inference as to the intention of the parties. The first Appellate Court did not keep in view that the appellants-defendants have denied Ex.P-69- receipt, hence, burden lies upon the plaintiffs to prove the contents of Ex.P-69 to bring in the intention of the parties that the transaction between the parties was only a mortgage by conditional sale. When the recitals in Ex.P-73-document is sufficient to gather the intention of the parties, the first Appellate Court erred in placing reliance on Ex.P-69-receipt to ascertain the intention of the parties to upset the findings of fact recorded by the trial court. The findings of the first Appellate Court and the High Court in placing reliance upon Ex.P-69-receipt to conclude that the transaction was a mortgage and not a sale are erroneous and the same cannot be sustained27. Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside. | 1 | 5,756 | 2,183 | ### 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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case, the defendant thereon did not take any step for mutation of the land for three long years and the plaintiff thereon specifically objected to mutation in the name of respondent-defendant. The case in hand is clearly distinguishable on facts. 23. In the present case, there are no averments in the plaint as to the market value of the property and as to the inadequacy of the consideration. In his evidence, PW-1 has stated that the transaction of absolute sale could have been worth Rs.60,000- 70,000/- in the year 1967; but the respondents-plaintiffs have not produced the certificate of valuation of the land or the circle rate of the property at the time when Ex.P-73 was executed. The appellants contended that the suit property was sold for a proper consideration and relied upon the transaction that took place in the village in the year 1957 to establish that the sale consideration is appropriate. The trial court while deciding issue No.4 has held that the respondents-plaintiffs have failed to adduce any evidence to show that the market value of the suit property in the year 1967 was much more than what was paid by the appellants-defendants. 24. The respondents-plaintiffs have placed much reliance upon Ex.P-69-receipt to show that Shripad Joshi paid an amount of Rs.800/- to Shankar Shinde who in turn executed the receipt dated 26.07.1972 in favour of his father and at that time, PW-1 was also present. The appellants-defendants contend that Ex.P- 69-receipt is forged. Admittedly, neither parties to Ex.P-69-receipt nor the scribe who wrote the receipt are alive. In the light of defence plea questioning the correctness of Ex.P-69, the burden of proof is on the respondents-plaintiffs to adduce the best possible evidence to prove Ex.P-69-receipt. The respondents- plaintiffs examined PW-2-Prabhakar, son of the scribe-Gopal Tukaram Shivade to identify the handwriting and signature of the scribe of Ex.P-69. In his evidence, PW-2 stated that he is acquainted with the handwriting and signature of his father and that Ex.P-69-receipt was written by his father. 25. Gopal Tukaram Shivade-scribe, father of PW-2, was a Police Patil of Kudal for ten years and he expired in the year 1990. Ex.P-69-receipt was of the year 1972 and PW-2 was examined in the year 1994. After perusal of Ex.P-69-receipt, the trial court held that there are glaring defects in the said receipt i.e. faded and incomplete thumb impression of Shankar Shinde on the revenue stamp. The trial court has observed that except the evidence of PW-2, no other evidence has been adduced by the respondents-plaintiffs to prove Ex.P-69-receipt. Since the scribe was a Police Patil of Kudal, it was very much possible for the respondents-plaintiffs to prove the execution of the document by producing the admitted handwriting of the scribe so as to compare them with the questioned writing in the receipt. The trial court also pointed out that though PW-1-Rajaram Joshi claims that he was present at the time of execution of Ex.P-69, PW-1 had not signed in it nor attested it, so PW-1s evidence is of no help to prove the execution of the receipt. Be it noted that though Ex.P-69-receipt was of the year 1972, during his life time, based on Ex.P-69-receipt, Shripad Joshi had not taken any step to redeem the property. Even after death of Shripad Joshi in 1973, Ex.P-69-receipt did not see the light of the day till 1980 when the notice was said to have been issued by the respondents-plaintiffs. In these factual circumstances, it cannot be said that the plaintiffs have discharged the burden in proving Ex.P-69-receipt as genuine to hold that the parties had intended that Ex.P-73- document is only a mortgage by conditional sale and not a sale with condition to repurchase. The receipt Ex.P-69 cannot be relied upon as corroborative piece of evidence to hold that part payment was made by Shripad Joshi and that the parties treated Ex.P-73 as a mortgage by conditional sale. 26. When Ex.P-73 is clear and unambiguous, the first Appellate Court erred in relying upon Ex.P-69-receipt to draw inference as to the intention of the parties. The first Appellate Court did not keep in view that the appellants-defendants have denied Ex.P-69- receipt, hence, burden lies upon the plaintiffs to prove the contents of Ex.P-69 to bring in the intention of the parties that the transaction between the parties was only a mortgage by conditional sale. When the recitals in Ex.P-73-document is sufficient to gather the intention of the parties, the first Appellate Court erred in placing reliance on Ex.P-69-receipt to ascertain the intention of the parties to upset the findings of fact recorded by the trial court. The findings of the first Appellate Court and the High Court in placing reliance upon Ex.P-69-receipt to conclude that the transaction was a mortgage and not a sale are erroneous and the same cannot be sustained. 27. Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside.
### Response:
1
### Explanation:
But that was not to be so. The transfer of possession and right to cultivate the suit land could be conceived as the intention of the executant to transfer the right, title and interest in the property which are essentials in any transaction of a sale21. Moreover, as per the clauses in Ex.P-73-document, the possession of the suit property was also handed over to Shankar Shinde-father of the appellants. Though, it is stated that the transferee-Shankar Shinde was to pay the revenue to the government after five years, according to the appellants, ever since 1967, land revenue was paid by the father of the appellants. In his evidence, PW-1 admitted that revenue cess of the suit property has been paid by Shankar Shinde from 1967 and after his demise, by his legal heirs. Likewise, a mutation was also effected in the name of Shankar Shinde even in the year 1967. During his life time, father of the respondents-Shripad Joshi has not raised any objection to the mutation nor for the payment of the revenue cess by Shankar Shinde. Considering the contemporaneous conduct of the parties, it is clear that Shankar Shinde and thereafter the appellants were dealing with the suit property as if they were the owners of the land. The clause in Ex.P-73 that if the amount is not paid within a period of five years, the transaction will become a permanent sale deed and thereafter, the transferee will have the absolute right over the property are consistent with the express intention of parties making the transaction a conditional sale with option to repurchase22. The respondents-plaintiffs contended that the market value of the suit property was higher than the transaction value and therefore, Ex.P-73 is to be construed as a mortgage. In support of their contention, reliance was placed upon the judgment in Vithal Tukaram.The facts in Vithal Tukaram are clearly distinguishable with the facts and evidence on record in the present case. In that case, the value of the land was Rs.3500/- far in excess of the amount of Rs.700/- mentioned in the document. Considering the evidence of the respondent- defendant thereon and the facts of the said case, the Supreme Court held that the value of the land was far in excess of Rs.700/- mentioned in the agreement. Further, in the said case, the defendant thereon did not take any step for mutation of the land for three long years and the plaintiff thereon specifically objected to mutation in the name of respondent-defendant. The case in hand is clearly distinguishable on facts23. In the present case, there are no averments in the plaint as to the market value of the property and as to the inadequacy of the consideration. In his evidence, PW-1 has stated that the transaction of absolute sale could have been worth Rs.60,000- 70,000/- in the year 1967; but the respondents-plaintiffs have not produced the certificate of valuation of the land or the circle rate of the property at the time when Ex.P-73 was executed.The appellants contended that the suit property was sold for a proper consideration and relied upon the transaction that took place in the village in the year 1957 to establish that the sale consideration is appropriate.The trial court while deciding issue No.4 has held that the respondents-plaintiffs have failed to adduce any evidence to show that the market value of the suit property in the year 1967 was much more than what was paid by the appellants-defendantsIn these factual circumstances, it cannot be said that the plaintiffs have discharged the burden in proving Ex.P-69-receipt as genuine to hold that the parties had intended that Ex.P-73- document is only a mortgage by conditional sale and not a sale with condition to repurchase. The receipt Ex.P-69 cannot be relied upon as corroborative piece of evidence to hold that part payment was made by Shripad Joshi and that the parties treated Ex.P-73 as a mortgage by conditional sale26. When Ex.P-73 is clear and unambiguous, the first Appellate Court erred in relying upon Ex.P-69-receipt to draw inference as to the intention of the parties. The first Appellate Court did not keep in view that the appellants-defendants have denied Ex.P-69- receipt, hence, burden lies upon the plaintiffs to prove the contents of Ex.P-69 to bring in the intention of the parties that the transaction between the parties was only a mortgage by conditional sale. When the recitals in Ex.P-73-document is sufficient to gather the intention of the parties, the first Appellate Court erred in placing reliance on Ex.P-69-receipt to ascertain the intention of the parties to upset the findings of fact recorded by the trial court. The findings of the first Appellate Court and the High Court in placing reliance upon Ex.P-69-receipt to conclude that the transaction was a mortgage and not a sale are erroneous and the same cannot be sustained27. Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside.
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Pepsi Foods Vs. Collector Of Central Excise, Chandigarh | from the fact that the overall consideration for the sale of concentrate is not merely its price stated in the invoice. It is something more than that, namely, royalty to be received periodically.13. Under the agreement, the obligation to buy the concentrate at the price fixed by the seller (appellant) and the obligation of the buyer to manufacture the bottled soft drinks, to sell the same by using the trademark of the appellant and to remit the prefixed royalty charges is inseparable from one another. 14. It is however, contended that in respect of the Soda manufactured by the bottlers on their own, the appellant collects royalty from them for the use of the trademark lehar even though there was no sale of any raw material. According to the learned counsel for the appellant, this is a strong indicia that the licence to use the trademark granted to the bottler in consideration of receiving the royalty is an independent and distinct transaction. No such specific plea was raised before any of the authorities including the Tribunal, though there was demur to the inclusion of royalty received on the sales of soda by the manufacturer. The documents relating to the collection of royalty on account of the sale of soda with the trademark of the appellant are not on record. The circumstances in which such a deal was entered into are not apparent from the record. We do not, therefore, propose to delve into this aspect further. We may mention that the appellants claim for exclusion of royalty received on Soda sales was accepted by the Tribunal. 15. In our view, none of the decisions cited by the learned counsel for the appellant will come to the aid of the appellant though there are certain overlapping features. 16. The first case relied upon is the Union of India vs. Mahindra & Mahindra Ltd. (1995 (76) E.L.T. 481 (S.C.). This case was rightly distinguished by the Tribunal, It was found as a matter of fact that there was no material to indicate any nexus or connection between the lumpsum payment of 15 million French Francs paid by the assessee to the foreign collaborator for providing the use of PEUGEOT Engine Technology and the supply of CKD packs to the respondents by PEUGEOT for the production of the engine. This Court observed- "In no sense, it can be stated that the price of the goods obtained later was reckoned or reflected in the lumpsum payments made, long before. The parties never had in mind the nature and extent of the spare parts that may be required later, when the collaboration agreement was entered into." 17. The fact that there was no obligation on the assessee to purchase CKD packs at all, that long before the supply of the CKD packs and spares, the royalty due to the collaborators was paid, that there was no material to show that the supply of the CKD packs or spares weighed with the parties in fixing the payments under the collaboration agreement were all taken into account by the Court to conclude that no nexus existed between the lumpsum payment under the agreement for the technical know-how and the determination of the price for supply for CKD packs/ spares. The distinguishing features are many and the appellant cannot draw any support from that case. 18. The decision of CEGAT in Collector of Customs, Bombay vs. Maruthi Udyog Ltd. (1987) (28) E.L.T. 390) has also been relied upon. The special leave petition filed against this order was dismissed in limine by this Court on 26.4.1989 by a non speaking order. This case also does not help the appellant. In this case, the contention of the Department that the import invoice price pertaining to components, assemblies and vehicles was not the sole consideration for the sale but the royalties relatable to the manufacture in India of Suzukis components also constitutes the consideration for the purchase of the imported goods was not accepted. The Tribunal held that the royalty payments were relatable directly to the manufacture of goods in India and they had no nexus with the import of goods from Japan. It was observed that neither royalty nor the trademark Maruthi Suzuki had anything to do with import of components, assemblies and vehicles from Japan". The ratio of that decision of CEGAT thus stands on a different footing. 19. One more case on which reliance was sought to be placed by the appellants counsel is the order of CEGAT in Duke & ;Sons vs. Commissioner of Central Excise (1991 (55) ELT 577) which stood affirmed by this Court by reason of dismissal of S.L.P. That was also a case of franchise fees payable by the buyers of concentrate to the assessee for using the trademark of the assessee on the soft drink bottles. The Tribunal made the following crucial observations: "The agreement under which the buyers are permitted to use the trademark is not filed either before the lower authorities or before us. Therefore, no views can be expressed as to whether it is interlinked with the sale of concentrate. There is also no evidence on record to indicate that the concentrate is sold only to those who also enter into agreement to buy the trademark. In other words, there is no evidence to establish that the agreement to purchase trademark is essential before a buyer purchases the concentrate. Similarly, there is no evidence that a buyer is not willing to purchase the concentrate without purchasing the trademark. In other words, there is no evidence to establish that the sale of concentrate is dependent on the purchase of trademark. In the absence of such evidence it is difficult to hold that the sale of concentrate is interlinked or closely connected and without the sale of trademark there is no sale of concentrate". It was under those circumstances the royalty payment was excluded from the assessable value of the concentrate. The distinguishing features are self-evidence from the observations quoted above. | 0[ds]In our view, the substratum of the agreement regulating the terms of dealings between the parties unmistakably indicate that the invoiced price alone was not the sole consideration for the sale of concentrate. The finding of Tribunal is, therefore, unexceptionable.12. The fact that the royalty is charged for permitting the use of the trademark, but not as part of price for specific units of concentrate sold does not detract from the fact that the overall consideration for the sale of concentrate is not merely its price stated in the invoice. It is something more than that, namely, royalty to be received periodically.13. Under the agreement, the obligation to buy the concentrate at the price fixed by the seller (appellant) and the obligation of the buyer to manufacture the bottled soft drinks, to sell the same by using the trademark of the appellant and to remit the prefixed royalty charges is inseparable from oneDuke & ;Sons vs. Commissioner of Central Excise (1991 (55) ELT 577) which stood affirmed by this Court by reason of dismissal of S.L.P. That was also a case of franchise fees payable by the buyers of concentrate to the assessee for using the trademark of the assessee on the soft drink bottles. The Tribunal made the following crucialagreement under which the buyers are permitted to use the trademark is not filed either before the lower authorities or before us. Therefore, no views can be expressed as to whether it is interlinked with the sale of concentrate. There is also no evidence on record to indicate that the concentrate is sold only to those who also enter into agreement to buy the trademark. In other words, there is no evidence to establish that the agreement to purchase trademark is essential before a buyer purchases the concentrate. Similarly, there is no evidence that a buyer is not willing to purchase the concentrate without purchasing the trademark. In other words, there is no evidence to establish that the sale of concentrate is dependent on the purchase of trademark. In the absence of such evidence it is difficult to hold that the sale of concentrate is interlinked or closely connected and without the sale of trademark there is no sale ofwas under those circumstances the royalty payment was excluded from the assessable value of the concentrate. The distinguishing features are self-evidence from the observations quoted above. | 0 | 3,258 | 432 | ### 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:
from the fact that the overall consideration for the sale of concentrate is not merely its price stated in the invoice. It is something more than that, namely, royalty to be received periodically.13. Under the agreement, the obligation to buy the concentrate at the price fixed by the seller (appellant) and the obligation of the buyer to manufacture the bottled soft drinks, to sell the same by using the trademark of the appellant and to remit the prefixed royalty charges is inseparable from one another. 14. It is however, contended that in respect of the Soda manufactured by the bottlers on their own, the appellant collects royalty from them for the use of the trademark lehar even though there was no sale of any raw material. According to the learned counsel for the appellant, this is a strong indicia that the licence to use the trademark granted to the bottler in consideration of receiving the royalty is an independent and distinct transaction. No such specific plea was raised before any of the authorities including the Tribunal, though there was demur to the inclusion of royalty received on the sales of soda by the manufacturer. The documents relating to the collection of royalty on account of the sale of soda with the trademark of the appellant are not on record. The circumstances in which such a deal was entered into are not apparent from the record. We do not, therefore, propose to delve into this aspect further. We may mention that the appellants claim for exclusion of royalty received on Soda sales was accepted by the Tribunal. 15. In our view, none of the decisions cited by the learned counsel for the appellant will come to the aid of the appellant though there are certain overlapping features. 16. The first case relied upon is the Union of India vs. Mahindra & Mahindra Ltd. (1995 (76) E.L.T. 481 (S.C.). This case was rightly distinguished by the Tribunal, It was found as a matter of fact that there was no material to indicate any nexus or connection between the lumpsum payment of 15 million French Francs paid by the assessee to the foreign collaborator for providing the use of PEUGEOT Engine Technology and the supply of CKD packs to the respondents by PEUGEOT for the production of the engine. This Court observed- "In no sense, it can be stated that the price of the goods obtained later was reckoned or reflected in the lumpsum payments made, long before. The parties never had in mind the nature and extent of the spare parts that may be required later, when the collaboration agreement was entered into." 17. The fact that there was no obligation on the assessee to purchase CKD packs at all, that long before the supply of the CKD packs and spares, the royalty due to the collaborators was paid, that there was no material to show that the supply of the CKD packs or spares weighed with the parties in fixing the payments under the collaboration agreement were all taken into account by the Court to conclude that no nexus existed between the lumpsum payment under the agreement for the technical know-how and the determination of the price for supply for CKD packs/ spares. The distinguishing features are many and the appellant cannot draw any support from that case. 18. The decision of CEGAT in Collector of Customs, Bombay vs. Maruthi Udyog Ltd. (1987) (28) E.L.T. 390) has also been relied upon. The special leave petition filed against this order was dismissed in limine by this Court on 26.4.1989 by a non speaking order. This case also does not help the appellant. In this case, the contention of the Department that the import invoice price pertaining to components, assemblies and vehicles was not the sole consideration for the sale but the royalties relatable to the manufacture in India of Suzukis components also constitutes the consideration for the purchase of the imported goods was not accepted. The Tribunal held that the royalty payments were relatable directly to the manufacture of goods in India and they had no nexus with the import of goods from Japan. It was observed that neither royalty nor the trademark Maruthi Suzuki had anything to do with import of components, assemblies and vehicles from Japan". The ratio of that decision of CEGAT thus stands on a different footing. 19. One more case on which reliance was sought to be placed by the appellants counsel is the order of CEGAT in Duke & ;Sons vs. Commissioner of Central Excise (1991 (55) ELT 577) which stood affirmed by this Court by reason of dismissal of S.L.P. That was also a case of franchise fees payable by the buyers of concentrate to the assessee for using the trademark of the assessee on the soft drink bottles. The Tribunal made the following crucial observations: "The agreement under which the buyers are permitted to use the trademark is not filed either before the lower authorities or before us. Therefore, no views can be expressed as to whether it is interlinked with the sale of concentrate. There is also no evidence on record to indicate that the concentrate is sold only to those who also enter into agreement to buy the trademark. In other words, there is no evidence to establish that the agreement to purchase trademark is essential before a buyer purchases the concentrate. Similarly, there is no evidence that a buyer is not willing to purchase the concentrate without purchasing the trademark. In other words, there is no evidence to establish that the sale of concentrate is dependent on the purchase of trademark. In the absence of such evidence it is difficult to hold that the sale of concentrate is interlinked or closely connected and without the sale of trademark there is no sale of concentrate". It was under those circumstances the royalty payment was excluded from the assessable value of the concentrate. The distinguishing features are self-evidence from the observations quoted above.
### Response:
0
### Explanation:
In our view, the substratum of the agreement regulating the terms of dealings between the parties unmistakably indicate that the invoiced price alone was not the sole consideration for the sale of concentrate. The finding of Tribunal is, therefore, unexceptionable.12. The fact that the royalty is charged for permitting the use of the trademark, but not as part of price for specific units of concentrate sold does not detract from the fact that the overall consideration for the sale of concentrate is not merely its price stated in the invoice. It is something more than that, namely, royalty to be received periodically.13. Under the agreement, the obligation to buy the concentrate at the price fixed by the seller (appellant) and the obligation of the buyer to manufacture the bottled soft drinks, to sell the same by using the trademark of the appellant and to remit the prefixed royalty charges is inseparable from oneDuke & ;Sons vs. Commissioner of Central Excise (1991 (55) ELT 577) which stood affirmed by this Court by reason of dismissal of S.L.P. That was also a case of franchise fees payable by the buyers of concentrate to the assessee for using the trademark of the assessee on the soft drink bottles. The Tribunal made the following crucialagreement under which the buyers are permitted to use the trademark is not filed either before the lower authorities or before us. Therefore, no views can be expressed as to whether it is interlinked with the sale of concentrate. There is also no evidence on record to indicate that the concentrate is sold only to those who also enter into agreement to buy the trademark. In other words, there is no evidence to establish that the agreement to purchase trademark is essential before a buyer purchases the concentrate. Similarly, there is no evidence that a buyer is not willing to purchase the concentrate without purchasing the trademark. In other words, there is no evidence to establish that the sale of concentrate is dependent on the purchase of trademark. In the absence of such evidence it is difficult to hold that the sale of concentrate is interlinked or closely connected and without the sale of trademark there is no sale ofwas under those circumstances the royalty payment was excluded from the assessable value of the concentrate. The distinguishing features are self-evidence from the observations quoted above.
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SANJAY SINGH Vs. CENTRAL HIMALAYAN LAND DEVELOPMENT CO. LTD | Appellant Company shall hand over the possession of the Villa for the peaceful occupation and enjoyment of the Respondents. The Appellant Company shall ensure that the Villa would be in liveable condition and shall be complete in all respects. Considering the allegations made against the Company and the status report, which has been handed over by the police station Amar Colony, it is directed that a responsible person from the management of the Appellant Company shall remain present in the Court on the next date of hearing. The question, as to whether the Appellant Company is entitled to interest due to the alleged delay in payment of the principal sum, shall be decided at the time of final hearing of the appeal. Original status report is taken on record. List on 23 rd May, 2018 for final hearing. Trial court record be requisitioned for the next date of hearing.? 9. The matter was, thereafter, taken up by the High Court on 23.05.2018 when it was observed: ?The Respondent is stated to have deposited the money as directed on the last date, with the Registrar General of this Court. The amount shall be kept in a FDR on automatic renewal mode. The possession of the villa has not yet been given by the Appellant. They undertake that the possession of the fully completed villa shall be handed over to the Respondents on 15 th July, 2018.? 10. As per record, the amount of Rs.5,13,850/- which was stated to be balance payable towards the principal sum, was deposited by the appellants with the Registry of the High Court. The amount was, thereafter, converted into a Fixed Deposit Receipt awaiting final directions in the matter. According to the order dated 23.05.2018, it was undertaken by the respondent that the villa would be handed over and the possession of the villa was accordingly handed over to the appellants. 11. Thereafter, the matter came up before the High Court on 25.07.2018. The High Court accepted the explanation for condonation of delay and condoned the delay of 721 days, subject to payment of costs of Rs.20,000/- to be made over by the respondent to the appellants. The High Court also observed:- ?6. The subject suit was a suit for recovery of moneys filed by the appellant/plaintiff. For the settlement, the appellant/plaintiff was directed to hand over the villa constructed for the benefit of the respondents/defendants pursuant to an interim order passed by a learned Single Judge of this Court and whereby respondents also deposited a sum of Rs.5,00,000/- in this Court. There cannot be an interim order in a proceeding which is beyond the scope of main proceedings. The subject suit since was a suit filed by the plaintiff for recovery of moneys which has been dismissed and the present appeal is against that decree, by an interim order the respondents cannot receive possession of the disputed flat/villa constructed by the appellant in Cloud-9, Hill Town, Village Khabrar, Ram Garh, District Nainital, Uttarakhand. Therefore, it is ordered that the amount deposited by the respondents in this Court be released back to the respondents along with accrued interest thereon within a period of four weeks from today and simultaneously or before the respondents will hand over possession back of the subject villa received by the respondents from the appellant pursuant to interim orders in this appeal to the appellants.? The First Appeal was admitted and directed to be listed in due course as per the year of its seniority. 12. The aforesaid order dated 25.07.2018 is now under challenge. While issuing notice, this Court had stayed the operation of said order. 13. We have perused the record and considered rival submissions advanced by learned counsel for both the sides. The following features are clear:- "a) The balance sum of Rs.5,13,850/- which was supposed to be due from the appellants was deposited by the appellants. b) In terms of the order dated 23.05.2018 the amount so deposited stands converted into a Fixed Deposit Receipt. c) In terms of the order dated 23.05.2018 and as undertaken by the respondent, possession of the villa was made over to the appellants." 14. In the instant case, that the High Court in its order dated 16.04.2018 had sought to bring about a situation where the area of controversy could be minimized and at the same time the possession of the villa could be made over the appellant. The next order dated 23.05.2018 shows that the appellants had deposited the sum as indicated and the possession was agreed to be handed over by the respondent by 15.07.2018. The possession of the villa was actually handed over. In the circumstances, the question for our consideration is whether the High Court was justified in reversing the situation. According to us, the situation having been brought about in terms of the understanding between the parties as recorded in the earlier orders of the High Court, there was no reason for the High Court to direct reversal of the situation. 15. But, what is more striking is that the delay to the tune of 721 days was condoned by the High Court when there was no satisfactory explanation. In our view, there was gross negligence on part of the respondent and the explanation offered in support of the prayer for condonation does not appear to be correct. This is evident from the fact that no effective steps were taken to pursue the complaint which was lodged against the then advocate. In the petition for special leave, it was asserted that the complaint against the Advocate was not being proceeded with and the respondent had remained absent on the relevant date. Said assertion was not answered satisfactorily in the affidavit in reply filed in this Court. Taking totality of the circumstances, in our view the delay ought not to have been condoned by the High Court. We, therefore, accept the submission of the appellants and set aside the order condoning delay. Consequently, the First Appeal also stands dismissed. | 1[ds]13. We have perused the record and considered rival submissions advanced by learned counsel for both the sides. The following features areThe balance sum of Rs.5,13,850/- which was supposed to be due from the appellants was deposited by theIn terms of the order dated 23.05.2018 the amount so deposited stands converted into a Fixed DepositIn terms of the order dated 23.05.2018 and as undertaken by the respondent, possession of the villa was made over to the appellants.In the instant case, that the High Court in its order dated 16.04.2018 had sought to bring about a situation where the area of controversy could be minimized and at the same time the possession of the villa could be made over the appellant. The next order dated 23.05.2018 shows that the appellants had deposited the sum as indicated and the possession was agreed to be handed over by the respondent by 15.07.2018. The possession of the villa was actually handed over. In the circumstances, the question for our consideration is whether the High Court was justified in reversing the situation. According to us, the situation having been brought about in terms of the understanding between the parties as recorded in the earlier orders of the High Court, there was no reason for the High Court to direct reversal of the situation.But, what is more striking is that the delay to the tune of 721 days was condoned by the High Court when there was no satisfactory explanation. In our view, there was gross negligence on part of the respondent and the explanation offered in support of the prayer for condonation does not appear to be correct. This is evident from the fact that no effective steps were taken to pursue the complaint which was lodged against the then advocate. In the petition for special leave, it was asserted that the complaint against the Advocate was not being proceeded with and the respondent had remained absent on the relevant date. Said assertion was not answered satisfactorily in the affidavit in reply filed in this Court. Taking totality of the circumstances, in our view the delay ought not to have been condoned by the High Court. We, therefore, accept the submission of the appellants and set aside the order condoning delay. Consequently, the First Appeal also stands dismissed. | 1 | 1,865 | 413 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
Appellant Company shall hand over the possession of the Villa for the peaceful occupation and enjoyment of the Respondents. The Appellant Company shall ensure that the Villa would be in liveable condition and shall be complete in all respects. Considering the allegations made against the Company and the status report, which has been handed over by the police station Amar Colony, it is directed that a responsible person from the management of the Appellant Company shall remain present in the Court on the next date of hearing. The question, as to whether the Appellant Company is entitled to interest due to the alleged delay in payment of the principal sum, shall be decided at the time of final hearing of the appeal. Original status report is taken on record. List on 23 rd May, 2018 for final hearing. Trial court record be requisitioned for the next date of hearing.? 9. The matter was, thereafter, taken up by the High Court on 23.05.2018 when it was observed: ?The Respondent is stated to have deposited the money as directed on the last date, with the Registrar General of this Court. The amount shall be kept in a FDR on automatic renewal mode. The possession of the villa has not yet been given by the Appellant. They undertake that the possession of the fully completed villa shall be handed over to the Respondents on 15 th July, 2018.? 10. As per record, the amount of Rs.5,13,850/- which was stated to be balance payable towards the principal sum, was deposited by the appellants with the Registry of the High Court. The amount was, thereafter, converted into a Fixed Deposit Receipt awaiting final directions in the matter. According to the order dated 23.05.2018, it was undertaken by the respondent that the villa would be handed over and the possession of the villa was accordingly handed over to the appellants. 11. Thereafter, the matter came up before the High Court on 25.07.2018. The High Court accepted the explanation for condonation of delay and condoned the delay of 721 days, subject to payment of costs of Rs.20,000/- to be made over by the respondent to the appellants. The High Court also observed:- ?6. The subject suit was a suit for recovery of moneys filed by the appellant/plaintiff. For the settlement, the appellant/plaintiff was directed to hand over the villa constructed for the benefit of the respondents/defendants pursuant to an interim order passed by a learned Single Judge of this Court and whereby respondents also deposited a sum of Rs.5,00,000/- in this Court. There cannot be an interim order in a proceeding which is beyond the scope of main proceedings. The subject suit since was a suit filed by the plaintiff for recovery of moneys which has been dismissed and the present appeal is against that decree, by an interim order the respondents cannot receive possession of the disputed flat/villa constructed by the appellant in Cloud-9, Hill Town, Village Khabrar, Ram Garh, District Nainital, Uttarakhand. Therefore, it is ordered that the amount deposited by the respondents in this Court be released back to the respondents along with accrued interest thereon within a period of four weeks from today and simultaneously or before the respondents will hand over possession back of the subject villa received by the respondents from the appellant pursuant to interim orders in this appeal to the appellants.? The First Appeal was admitted and directed to be listed in due course as per the year of its seniority. 12. The aforesaid order dated 25.07.2018 is now under challenge. While issuing notice, this Court had stayed the operation of said order. 13. We have perused the record and considered rival submissions advanced by learned counsel for both the sides. The following features are clear:- "a) The balance sum of Rs.5,13,850/- which was supposed to be due from the appellants was deposited by the appellants. b) In terms of the order dated 23.05.2018 the amount so deposited stands converted into a Fixed Deposit Receipt. c) In terms of the order dated 23.05.2018 and as undertaken by the respondent, possession of the villa was made over to the appellants." 14. In the instant case, that the High Court in its order dated 16.04.2018 had sought to bring about a situation where the area of controversy could be minimized and at the same time the possession of the villa could be made over the appellant. The next order dated 23.05.2018 shows that the appellants had deposited the sum as indicated and the possession was agreed to be handed over by the respondent by 15.07.2018. The possession of the villa was actually handed over. In the circumstances, the question for our consideration is whether the High Court was justified in reversing the situation. According to us, the situation having been brought about in terms of the understanding between the parties as recorded in the earlier orders of the High Court, there was no reason for the High Court to direct reversal of the situation. 15. But, what is more striking is that the delay to the tune of 721 days was condoned by the High Court when there was no satisfactory explanation. In our view, there was gross negligence on part of the respondent and the explanation offered in support of the prayer for condonation does not appear to be correct. This is evident from the fact that no effective steps were taken to pursue the complaint which was lodged against the then advocate. In the petition for special leave, it was asserted that the complaint against the Advocate was not being proceeded with and the respondent had remained absent on the relevant date. Said assertion was not answered satisfactorily in the affidavit in reply filed in this Court. Taking totality of the circumstances, in our view the delay ought not to have been condoned by the High Court. We, therefore, accept the submission of the appellants and set aside the order condoning delay. Consequently, the First Appeal also stands dismissed.
### Response:
1
### Explanation:
13. We have perused the record and considered rival submissions advanced by learned counsel for both the sides. The following features areThe balance sum of Rs.5,13,850/- which was supposed to be due from the appellants was deposited by theIn terms of the order dated 23.05.2018 the amount so deposited stands converted into a Fixed DepositIn terms of the order dated 23.05.2018 and as undertaken by the respondent, possession of the villa was made over to the appellants.In the instant case, that the High Court in its order dated 16.04.2018 had sought to bring about a situation where the area of controversy could be minimized and at the same time the possession of the villa could be made over the appellant. The next order dated 23.05.2018 shows that the appellants had deposited the sum as indicated and the possession was agreed to be handed over by the respondent by 15.07.2018. The possession of the villa was actually handed over. In the circumstances, the question for our consideration is whether the High Court was justified in reversing the situation. According to us, the situation having been brought about in terms of the understanding between the parties as recorded in the earlier orders of the High Court, there was no reason for the High Court to direct reversal of the situation.But, what is more striking is that the delay to the tune of 721 days was condoned by the High Court when there was no satisfactory explanation. In our view, there was gross negligence on part of the respondent and the explanation offered in support of the prayer for condonation does not appear to be correct. This is evident from the fact that no effective steps were taken to pursue the complaint which was lodged against the then advocate. In the petition for special leave, it was asserted that the complaint against the Advocate was not being proceeded with and the respondent had remained absent on the relevant date. Said assertion was not answered satisfactorily in the affidavit in reply filed in this Court. Taking totality of the circumstances, in our view the delay ought not to have been condoned by the High Court. We, therefore, accept the submission of the appellants and set aside the order condoning delay. Consequently, the First Appeal also stands dismissed.
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M/s. Ganesh Trading Company, Karnal etc Vs. State of Haryana & Another | The argument proceeded on the basis that rice was nothing but dehusked paddy. Both rice and paddy are identical goods. When paddy was dehusked, there is no change in the identity of the goods.3. In support of their contention, the appellants cited to us certain dictionary meanings of the word "paddy" to show that rice is nothing but dehusked paddy.This court has firmly ruled that in finding out the true meaning of entries mentioned in a Sales Tax Act, what is relevant is not the dictionary meaning but how those entries are understood in common parlance, specially in commercial circles.Sales-tax primarily deals with dealers who are engaged in commercial activity. Therefore, what is of the essence is to find out whether in commercial circles, paddy is considered as identical with rice. In tis connection reference may be usefully made to the decision of this Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola 12 STC 286 = (AIR 1961 SC 1325 ). wherein this Court was called upon to consider whether betal leaves could be considered as vegetables Dictionary meaning showed that betal leaves are a class of vegetables but yet this court ruled that the word vegetables should be construed in its popular sense, meaning that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it. On that basis this Court came to the conclusion that betal leaves could not be considered as vegetables. In Commr. of Sales-tax, Madhya Pradesh Indore v. Jaswant Singh Charan Sing, 19 STC 469 = (AIR 1967 SC 1454 ) this Court held that word coal included charcoal on the ground that in ordinary parlance coal includes charcoal. In State of Punjab v. Chandu Lal Kishori Lal, (1969) 3 SCR 849 = (AIR 1969 SC 1073 ), the question was whether cotton included cotton seeds. This Court held that they were two distinct commercial goods though before the seeds were separated both the cotton and the seeds were part of one commodity.4. In support of their contention that the meaning given in the commercial circles is not of the essence and what is of essence is the identity of the goods, the learned Counsel for the appellants relied on the decision of this Court in State of Madhya Bharat (now State of Madhya Pradesh) v. Hiralal, 17 STC 313 = (AIR 1966 SC 1546 ). There the relevant entry read Iron and Steel. The question was whether when a dealer purchased scrap inon locally and imported iron plates from outside and after converting them into bars, flats and plates in his mills, sold them in the market, they continued to be iron and steel. This court ruled that in spite of the change effected because of the process the goods had undergone, the goods sold in the market did not cease to be iron and steel. We do not think that this decision is of any assistance to the appellants because both goods purchased as well as sold were iron and steel.5. It was contended on behalf of the appellants that the essential question that we have to decide is whether the goods sold differed in identity from the goods purchased. It was urged that merely because paddy was dehusked and rice produced, there was no change in the identity of the goods. Identity of goods is one of the essential elements to be borne in mind in deciding the nature of the transaction. It was so decided in M/s. Tungabhadra Industries Ltd. v. Commrl. Tax Officer, Kurnool (1961) 2 SCR 14 = (AIR 1961 SC 412 ). In that case the question arising for decision was whether hydrogenated oil continued to be ground-nut oil. This Court held that the hydrogenated groundnut oil continued to be groundnut oil. In arriving at that conclusion this Court took into consideration that the essential nature of the goods had not changed after the groundnut oil had been subjected to chemical process. Similar view was taken by this Court in State of Gujarat v. Sakarwala Brothers (1967) 19 STC 24 (SC). Therein the question whether patasa, harda and alchidana could be considered as sugar. This Court held that when sugar was processed into patasa, harda and alchidana, it did not change its essential characteristic.Its identity continued to be the same. Now, the question for our decision is whether it could be said that when paddy was dehusked and rice produced, its identity remained. It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking. It had changed its identity. Rice is not known as paddy. It is a misnomer to known as paddy. It is a misnomer to call rice as paddy. They are two different things in ordinary parlance. Hence quite clearly when paddy is dehusked and rice produced, there has been a change in the identity of the goods. In this view it is not necessary for us to refer to the decisions of some of the High Court read to us at the time of hearing.6. There is yet another difficulty in the way of the appellants. Both the Punjab Sales-tax Act as well as that Act as amended by Haryana, make a distinction between rice and paddy in their respective Sales-tax Acts. Rice and Paddy are treated differently. It is true that the entries in question were brought on the statutes by Notification issued by the respective Governments, as authorised under the respective Acts. But the Acts authorised the Governments in question to either include or delete items in Schedules C and D of those Acts and it further provided that once an inclusion or deletion was made, it became a part of the law. The fact that these Acts make distinction between rice and paddy is a circumstances of great significance. Those Acts proceed on the basis that paddy is something different from rice for the purpose of sales-tax. | 0[ds]Now, the question for our decision is whether it could be said that when paddy was dehusked and rice produced, its identity remained. It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking. It had changed its identity. Rice is not known as paddy. It is a misnomer to known as paddy. It is a misnomer to call rice as paddy. They are two different things in ordinary parlance. Hence quite clearly when paddy is dehusked and rice produced, there has been a change in the identity of the goods. In this view it is not necessary for us to refer to the decisions of some of the High Court read to us at the time of hearing.6. There is yet another difficulty in the way of the appellants. Both the PunjabAct as well as that Act as amended by Haryana, make a distinction between rice and paddy in their respectiveActs. Rice and Paddy are treated differently. It is true that the entries in question were brought on the statutes by Notification issued by the respective Governments, as authorised under the respective Acts. But the Acts authorised the Governments in question to either include or delete items in Schedules C and D of those Acts and it further provided that once an inclusion or deletion was made, it became a part of the law. The fact that these Acts make distinction between rice and paddy is a circumstances of great significance. Those Acts proceed on the basis that paddy is something different from rice for the purpose of | 0 | 1,446 | 299 | ### 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 argument proceeded on the basis that rice was nothing but dehusked paddy. Both rice and paddy are identical goods. When paddy was dehusked, there is no change in the identity of the goods.3. In support of their contention, the appellants cited to us certain dictionary meanings of the word "paddy" to show that rice is nothing but dehusked paddy.This court has firmly ruled that in finding out the true meaning of entries mentioned in a Sales Tax Act, what is relevant is not the dictionary meaning but how those entries are understood in common parlance, specially in commercial circles.Sales-tax primarily deals with dealers who are engaged in commercial activity. Therefore, what is of the essence is to find out whether in commercial circles, paddy is considered as identical with rice. In tis connection reference may be usefully made to the decision of this Court in Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola 12 STC 286 = (AIR 1961 SC 1325 ). wherein this Court was called upon to consider whether betal leaves could be considered as vegetables Dictionary meaning showed that betal leaves are a class of vegetables but yet this court ruled that the word vegetables should be construed in its popular sense, meaning that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it. On that basis this Court came to the conclusion that betal leaves could not be considered as vegetables. In Commr. of Sales-tax, Madhya Pradesh Indore v. Jaswant Singh Charan Sing, 19 STC 469 = (AIR 1967 SC 1454 ) this Court held that word coal included charcoal on the ground that in ordinary parlance coal includes charcoal. In State of Punjab v. Chandu Lal Kishori Lal, (1969) 3 SCR 849 = (AIR 1969 SC 1073 ), the question was whether cotton included cotton seeds. This Court held that they were two distinct commercial goods though before the seeds were separated both the cotton and the seeds were part of one commodity.4. In support of their contention that the meaning given in the commercial circles is not of the essence and what is of essence is the identity of the goods, the learned Counsel for the appellants relied on the decision of this Court in State of Madhya Bharat (now State of Madhya Pradesh) v. Hiralal, 17 STC 313 = (AIR 1966 SC 1546 ). There the relevant entry read Iron and Steel. The question was whether when a dealer purchased scrap inon locally and imported iron plates from outside and after converting them into bars, flats and plates in his mills, sold them in the market, they continued to be iron and steel. This court ruled that in spite of the change effected because of the process the goods had undergone, the goods sold in the market did not cease to be iron and steel. We do not think that this decision is of any assistance to the appellants because both goods purchased as well as sold were iron and steel.5. It was contended on behalf of the appellants that the essential question that we have to decide is whether the goods sold differed in identity from the goods purchased. It was urged that merely because paddy was dehusked and rice produced, there was no change in the identity of the goods. Identity of goods is one of the essential elements to be borne in mind in deciding the nature of the transaction. It was so decided in M/s. Tungabhadra Industries Ltd. v. Commrl. Tax Officer, Kurnool (1961) 2 SCR 14 = (AIR 1961 SC 412 ). In that case the question arising for decision was whether hydrogenated oil continued to be ground-nut oil. This Court held that the hydrogenated groundnut oil continued to be groundnut oil. In arriving at that conclusion this Court took into consideration that the essential nature of the goods had not changed after the groundnut oil had been subjected to chemical process. Similar view was taken by this Court in State of Gujarat v. Sakarwala Brothers (1967) 19 STC 24 (SC). Therein the question whether patasa, harda and alchidana could be considered as sugar. This Court held that when sugar was processed into patasa, harda and alchidana, it did not change its essential characteristic.Its identity continued to be the same. Now, the question for our decision is whether it could be said that when paddy was dehusked and rice produced, its identity remained. It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking. It had changed its identity. Rice is not known as paddy. It is a misnomer to known as paddy. It is a misnomer to call rice as paddy. They are two different things in ordinary parlance. Hence quite clearly when paddy is dehusked and rice produced, there has been a change in the identity of the goods. In this view it is not necessary for us to refer to the decisions of some of the High Court read to us at the time of hearing.6. There is yet another difficulty in the way of the appellants. Both the Punjab Sales-tax Act as well as that Act as amended by Haryana, make a distinction between rice and paddy in their respective Sales-tax Acts. Rice and Paddy are treated differently. It is true that the entries in question were brought on the statutes by Notification issued by the respective Governments, as authorised under the respective Acts. But the Acts authorised the Governments in question to either include or delete items in Schedules C and D of those Acts and it further provided that once an inclusion or deletion was made, it became a part of the law. The fact that these Acts make distinction between rice and paddy is a circumstances of great significance. Those Acts proceed on the basis that paddy is something different from rice for the purpose of sales-tax.
### Response:
0
### Explanation:
Now, the question for our decision is whether it could be said that when paddy was dehusked and rice produced, its identity remained. It was true that rice was produced out of paddy but it is not true to say that paddy continued to be paddy even after dehusking. It had changed its identity. Rice is not known as paddy. It is a misnomer to known as paddy. It is a misnomer to call rice as paddy. They are two different things in ordinary parlance. Hence quite clearly when paddy is dehusked and rice produced, there has been a change in the identity of the goods. In this view it is not necessary for us to refer to the decisions of some of the High Court read to us at the time of hearing.6. There is yet another difficulty in the way of the appellants. Both the PunjabAct as well as that Act as amended by Haryana, make a distinction between rice and paddy in their respectiveActs. Rice and Paddy are treated differently. It is true that the entries in question were brought on the statutes by Notification issued by the respective Governments, as authorised under the respective Acts. But the Acts authorised the Governments in question to either include or delete items in Schedules C and D of those Acts and it further provided that once an inclusion or deletion was made, it became a part of the law. The fact that these Acts make distinction between rice and paddy is a circumstances of great significance. Those Acts proceed on the basis that paddy is something different from rice for the purpose of
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Sea Pearl Industries and Ors. etc Vs. Commissioner of Income Tax, Cochin | exporter. It may be that this was for the purpose of enabling the export house to reap the benefit of the Policy but it was also for the added advantage of the commission earned by the appellant from the export house. The export house had also claimed and been allowed deduction in respect of the amount realised by the export under Section 80 HHC. The appellant having allowed the authorities to act on that basis, did so at its peril. It cannot now disclaim the position. 13. A somewhat similar situation was considered by this Court in Mineral and Metal Trading Corporation v. R.C. Mishra and others, 1993(201) ITR 851. In order to avail of the benefits of the barter system which entitled imports to be made against the goods exported, inter alia through Mineral and Metal Trading Corporation (MMTC), Ferro-Alloys Corporation Ltd. had exported goods to foreign buyers through MMTC. The purchase order which was initially placed on Ferro-Alloys by the foreign buyer was split into two contracts, one between the local supplier and the MMTC and the second between MMTC and Ferro-Alloys. Letters of Credit were opened by the foreign buyer in the name of MMTC and were endorsed by MMTC in favour Farro-Alloys. As in the case before us both Farro-Alloys and MMTC claimed Tax Credit Certificate under Section 280 ZC of the Income Tax Act, 1961. The High Court held that the Farro Alloys was the real exporter. This Court reversed the decision of the High Court and held that MMTC was the exporter for the purposes of Section 280 ZC : "All this was done as required by the system of barter. Farro-Alloys availed of this system presumable because it was to its advantage. In fact, it appears that it was not able to sell the said goods otherwise. Be that as it may, whether by choice or by lack of alternative, it chose to route its goods through MMTC. It open to the Farro-Alloys now to say that all this must be ignored in the name of "external appearances" and it must be treated as the real exporter for the purpose of Section 290 ZC. It wants to be the gainer in both the events. A case of "heads I win, tails you lose".......Farro-Alloys cannot come to the MMTC when it is profitable to it and disavow it when it is not profitable to it. It cannot have it both ways." 14. Secondly, the phrase "sale proceeds......receivable by the assessee" in Section 80 HHC sub-section (2), cannot be construed to mean `sale proceeds ultimately received. Payment for the export was by the Letter of Credit. The Letter of Credit being in favour of the export house, the foreign exchange was "receivable" by it. That the export house may have chosen to transfer the foreign exchange to a third party under some independent arrangement would not make the third party the exporter. Whatever the internal arrangement between the export house and the appellant, as far as the Income Tax authorities were concerned, the export house would clearly be the exporter. 15. Finally, different statutes, have conferred benefits and cast obligations on an exporter but none of the statutory provisions allows more than one person either to claim the benefit given or be subject to the obligation cast. For example, Paragraph 165 of the Import and Export Policy for the year 1982-83 states : "In respect of `third party exports, i.e. where all or any of the export documents contained the names of two parties, the import replenishment licence as admissible under the import policy for Registered Exporters may be claimed by any of these two parties provided (i) the claimant is a Registered Exporter and is otherwise eligible under the Policy, (ii) the claimant produces a certificate of "disclaimer" from the other party in his favour, and (iii) the party granting the disclaimed is not itself debarred from receiving licences etc. under the Import (Control) Order, 1955." 16. The paragraph recognises that there may be a situation where the export documents contain more than one name but the privilege of obtaining a REP licence can be claimed by only one. Similarly, the Circular No. 446 dated 14.8.1986 issued by the Central Board of Direct Taxes as well as the amendment in 1989 to Section 80 HHC, allow a supporting manufacturer to claim deductions in respect of profits of the export provided the supporting manufacturer furnishes a certificate from the export house, inter-alia, stating that the export house had not claimed deductions under the Section. Both the Circular as well as the amendment indicate that were it not for the clarification /amendment, it would be the export house alone which could have claimed deductions under the Section : a right which could be waived in favour of the supporting manufacturer. It was for this reason that the agreement between the appellant and the export house had divided the benefits and obligations obtainable by an exporter between them. Under clauses 7 and 8 of the agreement, the export house was alone entitled to claim the REP import licence benefits and all the accruing to an eligible merchant exporter under the terms of the Import Trade Control Policy. On the other hand, in clause 10 the export house confirmed that it would not claim "benefits available from the Customs and Central Excise authorities and or any other Government Department in respect of the export of ships. " It may be that in claiming the deduction under Section 80 HHC, the export house has violated this term of the agreement but that cannot make the appellant the exporter.17. The logical consequence of the Tribunals view would be that both the export house and the original manufacturer could claim to have exported the goods and be entitled to receive the foreign exchange, and both could consequently claim at different stages deduction under Section 80 HHC in respect of the same amount-an outcome contrary to the language of the Section itself. | 0[ds]16. The paragraph recognises that there may be a situation where the export documents contain more than one name but the privilege of obtaining a REP licence can be claimed by only one. Similarly, the Circular No. 446 dated 14.8.1986 issued by the Central Board of Direct Taxes as well as the amendment in 1989 to Section 80 HHC, allow a supporting manufacturer to claim deductions in respect of profits of the export provided the supporting manufacturer furnishes a certificate from the export house,stating that the export house had not claimed deductions under the Section. Both the Circular as well as the amendment indicate that were it not for the clarification /amendment, it would be the export house alone which could have claimed deductions under the Section : a right which could be waived in favour of the supporting manufacturer. It was for this reason that the agreement between the appellant and the export house had divided the benefits and obligations obtainable by an exporter between them. Under clauses 7 and 8 of the agreement, the export house was alone entitled to claim the REP import licence benefits and all the accruing to an eligible merchant exporter under the terms of the Import Trade Control Policy. On the other hand, in clause 10 the export house confirmed that it would not claim "benefits available from the Customs and Central Excise authorities and or any other Government Department in respect of the export ofIt may be that in claiming the deduction under Section 80 HHC, the export house has violated this term of the agreement but that cannot make the appellant the exporter.17. The logical consequence of the Tribunals view would be that both the export house and the original manufacturer could claim to have exported the goods and be entitled to receive the foreign exchange, and both could consequently claim at different stages deduction under Section 80 HHC in respect of the sameoutcome contrary to the language of the Section itself. | 0 | 3,066 | 355 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
exporter. It may be that this was for the purpose of enabling the export house to reap the benefit of the Policy but it was also for the added advantage of the commission earned by the appellant from the export house. The export house had also claimed and been allowed deduction in respect of the amount realised by the export under Section 80 HHC. The appellant having allowed the authorities to act on that basis, did so at its peril. It cannot now disclaim the position. 13. A somewhat similar situation was considered by this Court in Mineral and Metal Trading Corporation v. R.C. Mishra and others, 1993(201) ITR 851. In order to avail of the benefits of the barter system which entitled imports to be made against the goods exported, inter alia through Mineral and Metal Trading Corporation (MMTC), Ferro-Alloys Corporation Ltd. had exported goods to foreign buyers through MMTC. The purchase order which was initially placed on Ferro-Alloys by the foreign buyer was split into two contracts, one between the local supplier and the MMTC and the second between MMTC and Ferro-Alloys. Letters of Credit were opened by the foreign buyer in the name of MMTC and were endorsed by MMTC in favour Farro-Alloys. As in the case before us both Farro-Alloys and MMTC claimed Tax Credit Certificate under Section 280 ZC of the Income Tax Act, 1961. The High Court held that the Farro Alloys was the real exporter. This Court reversed the decision of the High Court and held that MMTC was the exporter for the purposes of Section 280 ZC : "All this was done as required by the system of barter. Farro-Alloys availed of this system presumable because it was to its advantage. In fact, it appears that it was not able to sell the said goods otherwise. Be that as it may, whether by choice or by lack of alternative, it chose to route its goods through MMTC. It open to the Farro-Alloys now to say that all this must be ignored in the name of "external appearances" and it must be treated as the real exporter for the purpose of Section 290 ZC. It wants to be the gainer in both the events. A case of "heads I win, tails you lose".......Farro-Alloys cannot come to the MMTC when it is profitable to it and disavow it when it is not profitable to it. It cannot have it both ways." 14. Secondly, the phrase "sale proceeds......receivable by the assessee" in Section 80 HHC sub-section (2), cannot be construed to mean `sale proceeds ultimately received. Payment for the export was by the Letter of Credit. The Letter of Credit being in favour of the export house, the foreign exchange was "receivable" by it. That the export house may have chosen to transfer the foreign exchange to a third party under some independent arrangement would not make the third party the exporter. Whatever the internal arrangement between the export house and the appellant, as far as the Income Tax authorities were concerned, the export house would clearly be the exporter. 15. Finally, different statutes, have conferred benefits and cast obligations on an exporter but none of the statutory provisions allows more than one person either to claim the benefit given or be subject to the obligation cast. For example, Paragraph 165 of the Import and Export Policy for the year 1982-83 states : "In respect of `third party exports, i.e. where all or any of the export documents contained the names of two parties, the import replenishment licence as admissible under the import policy for Registered Exporters may be claimed by any of these two parties provided (i) the claimant is a Registered Exporter and is otherwise eligible under the Policy, (ii) the claimant produces a certificate of "disclaimer" from the other party in his favour, and (iii) the party granting the disclaimed is not itself debarred from receiving licences etc. under the Import (Control) Order, 1955." 16. The paragraph recognises that there may be a situation where the export documents contain more than one name but the privilege of obtaining a REP licence can be claimed by only one. Similarly, the Circular No. 446 dated 14.8.1986 issued by the Central Board of Direct Taxes as well as the amendment in 1989 to Section 80 HHC, allow a supporting manufacturer to claim deductions in respect of profits of the export provided the supporting manufacturer furnishes a certificate from the export house, inter-alia, stating that the export house had not claimed deductions under the Section. Both the Circular as well as the amendment indicate that were it not for the clarification /amendment, it would be the export house alone which could have claimed deductions under the Section : a right which could be waived in favour of the supporting manufacturer. It was for this reason that the agreement between the appellant and the export house had divided the benefits and obligations obtainable by an exporter between them. Under clauses 7 and 8 of the agreement, the export house was alone entitled to claim the REP import licence benefits and all the accruing to an eligible merchant exporter under the terms of the Import Trade Control Policy. On the other hand, in clause 10 the export house confirmed that it would not claim "benefits available from the Customs and Central Excise authorities and or any other Government Department in respect of the export of ships. " It may be that in claiming the deduction under Section 80 HHC, the export house has violated this term of the agreement but that cannot make the appellant the exporter.17. The logical consequence of the Tribunals view would be that both the export house and the original manufacturer could claim to have exported the goods and be entitled to receive the foreign exchange, and both could consequently claim at different stages deduction under Section 80 HHC in respect of the same amount-an outcome contrary to the language of the Section itself.
### Response:
0
### Explanation:
16. The paragraph recognises that there may be a situation where the export documents contain more than one name but the privilege of obtaining a REP licence can be claimed by only one. Similarly, the Circular No. 446 dated 14.8.1986 issued by the Central Board of Direct Taxes as well as the amendment in 1989 to Section 80 HHC, allow a supporting manufacturer to claim deductions in respect of profits of the export provided the supporting manufacturer furnishes a certificate from the export house,stating that the export house had not claimed deductions under the Section. Both the Circular as well as the amendment indicate that were it not for the clarification /amendment, it would be the export house alone which could have claimed deductions under the Section : a right which could be waived in favour of the supporting manufacturer. It was for this reason that the agreement between the appellant and the export house had divided the benefits and obligations obtainable by an exporter between them. Under clauses 7 and 8 of the agreement, the export house was alone entitled to claim the REP import licence benefits and all the accruing to an eligible merchant exporter under the terms of the Import Trade Control Policy. On the other hand, in clause 10 the export house confirmed that it would not claim "benefits available from the Customs and Central Excise authorities and or any other Government Department in respect of the export ofIt may be that in claiming the deduction under Section 80 HHC, the export house has violated this term of the agreement but that cannot make the appellant the exporter.17. The logical consequence of the Tribunals view would be that both the export house and the original manufacturer could claim to have exported the goods and be entitled to receive the foreign exchange, and both could consequently claim at different stages deduction under Section 80 HHC in respect of the sameoutcome contrary to the language of the Section itself.
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Commnr.Of Central Excise,New Delhi Vs. M/S.Connaught Plaza Rest.(P)Ltd.N.D | sense. 41. It is significant to note that the question of classification of ‘soft serve’ is based on a different set of facts in a different context. Heading 21.05 which refers to “ice cream and other edible ice” is not defined in a technical or scientific manner, and hence, this does not occasion the need to construe the term “ice-cream” other than in its commercial or trade understanding. Since, the first condition itself has not been fulfilled; the question of harmonizing heading 21.05 with 04.04 by resort to the scientific and technical meaning of the entries does not arise at all. Hence, we are of the opinion that the ratio of Akbar Badrudin Giwani (supra) does not apply to the facts of the present case. 42. Learned counsel for the assessee had vociferously submitted that the common parlance understanding of “ice-cream” can be inferred by its definition as appearing under the PFA. According to Rule A 11.20.08 the milk fat content of “ice-cream” and “softy ice-cream” shall not be less than 8% by weight. Hence, according, to the learned counsel, the term “ice-cream” under heading 21.05 had to be understood in light of the standards provided in the PFA, more so when selling “Ice-cream” with fat content of less than 10% would attract criminal action, as held in Baburao Ravaji Mharulkar (supra). 43. We are unable to persuade ourselves to agree with the submission. It is a settled principle in excise classification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. [See: Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman [(2011) 2 SCC 601] and Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhavan Limited [(2009) 12 SCC 419] ]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of “Ice-cream” and thus, may require different standards for a good to be marketed as “ice-cream”. These provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and object of which is completely different. 44. Learned counsel for the assessee also contended that based on Rule 3(a) of the General Rules of Interpretation which states that a specific entry shall prevail over a general entry, ‘soft serve’ will fall under heading 04.04 since it is a specific entry. We do not see any merit in this contention. The learned counsel for the assessee had himself contended that “ice-cream” was a dairy product and would have been classified under heading 04.04 if heading 21.05 had not been inserted into the Tariff Act. However, in the presence of heading 21.05, “ice- cream” cannot be classified as a dairy product under heading 04.04. Hence, it is obvious that in relation to heading 04.04, heading 21.05 is clearly a specific entry. Therefore, we cannot subscribe to the claim that heading 04.04 is to be regarded as a specific entry under Rule 3(a) of the General Rules of Interpretation, since such an interpretation would be contrary to the statutory context of heading 21.05. In conclusion, we reject the view taken by the Tribunal and hold that ‘soft serve’ is to be classified as “ice-cream” under heading 21.05 of the Act. 45. At this stage it may be relevant to refer to Trade Notice No. 45/2001 dated 11th June, 2001 of Mumbai Commissionerate IV which came to our notice. According to the said notification, “softy ice-cream/soft serve” dispensed by vending machines, sold and consumed as “ice-cream”, is classifiable under Entry 21.05 of the Act. The same is reproduced below: “Classification of Softy Ice Cream being sold in restaurant etc. dispensed by vending machine — [Mumbai Commissionerate IV Trade Notice No.45/2001, dt. 11.6.2001] Ice Cream dispensed by vending machine falling under chapter 21 has been made liable to nil rate of duty vide Sl. No.8 of Notification No.3/2001-CE dated 1.3.2001. Doubts have been raised as regards to the classification of softy ice cream/soft serve dispensed by vending machine and soft serve mix used for its manufacture prior to 1.3.2001. A manufacturer was obtaining soft serve mix and processing it in his restaurant for manufacture of softy ice cream. The process involved lowering of temperature so that it changes its form from liquid to semi-solid state and incorporation of air, which results in production of overrun, in Tylor Vending Machine. The product that emerges after this process is a completely different product and is ready to be consumed immediately. It has all the ingredients of an ice cream. The product is sold and consumed as ice cream. In the circumstances, it is clarified by the Board that softy ice cream is correctly classifiable under heading 21.05 of Central Excise Tariff. As per HSN Explanatory Notes, heading 19.01 also cover mix bases (e.g. powders) for making ice cream. It has been further clarified that soft serve mix will be correctly classifiable under heading 19.01. All the trade associations are requested to bring the contents of this trade notice to the attention of their member manufacturers in particular, and trade in general. Sd/- (Neelam Rattan Negi) Commissioner Central Excise, Mumbai-IV” While it is true that the trade notice is not binding upon this Court, it does indicate the commercial understanding of ‘soft-serve’ as ‘softy ice-cream’. Further, as this trade notice is in no way contrary to the statutory provisions of the Act, we see no reason to diverge from what is mentioned therein. | 1[ds]15. According to the rules of interpretation for the First Schedule to the Tariff Act, mentioned in Section 2 of the Tariff Act, classification of an excisable good shall be determined according to the terms of the headings and any corresponding chapter or section notes. Where these are not clearly determinative of classification, the same shall be effected according to Rules 3, 4 and 5 of the general rules of interpretation. However, it is also a well known principle that in the absence of any statutory definitions, excisable goods mentioned in tariff entries are construed according to the common parlance understanding of such goods.16. The general rules of interpretation of taxing statutes were succinctly summarized by this Court in Oswal Agro Mills Ltd. & Ors. Vs. Collector of Central Excise & Ors. [1993 Supp (3) SCC 716 at page 720]; as followsThe provisions of the tariff do not determine the relevant entity of the goods. They deal whether and under what entry, the identified entity attracts duty. The goods are to be identified and then to find the appropriate heading,under which the identified goods/products would be classified. To find the appropriate classification description employed in the tariff nomenclature should be appreciated having regard to the terms of the headings read with the relevant provisions or statutory rules or interpretation put up thereon. For exigibility to excise duty the entity must be specified in positive terms under a particular tariff entry. In its absence it must be deduced from a proper construction of the tariff entry. There is neither intendment nor equity in a taxing statute. Nothing is implied. Neither can we insert nor can we delete anything but it should be interpreted and construed as per the words the legislature has chosen to employ in the Act or rules. There is no room for assumption or presumptions. The object of the Parliament has to be gathered from the language used in the statute.……….. ..*** *** ***…Therefore, one has to gather its meaning in the legal setting to discover the object which the Act seeks to serve and the purpose of the amendment brought about.The task of interpretation of the statute is not a mechanical one. It is more than mere reading of mathematical formula. It is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts. It is also idle to expect that the draftsman drafted it with divine prescience and perfect and unequivocal clarity. Therefore, court would endeavour to eschew literal construction if it produces manifest absurdity or unjust result. In Manmohan Das v. Bishun Das : (1967) 1 SCR 836 , a Constitution Bench held asordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction would reduce the provision to absurdity or prevent manifest intention of the legislature from being carried out.Therefore, in order to find an appropriate entry for the classification of ‘softit would be necessary to first construe the true scope of the relevant headings. As noted above, none of the terms in heading 04.04 and heading 21.05 have been defined and no technical or scientific meanings have been given in the chapter notes. Evidently, ‘softis not defined in any of the chapters aforesaid. Under these circumstances, it becomes imperative to examine if the subject good could come under the purview of any of the classification descriptions employed in the Tariff Act. Having regard to the nature of the pleadings, the issue is whether the termin heading 21.05 includes within its ambit the product ‘softt leads us to the pivotal question, whether, in the absence of a statutory definition, the termunder heading 21.05 is to be construed in light of its scientific and technical meaning, or, whether we are to consider this term in its common parlance understanding to determine whether its amplitude is wide enough to include ‘soft18. Time and again, the principle of common parlance as the standard for interpreting terms in the taxing statutes, albeit subject to certain exceptions, where the statutory context runs to the contrary, has been reiterated. The application of the common parlance test is an extension of the general principle of interpretation of statutes for deciphering the mind of the law maker;is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human[(See :Oswal Agro Mills Ltd (supra)].19. A classic example on the concept of common parlance is the decision of the Exchequer Court of Canadain The King Vs. Planter Nut and Chocolate Company Ltd. [(1951) C.L.R. (Ex. Court)The question involved in the said decision was whether salted peanuts and cashew nuts could be considered to be "fruit" or "vegetable" within the meaning of the Excise Tax Act. Cameron J., delivering the judgment, posed the question asa householder when asked to bring home fruit or vegetables for the evening meal bring home salted peanuts, cashew or nuts of any sort? The answer is obviouslythe test, the Court held that the wordsare not defined in the Act or any of the Acts in pari materia. They are ordinary words inuse and are therefore, to be construed according to their popular2. In light of these principles, we may now advert to the question at hand, viz. classification of ‘softunder the appropriate heading. As aforesaid, the Tribunal has held that in view of the technical literature and stringent provisions of the PFA, ‘softcannot be classified asunder Entry 21.05 of the Tariff Act. We are of the opinion, that in the absence of a technical or scientific meaning or definition of the termthe Tribunal should have examined the issue at hand on the touchstone of the common parlance test.33. As noted before, headings 04.04 and 21.05 have been couched in nontechnical terms. Heading 04.04 readsdairy produce; edible products of animal origin, not elsewhere specified orwhereas heading 21.05 readsand other edibleNeither the headings nor the chapter notes/section notes explicitly define the entries in a scientific or technical sense. Further, there is no mention of any specifications in respect of either of the entries. Hence, we are unable to accept the argument that since ‘softis distinct fromdue to a difference in its milk fat content, the same must be construed in the scientific sense for the purpose of classification. The statutory context of these entries is clear and does not demand a scientific interpretation of any of the headings. Therefore, in the absence of any statutory definition or technical description, we see no reason to deviate from the application of the common parlance principle in construing whether the termunder heading 21.05 is broad enough to include ‘softdo not see any merit in this averment. The manner in which a product may be marketed by a manufacturer, does not necessarily play a decisive role in affecting the commercial understanding of such a product. What matters is the way in which the consumer perceives the product at the end of the day notwithstanding marketing strategies. Needless to say the common parlance test operates on the standard of an average reasonable person who is not expected to be aware of technical details relating to the goods. It is highly unlikely that such a person who walks into aoutlet with the intention of enjoying anor ‘softif at all these are to be construed as distinct products, in the first place, will be aware of intricate details such as the percentage of milk fat content, milkfats, stabilisers, emulsifiers or the manufacturing process, much less its technical distinction fromOn the contrary, such a person would enter the outlet with the intention of simply having anor a ‘softyoblivious of its technical composition. The true character of a product cannot be veiled behind a charade of terminology which is used to market a product. In other words, mere semantics cannot change the nature of a product in terms of how it is perceived by persons in the market, when the issue at hand is one of excise classification.Such a hard and fast definition of a culinary product likeat has seen constant evolution and transformation, in our view, is untenable. Food experts suggest that the earliest form of ice cream may have been frozen syrup. According to Maguelonnein her History of Food,poured a mixture of snow and saltpeter over the exteriors of containers filled with syrup, for, in the same way as salt raises theof water, it lowers theThe author charters the evolution ofin the landmark work from its primitive syrupy form to its contemporary status with more than hundred different forms, and categorizes ‘softas one such form.On the basis of the authorities cited on behalf of the assessee, it cannot be said thatht to contain more than 10% milk fat content and must be served only frozen and hard. Besides, even if we were to assume for the sake of argument that there is one standard scientific definition ofat distinguishes it from other products like ‘softwe do not see why such a definition must be resorted to in construing excise statutes. Fiscal statutes are framed at a point of time and meant to apply for significant periods of time thereafter; they cannot be expected to keep up with nuances and niceties of the gastronomical world. The terms of the statutes must be adapted to developments of contemporary times rather than being held entirely inapplicable. It is for precisely this reason that this Court has repeatedly applied theevery time parties have attempted to differentiate their products on the basis of subtle and finer characteristics; it has tried understanding a good in the way in which it is understood in common parlance.It is significant to note that the question of classification of ‘softis based on a different set of facts in a different context. Heading 21.05 which refers tocream and otheris not defined in a technical or scientific manner, and hence, this does not occasion the need to construe the termother than in its commercial or trade understanding. Since, the first condition itself has not been fulfilled; the question of harmonizing heading 21.05 with 04.04 by resort to the scientific and technical meaning of the entries does not arise at all. Hence, we are of the opinion that the ratio of Akbar Badrudin Giwani (supra) does not apply to the facts of the present case.We are unable to persuade ourselves to agree with the submission. It is a settled principle in excise classification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute forof excise duty, thereby causing a loss of revenue. [See: Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman [(2011) 2 SCC 601] and Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhavan Limited [(2009) 12 SCC 419] ]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding ofand thus, may require different standards for a good to be marketed asThese provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and object of which is completelydo not see any merit in this contention. The learned counsel for the assessee had himself contended thatwas a dairy product and would have been classified under heading 04.04 if heading 21.05 had not been inserted into the Tariff Act. However, in the presence of heading 21.05,ot be classified asa dairy product under heading 04.04. Hence, it is obvious that in relation to heading 04.04, heading 21.05 is clearly a specific entry. Therefore, we cannot subscribe to the claim that heading 04.04 is to be regarded as a specific entry under Rule 3(a) of the General Rules of Interpretation, since such an interpretation would be contrary to the statutory context of heading 21.05. In conclusion, we reject the view taken by the Tribunal and hold that ‘softis to be classified asunder heading 21.05 of the Act.We are afraid we are unable to take this argument into account since such a plea was not urged before the Tribunal in the first place. Given that this is a statutory appeal under Section 35L of the Act, it is not open to either party, at this stage of the appeal, to raise a new ground which was never argued before the Tribunal. Our scrutiny of the arguments advanced has to be limited only to those grounds which were argued by the parties and addressed by the Tribunal in its impugned order. Since, the impugned orders at hand do not reflect the argument raised by the learned counsel for the assessee; we do not find any justification to entertain this submission. Nonetheless, for the sake of argument, even if we assume that this ground had been urged before the Tribunal, in our view, learnedreliance on this notification is misplaced. Upon a reading of the notification it is clear that the exemption in the notification is granted for the whole of excise duty which was payable on such softy ice cream and non alcoholic beverages dispensed through vending machines, but was not being levied during the relevant period, which is not the case here. In the present case, as aforenoted, three show cause notices had been issued to the assessee alleging that ‘softwas classifiable under heading 21.05 and attracted duty @ 16%. The show cause notices issued by the revenue also indicated that the assessee was liable to pay additional duty under Section 11A of the Act. This clearly shows that the excise duty was payable by the assessee and was being levied by the revenue. Therefore, thecase does not fall within the ambit of the said notification and is not eligible for the exemption granted todispensed through a vending machine for the relevant period. | 1 | 8,931 | 2,673 | ### 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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sense. 41. It is significant to note that the question of classification of ‘soft serve’ is based on a different set of facts in a different context. Heading 21.05 which refers to “ice cream and other edible ice” is not defined in a technical or scientific manner, and hence, this does not occasion the need to construe the term “ice-cream” other than in its commercial or trade understanding. Since, the first condition itself has not been fulfilled; the question of harmonizing heading 21.05 with 04.04 by resort to the scientific and technical meaning of the entries does not arise at all. Hence, we are of the opinion that the ratio of Akbar Badrudin Giwani (supra) does not apply to the facts of the present case. 42. Learned counsel for the assessee had vociferously submitted that the common parlance understanding of “ice-cream” can be inferred by its definition as appearing under the PFA. According to Rule A 11.20.08 the milk fat content of “ice-cream” and “softy ice-cream” shall not be less than 8% by weight. Hence, according, to the learned counsel, the term “ice-cream” under heading 21.05 had to be understood in light of the standards provided in the PFA, more so when selling “Ice-cream” with fat content of less than 10% would attract criminal action, as held in Baburao Ravaji Mharulkar (supra). 43. We are unable to persuade ourselves to agree with the submission. It is a settled principle in excise classification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute for non-levy of excise duty, thereby causing a loss of revenue. [See: Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman [(2011) 2 SCC 601] and Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhavan Limited [(2009) 12 SCC 419] ]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding of “Ice-cream” and thus, may require different standards for a good to be marketed as “ice-cream”. These provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and object of which is completely different. 44. Learned counsel for the assessee also contended that based on Rule 3(a) of the General Rules of Interpretation which states that a specific entry shall prevail over a general entry, ‘soft serve’ will fall under heading 04.04 since it is a specific entry. We do not see any merit in this contention. The learned counsel for the assessee had himself contended that “ice-cream” was a dairy product and would have been classified under heading 04.04 if heading 21.05 had not been inserted into the Tariff Act. However, in the presence of heading 21.05, “ice- cream” cannot be classified as a dairy product under heading 04.04. Hence, it is obvious that in relation to heading 04.04, heading 21.05 is clearly a specific entry. Therefore, we cannot subscribe to the claim that heading 04.04 is to be regarded as a specific entry under Rule 3(a) of the General Rules of Interpretation, since such an interpretation would be contrary to the statutory context of heading 21.05. In conclusion, we reject the view taken by the Tribunal and hold that ‘soft serve’ is to be classified as “ice-cream” under heading 21.05 of the Act. 45. At this stage it may be relevant to refer to Trade Notice No. 45/2001 dated 11th June, 2001 of Mumbai Commissionerate IV which came to our notice. According to the said notification, “softy ice-cream/soft serve” dispensed by vending machines, sold and consumed as “ice-cream”, is classifiable under Entry 21.05 of the Act. The same is reproduced below: “Classification of Softy Ice Cream being sold in restaurant etc. dispensed by vending machine — [Mumbai Commissionerate IV Trade Notice No.45/2001, dt. 11.6.2001] Ice Cream dispensed by vending machine falling under chapter 21 has been made liable to nil rate of duty vide Sl. No.8 of Notification No.3/2001-CE dated 1.3.2001. Doubts have been raised as regards to the classification of softy ice cream/soft serve dispensed by vending machine and soft serve mix used for its manufacture prior to 1.3.2001. A manufacturer was obtaining soft serve mix and processing it in his restaurant for manufacture of softy ice cream. The process involved lowering of temperature so that it changes its form from liquid to semi-solid state and incorporation of air, which results in production of overrun, in Tylor Vending Machine. The product that emerges after this process is a completely different product and is ready to be consumed immediately. It has all the ingredients of an ice cream. The product is sold and consumed as ice cream. In the circumstances, it is clarified by the Board that softy ice cream is correctly classifiable under heading 21.05 of Central Excise Tariff. As per HSN Explanatory Notes, heading 19.01 also cover mix bases (e.g. powders) for making ice cream. It has been further clarified that soft serve mix will be correctly classifiable under heading 19.01. All the trade associations are requested to bring the contents of this trade notice to the attention of their member manufacturers in particular, and trade in general. Sd/- (Neelam Rattan Negi) Commissioner Central Excise, Mumbai-IV” While it is true that the trade notice is not binding upon this Court, it does indicate the commercial understanding of ‘soft-serve’ as ‘softy ice-cream’. Further, as this trade notice is in no way contrary to the statutory provisions of the Act, we see no reason to diverge from what is mentioned therein.
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frozen syrup. According to Maguelonnein her History of Food,poured a mixture of snow and saltpeter over the exteriors of containers filled with syrup, for, in the same way as salt raises theof water, it lowers theThe author charters the evolution ofin the landmark work from its primitive syrupy form to its contemporary status with more than hundred different forms, and categorizes ‘softas one such form.On the basis of the authorities cited on behalf of the assessee, it cannot be said thatht to contain more than 10% milk fat content and must be served only frozen and hard. Besides, even if we were to assume for the sake of argument that there is one standard scientific definition ofat distinguishes it from other products like ‘softwe do not see why such a definition must be resorted to in construing excise statutes. Fiscal statutes are framed at a point of time and meant to apply for significant periods of time thereafter; they cannot be expected to keep up with nuances and niceties of the gastronomical world. The terms of the statutes must be adapted to developments of contemporary times rather than being held entirely inapplicable. It is for precisely this reason that this Court has repeatedly applied theevery time parties have attempted to differentiate their products on the basis of subtle and finer characteristics; it has tried understanding a good in the way in which it is understood in common parlance.It is significant to note that the question of classification of ‘softis based on a different set of facts in a different context. Heading 21.05 which refers tocream and otheris not defined in a technical or scientific manner, and hence, this does not occasion the need to construe the termother than in its commercial or trade understanding. Since, the first condition itself has not been fulfilled; the question of harmonizing heading 21.05 with 04.04 by resort to the scientific and technical meaning of the entries does not arise at all. Hence, we are of the opinion that the ratio of Akbar Badrudin Giwani (supra) does not apply to the facts of the present case.We are unable to persuade ourselves to agree with the submission. It is a settled principle in excise classification that the definition of one statute having a different object, purpose and scheme cannot be applied mechanically to another statute. As aforesaid, the object of the Excise Act is to raise revenue for which various goods are differently classified in the Act. The conditions or restrictions contemplated by one statute having a different object and purpose should not be lightly and mechanically imported and applied to a fiscal statute forof excise duty, thereby causing a loss of revenue. [See: Medley Pharmaceuticals Limited Vs. Commissioner of Central Excise and Customs, Daman [(2011) 2 SCC 601] and Commissioner of Central Excise, Nagpur Vs. Shree Baidyanath Ayurved Bhavan Limited [(2009) 12 SCC 419] ]. The provisions of PFA, dedicated to food adulteration, would require a technical and scientific understanding ofand thus, may require different standards for a good to be marketed asThese provisions are for ensuring quality control and have nothing to do with the class of goods which are subject to excise duty under a particular tariff entry under the Tariff Act. These provisions are not a standard for interpreting goods mentioned in the Tariff Act, the purpose and object of which is completelydo not see any merit in this contention. The learned counsel for the assessee had himself contended thatwas a dairy product and would have been classified under heading 04.04 if heading 21.05 had not been inserted into the Tariff Act. However, in the presence of heading 21.05,ot be classified asa dairy product under heading 04.04. Hence, it is obvious that in relation to heading 04.04, heading 21.05 is clearly a specific entry. Therefore, we cannot subscribe to the claim that heading 04.04 is to be regarded as a specific entry under Rule 3(a) of the General Rules of Interpretation, since such an interpretation would be contrary to the statutory context of heading 21.05. In conclusion, we reject the view taken by the Tribunal and hold that ‘softis to be classified asunder heading 21.05 of the Act.We are afraid we are unable to take this argument into account since such a plea was not urged before the Tribunal in the first place. Given that this is a statutory appeal under Section 35L of the Act, it is not open to either party, at this stage of the appeal, to raise a new ground which was never argued before the Tribunal. Our scrutiny of the arguments advanced has to be limited only to those grounds which were argued by the parties and addressed by the Tribunal in its impugned order. Since, the impugned orders at hand do not reflect the argument raised by the learned counsel for the assessee; we do not find any justification to entertain this submission. Nonetheless, for the sake of argument, even if we assume that this ground had been urged before the Tribunal, in our view, learnedreliance on this notification is misplaced. Upon a reading of the notification it is clear that the exemption in the notification is granted for the whole of excise duty which was payable on such softy ice cream and non alcoholic beverages dispensed through vending machines, but was not being levied during the relevant period, which is not the case here. In the present case, as aforenoted, three show cause notices had been issued to the assessee alleging that ‘softwas classifiable under heading 21.05 and attracted duty @ 16%. The show cause notices issued by the revenue also indicated that the assessee was liable to pay additional duty under Section 11A of the Act. This clearly shows that the excise duty was payable by the assessee and was being levied by the revenue. Therefore, thecase does not fall within the ambit of the said notification and is not eligible for the exemption granted todispensed through a vending machine for the relevant period.
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COMMISSIONER OF INCOME TAX, BANGALORE Vs. INFOSYS TECHNOLOGIES LTD | pursuance of an option exercised by an individual, the value of the specified securities shall be taxable in the previous year in which such option is exercised by such individual. Explanation.-For the purposes of this clause,- (a) cost means the amount actually paid for acquiring specified securities and where no money has been paid, the cost shall be taken as nil; (b) specified security means the securities as defined in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and includes employees stock option and sweat equity shares; (c) sweat equity shares means equity shares issued by a company to its employees or directors at a discount or for consideration other than cash for providing know-how or making available rights in the nature of intellectual property rights or value additions, by whatever name called; and (d) value means the difference between the fair market value and the cost for acquiring specified securities; (emphasis supplied) 14. As stated above, unless a benefit/receipt is made taxable, it cannot be regarded as income. This is an important principle of taxation under the 1961 Act. Applying the above principle to the insertion of clause (iiia) in Section 17(2) one finds that for the first time w.e.f. 1.4.2000 the word cost stood explained to mean the amount actually paid for acquiring specified securities and where no money had been paid, the cost was required to be taken as nil. 15. In the case of Commissioner of Income-Tax, Bangalore v. B.C. Srinivasa Setty [(1981) 128 ITR 294 (SC)] this Court held that the charging section and computation provision under the 1961 Act constituted an integrated code. The mechanism introduced for the first time under the Finance Act, 1999 by which cost was explained in the manner stated above was not there prior to 1.4.2000. The new mechanism stood introduced w.e.f. 1.4.2000 only. With the above definition of the word cost introduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost, value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act, 1999 w.e.f. 1.4.2000. Moreover, the words allotted or transferred in clause (iiia) made things clear only after 1.4.2000. Lastly, it may be pointed out that even clause (iiia) has been subsequently deleted w.e.f. 1.4.2001. For the aforestated reasons, we are of the view the clause (iiia) cannot be read as retrospective. 16. Be that as it may, proceeding on the basis that there was benefit, the question is whether every benefit received by the person is taxable as income? In our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the Legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries. The stock was non-transferable and the stock exchange was also accordingly notified. This is where the weightage ought to have been given by the AO to an important factor, namely, lock in period. This has not been done. It is important to bear in mind that if the shares allotted to the employee had no realizable sale value on the day when he exercised his option then there was no cash inflow to the employee. It was not possible for the employee to know the future value of the shares allotted to him on the day he exercises his option. Even the cost of acquisition as nil came to be introduced in the 1961 Act by the Finance Act, 1999 only with effect from 1.4.2000. In fact, the later deletion of clause (iiia) is an indicator of the Ineffective Charge. 17. For the aforestated reasons, we are of the view that the Department had erred in treating Rs. 165 crores as a perquisite value for the assessment years 1997-98, 1998-99 and 1999-2000. During those years, the fifth anniversary had not taken place and, therefore, it was not possible for the assessee company to estimate the value of the perquisite during that period. It was not open to the Department to ignore the lock in period. Therefore, the Department had erred in treating the respondent herein as an assessee in default for not deducting the TDS at 30% as stated in the order of assessment. This is not the case of tax evasion. The assessee had floated the Trust because of the buy back problems, which were genuine problems in cases where the employees stood dismissed, removed or in the case of resignation in which cases they were required to return the allotment. 18. Estimation of TDS under Section 192 in the absence of clear provisions on valuation of perquisite in this case would not justify the Department in treating the respondent as assessee in default. Therefore, in our view, the AO and the CIT(A) had erred in treating the respondent as defaulter for not deducting TDS under Section 192. Consequently, Section 201(1) and 201(1A) were also not applicable to the facts of this case and that the Department had erred in invoking the said two sections against the assessee. | 0[ds]11. Warrant is a right without obligation to buy. Therefore, perquisite cannot be said to accrue at the time when warrants were granted in this case. Same would be the position when options vested in the employees after lapse of 12 months. It is important to note that in this case options were exercisable only after the cooling period of 12 months. Further, it was open to the employees not to avail of the benefit of option. It was open to the employees to resign. There was no certainty that the option would be exercised. Further, the shares were not transferable for 5 years (lock-in period). If an employee resigned during the lock-in period the shares had to be retransferred. During the lock-in period, the possession of the shares, which is an important ingredient of shares, remained with the Trust. The Stock Exchange was duly notified about non-transferability of the shares during the lock-in period. The shares were stamped with the remark non-transferable during the lock-in period. It was not open to the employees to hypothecate or pledge the said shares during the lock-in period. During the said period, the said shares have no realisable value, hence, there was no cash in flow to the employees on account of mere exercise of options. On the date when the options were exercised, it was not possible for the employees to foresee the future market value of the shares. Therefore, in our view, the benefit, if any, which arose on the date when the option stood exercised was only a notional benefit whose value was unascertainable. Therefore, in our view, the Department had erred in treating Rs. 165 crores as perquisite value being the difference in the market value of shares on the date of exercise of option and the total amount paid by the employees consequent upon exercise of the said options12. We also do not find merit in the contention advanced on behalf of the Department that Section 17(2)(iiia) inserted by Finance Act, 1999 w.e.f. 1.4.2000 was clarificatory and, therefore, retrospective in natureIn our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the Legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries. The stock was non-transferable and the stock exchange was also accordingly notified. This is where the weightage ought to have been given by the AO to an important factor, namely, lock in period. This has not been done. It is important to bear in mind that if the shares allotted to the employee had no realizable sale value on the day when he exercised his option then there was no cash inflow to the employee. It was not possible for the employee to know the future value of the shares allotted to him on the day he exercises his option. Even the cost of acquisition as nil came to be introduced in the 1961 Act by the Finance Act, 1999 only with effect from 1.4.2000. In fact, the later deletion of clause (iiia) is an indicator of the Ineffective Charge17. For the aforestated reasons, we are of the view that the Department had erred in treating Rs. 165 crores as a perquisite value for the assessment years 1997-98, 1998-99 and 1999-2000. During those years, the fifth anniversary had not taken place and, therefore, it was not possible for the assessee company to estimate the value of the perquisite during that period. It was not open to the Department to ignore the lock in period. Therefore, the Department had erred in treating the respondent herein as an assessee in default for not deducting the TDS at 30% as stated in the order of assessment. This is not the case of tax evasion. The assessee had floated the Trust because of the buy back problems, which were genuine problems in cases where the employees stood dismissed, removed or in the case of resignation in which cases they were required to return the allotment18. Estimation of TDS under Section 192 in the absence of clear provisions on valuation of perquisite in this case would not justify the Department in treating the respondent as assessee in default. Therefore, in our view, the AO and the CIT(A) had erred in treating the respondent as defaulter for not deducting TDS under Section 192. Consequently, Section 201(1) and 201(1A) were also not applicable to the facts of this case and that the Department had erred in invoking the said two sections against the assessee | 0 | 3,186 | 947 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
pursuance of an option exercised by an individual, the value of the specified securities shall be taxable in the previous year in which such option is exercised by such individual. Explanation.-For the purposes of this clause,- (a) cost means the amount actually paid for acquiring specified securities and where no money has been paid, the cost shall be taken as nil; (b) specified security means the securities as defined in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and includes employees stock option and sweat equity shares; (c) sweat equity shares means equity shares issued by a company to its employees or directors at a discount or for consideration other than cash for providing know-how or making available rights in the nature of intellectual property rights or value additions, by whatever name called; and (d) value means the difference between the fair market value and the cost for acquiring specified securities; (emphasis supplied) 14. As stated above, unless a benefit/receipt is made taxable, it cannot be regarded as income. This is an important principle of taxation under the 1961 Act. Applying the above principle to the insertion of clause (iiia) in Section 17(2) one finds that for the first time w.e.f. 1.4.2000 the word cost stood explained to mean the amount actually paid for acquiring specified securities and where no money had been paid, the cost was required to be taken as nil. 15. In the case of Commissioner of Income-Tax, Bangalore v. B.C. Srinivasa Setty [(1981) 128 ITR 294 (SC)] this Court held that the charging section and computation provision under the 1961 Act constituted an integrated code. The mechanism introduced for the first time under the Finance Act, 1999 by which cost was explained in the manner stated above was not there prior to 1.4.2000. The new mechanism stood introduced w.e.f. 1.4.2000 only. With the above definition of the word cost introduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost, value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act, 1999 w.e.f. 1.4.2000. Moreover, the words allotted or transferred in clause (iiia) made things clear only after 1.4.2000. Lastly, it may be pointed out that even clause (iiia) has been subsequently deleted w.e.f. 1.4.2001. For the aforestated reasons, we are of the view the clause (iiia) cannot be read as retrospective. 16. Be that as it may, proceeding on the basis that there was benefit, the question is whether every benefit received by the person is taxable as income? In our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the Legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries. The stock was non-transferable and the stock exchange was also accordingly notified. This is where the weightage ought to have been given by the AO to an important factor, namely, lock in period. This has not been done. It is important to bear in mind that if the shares allotted to the employee had no realizable sale value on the day when he exercised his option then there was no cash inflow to the employee. It was not possible for the employee to know the future value of the shares allotted to him on the day he exercises his option. Even the cost of acquisition as nil came to be introduced in the 1961 Act by the Finance Act, 1999 only with effect from 1.4.2000. In fact, the later deletion of clause (iiia) is an indicator of the Ineffective Charge. 17. For the aforestated reasons, we are of the view that the Department had erred in treating Rs. 165 crores as a perquisite value for the assessment years 1997-98, 1998-99 and 1999-2000. During those years, the fifth anniversary had not taken place and, therefore, it was not possible for the assessee company to estimate the value of the perquisite during that period. It was not open to the Department to ignore the lock in period. Therefore, the Department had erred in treating the respondent herein as an assessee in default for not deducting the TDS at 30% as stated in the order of assessment. This is not the case of tax evasion. The assessee had floated the Trust because of the buy back problems, which were genuine problems in cases where the employees stood dismissed, removed or in the case of resignation in which cases they were required to return the allotment. 18. Estimation of TDS under Section 192 in the absence of clear provisions on valuation of perquisite in this case would not justify the Department in treating the respondent as assessee in default. Therefore, in our view, the AO and the CIT(A) had erred in treating the respondent as defaulter for not deducting TDS under Section 192. Consequently, Section 201(1) and 201(1A) were also not applicable to the facts of this case and that the Department had erred in invoking the said two sections against the assessee.
### Response:
0
### Explanation:
11. Warrant is a right without obligation to buy. Therefore, perquisite cannot be said to accrue at the time when warrants were granted in this case. Same would be the position when options vested in the employees after lapse of 12 months. It is important to note that in this case options were exercisable only after the cooling period of 12 months. Further, it was open to the employees not to avail of the benefit of option. It was open to the employees to resign. There was no certainty that the option would be exercised. Further, the shares were not transferable for 5 years (lock-in period). If an employee resigned during the lock-in period the shares had to be retransferred. During the lock-in period, the possession of the shares, which is an important ingredient of shares, remained with the Trust. The Stock Exchange was duly notified about non-transferability of the shares during the lock-in period. The shares were stamped with the remark non-transferable during the lock-in period. It was not open to the employees to hypothecate or pledge the said shares during the lock-in period. During the said period, the said shares have no realisable value, hence, there was no cash in flow to the employees on account of mere exercise of options. On the date when the options were exercised, it was not possible for the employees to foresee the future market value of the shares. Therefore, in our view, the benefit, if any, which arose on the date when the option stood exercised was only a notional benefit whose value was unascertainable. Therefore, in our view, the Department had erred in treating Rs. 165 crores as perquisite value being the difference in the market value of shares on the date of exercise of option and the total amount paid by the employees consequent upon exercise of the said options12. We also do not find merit in the contention advanced on behalf of the Department that Section 17(2)(iiia) inserted by Finance Act, 1999 w.e.f. 1.4.2000 was clarificatory and, therefore, retrospective in natureIn our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the Legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries. The stock was non-transferable and the stock exchange was also accordingly notified. This is where the weightage ought to have been given by the AO to an important factor, namely, lock in period. This has not been done. It is important to bear in mind that if the shares allotted to the employee had no realizable sale value on the day when he exercised his option then there was no cash inflow to the employee. It was not possible for the employee to know the future value of the shares allotted to him on the day he exercises his option. Even the cost of acquisition as nil came to be introduced in the 1961 Act by the Finance Act, 1999 only with effect from 1.4.2000. In fact, the later deletion of clause (iiia) is an indicator of the Ineffective Charge17. For the aforestated reasons, we are of the view that the Department had erred in treating Rs. 165 crores as a perquisite value for the assessment years 1997-98, 1998-99 and 1999-2000. During those years, the fifth anniversary had not taken place and, therefore, it was not possible for the assessee company to estimate the value of the perquisite during that period. It was not open to the Department to ignore the lock in period. Therefore, the Department had erred in treating the respondent herein as an assessee in default for not deducting the TDS at 30% as stated in the order of assessment. This is not the case of tax evasion. The assessee had floated the Trust because of the buy back problems, which were genuine problems in cases where the employees stood dismissed, removed or in the case of resignation in which cases they were required to return the allotment18. Estimation of TDS under Section 192 in the absence of clear provisions on valuation of perquisite in this case would not justify the Department in treating the respondent as assessee in default. Therefore, in our view, the AO and the CIT(A) had erred in treating the respondent as defaulter for not deducting TDS under Section 192. Consequently, Section 201(1) and 201(1A) were also not applicable to the facts of this case and that the Department had erred in invoking the said two sections against the assessee
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Labhu Ram And Ors Vs. The State Of Punjab | that the incident happened at the spot mentioned in the FIR. The learned counsel for the State has also submitted that immediately within an hour of the incident, FIR was lodged at the Police Station which was about 1-1/2 miles away from the place of the incident and the learned Magistrate also received a copy of the FIR within two hours of lodging the FIR. It is highly improbable that within such a short time a false story would be cooked up and FIR would be lodged on the basis of a false case. The learned counsel has also submitted that PW 5 Piara Singh and PW 6 Gurdev Singh both the injured witnesses are neighbours of the deceased. Their presence, at the time of the incident, is quite probable. The learned counsel has also submitted that the evidence of Bhagwan Kaur PW 4 should not be discarded. The widow would have natural inclination to implicate the assailant of her husband and it is not reasonably expected that she would falsely implicate the accused even when she had witnessed the incident and suffered injuries at the hands of the assailants. The learned counsel for the State has also submitted that alibi of the accused Malkiat Singh about his going to the police out post shortly before the incident does not stand scrutiny. It is with a clever attempt to create alibi, that a false report was made at Basant Park out post at a later stage. It could not be convincingly established by Malkiat Singh that the said report had in fact been lodged at 3 a.m. It is also highly improbable that three neighbours of his Mohalla after noticing some persons in drunken state and creating nuisance by abusing, would come to Malkiat Singh at dead of night at 2.30 a.m. by travelling 1-1/2 miles only to inform about such nuisance being created by some drunkards instead of going straight to the police station and informing the police, particularly when police station is closer, being only at a distance of one mile from their Mohalla. The learned counsel has submitted that it is equally improbable that the said Malkiat Singh, simply on getting an information that some persons were creating disturbance in intoxicated condition in the Mohalla, would come out of his house at that odd hour and personally go to the police out post just to lodge a report of the information received by him from some residents of the Mohalla. It is also significant to note that in the said report to the police out post (Exhibit DO), Malkiat Singh has given his address as house No. 345, street No. 5, Dashmesh Nagar, Ludhiana and not his residence at New Janta Colony which according to him is his usual place of residence. It is quite probable that having participated the crime, Malkiat Singh wanted to cover up his complicity in the offence and in an attempt to create an alibi, he introduced a false story and lodged a report to a police out-post long after the incident. According to learned counsel for the State, the prosecution case has been very convincingly proved by clinching and reliable evidences given by the eye-witnesses. Both the learned Sessions Judge and also the High Court accepted the prosecution case. In the aforesaid circumstance, no interference is called for by this Court and the appeal should be dismissed. 11. After giving our anxious considerations of the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties, it appears to us that in the instant case the depositions of Bhagwan Kaur PW 4 and two injured eye-witnesses, namely, PW 5 and PW 6 are wholly reliable. Such depositions do not suffer from any inconsistency. In our view, conviction can be based on the said depositions of the eye-witnesses. The case sought to be made out by the accused about the circumstances causing the death of Bhanan Singh is not only false but absolutely absurd. The nature of injuries sustained by the deceased also rules out the case of the defence that the deceased went to the house of the accused being drunk and attempted to go inside the house of the accused by scaling the wall while abusing the inmates and threatening to molest the daughters in the house of Labhu Ram, but suffered a fall from the wall of the house of the accused and died at the spot on receiving injuries on account of such fall from the wall. The wall is only five feet high and serious injuries suffered by the deceased could not have occurred by a fall from such small height. It is a pity that the wife of accused Labhu Ram was examined by the accused to give a false and absurd account of the defence case.12. In our view, the learned counsel for the State is also justified in contending that the alibi of Malkiat Singh that he had been to the said police out-post at 3 a.m. to lodge an information about the presence of some drunkards in Dashmesh Nagar Mohalla is absolutely false and should be discarded. It appears to us that after the commission of the crime alleged against him, Malkiat wanted to create an alibi and lodged a report at a later stage in the said police out-post. It appears from the post-mortem examination that the deceased had been brutally assaulted by the accused thereby causing 19 injuries on his person. The evidences adduced by the eye- witnesses about the injuries caused to the deceased also tallies with the post-mortem report and deposition of the doctor. In our view, such injuries would not have been caused if the accused did not intend to kill him. There is also evidence that even when the deceased fell down after receiving injuries, he was not spared but the accused further assaulted him. Such conduct of the accused is only consistent with an intention to kill the deceased. | 0[ds]11. After giving our anxious considerations of the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties, it appears to us that in the instant case the depositions of Bhagwan Kaur PW 4 and two injurednamely, PW 5 and PW 6 are wholly reliable. Such depositions do not suffer from any inconsistency. In our view, conviction can be based on the said depositions of theThe case sought to be made out by the accused about the circumstances causing the death of Bhanan Singh is not only false but absolutely absurd. The nature of injuries sustained by the deceased also rules out the case of the defence that the deceased went to the house of the accused being drunk and attempted to go inside the house of the accused by scaling the wall while abusing the inmates and threatening to molest the daughters in the house of Labhu Ram, but suffered a fall from the wall of the house of the accused and died at the spot on receiving injuries on account of such fall from the wall. The wall is only five feet high and serious injuries suffered by the deceased could not have occurred by a fall from such small height. It is a pity that the wife of accused Labhu Ram was examined by the accused to give a false and absurd account of the defence case.12. In our view, the learned counsel for the State is also justified in contending that the alibi of Malkiat Singh that he had been to the said policeat 3 a.m. to lodge an information about the presence of some drunkards in Dashmesh Nagar Mohalla is absolutely false and should be discarded. It appears to us that after the commission of the crime alleged against him, Malkiat wanted to create an alibi and lodged a report at a later stage in the said policeIt appears from theexamination that the deceased had been brutally assaulted by the accused thereby causing 19 injuries on his person. The evidences adduced by the eyewitnesses about the injuries caused to the deceased also tallies with thereport and deposition of the doctor. In our view, such injuries would not have been caused if the accused did not intend to kill him. There is also evidence that even when the deceased fell down after receiving injuries, he was not spared but the accused further assaulted him. Such conduct of the accused is only consistent with an intention to kill the deceased. | 0 | 3,904 | 446 | ### 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:
that the incident happened at the spot mentioned in the FIR. The learned counsel for the State has also submitted that immediately within an hour of the incident, FIR was lodged at the Police Station which was about 1-1/2 miles away from the place of the incident and the learned Magistrate also received a copy of the FIR within two hours of lodging the FIR. It is highly improbable that within such a short time a false story would be cooked up and FIR would be lodged on the basis of a false case. The learned counsel has also submitted that PW 5 Piara Singh and PW 6 Gurdev Singh both the injured witnesses are neighbours of the deceased. Their presence, at the time of the incident, is quite probable. The learned counsel has also submitted that the evidence of Bhagwan Kaur PW 4 should not be discarded. The widow would have natural inclination to implicate the assailant of her husband and it is not reasonably expected that she would falsely implicate the accused even when she had witnessed the incident and suffered injuries at the hands of the assailants. The learned counsel for the State has also submitted that alibi of the accused Malkiat Singh about his going to the police out post shortly before the incident does not stand scrutiny. It is with a clever attempt to create alibi, that a false report was made at Basant Park out post at a later stage. It could not be convincingly established by Malkiat Singh that the said report had in fact been lodged at 3 a.m. It is also highly improbable that three neighbours of his Mohalla after noticing some persons in drunken state and creating nuisance by abusing, would come to Malkiat Singh at dead of night at 2.30 a.m. by travelling 1-1/2 miles only to inform about such nuisance being created by some drunkards instead of going straight to the police station and informing the police, particularly when police station is closer, being only at a distance of one mile from their Mohalla. The learned counsel has submitted that it is equally improbable that the said Malkiat Singh, simply on getting an information that some persons were creating disturbance in intoxicated condition in the Mohalla, would come out of his house at that odd hour and personally go to the police out post just to lodge a report of the information received by him from some residents of the Mohalla. It is also significant to note that in the said report to the police out post (Exhibit DO), Malkiat Singh has given his address as house No. 345, street No. 5, Dashmesh Nagar, Ludhiana and not his residence at New Janta Colony which according to him is his usual place of residence. It is quite probable that having participated the crime, Malkiat Singh wanted to cover up his complicity in the offence and in an attempt to create an alibi, he introduced a false story and lodged a report to a police out-post long after the incident. According to learned counsel for the State, the prosecution case has been very convincingly proved by clinching and reliable evidences given by the eye-witnesses. Both the learned Sessions Judge and also the High Court accepted the prosecution case. In the aforesaid circumstance, no interference is called for by this Court and the appeal should be dismissed. 11. After giving our anxious considerations of the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties, it appears to us that in the instant case the depositions of Bhagwan Kaur PW 4 and two injured eye-witnesses, namely, PW 5 and PW 6 are wholly reliable. Such depositions do not suffer from any inconsistency. In our view, conviction can be based on the said depositions of the eye-witnesses. The case sought to be made out by the accused about the circumstances causing the death of Bhanan Singh is not only false but absolutely absurd. The nature of injuries sustained by the deceased also rules out the case of the defence that the deceased went to the house of the accused being drunk and attempted to go inside the house of the accused by scaling the wall while abusing the inmates and threatening to molest the daughters in the house of Labhu Ram, but suffered a fall from the wall of the house of the accused and died at the spot on receiving injuries on account of such fall from the wall. The wall is only five feet high and serious injuries suffered by the deceased could not have occurred by a fall from such small height. It is a pity that the wife of accused Labhu Ram was examined by the accused to give a false and absurd account of the defence case.12. In our view, the learned counsel for the State is also justified in contending that the alibi of Malkiat Singh that he had been to the said police out-post at 3 a.m. to lodge an information about the presence of some drunkards in Dashmesh Nagar Mohalla is absolutely false and should be discarded. It appears to us that after the commission of the crime alleged against him, Malkiat wanted to create an alibi and lodged a report at a later stage in the said police out-post. It appears from the post-mortem examination that the deceased had been brutally assaulted by the accused thereby causing 19 injuries on his person. The evidences adduced by the eye- witnesses about the injuries caused to the deceased also tallies with the post-mortem report and deposition of the doctor. In our view, such injuries would not have been caused if the accused did not intend to kill him. There is also evidence that even when the deceased fell down after receiving injuries, he was not spared but the accused further assaulted him. Such conduct of the accused is only consistent with an intention to kill the deceased.
### Response:
0
### Explanation:
11. After giving our anxious considerations of the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties, it appears to us that in the instant case the depositions of Bhagwan Kaur PW 4 and two injurednamely, PW 5 and PW 6 are wholly reliable. Such depositions do not suffer from any inconsistency. In our view, conviction can be based on the said depositions of theThe case sought to be made out by the accused about the circumstances causing the death of Bhanan Singh is not only false but absolutely absurd. The nature of injuries sustained by the deceased also rules out the case of the defence that the deceased went to the house of the accused being drunk and attempted to go inside the house of the accused by scaling the wall while abusing the inmates and threatening to molest the daughters in the house of Labhu Ram, but suffered a fall from the wall of the house of the accused and died at the spot on receiving injuries on account of such fall from the wall. The wall is only five feet high and serious injuries suffered by the deceased could not have occurred by a fall from such small height. It is a pity that the wife of accused Labhu Ram was examined by the accused to give a false and absurd account of the defence case.12. In our view, the learned counsel for the State is also justified in contending that the alibi of Malkiat Singh that he had been to the said policeat 3 a.m. to lodge an information about the presence of some drunkards in Dashmesh Nagar Mohalla is absolutely false and should be discarded. It appears to us that after the commission of the crime alleged against him, Malkiat wanted to create an alibi and lodged a report at a later stage in the said policeIt appears from theexamination that the deceased had been brutally assaulted by the accused thereby causing 19 injuries on his person. The evidences adduced by the eyewitnesses about the injuries caused to the deceased also tallies with thereport and deposition of the doctor. In our view, such injuries would not have been caused if the accused did not intend to kill him. There is also evidence that even when the deceased fell down after receiving injuries, he was not spared but the accused further assaulted him. Such conduct of the accused is only consistent with an intention to kill the deceased.
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State of Uttar Pradesh Vs. Hakim Singh and Others | S.M. FAZAL ALI, J. This appeal by Special Leave is directed against a Division Bench judgment of the Allahabad High Court dated 10-10-73 setting aside the conviction and sentence imposed by the trial court on the respondents and acquitting them of the charges framed against them. The leading judgment was delivered by D. S. Mathur, J. with whom Mohd. Hamid Hussain, J. concurred. The details of the prosecution case are to be found in the judgment of the High Court and that of the trial court and is not necessary to repeat the same all over again. We have heard counsel for the parties and have also perused the judgment and have been taken through the entire evidence. A perusal for the judgment clearly shows that the High Court has not dealt with the intrinsic merits of the evidence of the eye-witnesses, particularly of PWs 1 & 5, at all but have brushed aside their evidence on surmises and conjectures and preponderance of improbabilities which, in fact, did not exit. With very great respect of the Honble Judge we are constrained to observe that the judgment of the High Court, particularly that of D. S. Mathur, J. who spoke for the court, is not only (not) in accordance with law but it borders on perversity. It seems that the learned Judges never made any real effort to appreciate or marshal the evidence in order to reach the conclusion regarding the credibility of the eye-witnesses, who had been examined to prove the truth of the prosecution case. We have gone through the evidence of PWs 1 & 5 particularly in great detail and we find that their evidence is not only creditworthy but is natural and very straight-forward and contain a ring of truth. One of the general grounds on which evidence of these two witnesses was rejected by the High Court was that these witnesses were partisan or interested witnesses. Being near relations and living practically in the same house, these witnesses cannot be said to be interested witnesses, but are very natural witnesses as held by this Court in the case of Mst. Dalbir Kaur v. State of Punjab (1976) 4 SCC 158. Moreover, as the murder took place nearabout midnight inside the house we could not have expected witnesses from outside to see the occurrence. On a perusal of evidence of PWs. 1 & 5, we are fully satisfied that these witnesses are stating the truth and have not concealed anything. We might also mention that although P. W. 1 was subjected to a grueling and searching cross-examination yet nothing of importance was elicited from his evidence in order to shake his testimony. Furthermore, the evidence of P. W. 2 who was next door neighbour of P. Ws. 1 & 5 corroborates their evidence and we see no. reason to distrust his testimony. 2. Realising this situation, Mr. A. N. Mulla, learned counsel for the respondents, very fairly conceded that it was impossible for him in the state of the evidence to support the judgment of the High Court acquitting the accused. The High Court merely based its decisions on the fact that P. Ws. 1 & 5 could not have identified the respondents. The evidence of PWs. 1 & 5 clearly shows that a burning lantern was hanging on the thatch of the house only a few yards from the courtyard where the accused had entered and thus there was sufficient light to enable PWs 1 & 5 to identify the assailant of the two deceased who were shot dead. P. Ws. 1 & 5 were in the Barotha which was guarded by three unknown persons armed with guns and lathis but there is no. evidence to show that the accused guarding the entrance were standing in a straightline so as to block the view of PWs. 1 & 5. Furthermore, much has been made by the High Court of the fact that Mr. Sudama who was also injured was not examined as a witness. If the evidence of PWs. 1 & 5 is believed it is not necessary to multiply witnesses to prove the case and thus non-examination of Mt. Sudama does not in our opinion, cast any doubt on the prosecution case. In view, however, of the candid concession made by Mr. Mulla, we do not consider it necessary to go into further details. Mr. Mulla, however, confined his arguments to the question of sentence at the end. After a careful consideration of the entire evidence and the circumstances proved in this case, we are clearly of the opinion that the prosecution case against the appellants, as found by the learned Sessions Judge, has been fully established beyond reasonable doubt. We are also of the opinion that no. other reasonable view on the evidence could be possible than the one which was taken by the Sessions Court. We think that so far as arguments on the question of sentence is concerned, there is great substance in the same. Although this was a case of double murder, the appellants had been acquitted on 10-10-73 and it will not be proper or expedient to impose the extreme penalty of death on the respondents, as was done by the trial court. | 1[ds]Moreover, as the murder took place nearabout midnight inside the house we could not have expected witnesses from outside to see the occurrence. On a perusal of evidence of PWs. 1 & 5, we are fully satisfied that these witnesses are stating the truth and have not concealed anything. We might also mention that although P. W. 1 was subjected to a grueling and searchingn yet nothing of importance was elicited from his evidence in order to shake his testimony. Furthermore, the evidence of P. W. 2 who was next door neighbour of P. Ws. 1 & 5 corroborates their evidence and we see no. reason to distrust his testimonyWe are also of the opinion that no. other reasonable view on the evidence could be possible than the one which was taken by the Sessions Court. We think that so far as arguments on the question of sentence is concerned, there is great substance in the same. Although this was a case of double murder, the appellants had been acquitted on3 and it will not be proper or expedient to impose the extreme penalty of death on the respondents, as was done by the trial court. | 1 | 952 | 216 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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S.M. FAZAL ALI, J. This appeal by Special Leave is directed against a Division Bench judgment of the Allahabad High Court dated 10-10-73 setting aside the conviction and sentence imposed by the trial court on the respondents and acquitting them of the charges framed against them. The leading judgment was delivered by D. S. Mathur, J. with whom Mohd. Hamid Hussain, J. concurred. The details of the prosecution case are to be found in the judgment of the High Court and that of the trial court and is not necessary to repeat the same all over again. We have heard counsel for the parties and have also perused the judgment and have been taken through the entire evidence. A perusal for the judgment clearly shows that the High Court has not dealt with the intrinsic merits of the evidence of the eye-witnesses, particularly of PWs 1 & 5, at all but have brushed aside their evidence on surmises and conjectures and preponderance of improbabilities which, in fact, did not exit. With very great respect of the Honble Judge we are constrained to observe that the judgment of the High Court, particularly that of D. S. Mathur, J. who spoke for the court, is not only (not) in accordance with law but it borders on perversity. It seems that the learned Judges never made any real effort to appreciate or marshal the evidence in order to reach the conclusion regarding the credibility of the eye-witnesses, who had been examined to prove the truth of the prosecution case. We have gone through the evidence of PWs 1 & 5 particularly in great detail and we find that their evidence is not only creditworthy but is natural and very straight-forward and contain a ring of truth. One of the general grounds on which evidence of these two witnesses was rejected by the High Court was that these witnesses were partisan or interested witnesses. Being near relations and living practically in the same house, these witnesses cannot be said to be interested witnesses, but are very natural witnesses as held by this Court in the case of Mst. Dalbir Kaur v. State of Punjab (1976) 4 SCC 158. Moreover, as the murder took place nearabout midnight inside the house we could not have expected witnesses from outside to see the occurrence. On a perusal of evidence of PWs. 1 & 5, we are fully satisfied that these witnesses are stating the truth and have not concealed anything. We might also mention that although P. W. 1 was subjected to a grueling and searching cross-examination yet nothing of importance was elicited from his evidence in order to shake his testimony. Furthermore, the evidence of P. W. 2 who was next door neighbour of P. Ws. 1 & 5 corroborates their evidence and we see no. reason to distrust his testimony. 2. Realising this situation, Mr. A. N. Mulla, learned counsel for the respondents, very fairly conceded that it was impossible for him in the state of the evidence to support the judgment of the High Court acquitting the accused. The High Court merely based its decisions on the fact that P. Ws. 1 & 5 could not have identified the respondents. The evidence of PWs. 1 & 5 clearly shows that a burning lantern was hanging on the thatch of the house only a few yards from the courtyard where the accused had entered and thus there was sufficient light to enable PWs 1 & 5 to identify the assailant of the two deceased who were shot dead. P. Ws. 1 & 5 were in the Barotha which was guarded by three unknown persons armed with guns and lathis but there is no. evidence to show that the accused guarding the entrance were standing in a straightline so as to block the view of PWs. 1 & 5. Furthermore, much has been made by the High Court of the fact that Mr. Sudama who was also injured was not examined as a witness. If the evidence of PWs. 1 & 5 is believed it is not necessary to multiply witnesses to prove the case and thus non-examination of Mt. Sudama does not in our opinion, cast any doubt on the prosecution case. In view, however, of the candid concession made by Mr. Mulla, we do not consider it necessary to go into further details. Mr. Mulla, however, confined his arguments to the question of sentence at the end. After a careful consideration of the entire evidence and the circumstances proved in this case, we are clearly of the opinion that the prosecution case against the appellants, as found by the learned Sessions Judge, has been fully established beyond reasonable doubt. We are also of the opinion that no. other reasonable view on the evidence could be possible than the one which was taken by the Sessions Court. We think that so far as arguments on the question of sentence is concerned, there is great substance in the same. Although this was a case of double murder, the appellants had been acquitted on 10-10-73 and it will not be proper or expedient to impose the extreme penalty of death on the respondents, as was done by the trial court.
### Response:
1
### Explanation:
Moreover, as the murder took place nearabout midnight inside the house we could not have expected witnesses from outside to see the occurrence. On a perusal of evidence of PWs. 1 & 5, we are fully satisfied that these witnesses are stating the truth and have not concealed anything. We might also mention that although P. W. 1 was subjected to a grueling and searchingn yet nothing of importance was elicited from his evidence in order to shake his testimony. Furthermore, the evidence of P. W. 2 who was next door neighbour of P. Ws. 1 & 5 corroborates their evidence and we see no. reason to distrust his testimonyWe are also of the opinion that no. other reasonable view on the evidence could be possible than the one which was taken by the Sessions Court. We think that so far as arguments on the question of sentence is concerned, there is great substance in the same. Although this was a case of double murder, the appellants had been acquitted on3 and it will not be proper or expedient to impose the extreme penalty of death on the respondents, as was done by the trial court.
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Government of Andhra Pradesh Vs. District Coop. Central Bank Ltd | Generalia Specialibus non derogant would apply. There being a special provision in sub-cl. (ix) which covers only certain holders of offices of the specified cooperative societies, and does not include other employees of such societies, the general provision contained in sub-cl. (iii) of Clause.(c) of S.2 of the 1988 Act shall have no application. It is argued that the special provision in sub-cl. (ix) shall exclude the general provision in sub-cl. (iii). 7. After hearing the learned counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-cl. (ix) and overlooking sub-cl. (iii) of Clause.(c) of S.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.8. From the above quoted sub-cl. (ix) of Clause.(c) of S.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 cooperative societies. But employees or servants of a cooperative society which is controlled or aided by the Government, are covered by sub-cl.(iii) of Clause.(c) of S.2 of the 1988 Act. Merely because such employees of cooperative societies are not covered by sub-cl. (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 sub-cl. (iii) of Clause.(c) of S.2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a cooperative Central Bank which is an authority or body controlled and aided by the government.9. 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 S.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, Para.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 S.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." 10. C1.2 of the Notes on Clauses in Gazette of India Extraordinary, Part II, S.2, further clarifies the legislative intent thus:- "Cl. 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." 11. Under the repealed Act of 1947 as provided in S.2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in S.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 S.2 of the 1988 Act.12. In constructing definition of pubic servant in Cl.(c) of S.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).13. As a matter of f act, we find that the point arising before us on the definition of public servant that it does include employee of a banking cooperative 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 & Anr. v. Prabhakarrao & Anr. (2002 (1) JT (Suppl. 1) (SC) 5).14. The other decision relied on behalf of the respondent in the case of State of Maharashtra v. Laljit Rajshi Shah & Ors. (2000 (2) SCC 699 ) 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 S.21 of Indian Penal Code. | 1[ds]7. After hearing the learned counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on(ix) and overlooking(iii) of Clause.(c) of S.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.8. From the above quoted(ix) of Clause.(c) of S.2 of the 1988 Act, it is evident that in the expansive definition of public servant, electedwith 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 cooperative societies. But employees or servants of a cooperative society which is controlled or aided by the Government, are covered byof Clause.(c) of S.2 of the 1988 Act. Merely because such employees of cooperative societies are not covered by(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(iii) of Clause.(c) of S.2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a cooperative Central Bank which is an authority or body controlled and aided by the government.9. 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 S.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, Para.3 of the Statement of Objects and Reasons readsThe bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of offences under S.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 fortrial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.C1.2 of the Notes on Clauses in Gazette of India Extraordinary, Part II, S.2, further clarifies the legislative intent2. 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.Under the repealed Act of 1947 as provided in S.2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in S.21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in otherauthorities 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 S.2 of the 1988 Act.12. In constructing definition of pubic servant in Cl.(c) of S.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 anddepartments, 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).13. As a matter of f act, we find that the point arising before us on the definition of public servant that it does include employee of a banking cooperative 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 & Anr. v. Prabhakarrao & Anr. (2002 (1) JT (Suppl. 1) (SC) 5).14. The other decision relied on behalf of the respondent in the case of State of Maharashtra v. Laljit Rajshi Shah & Ors. (2000 (2) SCC 699 ) 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 S.21 of Indian Penal Code. | 1 | 1,857 | 1,026 | ### 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:
Generalia Specialibus non derogant would apply. There being a special provision in sub-cl. (ix) which covers only certain holders of offices of the specified cooperative societies, and does not include other employees of such societies, the general provision contained in sub-cl. (iii) of Clause.(c) of S.2 of the 1988 Act shall have no application. It is argued that the special provision in sub-cl. (ix) shall exclude the general provision in sub-cl. (iii). 7. After hearing the learned counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-cl. (ix) and overlooking sub-cl. (iii) of Clause.(c) of S.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.8. From the above quoted sub-cl. (ix) of Clause.(c) of S.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 cooperative societies. But employees or servants of a cooperative society which is controlled or aided by the Government, are covered by sub-cl.(iii) of Clause.(c) of S.2 of the 1988 Act. Merely because such employees of cooperative societies are not covered by sub-cl. (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 sub-cl. (iii) of Clause.(c) of S.2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a cooperative Central Bank which is an authority or body controlled and aided by the government.9. 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 S.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, Para.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 S.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." 10. C1.2 of the Notes on Clauses in Gazette of India Extraordinary, Part II, S.2, further clarifies the legislative intent thus:- "Cl. 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." 11. Under the repealed Act of 1947 as provided in S.2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in S.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 S.2 of the 1988 Act.12. In constructing definition of pubic servant in Cl.(c) of S.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).13. As a matter of f act, we find that the point arising before us on the definition of public servant that it does include employee of a banking cooperative 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 & Anr. v. Prabhakarrao & Anr. (2002 (1) JT (Suppl. 1) (SC) 5).14. The other decision relied on behalf of the respondent in the case of State of Maharashtra v. Laljit Rajshi Shah & Ors. (2000 (2) SCC 699 ) 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 S.21 of Indian Penal Code.
### Response:
1
### Explanation:
7. After hearing the learned counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on(ix) and overlooking(iii) of Clause.(c) of S.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.8. From the above quoted(ix) of Clause.(c) of S.2 of the 1988 Act, it is evident that in the expansive definition of public servant, electedwith 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 cooperative societies. But employees or servants of a cooperative society which is controlled or aided by the Government, are covered byof Clause.(c) of S.2 of the 1988 Act. Merely because such employees of cooperative societies are not covered by(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(iii) of Clause.(c) of S.2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a cooperative Central Bank which is an authority or body controlled and aided by the government.9. 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 S.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, Para.3 of the Statement of Objects and Reasons readsThe bill, inter alia, envisages widening the scope of the definition of the expression public servant, incorporation of offences under S.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 fortrial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.C1.2 of the Notes on Clauses in Gazette of India Extraordinary, Part II, S.2, further clarifies the legislative intent2. 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.Under the repealed Act of 1947 as provided in S.2 of the 1988 Act, the definition of public servant was restricted to public servants as defined in S.21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in otherauthorities 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 S.2 of the 1988 Act.12. In constructing definition of pubic servant in Cl.(c) of S.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 anddepartments, 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).13. As a matter of f act, we find that the point arising before us on the definition of public servant that it does include employee of a banking cooperative 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 & Anr. v. Prabhakarrao & Anr. (2002 (1) JT (Suppl. 1) (SC) 5).14. The other decision relied on behalf of the respondent in the case of State of Maharashtra v. Laljit Rajshi Shah & Ors. (2000 (2) SCC 699 ) 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 S.21 of Indian Penal Code.
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PAM DEVELOPMENTS PRIVATE LTD Vs. THE STATE OF WEST BENGAL | solvent, thus was exempted from providing security under Rule 8A of Order XXVII of CPC. However, in 1976 Sub Rule (5) to Rule 5 of Order XLI CPC was inserted, which reads as follows: (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decrees. The same provides for making of deposit or furnishing security by the decree holder seeking stay. It would thus mean that after 1977, the Appellate Court had the power to direct for deposit of the decretal amount, which was earlier limited only to furnishing of security under sub-Rule (3) of Rule 5 of Order XLI CPC. It is noteworthy that after insertion of sub-Rule (5), there was no amendment to Order XXVII Rule 8A CPC to exempt the State Government for making such deposit, which would mean that Rule 8A does not exempt the Government from making deposit, which the Court has the power to now direct under Order XLI Rule 5(5) CPC. 22. Further, it is to be noticed that Order XXVII Rule 8A of CPC was inserted in 1937 when the British Crown was ruling our country. The same was brought in during the period of British Raj to protect the interest of the then Government (Crown). While considering a case where the State of West Bengal was carrying on trade as owner and occupier of a market in Calcutta (now Kolkata) without obtaining a license as required under Section 218 of Calcutta Municipal Act, 1951, a Constitution Bench of this Court in the case of Superintendent & Legal Remembrancer, State of West Bengal v. Corporation of Calcutta (1967) 2 SCC 170 considered the question as to whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting Statute vis-a-vis the Crown and held that There are many reasons why the said rule of construction is inconsistent with and incongruous in the present set-up we have no Crown, the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality. 23. In our considered view, the provision which was incorporated in the year 1937 during the British Raj, giving certain safeguards to the Government (which was then the British Crown) would not be applicable in todays time, when we have a democratic Government. 24. Arbitration proceedings are essentially alternate dispute redressal system meant for early/quick resolution of disputes and in case a money decree - award as passed by the Arbitrator against the Government is allowed to be automatically stayed, the very purpose of quick resolution of dispute through arbitration would be defeated as the decree holder would be fully deprived of the fruits of the award on mere filing of objection under Section 34 of the Arbitration Act. The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party. As such, under the scheme of the Arbitration Act, no distinction is made nor any differential treatment is to be given to the Government, while considering an application for grant of stay of a money decree in proceedings under Section 34 of the Arbitration Act. As we have already mentioned above, the reference to CPC in Section 36 of the Arbitration Act is only to guide the Court as to what conditions can be imposed, and the same have to be consistent with the provisions of the Arbitration Act. 25. It may be true that the CPC provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of CPC provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no ex-parte injunction order can be passed against the Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of ex-parte interim orders against the Government. 26. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay under Section 36 filed by the Government in proceedings under Section 34 of the Arbitration Act. 27. Although we are of the firm view that the archaic Rule 8A of Order XXVII CPC has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of CPC are to be applied, the same would only exempt the Government from furnishing security, whereas under Order XLI Rule 5 of CPC, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof. | 1[ds]16. The backbone of the submissions on behalf of the respondent-State of West Bengal is that under the provisions of Order XXVII Rule 8A of the CPC, no security shall be required from the Government in case of there being a money decree passed against the Government, and the execution of which is prayed for. If such submission of the respondent is accepted then the same would mean that mere filing of an objection under Section 34 of the Arbitration Act by a Government shall render the award unenforceable as the stay order would be passed in a mechanical manner and as a matter of course, without imposing any condition against the Government - judgment debtor. If the contention is accepted, the effect would be that insofar as the Government is concerned, the unamended provision of Section 36 of the Arbitration Act would automatically come into force17. In this backdrop, we have now to consider the effect of Section 36 of the Arbitration Act, vis-a-vis the provisions of Order XXVII Rule 8A of CPC. Sub-Section (3) of Section 36 of the Arbitration Act mandates that while considering an application for stay filed along with or after filing of objection under Section 34 of the Arbitration Act, if stay is to be granted then it shall be subject to such conditions as may be deemed fit. The said sub-section clearly mandates that the grant of stay of the operation of the award is to be for reasons to be recorded in writing subject to such conditions as it may deem fit. The proviso makes it clear that the Court has to have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure. The phrase have due regard to would only mean that the provisions of CPC are to be taken into consideration, and not that they are mandatory.18. In our view, in the present context, the phrase used is having regard to the provisions of CPC and not in accordance with the provisions of CPC. In the latter case, it would have been mandatory, but in the form as mentioned in Rule 36(3) of the Arbitration Act, it would only be directory or as a guiding factor. Mere reference to CPC in the said Section 36 cannot be construed in such a manner that it takes away the power conferred in the main statute (i.e. Arbitration Act) itself. It is to be taken as a general guideline, which will not make the main provision of the Arbitration Act inapplicable. The provisions of CPC are to be followed as a guidance, whereas the provisions of the Arbitration Act are essentially to be first applied. Since, the Arbitration Act is a self- contained Act, the provisions of the CPC will apply only insofar as the same are not inconsistent with the spirit and provisions of the Arbitration ActWe find no reason to disagree with such view taken by the Full Bench of the Calcutta High Court and are thus in agreement with the same20. Even otherwise a plain reading of Order XXVII Rule 8A of CPC would make it clear that the same is only regarding security as mentioned in Rule 5 and 6 of Order XLI CPC, which is not to be demanded from the Government while considering the stay application filed by the Government. It, however, does not provide that the decretal amount cannot be required to be deposited in the appeal against a money decreeThe same provides for making of deposit or furnishing security by the decree holder seeking stay. It would thus mean that after 1977, the Appellate Court had the power to direct for deposit of the decretal amount, which was earlier limited only to furnishing of security under sub-Rule (3) of Rule 5 of Order XLI CPC. It is noteworthy that after insertion of sub-Rule (5), there was no amendment to Order XXVII Rule 8A CPC to exempt the State Government for making such deposit, which would mean that Rule 8A does not exempt the Government from making deposit, which the Court has the power to now direct under Order XLI Rule 5(5) CPC. 22. Further, it is to be noticed that Order XXVII Rule 8A of CPC was inserted in 1937 when the British Crown was ruling our country. The same was brought in during the period of British Raj to protect the interest of the then Government (Crown). While considering a case where the State of West Bengal was carrying on trade as owner and occupier of a market in Calcutta (now Kolkata) without obtaining a license as required under Section 218 of Calcutta Municipal Act, 1951, a Constitution Bench of this Court in the case of Superintendent & Legal Remembrancer, State of West Bengal v. Corporation of Calcutta (1967) 2 SCC 170 considered the question as to whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting Statute vis-a-vis the Crown and held thatThere are many reasons why the said rule of construction is inconsistent with and incongruous in the present set-up we have no Crown, the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality23. In our considered view, the provision which was incorporated in the year 1937 during the British Raj, giving certain safeguards to the Government (which was then the British Crown) would not be applicable in todays time, when we have a democratic Government24. Arbitration proceedings are essentially alternate dispute redressal system meant for early/quick resolution of disputes and in case a money decree - award as passed by the Arbitrator against the Government is allowed to be automatically stayed, the very purpose of quick resolution of dispute through arbitration would be defeated as the decree holder would be fully deprived of the fruits of the award on mere filing of objection under Section 34 of the Arbitration Act. The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party. As such, under the scheme of the Arbitration Act, no distinction is made nor any differential treatment is to be given to the Government, while considering an application for grant of stay of a money decree in proceedings under Section 34 of the Arbitration Act. As we have already mentioned above, the reference to CPC in Section 36 of the Arbitration Act is only to guide the Court as to what conditions can be imposed, and the same have to be consistent with the provisions of the Arbitration Act25. It may be true that the CPC provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of CPC provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no ex-parte injunction order can be passed against the Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of ex-parte interim orders against the Government26. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay under Section 36 filed by the Government in proceedings under Section 34 of the Arbitration Act27. Although we are of the firm view that the archaic Rule 8A of Order XXVII CPC has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of CPC are to be applied, the same would only exempt the Government from furnishing security, whereas under Order XLI Rule 5 of CPC, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof. | 1 | 6,761 | 1,630 | ### 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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solvent, thus was exempted from providing security under Rule 8A of Order XXVII of CPC. However, in 1976 Sub Rule (5) to Rule 5 of Order XLI CPC was inserted, which reads as follows: (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decrees. The same provides for making of deposit or furnishing security by the decree holder seeking stay. It would thus mean that after 1977, the Appellate Court had the power to direct for deposit of the decretal amount, which was earlier limited only to furnishing of security under sub-Rule (3) of Rule 5 of Order XLI CPC. It is noteworthy that after insertion of sub-Rule (5), there was no amendment to Order XXVII Rule 8A CPC to exempt the State Government for making such deposit, which would mean that Rule 8A does not exempt the Government from making deposit, which the Court has the power to now direct under Order XLI Rule 5(5) CPC. 22. Further, it is to be noticed that Order XXVII Rule 8A of CPC was inserted in 1937 when the British Crown was ruling our country. The same was brought in during the period of British Raj to protect the interest of the then Government (Crown). While considering a case where the State of West Bengal was carrying on trade as owner and occupier of a market in Calcutta (now Kolkata) without obtaining a license as required under Section 218 of Calcutta Municipal Act, 1951, a Constitution Bench of this Court in the case of Superintendent & Legal Remembrancer, State of West Bengal v. Corporation of Calcutta (1967) 2 SCC 170 considered the question as to whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting Statute vis-a-vis the Crown and held that There are many reasons why the said rule of construction is inconsistent with and incongruous in the present set-up we have no Crown, the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality. 23. In our considered view, the provision which was incorporated in the year 1937 during the British Raj, giving certain safeguards to the Government (which was then the British Crown) would not be applicable in todays time, when we have a democratic Government. 24. Arbitration proceedings are essentially alternate dispute redressal system meant for early/quick resolution of disputes and in case a money decree - award as passed by the Arbitrator against the Government is allowed to be automatically stayed, the very purpose of quick resolution of dispute through arbitration would be defeated as the decree holder would be fully deprived of the fruits of the award on mere filing of objection under Section 34 of the Arbitration Act. The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party. As such, under the scheme of the Arbitration Act, no distinction is made nor any differential treatment is to be given to the Government, while considering an application for grant of stay of a money decree in proceedings under Section 34 of the Arbitration Act. As we have already mentioned above, the reference to CPC in Section 36 of the Arbitration Act is only to guide the Court as to what conditions can be imposed, and the same have to be consistent with the provisions of the Arbitration Act. 25. It may be true that the CPC provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of CPC provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no ex-parte injunction order can be passed against the Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of ex-parte interim orders against the Government. 26. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay under Section 36 filed by the Government in proceedings under Section 34 of the Arbitration Act. 27. Although we are of the firm view that the archaic Rule 8A of Order XXVII CPC has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of CPC are to be applied, the same would only exempt the Government from furnishing security, whereas under Order XLI Rule 5 of CPC, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof.
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are thus in agreement with the same20. Even otherwise a plain reading of Order XXVII Rule 8A of CPC would make it clear that the same is only regarding security as mentioned in Rule 5 and 6 of Order XLI CPC, which is not to be demanded from the Government while considering the stay application filed by the Government. It, however, does not provide that the decretal amount cannot be required to be deposited in the appeal against a money decreeThe same provides for making of deposit or furnishing security by the decree holder seeking stay. It would thus mean that after 1977, the Appellate Court had the power to direct for deposit of the decretal amount, which was earlier limited only to furnishing of security under sub-Rule (3) of Rule 5 of Order XLI CPC. It is noteworthy that after insertion of sub-Rule (5), there was no amendment to Order XXVII Rule 8A CPC to exempt the State Government for making such deposit, which would mean that Rule 8A does not exempt the Government from making deposit, which the Court has the power to now direct under Order XLI Rule 5(5) CPC. 22. Further, it is to be noticed that Order XXVII Rule 8A of CPC was inserted in 1937 when the British Crown was ruling our country. The same was brought in during the period of British Raj to protect the interest of the then Government (Crown). While considering a case where the State of West Bengal was carrying on trade as owner and occupier of a market in Calcutta (now Kolkata) without obtaining a license as required under Section 218 of Calcutta Municipal Act, 1951, a Constitution Bench of this Court in the case of Superintendent & Legal Remembrancer, State of West Bengal v. Corporation of Calcutta (1967) 2 SCC 170 considered the question as to whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting Statute vis-a-vis the Crown and held thatThere are many reasons why the said rule of construction is inconsistent with and incongruous in the present set-up we have no Crown, the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality23. In our considered view, the provision which was incorporated in the year 1937 during the British Raj, giving certain safeguards to the Government (which was then the British Crown) would not be applicable in todays time, when we have a democratic Government24. Arbitration proceedings are essentially alternate dispute redressal system meant for early/quick resolution of disputes and in case a money decree - award as passed by the Arbitrator against the Government is allowed to be automatically stayed, the very purpose of quick resolution of dispute through arbitration would be defeated as the decree holder would be fully deprived of the fruits of the award on mere filing of objection under Section 34 of the Arbitration Act. The Arbitration Act is a special Act which provides for quick resolution of disputes between the parties and Section 18 of the Act makes it clear that the parties shall be treated with equality. Once the Act mandates so, there cannot be any special treatment given to the Government as a party. As such, under the scheme of the Arbitration Act, no distinction is made nor any differential treatment is to be given to the Government, while considering an application for grant of stay of a money decree in proceedings under Section 34 of the Arbitration Act. As we have already mentioned above, the reference to CPC in Section 36 of the Arbitration Act is only to guide the Court as to what conditions can be imposed, and the same have to be consistent with the provisions of the Arbitration Act25. It may be true that the CPC provides for a differential treatment to the Government in certain cases, but the same may not be so applicable while considering a case against the Government under the Arbitration Act. For instance, Section 80 of CPC provides for a notice of two months to be given before any suit is instituted against the Government. Further, it is also provides that no ex-parte injunction order can be passed against the Government. Whereas on the other hand, under the Arbitration Act no such special provision has been made with regard to arbitration by or against the Government. There is no requirement under the Arbitration Act for a notice of two months to be given to the Government before invoking arbitration proceeding against the Government. Further, Sections 9 and 17 of the Arbitration Act also provide for grant of ex-parte interim orders against the Government26. Section 36 of the Arbitration Act also does not provide for any special treatment to the Government while dealing with grant of stay in an application under proceedings of Section 34 of the Arbitration Act. Keeping the aforesaid in consideration and also the provisions of Section 18 providing for equal treatment of parties, it would, in our view, make it clear that there is no exceptional treatment to be given to the Government while considering the application for stay under Section 36 filed by the Government in proceedings under Section 34 of the Arbitration Act27. Although we are of the firm view that the archaic Rule 8A of Order XXVII CPC has no application or reference in the present times, we may only add that even if it is assumed that the provisions of Order XXVII Rule 8A of CPC are to be applied, the same would only exempt the Government from furnishing security, whereas under Order XLI Rule 5 of CPC, the Court has the power to direct for full or part deposit and/or to furnish security of the decretal amount. Rule 8A only provides exemption from furnishing security, which would not restrict the Court from directing deposit of the awarded amount and part thereof.
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Indian Oil Corporation Ltd Vs. Niloufer Siddiqui | right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today?s complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.? 31. Further, it has been rightly contended by the learned senior counsel Mr. Sibal by placing reliance upon Mahabir Auto Stores?s case (supra) that IOCL being a Government of India Undertaking is bound to act fairly, reasonably and its conduct is subject to scrutiny on the touchstone of Article 14 of the Constitution of India. Answer to Point No.2 32. Ms. Pinky Anand, the learned Additional Solicitor General on behalf of the appellant-IOCL contended that the High Court has erred in granting the relief of restoration of distributorship as the same is contrary to the provision of Section 14(1)(c) of the Specific Relief Act, 1963 (for short ?the Act?). She further contended that the agreement in the instant case is determinable in nature and as per the provision of Section 14 (1)(c) of the Act, the agreement which is determinable in nature cannot be specifically enforced by the court. Thus, the High Court has erroneously held that the provision of Section 14(1)(c) of the Act is not applicable to the facts situation of the case. 33. She further contended that the High Court has wrongly directed IOCL to restore the terminated distributorship as the same is bad in law. She submitted that once a distributorship, even if it is terminated in breach of the contract, cannot be restored in favour of the respondent no. 2 and the only remedy available is to claim damages from IOCL. She placed strong reliance upon the judgment of this Court in the case of Indian Oil Corporation Ltd. v. Amritsar Gas Services & Ors. ((1991) 1 SCC 533 ). 34. On the other hand, Mr. Kapil Sibal, the learned senior counsel contended that the question of maintainability of suit under Section 14(1)(c) of the Act was never raised by IOCL either before the trial court or before the first appellate court. He further submitted that it is apparent from the letter of allotment and the conduct of the parties that neither the contract was revocable nor it had become void for any reason. Thus, the provision of Section 14(1)(c) of the Act is not attracted in the instant case as has been rightly held by the High Court. 35. He further contended that the Amritsar Gas Services & Ors. case (supra) relied upon by IOCL in its contentions has no relevance in the instant case for the reason that the said case relates to the Law of Arbitration. In the instant case, it is clear from the letter of allotment that there was no arbitration clause enumerated therein to attract the Law of Arbitration and related case laws. 36. We agree with the contentions advanced by the Mr. Sibal. The High Court in the impugned judgment and order has rightly held that the provision under section 14(1)(c) of the Act is not applicable to the facts and circumstances of the instant case. It held thus: ?10.(iii) Furthermore, from the terms of agreement, namely, the letter of allotment and the conduct of the parties, it appears that neither the contract was revocable nor it had become void for any reason whatsoever. Hence, provision of Section 14(1)(c) of the Specific Relief Act is not applicable to the facts and circumstances of the instant case and the suit cannot be legally held to be maintainable under the said provision…? 37. Furthermore, from a perusal of letter of allotment, it is clear that there is no arbitration clause therein. Thus, the case of Amritsar Gas Services (supra) relied upon by IOCL in its contentions is of no relevance. Answer to Point No.3 38. For the reasons mentioned supra we are of the view that no error has been committed by the High Court in setting aside the erroneous findings of the trial court as well as the first appellate court in its judgments and orders. | 0[ds]we agree with the arguments advanced by Mr. Kapil Sibal. We have examined the material on record and on the basis of the admitted facts, it is clear that there is no dispute that the appellant-IOCL offered distributorship of Indane Gas (LPG) to respondent nos.2 and 3 vide its letter of allotment dated 21.10.1971 on certain terms and conditions. It is also an admitted fact that both respondent nos. 2 and 3 got the partnership firm registered as per the terms and conditions of letter of allotment and at least twice requested IOCL to send the Company?s standard agreement for signature, but IOCL failed to send it to them. Hence, it can be inferred from the pleadings and evidence on record that the Company?s standard agreement was never executed by themThere is nothing on record to show that both the respondent nos. 2 and 3 had any knowledge or had ever agreed to the terms of the said standard agreement. We agree with the submission made by Mr. Sibal that the agreement which is not executed by the parties cannot be legally made enforceable against them. Therefore, the High Court has rightly held that the standard agreement cannot be said to be legally binding upon the respondent nos. 2 and 3 as the same has never been executed between the allottes and IOCLIt is clear from the pleadings and evidence on record that the standard agreement was never supplied to both the respondent nos. 2 and 3 and the said standard agreement cannot be said to be executed between the allottes and IOCL. Thus, as per the facts and circumstances of the case and also in the light of the aforesaid statutory provision of the Contract Act, the said standard agreement in question cannot be said to be a concluded contract between the parties in law. Consequently, it cannot be made binding upon the allottes of distributorship by IOCL29. As far as the alleged violation of clause 21 (supra) of the standard agreement by respondent nos. 2 and 3 is concerned, it is clear that the said standard agreement is not binding upon the parties for the reasons stated supra and when the said standard agreement is not binding, then the question of violation of terms and conditions does not arise. Rather IOCL has violated condition no.2 (supra) of the letter of allotment by not sending the standard agreement to both the respondent nos. 2 and 331. Further, it has been rightly contended by the learned senior counsel Mr. Sibal by placing reliance upon Mahabir Auto Stores?s case (supra) that IOCL being a Government of India Undertaking is bound to act fairly, reasonably and its conduct is subject to scrutiny on the touchstone of Article 14 of the Constitution of India36. We agree with the contentions advanced by the Mr. Sibal. The High Court in the impugned judgment and order has rightly held that the provision under section 14(1)(c) of the Act is not applicable to the facts and circumstances of the instant case37. Furthermore, from a perusal of letter of allotment, it is clear that there is no arbitration clause therein. Thus, the case of Amritsar Gas Services (supra) relied upon by IOCL in its contentions is of no relevance38. For the reasons mentioned supra we are of the view that no error has been committed by the High Court in setting aside the erroneous findings of the trial court as well as the first appellate court in its judgments and orders | 0 | 6,276 | 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.
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right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today?s complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.? 31. Further, it has been rightly contended by the learned senior counsel Mr. Sibal by placing reliance upon Mahabir Auto Stores?s case (supra) that IOCL being a Government of India Undertaking is bound to act fairly, reasonably and its conduct is subject to scrutiny on the touchstone of Article 14 of the Constitution of India. Answer to Point No.2 32. Ms. Pinky Anand, the learned Additional Solicitor General on behalf of the appellant-IOCL contended that the High Court has erred in granting the relief of restoration of distributorship as the same is contrary to the provision of Section 14(1)(c) of the Specific Relief Act, 1963 (for short ?the Act?). She further contended that the agreement in the instant case is determinable in nature and as per the provision of Section 14 (1)(c) of the Act, the agreement which is determinable in nature cannot be specifically enforced by the court. Thus, the High Court has erroneously held that the provision of Section 14(1)(c) of the Act is not applicable to the facts situation of the case. 33. She further contended that the High Court has wrongly directed IOCL to restore the terminated distributorship as the same is bad in law. She submitted that once a distributorship, even if it is terminated in breach of the contract, cannot be restored in favour of the respondent no. 2 and the only remedy available is to claim damages from IOCL. She placed strong reliance upon the judgment of this Court in the case of Indian Oil Corporation Ltd. v. Amritsar Gas Services & Ors. ((1991) 1 SCC 533 ). 34. On the other hand, Mr. Kapil Sibal, the learned senior counsel contended that the question of maintainability of suit under Section 14(1)(c) of the Act was never raised by IOCL either before the trial court or before the first appellate court. He further submitted that it is apparent from the letter of allotment and the conduct of the parties that neither the contract was revocable nor it had become void for any reason. Thus, the provision of Section 14(1)(c) of the Act is not attracted in the instant case as has been rightly held by the High Court. 35. He further contended that the Amritsar Gas Services & Ors. case (supra) relied upon by IOCL in its contentions has no relevance in the instant case for the reason that the said case relates to the Law of Arbitration. In the instant case, it is clear from the letter of allotment that there was no arbitration clause enumerated therein to attract the Law of Arbitration and related case laws. 36. We agree with the contentions advanced by the Mr. Sibal. The High Court in the impugned judgment and order has rightly held that the provision under section 14(1)(c) of the Act is not applicable to the facts and circumstances of the instant case. It held thus: ?10.(iii) Furthermore, from the terms of agreement, namely, the letter of allotment and the conduct of the parties, it appears that neither the contract was revocable nor it had become void for any reason whatsoever. Hence, provision of Section 14(1)(c) of the Specific Relief Act is not applicable to the facts and circumstances of the instant case and the suit cannot be legally held to be maintainable under the said provision…? 37. Furthermore, from a perusal of letter of allotment, it is clear that there is no arbitration clause therein. Thus, the case of Amritsar Gas Services (supra) relied upon by IOCL in its contentions is of no relevance. Answer to Point No.3 38. For the reasons mentioned supra we are of the view that no error has been committed by the High Court in setting aside the erroneous findings of the trial court as well as the first appellate court in its judgments and orders.
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we agree with the arguments advanced by Mr. Kapil Sibal. We have examined the material on record and on the basis of the admitted facts, it is clear that there is no dispute that the appellant-IOCL offered distributorship of Indane Gas (LPG) to respondent nos.2 and 3 vide its letter of allotment dated 21.10.1971 on certain terms and conditions. It is also an admitted fact that both respondent nos. 2 and 3 got the partnership firm registered as per the terms and conditions of letter of allotment and at least twice requested IOCL to send the Company?s standard agreement for signature, but IOCL failed to send it to them. Hence, it can be inferred from the pleadings and evidence on record that the Company?s standard agreement was never executed by themThere is nothing on record to show that both the respondent nos. 2 and 3 had any knowledge or had ever agreed to the terms of the said standard agreement. We agree with the submission made by Mr. Sibal that the agreement which is not executed by the parties cannot be legally made enforceable against them. Therefore, the High Court has rightly held that the standard agreement cannot be said to be legally binding upon the respondent nos. 2 and 3 as the same has never been executed between the allottes and IOCLIt is clear from the pleadings and evidence on record that the standard agreement was never supplied to both the respondent nos. 2 and 3 and the said standard agreement cannot be said to be executed between the allottes and IOCL. Thus, as per the facts and circumstances of the case and also in the light of the aforesaid statutory provision of the Contract Act, the said standard agreement in question cannot be said to be a concluded contract between the parties in law. Consequently, it cannot be made binding upon the allottes of distributorship by IOCL29. As far as the alleged violation of clause 21 (supra) of the standard agreement by respondent nos. 2 and 3 is concerned, it is clear that the said standard agreement is not binding upon the parties for the reasons stated supra and when the said standard agreement is not binding, then the question of violation of terms and conditions does not arise. Rather IOCL has violated condition no.2 (supra) of the letter of allotment by not sending the standard agreement to both the respondent nos. 2 and 331. Further, it has been rightly contended by the learned senior counsel Mr. Sibal by placing reliance upon Mahabir Auto Stores?s case (supra) that IOCL being a Government of India Undertaking is bound to act fairly, reasonably and its conduct is subject to scrutiny on the touchstone of Article 14 of the Constitution of India36. We agree with the contentions advanced by the Mr. Sibal. The High Court in the impugned judgment and order has rightly held that the provision under section 14(1)(c) of the Act is not applicable to the facts and circumstances of the instant case37. Furthermore, from a perusal of letter of allotment, it is clear that there is no arbitration clause therein. Thus, the case of Amritsar Gas Services (supra) relied upon by IOCL in its contentions is of no relevance38. For the reasons mentioned supra we are of the view that no error has been committed by the High Court in setting aside the erroneous findings of the trial court as well as the first appellate court in its judgments and orders
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Green Park Theatres Associated Ltd. and Ors Vs. Association of Victims of Uphaar Tragedy | S. Rajendra Babu, J.1. A fire broke out at Uphaar theatre on the evening of June 30, 1997 in consequence of which a number of persons were either killed or injured. An Association was formed of victims of Uphaar tragedy. They filed a writ petition on the ground that the public authorities failed to discharge their statutory obligations and the standard of safeguards set out under the statute and the rules framed thereunder for the purpose of preventing a hazard of breaking out of fire was not observed. The licence and permits to the theatre were issued contrary to the mandatory provisions of the statute and rules. The petitioners thereafter sought for adequate compensation to the victims in the said tragedy from the respondents for failure to observe the statutory obligations and also on the basis of the fundamental rights guaranteed under the Constitution.2. The respondents in the writ petition, who are petitioners before us, raised a preliminary objection that the writ petition is not maintainable on various grounds that the extraordinary remedy of a writ petition cannot be used in case of a breakout of fire in a theatre which is the result of complex series of causative factors for claiming and awarding damages to hundreds of persons as against the statutory authorities and the company owning the theatre. It was also detailed that the precise cause of the incident, the role of each of the individual party and the extent of their blameworthiness, the manner in which the liability has to be apportioned and as to who are entitled to claim the damages and what is the extent of that amount ought to be awarded to each one of them and such questions relate to causation, the extent of culpability, people entitled to claim damages and the amount due to them and all such questions involve complex investigation based on evidence. Therefore, the writ petition was not an appropriate remedy and could not be maintained.3. A Division Bench of the High Court considered the various contentions raised in the course of the arguments and wrote an order running to nearly 100 pages and ultimately held that at the preliminary stage the question of maintenance of the petition was being considered and, therefore, it is not deciding the case of merits. The facts referred to in the course of the order are as stated by the parties and not as found by way of a decision on merits. The observations and the reference to facts in the course of the order were only of preliminary character. The High Court held that all the Court could say is that it could not be concluded that the petition could not be maintained.4. The learned Counsel for the petitioners before us raised an apprehension that the Court might adopt some procedure of appointing a Commission to gather certain facts which, by itself, may not be sufficient to dispose of the matter and that the Commission appointed would only to report whether the rule and regulations were complied therewith or not and no more.5. Whatever be the apprehensions of the learned Counsel they could very well be pointed out to the learned Judges of the High Court who would hear the matter ultimately before the High Court and address their arguments as to the manner in which a dispute of this nature could be resolved satisfactorily. We are sure that when such arguments are addressed before the High Court, they will be appropriately considered and, therefore, there is absolutely no basis for any apprehension of this nature as entertained by the learned Counsel for the petitioners. | 0[ds]5. Whatever be the apprehensions of the learned Counsel they could very well be pointed out to the learned Judges of the High Court who would hear the matter ultimately before the High Court and address their arguments as to the manner in which a dispute of this nature could be resolved satisfactorily. We are sure that when such arguments are addressed before the High Court, they will be appropriately considered and, therefore, there is absolutely no basis for any apprehension of this nature as entertained by the learned Counsel for the petitioners. | 0 | 636 | 103 | ### Instruction:
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S. Rajendra Babu, J.1. A fire broke out at Uphaar theatre on the evening of June 30, 1997 in consequence of which a number of persons were either killed or injured. An Association was formed of victims of Uphaar tragedy. They filed a writ petition on the ground that the public authorities failed to discharge their statutory obligations and the standard of safeguards set out under the statute and the rules framed thereunder for the purpose of preventing a hazard of breaking out of fire was not observed. The licence and permits to the theatre were issued contrary to the mandatory provisions of the statute and rules. The petitioners thereafter sought for adequate compensation to the victims in the said tragedy from the respondents for failure to observe the statutory obligations and also on the basis of the fundamental rights guaranteed under the Constitution.2. The respondents in the writ petition, who are petitioners before us, raised a preliminary objection that the writ petition is not maintainable on various grounds that the extraordinary remedy of a writ petition cannot be used in case of a breakout of fire in a theatre which is the result of complex series of causative factors for claiming and awarding damages to hundreds of persons as against the statutory authorities and the company owning the theatre. It was also detailed that the precise cause of the incident, the role of each of the individual party and the extent of their blameworthiness, the manner in which the liability has to be apportioned and as to who are entitled to claim the damages and what is the extent of that amount ought to be awarded to each one of them and such questions relate to causation, the extent of culpability, people entitled to claim damages and the amount due to them and all such questions involve complex investigation based on evidence. Therefore, the writ petition was not an appropriate remedy and could not be maintained.3. A Division Bench of the High Court considered the various contentions raised in the course of the arguments and wrote an order running to nearly 100 pages and ultimately held that at the preliminary stage the question of maintenance of the petition was being considered and, therefore, it is not deciding the case of merits. The facts referred to in the course of the order are as stated by the parties and not as found by way of a decision on merits. The observations and the reference to facts in the course of the order were only of preliminary character. The High Court held that all the Court could say is that it could not be concluded that the petition could not be maintained.4. The learned Counsel for the petitioners before us raised an apprehension that the Court might adopt some procedure of appointing a Commission to gather certain facts which, by itself, may not be sufficient to dispose of the matter and that the Commission appointed would only to report whether the rule and regulations were complied therewith or not and no more.5. Whatever be the apprehensions of the learned Counsel they could very well be pointed out to the learned Judges of the High Court who would hear the matter ultimately before the High Court and address their arguments as to the manner in which a dispute of this nature could be resolved satisfactorily. We are sure that when such arguments are addressed before the High Court, they will be appropriately considered and, therefore, there is absolutely no basis for any apprehension of this nature as entertained by the learned Counsel for the petitioners.
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5. Whatever be the apprehensions of the learned Counsel they could very well be pointed out to the learned Judges of the High Court who would hear the matter ultimately before the High Court and address their arguments as to the manner in which a dispute of this nature could be resolved satisfactorily. We are sure that when such arguments are addressed before the High Court, they will be appropriately considered and, therefore, there is absolutely no basis for any apprehension of this nature as entertained by the learned Counsel for the petitioners.
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Ram Dial And Others Vs. The State Of Punjabwith Connected Writ Petition | reasons in cls. (a) to (g) thereof, as their contend shows, is in the public interest and the proviso to S.16(1) provides for a hearing in the manner indicated therein. On the other hand S. 14 (e) which also provides for removal in the public interest makes no provision for hearing the member to be removed. Even if S. 14(e) is wider than S. 16(1), there is no doubt that all the reasons given in as. (a) to (g) are in the public interest and, therefore, even if the State Government intends to remove a person for any reasons given in cls. (a) to (g) it can take action under S. 14(e) and thus circumvent the provisions contained in the proviso to S. 16(1) for hearing. Thus there is no doubt that S.14(e) which entirely covers S.16(1) is more drastic than S. 16(1) and unlike S. 16(1) makes no provision for even calling upon the member concerned to explain. In this view of the matter it is clear that or the same reasons the State Government may take action under S. 16(1) in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to Section 16(1), on the other hand it may choose to take action under S. 14(e) in which case it need hot give any notice to the member and ask for an explanation from him. This is obviously discriminatory and, therefore, this part of S.14(e) must be struck down as it is hit by Art. 14 of the Constitution. 9. Reliance in this connection is placed on behalf of the State on the proviso to S. 24(3). Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to take oath as provided therein. Then comes the proviso to S. 24(3), which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in S. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with S. 16(1) without giving notice as provided in the proviso to S.16(1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to S. 24(3) without giving notice to the person concerned under the proviso to S. 16(1) and without giving him any opportunity of hearing as provided therein. The proviso to S.24 (3) further provides that the State Government may refuse to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground of public interest. It is urged that there is no provision in this connection for notice and hearing of the person elected. That seems to be so, but again the question may arise in a proper case whether this provision would be constitutional. We see no connection between the proviso to S. 24(3) and the provision contained in S. 14(e). The proviso to S. 24(3) is complete in itself and deals with a situation when the State Government refuses to notify the election of a person who has been elected. Section 14 (e) on the other hand provides for vacation of the seat of a member after he has taken the oath of office. Therefore the constitutionality or otherwise of S.14(e) will depend upon its contrast with S. 16(1) which also provides for removal of a member. As we have already indicated on comparing the two provisions both of which provide for removal of a member in public interest we find that the provision contained in S. 14(e) as compared to the provision in S. 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in S. (1) by the proviso thereof. Consequently we are of opinion that this part S. 14(e) is discriminatory and must be struck down as unconstitutional under Art. 14 of the Constitution. 10. In this connection our attention is drawn to Radeshyam Khare v. State of Madhya Pradesh, 1959 S R 1440 : (AIR 1959 SC 107 ), on which reliance is placed on behalf of the State. In that case this Court was concerned. with Ss. 53A and 37 of the C. P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under S. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. Under S. 53A the committee was not dissolved, but the State Government had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president or secretary as it thought fit, though the reason for taking action under S.53A(1) apparently overlapped the reasons for dissolving a committee under S. 57(1). Because of this difference in the scope of the two provisions contained in Ss. 53A and 57, there could be no question of application of Art. 14 to that case. 11. In the present case, however, S. 16 (1) which deals with removal of a member for reasons given in cls. (a) to (g) is completely covered by S.14 (e) which deals with vacation of a scat in the public interest, and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons. One of the provisions provides for notice and hearing while the other does not and is, therefore, more drastic and arbitrary. In these circumstances there is in our opinion a clear discrimination in view of Art. 14 and the State Government cannot take advantage of the decision in Radeshyam Khares case, 1959 SCR 1440 : (AIR 1959 SC 107 ). | 1[ds]4. We are of opinion that the appeals must succeed on this point, it is necessary in this connection to refer to Ss. 14 (e), 16 and 24 (3) of the Act.relevant part of S. 14 (e) with which we are concerned provides that notwithstanding anything in the foregoing sections of Chapter III, which deals with constitution of committees, appointment and election of members, term of office of members of municipal committees, the State Government may, at any time, for any reason which it may deem to affect the public interest, by notification, direct that the seat, of any specified member, whether elected or appointed, shall be vacated on a given date, and in such case, such seat shall be vacated accordingly, notwithstanding anything in the Act or in the rules made thereunder. Further sub-s. (3) of S. 16 provides that a person whose seat has been vacated under the provisions of Section 14 (e) may be disqualified for election for a period not exceeding five years. There is no provision for giving notice to a member against whom action is taken under S. 14 (e) and he is not entitled to any hearing before action is taken against him. Further action can be taken against a member for any reason which the State Government may deem to affect the public interest.5. Section 16 is another provision which gives power to the State Government to remove any member of a municipal committee. This power is exercised for reasons given in cl. (a) to cl. (g) of S. 16 (1).The proviso, therefore, requires a hearing before the State Government take section under Section 16 (1). Sub-s. (2) of S. 16 provides for disqualification and says inter alia that any person removed under S. 16 (1) shall be disqualified for election for a period not exceeding five years. There is a slight difference here inasmuch as under this provision there must be disqualification for some period not exceeding five years, though if a members seat is vacated under S.14 (e) the disqualification is entirely in the discretion of the State Government and is not imperative. That, however, has no effect on the question whether the relevant part of Section 14 (e) is unconstitutional as it is hit by Art. 14.Section 24 (1) inter alia prescribes the oath before a member can begin to function. Section 24 (2) lays down inter alia that if a person omits or refuses to take the oath as provided in sub-s((1) within three months of the date of the notification of his election or within such further period as the State Government may consider reasonable, his election becomes invalid. Sub-section (3) of S. 24 provides inter alia that where the election becomes invalid under sub-s. (2), a fresh election shall be held. The proviso to sub-s. (3) on which stress has been laid on behalf of the State lays down inter alia that the State Government may refuse to notify the election as member of any person who could be removed from office by the State Government under any of the provisions of S. 16 of of any person whom the State Government for any reason which it may deem to affect the public interests may consider to be unfitted to be a member of the committee, and upon such refusal the election of such person shall be void.8. We are of opinion that these contentions on behalf of the appellants are correct. There is no doubt that the removal contemplated in S 16 (1) for reasons in cls. (a) to (g) thereof, as their contend shows, is in the public interest and the proviso to S.16(1) provides for a hearing in the manner indicated therein. On the other hand S. 14 (e) which also provides for removal in the public interest makes no provision for hearing the member to be removed. Even if S. 14(e) is wider than S. 16(1), there is no doubt that all the reasons given in as. (a) to (g) are in the public interest and, therefore, even if the State Government intends to remove a person for any reasons given in cls. (a) to (g) it can take action under S. 14(e) and thus circumvent the provisions contained in the proviso to S. 16(1) for hearing. Thus there is no doubt that S.14(e) which entirely covers S.16(1) is more drastic than S. 16(1) and unlike S. 16(1) makes no provision for even calling upon the member concerned to explain. In this view of the matter it is clear that or the same reasons the State Government may take action under S. 16(1) in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to Section 16(1), on the other hand it may choose to take action under S. 14(e) in which case it need hot give any notice to the member and ask for an explanation from him. This is obviously discriminatory and, therefore, this part of S.14(e) must be struck down as it is hit by Art. 14 of the Constitution.8. We are of opinion that these contentions on behalf of the appellants are correct. There is no doubt that the removal contemplated in S 16 (1) for reasons in cls. (a) to (g) thereof, as their contend shows, is in the public interest and the proviso to S.16(1) provides for a hearing in the manner indicated therein. On the other hand S. 14 (e) which also provides for removal in the public interest makes no provision for hearing the member to be removed. Even if S. 14(e) is wider than S. 16(1), there is no doubt that all the reasons given in as. (a) to (g) are in the public interest and, therefore, even if the State Government intends to remove a person for any reasons given in cls. (a) to (g) it can take action under S. 14(e) and thus circumvent the provisions contained in the proviso to S. 16(1) for hearing. Thus there is no doubt that S.14(e) which entirely covers S.16(1) is more drastic than S. 16(1) and unlike S. 16(1) makes no provision for even calling upon the member concerned to explain. In this view of the matter it is clear that or the same reasons the State Government may take action under S. 16(1) in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to Section 16(1), on the other hand it may choose to take action under S. 14(e) in which case it need hot give any notice to the member and ask for an explanation from him. This is obviously discriminatory and, therefore, this part of S.14(e) must be struck down as it is hit by Art. 14 of the Constitution.Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to take oath as provided therein. Then comes the proviso to S. 24(3), which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in S. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with S. 16(1) without giving notice as provided in the proviso to S.16(1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to S. 24(3) without giving notice to the person concerned under the proviso to S. 16(1) and without giving him any opportunity of hearing as provided therein. The proviso to S.24 (3) further provides that the State Government may refuse to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground of public interest. It is urged that there is no provision in this connection for notice and hearing of the person elected. That seems to be so, but again the question may arise in a proper case whether this provision would be constitutional. We see no connection between the proviso to S. 24(3) and the provision contained in S. 14(e). The proviso to S. 24(3) is complete in itself and deals with a situation when the State Government refuses to notify the election of a person who has been elected. Section 14 (e) on the other hand provides for vacation of the seat of a member after he has taken the oath of office. Therefore the constitutionality or otherwise of S.14(e) will depend upon its contrast with S. 16(1) which also provides for removal of a member. As we have already indicated on comparing the two provisions both of which provide for removal of a member in public interest we find that the provision contained in S. 14(e) as compared to the provision in S. 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in S. (1) by the proviso thereof. Consequently we are of opinion that this part S. 14(e) is discriminatory and must be struck down as unconstitutional under Art. 14 of the Constitution.10. In this connection our attention is drawn to Radeshyam Khare v. State of Madhya Pradesh, 1959 S R 1440 : (AIR 1959 SC 107 ), on which reliance is placed on behalf of the State. In that case this Court was concerned. with Ss. 53A and 37 of the C. P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under S. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. Under S. 53A the committee was not dissolved, but the State Government had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president or secretary as it thought fit, though the reason for taking action under S.53A(1) apparently overlapped the reasons for dissolving a committee under S. 57(1). Because of this difference in the scope of the two provisions contained in Ss. 53A and 57, there could be no question of application of Art. 14 to that case11. In the present case, however, S. 16 (1) which deals with removal of a member for reasons given in cls. (a) to (g) is completely covered by S.14 (e) which deals with vacation of a scat in the public interest, and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons. One of the provisions provides for notice and hearing while the other does not and is, therefore, more drastic and arbitrary. In these circumstances there is in our opinion a clear discrimination in view of Art. 14 and the State Government cannot take advantage of the decision in Radeshyam Khares case, 1959 SCR 1440 : (AIR 1959 SC 107 ). | 1 | 3,099 | 2,207 | ### Instruction:
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reasons in cls. (a) to (g) thereof, as their contend shows, is in the public interest and the proviso to S.16(1) provides for a hearing in the manner indicated therein. On the other hand S. 14 (e) which also provides for removal in the public interest makes no provision for hearing the member to be removed. Even if S. 14(e) is wider than S. 16(1), there is no doubt that all the reasons given in as. (a) to (g) are in the public interest and, therefore, even if the State Government intends to remove a person for any reasons given in cls. (a) to (g) it can take action under S. 14(e) and thus circumvent the provisions contained in the proviso to S. 16(1) for hearing. Thus there is no doubt that S.14(e) which entirely covers S.16(1) is more drastic than S. 16(1) and unlike S. 16(1) makes no provision for even calling upon the member concerned to explain. In this view of the matter it is clear that or the same reasons the State Government may take action under S. 16(1) in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to Section 16(1), on the other hand it may choose to take action under S. 14(e) in which case it need hot give any notice to the member and ask for an explanation from him. This is obviously discriminatory and, therefore, this part of S.14(e) must be struck down as it is hit by Art. 14 of the Constitution. 9. Reliance in this connection is placed on behalf of the State on the proviso to S. 24(3). Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to take oath as provided therein. Then comes the proviso to S. 24(3), which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in S. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with S. 16(1) without giving notice as provided in the proviso to S.16(1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to S. 24(3) without giving notice to the person concerned under the proviso to S. 16(1) and without giving him any opportunity of hearing as provided therein. The proviso to S.24 (3) further provides that the State Government may refuse to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground of public interest. It is urged that there is no provision in this connection for notice and hearing of the person elected. That seems to be so, but again the question may arise in a proper case whether this provision would be constitutional. We see no connection between the proviso to S. 24(3) and the provision contained in S. 14(e). The proviso to S. 24(3) is complete in itself and deals with a situation when the State Government refuses to notify the election of a person who has been elected. Section 14 (e) on the other hand provides for vacation of the seat of a member after he has taken the oath of office. Therefore the constitutionality or otherwise of S.14(e) will depend upon its contrast with S. 16(1) which also provides for removal of a member. As we have already indicated on comparing the two provisions both of which provide for removal of a member in public interest we find that the provision contained in S. 14(e) as compared to the provision in S. 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in S. (1) by the proviso thereof. Consequently we are of opinion that this part S. 14(e) is discriminatory and must be struck down as unconstitutional under Art. 14 of the Constitution. 10. In this connection our attention is drawn to Radeshyam Khare v. State of Madhya Pradesh, 1959 S R 1440 : (AIR 1959 SC 107 ), on which reliance is placed on behalf of the State. In that case this Court was concerned. with Ss. 53A and 37 of the C. P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under S. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. Under S. 53A the committee was not dissolved, but the State Government had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president or secretary as it thought fit, though the reason for taking action under S.53A(1) apparently overlapped the reasons for dissolving a committee under S. 57(1). Because of this difference in the scope of the two provisions contained in Ss. 53A and 57, there could be no question of application of Art. 14 to that case. 11. In the present case, however, S. 16 (1) which deals with removal of a member for reasons given in cls. (a) to (g) is completely covered by S.14 (e) which deals with vacation of a scat in the public interest, and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons. One of the provisions provides for notice and hearing while the other does not and is, therefore, more drastic and arbitrary. In these circumstances there is in our opinion a clear discrimination in view of Art. 14 and the State Government cannot take advantage of the decision in Radeshyam Khares case, 1959 SCR 1440 : (AIR 1959 SC 107 ).
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the appellants are correct. There is no doubt that the removal contemplated in S 16 (1) for reasons in cls. (a) to (g) thereof, as their contend shows, is in the public interest and the proviso to S.16(1) provides for a hearing in the manner indicated therein. On the other hand S. 14 (e) which also provides for removal in the public interest makes no provision for hearing the member to be removed. Even if S. 14(e) is wider than S. 16(1), there is no doubt that all the reasons given in as. (a) to (g) are in the public interest and, therefore, even if the State Government intends to remove a person for any reasons given in cls. (a) to (g) it can take action under S. 14(e) and thus circumvent the provisions contained in the proviso to S. 16(1) for hearing. Thus there is no doubt that S.14(e) which entirely covers S.16(1) is more drastic than S. 16(1) and unlike S. 16(1) makes no provision for even calling upon the member concerned to explain. In this view of the matter it is clear that or the same reasons the State Government may take action under S. 16(1) in which case it will have to give notice to the member concerned and take his explanation as provided in the proviso to Section 16(1), on the other hand it may choose to take action under S. 14(e) in which case it need hot give any notice to the member and ask for an explanation from him. This is obviously discriminatory and, therefore, this part of S.14(e) must be struck down as it is hit by Art. 14 of the Constitution.Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to take oath as provided therein. Then comes the proviso to S. 24(3), which gives power to the State Government to refuse to notify the election of a person elected on any of the grounds mentioned in S. 16(1). It is not necessary for us to decide whether the State Government can take action under this proviso read with S. 16(1) without giving notice as provided in the proviso to S.16(1). That question may have to be decided in a case where the State Government takes action under this part of the proviso to S. 24(3) without giving notice to the person concerned under the proviso to S. 16(1) and without giving him any opportunity of hearing as provided therein. The proviso to S.24 (3) further provides that the State Government may refuse to notify the name of any person elected if in its opinion he is unfit to be a member of a municipal committee on ground of public interest. It is urged that there is no provision in this connection for notice and hearing of the person elected. That seems to be so, but again the question may arise in a proper case whether this provision would be constitutional. We see no connection between the proviso to S. 24(3) and the provision contained in S. 14(e). The proviso to S. 24(3) is complete in itself and deals with a situation when the State Government refuses to notify the election of a person who has been elected. Section 14 (e) on the other hand provides for vacation of the seat of a member after he has taken the oath of office. Therefore the constitutionality or otherwise of S.14(e) will depend upon its contrast with S. 16(1) which also provides for removal of a member. As we have already indicated on comparing the two provisions both of which provide for removal of a member in public interest we find that the provision contained in S. 14(e) as compared to the provision in S. 16 (1) is more drastic and arbitrary and denies the member concerned an opportunity of being heard as provided in S. (1) by the proviso thereof. Consequently we are of opinion that this part S. 14(e) is discriminatory and must be struck down as unconstitutional under Art. 14 of the Constitution.10. In this connection our attention is drawn to Radeshyam Khare v. State of Madhya Pradesh, 1959 S R 1440 : (AIR 1959 SC 107 ), on which reliance is placed on behalf of the State. In that case this Court was concerned. with Ss. 53A and 37 of the C. P. and Berar Municipalities Act which to a certain extent were held to overlap. The argument under Art. 14 did not really arise in that case because the two provisions dealt with two different situations. Under S. 57 the State Government had the power to dissolve a committee after giving it a reasonable opportunity to furnish its explanation. Under S. 53A the committee was not dissolved, but the State Government had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president or secretary as it thought fit, though the reason for taking action under S.53A(1) apparently overlapped the reasons for dissolving a committee under S. 57(1). Because of this difference in the scope of the two provisions contained in Ss. 53A and 57, there could be no question of application of Art. 14 to that case11. In the present case, however, S. 16 (1) which deals with removal of a member for reasons given in cls. (a) to (g) is completely covered by S.14 (e) which deals with vacation of a scat in the public interest, and it is open to the State Government either to proceed under one provision or the other for exactly the same reasons. One of the provisions provides for notice and hearing while the other does not and is, therefore, more drastic and arbitrary. In these circumstances there is in our opinion a clear discrimination in view of Art. 14 and the State Government cannot take advantage of the decision in Radeshyam Khares case, 1959 SCR 1440 : (AIR 1959 SC 107 ).
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Lloyds Bank Limited Vs. Lloyds Bank Indian Staff Association (Calcutta Branches) & Others | Patanjali Sastri, CJ.1. There is no. substance in this appeal but, paradoxical as it may seem, the substance of the relief which the appellant seeks is already available to him. The appeal arises out of an application made under Art. 226 of the Constitution for the issue of a writ of certiorari to bring up and quash an award made by the All India Industrial Tribunal (Bank Disputes) on 5.1.1950, or, in the alternative, a writ of prohibition restraining the opposite party from enforcing the said award.2. Various preliminary objections were raised to the maintainability of that application and they were upheld by the learned Judges who accordingly dismissed the application. One of the objections was that Art. 226 did not apply to the case as the award in question, having been published and declared binding by the Government on 17.1.1950, became final before the Constitution came into force on 26.1.1950.The answer to this objection by Mr. Chaudhri was the same as his answer to a similar objection raised in the connected appeal - Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff Asscn., Civil Appeal No. 79 of 1953; (AIR 1956 S. C 745) (A) with reference to the applicability of Art. 136 of the Constitution and the point was dealt with in our judgment delivered on April 17th. But as the High Court had jurisdiction to issue prerogative writs even before the commencement of the Constitution, another preliminary objection was raised to the effect that the Tribunal having ceased to exist and its members being now severally engaged in the performance of other official duties, the writs prayed for could not be issued by the Court.3. In support of the appeal Mr. Chaudhri faintly argued that notwithstanding the Tribunal was not functioning, it continued in a sort of suspended animation inasmuch as the Government, on a proper construction of S. 7, Industrial Disputes Act must be deemed to have brought into being not an ad hoc Tribunal to adjudicate upon the particular disputes referred to it but a permanent Tribunal though functioning intermittently. This view was rejected by the learned Judges below and we are in agreement with them.4. But the award which the appellant seeks to have formally set aside in this proceeding can no. longer be regarded as valid and operative having regard to the decision of this court in the United Commercial Bank Ltd. V. Their Workmen, 1951 S. C R 380 : (A I R 1951 S. C 230) (B) where it was broadly held that awards purporting to have been made by the same Tribunal and signed like the one now before us by only two of the members in the absence of the third on other duty were void and inoperative in view of the mandatory terms of S. 16. Industrial Disputes Act that awards made by the Tribunal should be signed by all the members thereof. | 0[ds]3. In support of the appeal Mr. Chaudhri faintly argued that notwithstanding the Tribunal was not functioning, it continued in a sort of suspended animation inasmuch as the Government, on a proper construction of S. 7, Industrial Disputes Act must be deemed to have brought into being not an ad hoc Tribunal to adjudicate upon the particular disputes referred to it but a permanent Tribunal though functioning intermittently.This view was rejected by the learned Judges below and we are in agreement with them.4. But the award which the appellant seeks to have formally set aside in this proceeding can no. longer be regarded as valid and operative having regard to the decision of this court in the United Commercial Bank Ltd. V. Their Workmen, 1951 S. C R 380 : (A I R 1951 S. C 230) (B) where it was broadly held that awards purporting to have been made by the same Tribunal and signed like the one now before us by only two of the members in the absence of the third on other duty were void and inoperative in view of the mandatory terms of S. 16. Industrial Disputes Act that awards made by the Tribunal should be signed by all the members thereof. | 0 | 527 | 224 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Patanjali Sastri, CJ.1. There is no. substance in this appeal but, paradoxical as it may seem, the substance of the relief which the appellant seeks is already available to him. The appeal arises out of an application made under Art. 226 of the Constitution for the issue of a writ of certiorari to bring up and quash an award made by the All India Industrial Tribunal (Bank Disputes) on 5.1.1950, or, in the alternative, a writ of prohibition restraining the opposite party from enforcing the said award.2. Various preliminary objections were raised to the maintainability of that application and they were upheld by the learned Judges who accordingly dismissed the application. One of the objections was that Art. 226 did not apply to the case as the award in question, having been published and declared binding by the Government on 17.1.1950, became final before the Constitution came into force on 26.1.1950.The answer to this objection by Mr. Chaudhri was the same as his answer to a similar objection raised in the connected appeal - Lloyds Bank Ltd. v. The Lloyds Bank Indian Staff Asscn., Civil Appeal No. 79 of 1953; (AIR 1956 S. C 745) (A) with reference to the applicability of Art. 136 of the Constitution and the point was dealt with in our judgment delivered on April 17th. But as the High Court had jurisdiction to issue prerogative writs even before the commencement of the Constitution, another preliminary objection was raised to the effect that the Tribunal having ceased to exist and its members being now severally engaged in the performance of other official duties, the writs prayed for could not be issued by the Court.3. In support of the appeal Mr. Chaudhri faintly argued that notwithstanding the Tribunal was not functioning, it continued in a sort of suspended animation inasmuch as the Government, on a proper construction of S. 7, Industrial Disputes Act must be deemed to have brought into being not an ad hoc Tribunal to adjudicate upon the particular disputes referred to it but a permanent Tribunal though functioning intermittently. This view was rejected by the learned Judges below and we are in agreement with them.4. But the award which the appellant seeks to have formally set aside in this proceeding can no. longer be regarded as valid and operative having regard to the decision of this court in the United Commercial Bank Ltd. V. Their Workmen, 1951 S. C R 380 : (A I R 1951 S. C 230) (B) where it was broadly held that awards purporting to have been made by the same Tribunal and signed like the one now before us by only two of the members in the absence of the third on other duty were void and inoperative in view of the mandatory terms of S. 16. Industrial Disputes Act that awards made by the Tribunal should be signed by all the members thereof.
### Response:
0
### Explanation:
3. In support of the appeal Mr. Chaudhri faintly argued that notwithstanding the Tribunal was not functioning, it continued in a sort of suspended animation inasmuch as the Government, on a proper construction of S. 7, Industrial Disputes Act must be deemed to have brought into being not an ad hoc Tribunal to adjudicate upon the particular disputes referred to it but a permanent Tribunal though functioning intermittently.This view was rejected by the learned Judges below and we are in agreement with them.4. But the award which the appellant seeks to have formally set aside in this proceeding can no. longer be regarded as valid and operative having regard to the decision of this court in the United Commercial Bank Ltd. V. Their Workmen, 1951 S. C R 380 : (A I R 1951 S. C 230) (B) where it was broadly held that awards purporting to have been made by the same Tribunal and signed like the one now before us by only two of the members in the absence of the third on other duty were void and inoperative in view of the mandatory terms of S. 16. Industrial Disputes Act that awards made by the Tribunal should be signed by all the members thereof.
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Premlata @ Sunita Vs. Naseeb Bee & Ors | has rejected the plaint on the ground that the suit would be barred under the provisions of Section 257 of M.P. Land Revenue Code, 1959 (hereinafter referred to as the MPLRC), the original plaintiff has preferred the present appeal. 2. The facts leading to the present appeals in nutshell are as under: 2.1 That the appellant herein – original plaintiff initially filed the original proceedings before the Revenue Authority/Tehsildar under Section 250 of MPLRC. The respondents herein - original defendants raised the objection against the maintainability of the application under Section 250 of the MPLRC and the jurisdiction of the Revenue Authority/Tehsildar. The Tehsildar rejected the said application accepting the objection raised on behalf of the respondents and held that as the question involved in the matter relates to title, hence provisions under Section 250 of the MPLRC shall not be attracted. Thereafter the appellant herein preferred an appeal before the SDO under Section 44 of the MPLRC challenging the order passed by the Tehsildar. However, during the pendency of the said appeal, the appellant filed the present suit before the learned trial Court for recovery of the possession and injunction. Having been served with the notice of the suit, the respondents – defendants filed an application under Order 7 Rule 11 CPC and requested to reject the plaint on the ground that the suit before the Civil Court would be barred considering Section 257 of the MPLRC. The learned Civil Court rejected the said application and refused to reject the plaint in exercise of powers under Order 7 Rule 11 CPC. Against the said rejection the respondents – defendants preferred Civil Revision Application No.385 of 2019 before the High Court. 2.2 By the impugned judgment and order the High Court has allowed the revision application and has set aside the order passed by the learned trial Court and consequently has allowed the application under Order 7 Rule 11 CPC and has rejected the plaint by holding that in view of Section 257 of the MPLRC the jurisdiction of the Civil Court is barred. 2.3 That as during the pendency of the revision application the appeal filed by the plaintiff rejecting application under Section 250 of the MPLRC came to be dismissed which was not pointed out at the time of final hearing of the revision application by the High Court, the appellant herein filed a review application before the High Court. The said review application has been dismissed. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in Civil Revision Application No.385 of 2019 and also the order passed in Review Petition No.725 of 2020, the original plaintiff has preferred the present appeals. 3. We have heard learned counsel for the respective parties at length. 4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tehsildar accepted the said objection and dismissed the application under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC. The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court). That after the Tehsildar passed an order rejecting the application under Section 250 of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein – original defendants, the plaintiff instituted a suit before the Civil Court. Before the Civil Court the respondents – original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit. The respondents – original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents – original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC. If the submission on behalf of the respondents – defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant – original plaintiff approached the Revenue Authority/Tehsildar he was non-suited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondents - defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside. | 1[ds]4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tehsildar accepted the said objection and dismissed the application under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC. The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court). That after the Tehsildar passed an order rejecting the application under Section 250 of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein – original defendants, the plaintiff instituted a suit before the Civil Court. Before the Civil Court the respondents – original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit. The respondents – original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents – original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC. If the submission on behalf of the respondents – defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant – original plaintiff approached the Revenue Authority/Tehsildar he was non-suited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondents - defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside. | 1 | 1,160 | 568 | ### Instruction:
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has rejected the plaint on the ground that the suit would be barred under the provisions of Section 257 of M.P. Land Revenue Code, 1959 (hereinafter referred to as the MPLRC), the original plaintiff has preferred the present appeal. 2. The facts leading to the present appeals in nutshell are as under: 2.1 That the appellant herein – original plaintiff initially filed the original proceedings before the Revenue Authority/Tehsildar under Section 250 of MPLRC. The respondents herein - original defendants raised the objection against the maintainability of the application under Section 250 of the MPLRC and the jurisdiction of the Revenue Authority/Tehsildar. The Tehsildar rejected the said application accepting the objection raised on behalf of the respondents and held that as the question involved in the matter relates to title, hence provisions under Section 250 of the MPLRC shall not be attracted. Thereafter the appellant herein preferred an appeal before the SDO under Section 44 of the MPLRC challenging the order passed by the Tehsildar. However, during the pendency of the said appeal, the appellant filed the present suit before the learned trial Court for recovery of the possession and injunction. Having been served with the notice of the suit, the respondents – defendants filed an application under Order 7 Rule 11 CPC and requested to reject the plaint on the ground that the suit before the Civil Court would be barred considering Section 257 of the MPLRC. The learned Civil Court rejected the said application and refused to reject the plaint in exercise of powers under Order 7 Rule 11 CPC. Against the said rejection the respondents – defendants preferred Civil Revision Application No.385 of 2019 before the High Court. 2.2 By the impugned judgment and order the High Court has allowed the revision application and has set aside the order passed by the learned trial Court and consequently has allowed the application under Order 7 Rule 11 CPC and has rejected the plaint by holding that in view of Section 257 of the MPLRC the jurisdiction of the Civil Court is barred. 2.3 That as during the pendency of the revision application the appeal filed by the plaintiff rejecting application under Section 250 of the MPLRC came to be dismissed which was not pointed out at the time of final hearing of the revision application by the High Court, the appellant herein filed a review application before the High Court. The said review application has been dismissed. 2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in Civil Revision Application No.385 of 2019 and also the order passed in Review Petition No.725 of 2020, the original plaintiff has preferred the present appeals. 3. We have heard learned counsel for the respective parties at length. 4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tehsildar accepted the said objection and dismissed the application under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC. The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court). That after the Tehsildar passed an order rejecting the application under Section 250 of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein – original defendants, the plaintiff instituted a suit before the Civil Court. Before the Civil Court the respondents – original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit. The respondents – original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents – original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC. If the submission on behalf of the respondents – defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant – original plaintiff approached the Revenue Authority/Tehsildar he was non-suited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondents - defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside.
### Response:
1
### Explanation:
4. At the outset, it is required to be noted and it is not in dispute that the plaintiff instituted the proceedings before the Revenue Authority under Section 250 of the MPLRC. These very defendants raised an objection before the Revenue Authority that the Revenue Authority has no jurisdiction to deal with the matter. The Tehsildar accepted the said objection and dismissed the application under Section 250 of the MPLRC by holding that as the dispute is with respect to title the Revenue Authority would not have any jurisdiction under MPLRC. The said order passed by the Tehsildar has been affirmed by the Appellate Authority (of course during the pendency of the revision application before the High Court). That after the Tehsildar passed an order rejecting the application under Section 250 of the MPLRC on the ground that the Revenue Authority would have no jurisdiction, which was on the objection raised by the respondents herein – original defendants, the plaintiff instituted a suit before the Civil Court. Before the Civil Court the respondents – original defendants just took a contrary stand than which was taken by them before the Revenue Authority and before the Civil Court the respondents took the objection that the Civil Court would have no jurisdiction to entertain the suit. The respondents – original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tehsildar and the proceedings under Section 250 of the MPLRC came to be dismissed and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents – original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC. If the submission on behalf of the respondents – defendants is accepted in that case the original plaintiff would be remediless. The High Court has not at all appreciated the fact that when the appellant – original plaintiff approached the Revenue Authority/Tehsildar he was non-suited on the ground that Revenue Authority/Tehsildar had no jurisdiction to decide the dispute with respect to title to the suit property. Thereafter when the suit was filed and the respondents - defendants took a contrary stand that even the civil suit would be barred. In that case the original plaintiff would be remediless. In any case the respondents – original defendants cannot be permitted to approbate and reprobate and to take just a contrary stand than taken before the Revenue Authority. Therefore, in the facts and circumstances of the case, the learned trial Court rightly rejected the application under Order 7 Rule 11 CPC and rightly refused to reject the plaint. The High Court has committed a grave error in allowing the application under Order 7 Rule 11 CPC and rejecting the plaint on the ground that the suit would be barred in view of Section 257 of the MPLRC. The impugned judgment and order passed by the High Court is unsustainable and is liable to be set aside.
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Dattaraya S/O Keshav Tawalay Vs. Shaikh Mahboob Shaikh All & Anr | appellant in depositing the amount and therefore the appellants suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the pre-emption decree.3. The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment-debtors and not a stay with regard to the deposit of purchase price by the decree-holder. In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.4. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.But the appellant has deposited the amount on May 2, 1955, long before the date of the High Courts decree and there is no default on the part of the appellant in fulfilling of the terms of the pre-emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial courts decree, what was its intention? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial courts decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal. The view that we have expressed is borne out by the decision of the Bombay High Court in Satwaji Balajiray v. Sakharlal Atmaramshet, ILR 39 Bom 175 = (AIR 1914 Bom 132 ). In that case, the plaintiff brought a suit to recover possession of property as purchaser from defendants I to 6 and to redeem the mortgage of defendant 7. The first court having dismissed the suit, the appellate court, on plaintiffs appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1 to 6 of a certain sum within six months from the date of its decree and then to redeem defendant 7, and on the plaintiffs failure to pay within six months from the date of the decree he should forfeit his right to recover possession. All parties being dissatisfied with the decree, the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections. The High Court confirmed the decree and the plaintiffs second appeal and the defendants cross objections were dismissed. Within six months from the date of the High Courts decree the plaintiff deposited in court the amount payable by him and applied for execution. Defendant 7 contended that the plaintiff not having complied with the terms of the decree of the first appellate court, his right to recover possession in execution was forfeited. The lower courts upheld the defendants contention and dismissed the darkhast. On second appeal by the plaintiff, the High Court reversed the decree of the lower court and held that the time for executing a decree nisi for possession ran from the date of the High Courts decree confirming the decree of the lower court, for what was to be looked at and interpreted was the decree of the final appellate court. There is also a decision to the similar effect in Sita v. Ramnath, ILR 28 Pat 371 = (AIR 1949 Pat 514 ). For the reasons already given we hold that the decree of the High Court in Second Appeal should be construed in the present case as affording by implication a fresh starting point to the plaintiff for making payment to the Court. | 1[ds]In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.4. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.But the appellant has deposited the amount on May 2, 1955, long before the date of the High Courts decree and there is no default on the part of the appellant in fulfilling of the terms of the pre-emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial courts decree, what was its intention? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial courts decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal. | 1 | 1,930 | 591 | ### Instruction:
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appellant in depositing the amount and therefore the appellants suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the pre-emption decree.3. The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment-debtors and not a stay with regard to the deposit of purchase price by the decree-holder. In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.4. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.But the appellant has deposited the amount on May 2, 1955, long before the date of the High Courts decree and there is no default on the part of the appellant in fulfilling of the terms of the pre-emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial courts decree, what was its intention? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial courts decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal. The view that we have expressed is borne out by the decision of the Bombay High Court in Satwaji Balajiray v. Sakharlal Atmaramshet, ILR 39 Bom 175 = (AIR 1914 Bom 132 ). In that case, the plaintiff brought a suit to recover possession of property as purchaser from defendants I to 6 and to redeem the mortgage of defendant 7. The first court having dismissed the suit, the appellate court, on plaintiffs appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1 to 6 of a certain sum within six months from the date of its decree and then to redeem defendant 7, and on the plaintiffs failure to pay within six months from the date of the decree he should forfeit his right to recover possession. All parties being dissatisfied with the decree, the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections. The High Court confirmed the decree and the plaintiffs second appeal and the defendants cross objections were dismissed. Within six months from the date of the High Courts decree the plaintiff deposited in court the amount payable by him and applied for execution. Defendant 7 contended that the plaintiff not having complied with the terms of the decree of the first appellate court, his right to recover possession in execution was forfeited. The lower courts upheld the defendants contention and dismissed the darkhast. On second appeal by the plaintiff, the High Court reversed the decree of the lower court and held that the time for executing a decree nisi for possession ran from the date of the High Courts decree confirming the decree of the lower court, for what was to be looked at and interpreted was the decree of the final appellate court. There is also a decision to the similar effect in Sita v. Ramnath, ILR 28 Pat 371 = (AIR 1949 Pat 514 ). For the reasons already given we hold that the decree of the High Court in Second Appeal should be construed in the present case as affording by implication a fresh starting point to the plaintiff for making payment to the Court.
### Response:
1
### Explanation:
In our opinion, the High Court was in error in taking this view. The decree framed under Order 20, Rule 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into Court of the purchase-money the defendant shall deliver possession of the property to the plaintiff. The decree-holder therefore deposits the purchase-money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O. 20, R. 14, Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter-linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff-decree-holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of the stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal.4. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Courts decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.But the appellant has deposited the amount on May 2, 1955, long before the date of the High Courts decree and there is no default on the part of the appellant in fulfilling of the terms of the pre-emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide, that the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial courts decree, what was its intention? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial courts decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal.
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Charan Dass Vs. District Judge, Dehradun and Others | BHAGWATI, J. 1. This appeal arises out of an application made by the third respondent for release of shop under S. 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. The release of the shop was claimed by respondent No. 3 on the ground that he needed it bona fide for the purpose of enabling his son to carry on business as a carpenter. The appellant who is the tenant resisted the claim of respondent No. 3 both on the ground that the requirement of respondent No. 3 was not bona fide as also on the ground that the hardship which would be caused to him by passing an order of eviction would be much greater than what would be caused to Respondent No. 3 by refusing to pass it. The Prescribed Authority upheld that claim of respondent No. 3 that his requirement of the shop was bona fide but on the question of comparative hardship, it decided against respondent No. 3 and rejected the application. Respondent No. 3 thereupon preferred an appeal before the District Court. Whilst the appeal was pending before the District Court, a decision was given by a full Bench of the Allahabad High Court in Chandra Kumar Shah v. District Judge, 1976 All WC 50 : (AIR 1976 All 328 ) holding that R. 16 cl. (2) of the Rules framed under the Act which required comparative hardship to be taken into account, was ultra vires the provisions of the Act. The District Court being bound by this decision, declined to take into account the comparative hardship of the appellant and respondent No. 3 and taking the view that the requirement of shop by respondent No. 3 was bona fide the District Court allowed the appeal and directed release of the shop in favour of respondent No. 3. The appellant thereupon preferred a Writ Petition in the High Court but presumably in view of the Full Bench decision in Chandra Kumar Shahs case (supra) the High Court dismissed the Writ Petition in limine. Hence the present appeal by special leave obtained from this Court. 2. Since the following of the present appeal, the Act has been amended by U.P. Act No. 28 of 1976 and as a result of the amendment, a proviso has been introduced in S. 21 with retrospective effect requiring the Prescribed Authority to take into account the comparative hardship of the landlord and the tenant and the provisions of R. 16 have also been validated with retrospective effect. Having regard to this retrospective amendment, the order of the High Court as also the judgment given by the District Court declining to take into account the comparative hardship of the appellant and respondent No. 3 cannot stand and they must be set aside. | 1[ds]2. Since the following of the present appeal, the Act has been amended by U.P. Act No. 28 of 1976 and as a result of the amendment, a proviso has been introduced in S. 21 with retrospective effect requiring the Prescribed Authority to take into account the comparative hardship of the landlord and the tenant and the provisions of R. 16 have also been validated with retrospective effect. Having regard to this retrospective amendment, the order of the High Court as also the judgment given by the District Court declining to take into account the comparative hardship of the appellant and respondent No. 3 cannot stand and they must be set asideWe may make it clear that the decision already given by the District court in regard to the fact that respondent No. 3 bona fide required the shop will not be disturbed but only the question of comparative hardship will be considered by the District Court. Since the matter is an old one, we direct the District Court to dispose of the appeal before it as expeditiously as possible an in any event not later than two months from today. There will be no. order as to costs. | 1 | 513 | 218 | ### Instruction:
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BHAGWATI, J. 1. This appeal arises out of an application made by the third respondent for release of shop under S. 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. The release of the shop was claimed by respondent No. 3 on the ground that he needed it bona fide for the purpose of enabling his son to carry on business as a carpenter. The appellant who is the tenant resisted the claim of respondent No. 3 both on the ground that the requirement of respondent No. 3 was not bona fide as also on the ground that the hardship which would be caused to him by passing an order of eviction would be much greater than what would be caused to Respondent No. 3 by refusing to pass it. The Prescribed Authority upheld that claim of respondent No. 3 that his requirement of the shop was bona fide but on the question of comparative hardship, it decided against respondent No. 3 and rejected the application. Respondent No. 3 thereupon preferred an appeal before the District Court. Whilst the appeal was pending before the District Court, a decision was given by a full Bench of the Allahabad High Court in Chandra Kumar Shah v. District Judge, 1976 All WC 50 : (AIR 1976 All 328 ) holding that R. 16 cl. (2) of the Rules framed under the Act which required comparative hardship to be taken into account, was ultra vires the provisions of the Act. The District Court being bound by this decision, declined to take into account the comparative hardship of the appellant and respondent No. 3 and taking the view that the requirement of shop by respondent No. 3 was bona fide the District Court allowed the appeal and directed release of the shop in favour of respondent No. 3. The appellant thereupon preferred a Writ Petition in the High Court but presumably in view of the Full Bench decision in Chandra Kumar Shahs case (supra) the High Court dismissed the Writ Petition in limine. Hence the present appeal by special leave obtained from this Court. 2. Since the following of the present appeal, the Act has been amended by U.P. Act No. 28 of 1976 and as a result of the amendment, a proviso has been introduced in S. 21 with retrospective effect requiring the Prescribed Authority to take into account the comparative hardship of the landlord and the tenant and the provisions of R. 16 have also been validated with retrospective effect. Having regard to this retrospective amendment, the order of the High Court as also the judgment given by the District Court declining to take into account the comparative hardship of the appellant and respondent No. 3 cannot stand and they must be set aside.
### Response:
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### Explanation:
2. Since the following of the present appeal, the Act has been amended by U.P. Act No. 28 of 1976 and as a result of the amendment, a proviso has been introduced in S. 21 with retrospective effect requiring the Prescribed Authority to take into account the comparative hardship of the landlord and the tenant and the provisions of R. 16 have also been validated with retrospective effect. Having regard to this retrospective amendment, the order of the High Court as also the judgment given by the District Court declining to take into account the comparative hardship of the appellant and respondent No. 3 cannot stand and they must be set asideWe may make it clear that the decision already given by the District court in regard to the fact that respondent No. 3 bona fide required the shop will not be disturbed but only the question of comparative hardship will be considered by the District Court. Since the matter is an old one, we direct the District Court to dispose of the appeal before it as expeditiously as possible an in any event not later than two months from today. There will be no. order as to costs.
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Jai Singh Vs. M.C.D. | ARCT were identical. The order passed by the ARCT has been upheld by a Coordinate Bench of the High Court. The RCSA No. 17/2001 filed by MCD on identical grounds was thus dismissed by a subsequent Coordinate Bench. That was indeed in conformity with the high traditions, procedures and practices established by the Courts to maintain judicial discipline and decorum. The underlying principle being, to avoid conflicting views taken by Coordinate Benches of the same Court. Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier Coordinate Bench.24. It appears that the entire proceedings adopted by MCD after the dismissal of the RCSA- CM(M) No. 31 of 2001, on 31.1.2001 were a subterfuge to avoid the execution proceedings in a decree which had become final between the parties. In the application seeking conversion of RCSA No. 17/2001 to a petition under Article 227 of the Constitution of India, it was categorically stated by MCD that the aforesaid RCSA was not maintainable. The aforesaid statement is a clear admission that the appeal filed by the MCD did not involve a substantial question of law. It is apparent from the fact that under Section 39(1) of the DRC Act subject to the provisions of Sub-section (2), an appeal lies to the High Court from an order made by the ARCT. Sub-section (2) provides as under: “No appeal shall lie under Sub-section (1), unless the appeal involves some substantial question of law.” Having made an admission that no substantial question of law was raised in the RCSA, withdrawal of the same could not possibly have been used as a justification for filing a petition under Article 227 of the Constitution of India. If the RCSA was devoid of any substantial question of law, the petition under Article 227, based on the same facts, would be equally devoid of any substantial question of law. This categoric admission of the MCD was ignored by the High Court whilst recording the finding that the orders of ARC and ARCT were passed “in blatant violation of fundamental principles of law and justice.” This apart in the peculiar facts of this case, noticed above, it could not be held that MCD had been bona fide prosecuting a case in the wrong Court. It was seeking a remedy provided under Section 39(1) of DRC Act. Even this appeal was filed beyond limitation. It was delayed by 431 days. In the meantime possession of a part of the premises had already been taken by the appellants. In spite of the objections having been raised to the maintainability of a writ petition under Article 227 of the Constitution of India, they were rejected by the High Court with the observations noticed in the earlier part of the judgment. In such circumstances, in our opinion, it was wholly inappropriate for the High Court to entertain the writ petition under Article 227 of the Constitution of India. 25. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber v. Dass Estate (P) Ltd., VI (2001) SLT 577=(2001) 8 SCC 97 , wherein it was observed as follows: “The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and Tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the Subordinate Courts or Tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an Appellate Court or substitute its own judgment in place of that of the Subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or Tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to.” In our opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No. 2, Block-B, Transport Area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership.26. We are of the opinion the High Court travelled beyond the well defined contours of its jurisdiction under Article 227 of the Constitution of India. | 1[ds]It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a ‘bull in a chinato correct all errors of judgment of a Court, or Tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an Appellate Court and re-appreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the Courts below or the statutory/quasi judicial Tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.14. In our opinion, the High Court in this case, has travelled beyond the limits of its jurisdiction under Article 227 of the Constitution. Both ARC and ARCT had acted within the limits of the jurisdiction vested in them. The conclusions reached cannot be said to be based on no evidence. All relevant material has been taken into consideration. Therefore, there was hardly any justification for the High Court to undertake an investigation into issues which did not even arise in the lis.We have been constrained to make elaborate reference to the orders of ARC and ARCT only to demonstrate that High Court was not justified in observing that there has been ‘serious dereliction ofor that there has been ‘blatant violation of the fundamental principles of law andby the ARC and ARCT. We also cannot accept the observations of the High Court that both ARC and ARCT have considered the facts in a very mechanical way, or that the orders passed by ARC and ARCT exhibited any patent illegality writ large on the face of the orders. We also do not agree that the ARC and ARCT ignored the sequence of events through which GNIT was substituted by DTC. The entire sequence of metamorphosis of GNIT into DTC have been elaborately explained and dilated upon.22. We are of the considered opinion that the High Court ought not to have exercised the extraordinary jurisdiction under Article 227 of the Constitution in the peculiar circumstances of thisour opinion the aforesaid order was unexceptional since the pleas taken by the DTC and MCD before the Additional Rent Controller were identical. Therefore, it was in fitness of things that the subsequent Coordinate Bench also dismissed the appeal filed byperusal of the aforesaid order clearly shows that the application was disposed of on the statement made by the learned Counsel for MCD that the appellant (MCD) should file a fresh petition under Article 227 of the Constitution of India if the same is permissible under law.Therefore, the aforesaid order cannot be treated as an order passed by the High Court permitting MCD to file a petition under Article 227 of the Constitution of India. However using the aforesaid order of the High Court as an excuse, MCD filed the petition under Article 227 of the Constitution of India on 9.4.2007, being CM (Main) No. 57/2007, challenging the order which was passed by the ARC dated 11.11.1989 and the order passed by ARCT dated 12.3.2001. At this stage, in our opinion, the High Court failed to bestow proper attention to the objections taken by the appellants to the maintainability of the writ petition on the ground of delay and laches. Proceedings under Article 227 can be initiated in the absence of the availability of an alternative efficacious remedy. In the present case, MCD had consciously withdrawn RCSA which had been filed under Section 39(1) of the Delhi Rent Control Act. The appeal had been filed against the order of the ARCT dated 12.3.2001. However, the objection on the ground of delay and laches was brushed aside by the High Court on two wholly untenable grounds, i.e.:(i) The orders passed by the ARC and ARCT suffered from patent illegality on the face of the orders.(ii) The MCD was bona fide prosecuting a case in the wrong Court, due to mistake of law.23. We are of the opinion that the High Court committed a patent error of jurisdiction in entertaining the writ petition under Article 227 of the Constitution which was unconscionably belated. Both reasons stated by the High Court in support of its conclusions, are contrary to the facts on the record. It must be remembered that in these proceedings, the pleas raised by the DTC and MCD before the ARC as well as the ARCT were identical. The order passed by the ARCT has been upheld by a Coordinate Bench of the High Court. The RCSA No. 17/2001 filed by MCD on identical grounds was thus dismissed by a subsequent Coordinate Bench. That was indeed in conformity with the high traditions, procedures and practices established by the Courts to maintain judicial discipline and decorum. The underlying principle being, to avoid conflicting views taken by Coordinate Benches of the same Court. Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier Coordinate Bench.24. It appears that the entire proceedings adopted by MCD after the dismissal of the RCSA- CM(M) No. 31 of 2001, on 31.1.2001 were a subterfuge to avoid the execution proceedings in a decree which had become final between the parties. In the application seeking conversion of RCSA No. 17/2001 to a petition under Article 227 of the Constitution of India, it was categorically stated by MCD that the aforesaid RCSA was not maintainable. The aforesaid statement is a clear admission that the appeal filed by the MCD did not involve a substantial question of law. It is apparent from the fact that under Section 39(1) of the DRC Act subject to the provisions of Sub-section (2), an appeal lies to the High Court from an order made by themade an admission that no substantial question of law was raised in the RCSA, withdrawal of the same could not possibly have been used as a justification for filing a petition under Article 227 of the Constitution of India. If the RCSA was devoid of any substantial question of law, the petition under Article 227, based on the same facts, would be equally devoid of any substantial question of law. This categoric admission of the MCD was ignored by the High Court whilst recording the finding that the orders of ARC and ARCT were passedblatant violation of fundamental principles of law andThis apart in the peculiar facts of this case, noticed above, it could not be held that MCD had been bona fide prosecuting a case in the wrong Court. It was seeking a remedy provided under Section 39(1) of DRC Act. Even this appeal was filed beyond limitation. It was delayed by 431 days. In the meantime possession of a part of the premises had already been taken by the appellants. In spite of the objections having been raised to the maintainability of a writ petition under Article 227 of the Constitution of India, they were rejected by the High Court with the observations noticed in the earlier part of the judgment. In such circumstances, in our opinion, it was wholly inappropriate for the High Court to entertain the writ petition under Article 227 of the Constitution ofour opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No. 2, Block-B, Transport Area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership.26. We are of the opinion the High Court travelled beyond the well defined contours of its jurisdiction under Article 227 of the Constitution of India. | 1 | 7,035 | 1,631 | ### 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:
ARCT were identical. The order passed by the ARCT has been upheld by a Coordinate Bench of the High Court. The RCSA No. 17/2001 filed by MCD on identical grounds was thus dismissed by a subsequent Coordinate Bench. That was indeed in conformity with the high traditions, procedures and practices established by the Courts to maintain judicial discipline and decorum. The underlying principle being, to avoid conflicting views taken by Coordinate Benches of the same Court. Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier Coordinate Bench.24. It appears that the entire proceedings adopted by MCD after the dismissal of the RCSA- CM(M) No. 31 of 2001, on 31.1.2001 were a subterfuge to avoid the execution proceedings in a decree which had become final between the parties. In the application seeking conversion of RCSA No. 17/2001 to a petition under Article 227 of the Constitution of India, it was categorically stated by MCD that the aforesaid RCSA was not maintainable. The aforesaid statement is a clear admission that the appeal filed by the MCD did not involve a substantial question of law. It is apparent from the fact that under Section 39(1) of the DRC Act subject to the provisions of Sub-section (2), an appeal lies to the High Court from an order made by the ARCT. Sub-section (2) provides as under: “No appeal shall lie under Sub-section (1), unless the appeal involves some substantial question of law.” Having made an admission that no substantial question of law was raised in the RCSA, withdrawal of the same could not possibly have been used as a justification for filing a petition under Article 227 of the Constitution of India. If the RCSA was devoid of any substantial question of law, the petition under Article 227, based on the same facts, would be equally devoid of any substantial question of law. This categoric admission of the MCD was ignored by the High Court whilst recording the finding that the orders of ARC and ARCT were passed “in blatant violation of fundamental principles of law and justice.” This apart in the peculiar facts of this case, noticed above, it could not be held that MCD had been bona fide prosecuting a case in the wrong Court. It was seeking a remedy provided under Section 39(1) of DRC Act. Even this appeal was filed beyond limitation. It was delayed by 431 days. In the meantime possession of a part of the premises had already been taken by the appellants. In spite of the objections having been raised to the maintainability of a writ petition under Article 227 of the Constitution of India, they were rejected by the High Court with the observations noticed in the earlier part of the judgment. In such circumstances, in our opinion, it was wholly inappropriate for the High Court to entertain the writ petition under Article 227 of the Constitution of India. 25. Undoubtedly, the High Court has the power to reach injustice whenever, wherever found. The scope and ambit of Article 227 of the Constitution of India had been discussed in the case of The Estralla Rubber v. Dass Estate (P) Ltd., VI (2001) SLT 577=(2001) 8 SCC 97 , wherein it was observed as follows: “The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and Tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the Subordinate Courts or Tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an Appellate Court or substitute its own judgment in place of that of the Subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or Tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to.” In our opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No. 2, Block-B, Transport Area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership.26. We are of the opinion the High Court travelled beyond the well defined contours of its jurisdiction under Article 227 of the Constitution of India.
### Response:
1
### Explanation:
the aforesaid order clearly shows that the application was disposed of on the statement made by the learned Counsel for MCD that the appellant (MCD) should file a fresh petition under Article 227 of the Constitution of India if the same is permissible under law.Therefore, the aforesaid order cannot be treated as an order passed by the High Court permitting MCD to file a petition under Article 227 of the Constitution of India. However using the aforesaid order of the High Court as an excuse, MCD filed the petition under Article 227 of the Constitution of India on 9.4.2007, being CM (Main) No. 57/2007, challenging the order which was passed by the ARC dated 11.11.1989 and the order passed by ARCT dated 12.3.2001. At this stage, in our opinion, the High Court failed to bestow proper attention to the objections taken by the appellants to the maintainability of the writ petition on the ground of delay and laches. Proceedings under Article 227 can be initiated in the absence of the availability of an alternative efficacious remedy. In the present case, MCD had consciously withdrawn RCSA which had been filed under Section 39(1) of the Delhi Rent Control Act. The appeal had been filed against the order of the ARCT dated 12.3.2001. However, the objection on the ground of delay and laches was brushed aside by the High Court on two wholly untenable grounds, i.e.:(i) The orders passed by the ARC and ARCT suffered from patent illegality on the face of the orders.(ii) The MCD was bona fide prosecuting a case in the wrong Court, due to mistake of law.23. We are of the opinion that the High Court committed a patent error of jurisdiction in entertaining the writ petition under Article 227 of the Constitution which was unconscionably belated. Both reasons stated by the High Court in support of its conclusions, are contrary to the facts on the record. It must be remembered that in these proceedings, the pleas raised by the DTC and MCD before the ARC as well as the ARCT were identical. The order passed by the ARCT has been upheld by a Coordinate Bench of the High Court. The RCSA No. 17/2001 filed by MCD on identical grounds was thus dismissed by a subsequent Coordinate Bench. That was indeed in conformity with the high traditions, procedures and practices established by the Courts to maintain judicial discipline and decorum. The underlying principle being, to avoid conflicting views taken by Coordinate Benches of the same Court. Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/ statutory or constitutional provision, the subsequent bench would follow the earlier Coordinate Bench.24. It appears that the entire proceedings adopted by MCD after the dismissal of the RCSA- CM(M) No. 31 of 2001, on 31.1.2001 were a subterfuge to avoid the execution proceedings in a decree which had become final between the parties. In the application seeking conversion of RCSA No. 17/2001 to a petition under Article 227 of the Constitution of India, it was categorically stated by MCD that the aforesaid RCSA was not maintainable. The aforesaid statement is a clear admission that the appeal filed by the MCD did not involve a substantial question of law. It is apparent from the fact that under Section 39(1) of the DRC Act subject to the provisions of Sub-section (2), an appeal lies to the High Court from an order made by themade an admission that no substantial question of law was raised in the RCSA, withdrawal of the same could not possibly have been used as a justification for filing a petition under Article 227 of the Constitution of India. If the RCSA was devoid of any substantial question of law, the petition under Article 227, based on the same facts, would be equally devoid of any substantial question of law. This categoric admission of the MCD was ignored by the High Court whilst recording the finding that the orders of ARC and ARCT were passedblatant violation of fundamental principles of law andThis apart in the peculiar facts of this case, noticed above, it could not be held that MCD had been bona fide prosecuting a case in the wrong Court. It was seeking a remedy provided under Section 39(1) of DRC Act. Even this appeal was filed beyond limitation. It was delayed by 431 days. In the meantime possession of a part of the premises had already been taken by the appellants. In spite of the objections having been raised to the maintainability of a writ petition under Article 227 of the Constitution of India, they were rejected by the High Court with the observations noticed in the earlier part of the judgment. In such circumstances, in our opinion, it was wholly inappropriate for the High Court to entertain the writ petition under Article 227 of the Constitution ofour opinion, the High Court committed a serious error of jurisdiction in entertaining the writ petition filed by MCD under Article 227 of the Constitution of India in the peculiar circumstances of this case. The decision to exercise jurisdiction had to be taken in accordance with the accepted norms of care, caution, circumspection. The issue herein only related to a tenancy and subletting. There was no lis relating to the ownership of the land on which the superstructure or the demised premises had been constructed. The whole issue of ownership of plot of land No. 2, Block-B, Transport Area of Jhandewalan Estate, Desh Bandhu Gupta Road, Karol Bagh, New Delhi is the subject matter of a civil suit being Suit No: 361 of 1980 in the High Court of Delhi. The High Court, therefore, ought not to have given any opinion on the question of ownership.26. We are of the opinion the High Court travelled beyond the well defined contours of its jurisdiction under Article 227 of the Constitution of India.
|
State Of Uttar Pradesh Vs. Raja Yadvendra Dutt Dube | assess income of an assessee whose gross agricultural income exceeds Rs. 1 lakh, cannot be accepted. The first sub-division of S. 14 declares the Collector and the Assistant Collector in charge of a sub-division as assessing authorities within the limits of their respective revenue jurisdictions. By sub-s. (2) it is directed that the authorities mentioned in sub-s. (2) shall be the assessing authorities in the cases "mentioned against each". Reading sub-ss. (1) and (2) together there can be no doubt that the Collector is the assessing authority within his revenue jurisdiction with unlimited jurisdiction, and the Assistant Collector in charge of a sub-division is the assessing authority within his revenue jurisdiction with power only in cases in which the gross agricultural income of the assessee does not exceed Rs. 1 lakh.8. There is in the Act no procedure prescribed about ascertainment of the gross agricultural income of an assessee which is determinative of the jurisdiction of the Sub-Divisional Officer, but as in other taxing statutes where the taxing authority is constituted a tribunal of exclusive jurisdiction the authority has the power, subject to rectification by a superior Court to decide facts on the proof of which his jurisdiction depends. The Sub-Divisional Officer had therefore power to decide whether the gross agricultural income of the respondent did or did not exceed Rs. 1 lakh.The notice under S. 15(3) was issued to the respondent by the Sub-Divisional Officer, presumably on the assumption that the gross agricultural income of the respondent did not exceed Rs. 1 lakh, but when the Sub-Divisional Officer found on scrutiny of the return that the gross agricultural income of the respondent exceeded Rs. 1 lakh, he could not exercise the powers of the assessing authority. There is no provision in the Act or the rules for transfer of proceeding from the Sub-Divisional Officer to the Collector, when the Sub-Divisional Officer in dealing with a return finds that he has no jurisdiction. When he arrived at the conclusion that the gross income of the respondent exceeded Rs. 1 lakh, the proceeding initiated by the Sub-Divisional Officer including the issue of notice must, unless the conclusion is set aside by a superior authority, be held unauthorised, for the power to issue a notice under S. 15 (3) is only conferred upon the assessing authority, and the assessing authority within the meaning of S. 2 (6) is a person authorised to assess agricultural income-tax. The Sub-Divisional Officer had no power to assess agricultural income of the respondent, because his gross income exceeded Rs. 1 lakh, and he had on that account no power to issue the notice.9. It is true that the Board of Revision did not expressly set aside the notice issued by the Sub-Divisional Officer under S. 15 (3), but the Board agreed with the Commissioner that the original order of assessment passed by the Sub-Divisional Officer "was absolutely without jurisdiction", and directed that the entire case be reopened by the Collector and fresh assessment of the income for Fasli year 1355 be made by the Collector after giving notice to the respondent. The Board thereafter passed the same order which the Commissioner claimed (sic) without authority to make. It must, therefore, be held that the notice issued by the Sub-Divisional Officer was not only unauthorised, but was also quashed by the Board.10. The second contention that when notice under S. 15 (1) is issued, the Collector may without a notice under S. 15 (3) commence fresh assessment proceeding on the return made to the Sub-Divisional Officer has no substance. This question does not appear to have been raised or argued at any stage before the Board. Again, if the proceedings for assessment were commenced on a return made pursuant to an invalid notice, and the proceeding for assessment were set aside on the ground of want of jurisdiction of the authority making the assessment, the entire proceeding must be deemed to be vacated, and relying upon the return made to the authority who had assessed the income, another authority cannot proceed to assess the income of the assessee. Mere issue of a notice under S. 15 (1) cannot come to the aid of the Collector in commencing fresh assessment proceeding many years after the date on which that notice was issued, on a return which was not made to him. When after a general notice a special notice was issued unauthorisedly and proceedings were taken pursuant to that special notice, the general notice cannot be relied upon to start fresh proceeding for assessment on the assumption that the return must be deemed to be made to him pursuant to the general notice. The Collector must, before the proceeding to assess, issue under S. 15 (3) a notice when no return was filed pursuant to the notice under S. 15 (1), and a notice under S. 15 (3) cannot issue after expiry of the year of assessment to which the notice relates.11. The third contention also has no substance. The Collector issued a notice under S. 25 of re-assessing income which had escaped assessment and assessed the income of the respondent, but the proceeding of the Collector was set aside as unauthorised, and the Collector was directed to start a fresh proceeding for assessment. The notice issued by the Collector must also be deemed to be quashed. The Collector has, therefore, under the direction given by the Board, to issue a fresh notice before a proceeding for assessment may be started; and the earlier notice issued under S. 25 cannot be relied upon by the Collector.12. The High Court was therefore right in the answer which it recorded. It is somewhat unfortunate that on account of the diverse orders passed by the authorities from time to time without a correct appreciation of the scheme of the Act, the respondent escapes liability to pay tax which was lawfully due by him, but that cannot justify the commencement of a fresh proceeding for assessment contrary to the provisions of the statute.13 | 0[ds]8. There is in the Act no procedure prescribed about ascertainment of the gross agricultural income of an assessee which is determinative of the jurisdiction of the Sub-Divisional Officer, but as in other taxing statutes where the taxing authority is constituted a tribunal of exclusive jurisdiction the authority has the power, subject to rectification by a superior Court to decide facts on the proof of which his jurisdiction depends. The Sub-Divisional Officer had therefore power to decide whether the gross agricultural income of the respondent did or did not exceed Rs. 1 lakh.The notice under S. 15(3) was issued to the respondent by the Sub-Divisional Officer, presumably on the assumption that the gross agricultural income of the respondent did not exceed Rs. 1 lakh, but when the Sub-Divisional Officer found on scrutiny of the return that the gross agricultural income of the respondent exceeded Rs. 1 lakh, he could not exercise the powers of the assessing authority. There is no provision in the Act or the rules for transfer of proceeding from the Sub-Divisional Officer to the Collector, when the Sub-Divisional Officer in dealing with a return finds that he has no jurisdiction. When he arrived at the conclusion that the gross income of the respondent exceeded Rs. 1 lakh, the proceeding initiated by the Sub-Divisional Officer including the issue of notice must, unless the conclusion is set aside by a superior authority, be held unauthorised, for the power to issue a notice under S. 15 (3) is only conferred upon the assessing authority, and the assessing authority within the meaning of S. 2 (6) is a person authorised to assess agricultural income-tax. The Sub-Divisional Officer had no power to assess agricultural income of the respondent, because his gross income exceeded Rs. 1 lakh, and he had on that account no power to issue the notice.9. It is true that the Board of Revision did not expressly set aside the notice issued by the Sub-Divisional Officer under S. 15 (3), but the Board agreed with the Commissioner that the original order of assessment passed by the Sub-Divisional Officer "was absolutely without jurisdiction", and directed that the entire case be reopened by the Collector and fresh assessment of the income for Fasli year 1355 be made by the Collector after giving notice to the respondent. The Board thereafter passed the same order which the Commissioner claimed (sic) without authority to make. It must, therefore, be held that the notice issued by the Sub-Divisional Officer was not only unauthorised, but was also quashed by the Board.10. The second contention that when notice under S. 15 (1) is issued, the Collector may without a notice under S. 15 (3) commence fresh assessment proceeding on the return made to the Sub-Divisional Officer has no substance. This question does not appear to have been raised or argued at any stage before the Board. Again, if the proceedings for assessment were commenced on a return made pursuant to an invalid notice, and the proceeding for assessment were set aside on the ground of want of jurisdiction of the authority making the assessment, the entire proceeding must be deemed to be vacated, and relying upon the return made to the authority who had assessed the income, another authority cannot proceed to assess the income of the assessee. Mere issue of a notice under S. 15 (1) cannot come to the aid of the Collector in commencing fresh assessment proceeding many years after the date on which that notice was issued, on a return which was not made to him. When after a general notice a special notice was issued unauthorisedly and proceedings were taken pursuant to that special notice, the general notice cannot be relied upon to start fresh proceeding for assessment on the assumption that the return must be deemed to be made to him pursuant to the general notice. The Collector must, before the proceeding to assess, issue under S. 15 (3) a notice when no return was filed pursuant to the notice under S. 15 (1), and a notice under S. 15 (3) cannot issue after expiry of the year of assessment to which the notice relates.11. The third contention also has no substance. The Collector issued a notice under S. 25 of re-assessing income which had escaped assessment and assessed the income of the respondent, but the proceeding of the Collector was set aside as unauthorised, and the Collector was directed to start a fresh proceeding for assessment. The notice issued by the Collector must also be deemed to be quashed. The Collector has, therefore, under the direction given by the Board, to issue a fresh notice before a proceeding for assessment may be started; and the earlier notice issued under S. 25 cannot be relied upon by the Collector.12. The High Court was therefore right in the answer which it recorded. It is somewhat unfortunate that on account of the diverse orders passed by the authorities from time to time without a correct appreciation of the scheme of the Act, the respondent escapes liability to pay tax which was lawfully due by him, but that cannot justify the commencement of a fresh proceeding for assessment contrary to the provisions of the statute. | 0 | 3,272 | 968 | ### 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:
assess income of an assessee whose gross agricultural income exceeds Rs. 1 lakh, cannot be accepted. The first sub-division of S. 14 declares the Collector and the Assistant Collector in charge of a sub-division as assessing authorities within the limits of their respective revenue jurisdictions. By sub-s. (2) it is directed that the authorities mentioned in sub-s. (2) shall be the assessing authorities in the cases "mentioned against each". Reading sub-ss. (1) and (2) together there can be no doubt that the Collector is the assessing authority within his revenue jurisdiction with unlimited jurisdiction, and the Assistant Collector in charge of a sub-division is the assessing authority within his revenue jurisdiction with power only in cases in which the gross agricultural income of the assessee does not exceed Rs. 1 lakh.8. There is in the Act no procedure prescribed about ascertainment of the gross agricultural income of an assessee which is determinative of the jurisdiction of the Sub-Divisional Officer, but as in other taxing statutes where the taxing authority is constituted a tribunal of exclusive jurisdiction the authority has the power, subject to rectification by a superior Court to decide facts on the proof of which his jurisdiction depends. The Sub-Divisional Officer had therefore power to decide whether the gross agricultural income of the respondent did or did not exceed Rs. 1 lakh.The notice under S. 15(3) was issued to the respondent by the Sub-Divisional Officer, presumably on the assumption that the gross agricultural income of the respondent did not exceed Rs. 1 lakh, but when the Sub-Divisional Officer found on scrutiny of the return that the gross agricultural income of the respondent exceeded Rs. 1 lakh, he could not exercise the powers of the assessing authority. There is no provision in the Act or the rules for transfer of proceeding from the Sub-Divisional Officer to the Collector, when the Sub-Divisional Officer in dealing with a return finds that he has no jurisdiction. When he arrived at the conclusion that the gross income of the respondent exceeded Rs. 1 lakh, the proceeding initiated by the Sub-Divisional Officer including the issue of notice must, unless the conclusion is set aside by a superior authority, be held unauthorised, for the power to issue a notice under S. 15 (3) is only conferred upon the assessing authority, and the assessing authority within the meaning of S. 2 (6) is a person authorised to assess agricultural income-tax. The Sub-Divisional Officer had no power to assess agricultural income of the respondent, because his gross income exceeded Rs. 1 lakh, and he had on that account no power to issue the notice.9. It is true that the Board of Revision did not expressly set aside the notice issued by the Sub-Divisional Officer under S. 15 (3), but the Board agreed with the Commissioner that the original order of assessment passed by the Sub-Divisional Officer "was absolutely without jurisdiction", and directed that the entire case be reopened by the Collector and fresh assessment of the income for Fasli year 1355 be made by the Collector after giving notice to the respondent. The Board thereafter passed the same order which the Commissioner claimed (sic) without authority to make. It must, therefore, be held that the notice issued by the Sub-Divisional Officer was not only unauthorised, but was also quashed by the Board.10. The second contention that when notice under S. 15 (1) is issued, the Collector may without a notice under S. 15 (3) commence fresh assessment proceeding on the return made to the Sub-Divisional Officer has no substance. This question does not appear to have been raised or argued at any stage before the Board. Again, if the proceedings for assessment were commenced on a return made pursuant to an invalid notice, and the proceeding for assessment were set aside on the ground of want of jurisdiction of the authority making the assessment, the entire proceeding must be deemed to be vacated, and relying upon the return made to the authority who had assessed the income, another authority cannot proceed to assess the income of the assessee. Mere issue of a notice under S. 15 (1) cannot come to the aid of the Collector in commencing fresh assessment proceeding many years after the date on which that notice was issued, on a return which was not made to him. When after a general notice a special notice was issued unauthorisedly and proceedings were taken pursuant to that special notice, the general notice cannot be relied upon to start fresh proceeding for assessment on the assumption that the return must be deemed to be made to him pursuant to the general notice. The Collector must, before the proceeding to assess, issue under S. 15 (3) a notice when no return was filed pursuant to the notice under S. 15 (1), and a notice under S. 15 (3) cannot issue after expiry of the year of assessment to which the notice relates.11. The third contention also has no substance. The Collector issued a notice under S. 25 of re-assessing income which had escaped assessment and assessed the income of the respondent, but the proceeding of the Collector was set aside as unauthorised, and the Collector was directed to start a fresh proceeding for assessment. The notice issued by the Collector must also be deemed to be quashed. The Collector has, therefore, under the direction given by the Board, to issue a fresh notice before a proceeding for assessment may be started; and the earlier notice issued under S. 25 cannot be relied upon by the Collector.12. The High Court was therefore right in the answer which it recorded. It is somewhat unfortunate that on account of the diverse orders passed by the authorities from time to time without a correct appreciation of the scheme of the Act, the respondent escapes liability to pay tax which was lawfully due by him, but that cannot justify the commencement of a fresh proceeding for assessment contrary to the provisions of the statute.13
### Response:
0
### Explanation:
8. There is in the Act no procedure prescribed about ascertainment of the gross agricultural income of an assessee which is determinative of the jurisdiction of the Sub-Divisional Officer, but as in other taxing statutes where the taxing authority is constituted a tribunal of exclusive jurisdiction the authority has the power, subject to rectification by a superior Court to decide facts on the proof of which his jurisdiction depends. The Sub-Divisional Officer had therefore power to decide whether the gross agricultural income of the respondent did or did not exceed Rs. 1 lakh.The notice under S. 15(3) was issued to the respondent by the Sub-Divisional Officer, presumably on the assumption that the gross agricultural income of the respondent did not exceed Rs. 1 lakh, but when the Sub-Divisional Officer found on scrutiny of the return that the gross agricultural income of the respondent exceeded Rs. 1 lakh, he could not exercise the powers of the assessing authority. There is no provision in the Act or the rules for transfer of proceeding from the Sub-Divisional Officer to the Collector, when the Sub-Divisional Officer in dealing with a return finds that he has no jurisdiction. When he arrived at the conclusion that the gross income of the respondent exceeded Rs. 1 lakh, the proceeding initiated by the Sub-Divisional Officer including the issue of notice must, unless the conclusion is set aside by a superior authority, be held unauthorised, for the power to issue a notice under S. 15 (3) is only conferred upon the assessing authority, and the assessing authority within the meaning of S. 2 (6) is a person authorised to assess agricultural income-tax. The Sub-Divisional Officer had no power to assess agricultural income of the respondent, because his gross income exceeded Rs. 1 lakh, and he had on that account no power to issue the notice.9. It is true that the Board of Revision did not expressly set aside the notice issued by the Sub-Divisional Officer under S. 15 (3), but the Board agreed with the Commissioner that the original order of assessment passed by the Sub-Divisional Officer "was absolutely without jurisdiction", and directed that the entire case be reopened by the Collector and fresh assessment of the income for Fasli year 1355 be made by the Collector after giving notice to the respondent. The Board thereafter passed the same order which the Commissioner claimed (sic) without authority to make. It must, therefore, be held that the notice issued by the Sub-Divisional Officer was not only unauthorised, but was also quashed by the Board.10. The second contention that when notice under S. 15 (1) is issued, the Collector may without a notice under S. 15 (3) commence fresh assessment proceeding on the return made to the Sub-Divisional Officer has no substance. This question does not appear to have been raised or argued at any stage before the Board. Again, if the proceedings for assessment were commenced on a return made pursuant to an invalid notice, and the proceeding for assessment were set aside on the ground of want of jurisdiction of the authority making the assessment, the entire proceeding must be deemed to be vacated, and relying upon the return made to the authority who had assessed the income, another authority cannot proceed to assess the income of the assessee. Mere issue of a notice under S. 15 (1) cannot come to the aid of the Collector in commencing fresh assessment proceeding many years after the date on which that notice was issued, on a return which was not made to him. When after a general notice a special notice was issued unauthorisedly and proceedings were taken pursuant to that special notice, the general notice cannot be relied upon to start fresh proceeding for assessment on the assumption that the return must be deemed to be made to him pursuant to the general notice. The Collector must, before the proceeding to assess, issue under S. 15 (3) a notice when no return was filed pursuant to the notice under S. 15 (1), and a notice under S. 15 (3) cannot issue after expiry of the year of assessment to which the notice relates.11. The third contention also has no substance. The Collector issued a notice under S. 25 of re-assessing income which had escaped assessment and assessed the income of the respondent, but the proceeding of the Collector was set aside as unauthorised, and the Collector was directed to start a fresh proceeding for assessment. The notice issued by the Collector must also be deemed to be quashed. The Collector has, therefore, under the direction given by the Board, to issue a fresh notice before a proceeding for assessment may be started; and the earlier notice issued under S. 25 cannot be relied upon by the Collector.12. The High Court was therefore right in the answer which it recorded. It is somewhat unfortunate that on account of the diverse orders passed by the authorities from time to time without a correct appreciation of the scheme of the Act, the respondent escapes liability to pay tax which was lawfully due by him, but that cannot justify the commencement of a fresh proceeding for assessment contrary to the provisions of the statute.
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Munshi Ram Vs. Union of India | defendants written statement it was stated that the goods had been booked at the owners risk rate and the railway is protected unless gross negligence or misconduct is proved on behalf of the employees of the railway. It was admitted that the goods were slightly damaged, but denied that the potatoes were unfit for human consumption. It was asserted that the plaintiff took all the 180 bags on a gate pass issued by the railway and no bag was left behind. The plaintiff took the goods away without any assessment being made.3. The Trial Court framed a number of issues, but we may only mention the following -(2) What is the extent of damages to the suit consignment ?(3) What is the normal period of transit ?(4) Whether the damage to the suit consignment was due to the negligence or misconduct on the part of the railway administration concerned or their employees ?(5) Whether the plaintiff obtained delivery of only 92 bags under the direction of the Goods Supervisor, New Delhi ?(6) To what amount of damages, if any, is the plaintiff entitled ?4. The Trial Court held that the plaintiff took delivery of whole of the 180 bags and not 92 bags as alleged by the plaintiff and further that although there was some damage to the goods in suit but (sic) it is not certain as to what was the actual damage to the goods. He further held that the extent of the damage could not be ascertained and, therefore, decided Issues Nos. 2 and 5 against the plaintiff.5. On Issue No. 3 he held that the normal period of transit between Delhi and Bombay was eight or nine days.6. On Issue No. 4 he held that the damages to the goods was to a very great extent due to unreasonable delay on the part of the railway and the delay being unreasonable the same is prima facie evidence of negligence on the part of the railway.7. On Issue No. 6 he held that the plaintiff is not entitled to any damage whatsoever because the real amount of damages could not be ascertained.8. The plaintiff appealed to the District Judge. He dismissed the appeal on the ground that the delay can be due to cause other than negligence or misconduct of the railway administration or the employees, and it cannot be presumed from mere delay in delivery that there was negligence or misconduct, in case the goods are booked at owners risk rate.9. The plaintiff then filed an appeal to the High Court. The learned Single Judge dismissed the appeal in limine.10. The plaintiff then filed a Letters Patent Appeal. The High Court, however, took the point that there was no sufficient material on the record to prove that the damage to the goods was caused in the course of the transportation.11. According to the High Court, the plaintiff had failed to establish that the goods were booked and entrusted to the railway administration at Bombay for carriages to New Delhi in a good condition. There is not an iota of evidence on this point.12. The High Court observed :"In this state of affairs, when it is not proved that the deterioration of goods occurred in the course of transit, the very basis of the appellants claim is lacking. In view of this patent lacuna in the appellants evidence we have no hesitation in holding that the learned Single Judge was right in rejecting the appellants appeal in limine."13. The learned for the appellant, Mr. A. V. Rangam, urged that the High Court has decided the appeal on a point which was admitted in the written statement. He pointed out that in para (1) of the plaint it was stated that the potatoes were of "first class quality" and the Union of India in their written statement stated that the contents of para (1) of the plaint are correct. He contended that the words "first class quality" include their state or condition and, therefore, the Union of India had admitted that the goods were of "first class quality" when they were booked. He referred to Ballentines Law Dictionary. The meaning of word "first class" given therein is that "a term often used in describing goods in a contract of sales and implying that they are such as correspond with the best of their kind in general use, not merely with the best of a single manufacturer, unless, indeed, the two superlatives coincide".14. The learned Counsel for the appellant then referred to Section 2(12) of the Sale of Goods Act. 1930, where "quality of goods" is defined as to include their state of condition.15. We are unable to give this interpretation to the pleadings. It seems to us that the plaint referred to the quality of the potatoes and not to their actual condition when they were booked. There are various qualities of potatoes and the consignment of potatoes was described as "first class quality". Further the railway would not know of the quality or the condition of the potatoes when they were booked because they would be in bags, especially, as they were booked at the owners risk rate.16. It seems to us that this appeal can be disposed of on the ground that the extent of damages has not been proved in this case. The plaintiff came with a definite case that he had only taken delivery of 92 bags and left the remaining bags at the railway station. This has been negatived by all the Courts and this finding in binding on us. Naturally after having pleaded that he only took 92 bags, no evidence could be led as to the price, if any which was fetched by the sale of the remaining bags. We have, therefore, no information as to the exact damages.17. We are of the opinion that the Trial Court correctly came to the conclusion that the extent of damages in the present case cannot be ascertained and therefore the plaintiff must fail. | 0[ds]15. We are unable to give this interpretation to the pleadings. It seems to us that the plaint referred to the quality of the potatoes and not to their actual condition when they were booked. There are various qualities of potatoes and the consignment of potatoes was described as "first class quality". Further the railway would not know of the quality or the condition of the potatoes when they were booked because they would be in bags, especially, as they were booked at the owners risk rate.16. It seems to us that this appeal can be disposed of on the ground that the extent of damages has not been proved in this case. The plaintiff came with a definite case that he had only taken delivery of 92 bags and left the remaining bags at the railway station. This has been negatived by all the Courts and this finding in binding on us. Naturally after having pleaded that he only took 92 bags, no evidence could be led as to the price, if any which was fetched by the sale of the remaining bags. We have, therefore, no information as to the exact damages.17. We are of the opinion that the Trial Court correctly came to the conclusion that the extent of damages in the present case cannot be ascertained and therefore the plaintiff must fail. | 0 | 1,437 | 250 | ### 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:
defendants written statement it was stated that the goods had been booked at the owners risk rate and the railway is protected unless gross negligence or misconduct is proved on behalf of the employees of the railway. It was admitted that the goods were slightly damaged, but denied that the potatoes were unfit for human consumption. It was asserted that the plaintiff took all the 180 bags on a gate pass issued by the railway and no bag was left behind. The plaintiff took the goods away without any assessment being made.3. The Trial Court framed a number of issues, but we may only mention the following -(2) What is the extent of damages to the suit consignment ?(3) What is the normal period of transit ?(4) Whether the damage to the suit consignment was due to the negligence or misconduct on the part of the railway administration concerned or their employees ?(5) Whether the plaintiff obtained delivery of only 92 bags under the direction of the Goods Supervisor, New Delhi ?(6) To what amount of damages, if any, is the plaintiff entitled ?4. The Trial Court held that the plaintiff took delivery of whole of the 180 bags and not 92 bags as alleged by the plaintiff and further that although there was some damage to the goods in suit but (sic) it is not certain as to what was the actual damage to the goods. He further held that the extent of the damage could not be ascertained and, therefore, decided Issues Nos. 2 and 5 against the plaintiff.5. On Issue No. 3 he held that the normal period of transit between Delhi and Bombay was eight or nine days.6. On Issue No. 4 he held that the damages to the goods was to a very great extent due to unreasonable delay on the part of the railway and the delay being unreasonable the same is prima facie evidence of negligence on the part of the railway.7. On Issue No. 6 he held that the plaintiff is not entitled to any damage whatsoever because the real amount of damages could not be ascertained.8. The plaintiff appealed to the District Judge. He dismissed the appeal on the ground that the delay can be due to cause other than negligence or misconduct of the railway administration or the employees, and it cannot be presumed from mere delay in delivery that there was negligence or misconduct, in case the goods are booked at owners risk rate.9. The plaintiff then filed an appeal to the High Court. The learned Single Judge dismissed the appeal in limine.10. The plaintiff then filed a Letters Patent Appeal. The High Court, however, took the point that there was no sufficient material on the record to prove that the damage to the goods was caused in the course of the transportation.11. According to the High Court, the plaintiff had failed to establish that the goods were booked and entrusted to the railway administration at Bombay for carriages to New Delhi in a good condition. There is not an iota of evidence on this point.12. The High Court observed :"In this state of affairs, when it is not proved that the deterioration of goods occurred in the course of transit, the very basis of the appellants claim is lacking. In view of this patent lacuna in the appellants evidence we have no hesitation in holding that the learned Single Judge was right in rejecting the appellants appeal in limine."13. The learned for the appellant, Mr. A. V. Rangam, urged that the High Court has decided the appeal on a point which was admitted in the written statement. He pointed out that in para (1) of the plaint it was stated that the potatoes were of "first class quality" and the Union of India in their written statement stated that the contents of para (1) of the plaint are correct. He contended that the words "first class quality" include their state or condition and, therefore, the Union of India had admitted that the goods were of "first class quality" when they were booked. He referred to Ballentines Law Dictionary. The meaning of word "first class" given therein is that "a term often used in describing goods in a contract of sales and implying that they are such as correspond with the best of their kind in general use, not merely with the best of a single manufacturer, unless, indeed, the two superlatives coincide".14. The learned Counsel for the appellant then referred to Section 2(12) of the Sale of Goods Act. 1930, where "quality of goods" is defined as to include their state of condition.15. We are unable to give this interpretation to the pleadings. It seems to us that the plaint referred to the quality of the potatoes and not to their actual condition when they were booked. There are various qualities of potatoes and the consignment of potatoes was described as "first class quality". Further the railway would not know of the quality or the condition of the potatoes when they were booked because they would be in bags, especially, as they were booked at the owners risk rate.16. It seems to us that this appeal can be disposed of on the ground that the extent of damages has not been proved in this case. The plaintiff came with a definite case that he had only taken delivery of 92 bags and left the remaining bags at the railway station. This has been negatived by all the Courts and this finding in binding on us. Naturally after having pleaded that he only took 92 bags, no evidence could be led as to the price, if any which was fetched by the sale of the remaining bags. We have, therefore, no information as to the exact damages.17. We are of the opinion that the Trial Court correctly came to the conclusion that the extent of damages in the present case cannot be ascertained and therefore the plaintiff must fail.
### Response:
0
### Explanation:
15. We are unable to give this interpretation to the pleadings. It seems to us that the plaint referred to the quality of the potatoes and not to their actual condition when they were booked. There are various qualities of potatoes and the consignment of potatoes was described as "first class quality". Further the railway would not know of the quality or the condition of the potatoes when they were booked because they would be in bags, especially, as they were booked at the owners risk rate.16. It seems to us that this appeal can be disposed of on the ground that the extent of damages has not been proved in this case. The plaintiff came with a definite case that he had only taken delivery of 92 bags and left the remaining bags at the railway station. This has been negatived by all the Courts and this finding in binding on us. Naturally after having pleaded that he only took 92 bags, no evidence could be led as to the price, if any which was fetched by the sale of the remaining bags. We have, therefore, no information as to the exact damages.17. We are of the opinion that the Trial Court correctly came to the conclusion that the extent of damages in the present case cannot be ascertained and therefore the plaintiff must fail.
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The Commissioner Of Income-Tax Vs. Shapoorji Pallonji Mistry | the Rajkot business were assessed by the Income-tax Officer at Rs. 1, 17, 643/-. The Income-tax Officer also found remittances to the extent of Rs. 4 lakhs from Rajkot to Bombay, but did not include that amount in the assessment in view of the concession allowed by the Part B States Taxation Concession Order. The assessee appealed with respect to the sum of Rs. 1, 17, 643/-, contending that the Rajkot business had no profits but only loss. The Appellate Assistant Commissioner accepted this contention, but set aside the assessment and remanded the case to the Income-tax Officer for reassessment with a view of assessing the sum of Rs. 4 lakhs. In dealing with the case, the High Court held that the powers of remand were extremely wide, but it quoted with approval the decision of the Patna High Court in Jagarnath Therani v. Commissioner of Income-tax ((1952) 22 I.T.R. 502, 510.) and also the above observation of the Madras High Court. The learned Chief Justice on the occasion added that there was a distinction between the subject-matter of the appeal and the subject-matter of the assessment, and that the Appellant Assistant Commissioners powers under s. 31 were not confined to the subject-matter of the appeal but extended to the subject-matter of the assessment. Those powers included a power of remand to include in the assessment something which ought to have been so included by the Income-tax Officer, and a remand in that case was, therefore, proper.The matter also came before this Court in The Commissioner of Income-tax v. M/s. McMillan & Co. ((1958) S.C.R. 689, 701.); but the question, with which we are concerned, was left open. There is, however, a passage in the judgment, approving of the observations of Chagla, C.J., in Narrondas Manordass v. Commissioner of Income-tax ((1925) I.L.R. 4 Pat. 385.) to the following effect"It is clear that the Appellate Assistant Commissioner has been constituted a revising authority against the decisions of the Income-tax Officer; a revising authority not in the narrow sense of revising what is the subject-matter of the appeal, not in the sense of revising those matters about which the assessee makes a grievance, but a revising authority in the sense that once the appeal is before him he can revise not only the ultimate computation arrived at by the Income-tax Officer but he can revise every process which led to the ultimate computation or assessment. In other words, what he can revise is not merely the ultimate amount which is liable to tax, but he is entitled to revise the various decisions given by the Income-tax Officer in the course of the assessment and also the various incomes or deductions which came in for consideration of the Income-tax Officer."6. The learned Chief Justice in the judgment under appeal considers that this Court has thus given approval to his view and also the view of the Patna High Court in the earlier case.7. In our opinion, this Court must be held not to have expressed its final opinion on the point arising here, in view of what was stated at pp. 709 and 710 of the Report. This Court, however, gave approval to the opinion of the learned Chief Justice of the Bombay High Court that s. 31 of the Income-tax Act confers not only appellate powers upon the Appellate Assistant Commissioner in so far as he is moved by an assessee but also a revisional jurisdiction to revise the assessment with power to enhance the assessment. So much, of course, follows from the language of the section itself. The only question is whether in enhancing the assessment for any year he can travel outside the record, that is to say, the return made by the assessee and the assessment order passed by the Income-tax Officer with a view of finding out new sources of income, not disclosed in either. It is contended by the Commissioner of Income-tax that the word "assessment" here means the ultimate amount which an assessee must pay, regard being had to the charging section and his total income. In this view, it is said that the words "enhance the assessment" are not confined to the assessment reached through a particular process but the amount which ought to have been computed if the true total income had been found. There is no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like s. 34 and 33B which enable escaped income from new sources to be brought to tax after following a special procedure. The assessee contends that the powers of the Appellate Assistant Commissioner extend to matters considered by the Income-tax Officer, and if a new source is to considered, then the power of remand should be exercised. By the exercise of the power to assess fresh sources of income, the assessee is deprived of a finding by two tribunals and one right of appeal.The question is whether we should accept the interpretation suggested by the Commissioner in preference to the one, which has held the field for nearly 37 years. In view of the provisions of ss. 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section. If it were not, one would expect that the legislature would have amended s. 31 and specified the other intention in express words. The Income-tax Act was amended several times in the last 37 years, but no amendment of s. 31(3) was undertaken to nullify the rulings, to which we have referred. In view of this, we do not think that we should interpret s. 31 differently from what has been accepted in India as its true import, particularly as that view is also reasonably possible.8. | 0[ds]There is no doubt that the Appellate Assistant Commissioner can "enhance the assessment". It is admitted also by the assessee that within the four corners of the sources processed by the Income-tax Officer, the Appellate Assistant Commissioner can enhance the assessment. This power must, at least, fall within the words "enhance the assessment", if they are not to be rendered wholly nugatory. The controversy in this case is about his discovering new sources, not mentioned in the return and not considered by the Income-taxour opinion, this Court must be held not to have expressed its final opinion on the point arising here, in view of what was stated at pp. 709 and 710 of the Report. This Court, however, gave approval to the opinion of the learned Chief Justice of the Bombay High Court that s. 31 of the Income-tax Act confers not only appellate powers upon the Appellate Assistant Commissioner in so far as he is moved by an assessee but also a revisional jurisdiction to revise the assessment with power to enhance the assessment. So much, of course, follows from the language of the sectionis no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like s. 34 and 33B which enable escaped income from new sources to be brought to tax after following a specialthe exercise of the power to assess fresh sources of income, the assessee is deprived of a finding by two tribunals and one right ofview of the provisions of ss. 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section. If it were not, one would expect that the legislature would have amended s. 31 and specified the other intention in express words. The Income-tax Act was amended several times in the last 37 years, but no amendment of s. 31(3) was undertaken to nullify the rulings, to which we have referred. In view of this, we do not think that we should interpret s. 31 differently from what has been accepted in India as its true import, particularly as that view is also reasonably possible. | 0 | 2,376 | 440 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the Rajkot business were assessed by the Income-tax Officer at Rs. 1, 17, 643/-. The Income-tax Officer also found remittances to the extent of Rs. 4 lakhs from Rajkot to Bombay, but did not include that amount in the assessment in view of the concession allowed by the Part B States Taxation Concession Order. The assessee appealed with respect to the sum of Rs. 1, 17, 643/-, contending that the Rajkot business had no profits but only loss. The Appellate Assistant Commissioner accepted this contention, but set aside the assessment and remanded the case to the Income-tax Officer for reassessment with a view of assessing the sum of Rs. 4 lakhs. In dealing with the case, the High Court held that the powers of remand were extremely wide, but it quoted with approval the decision of the Patna High Court in Jagarnath Therani v. Commissioner of Income-tax ((1952) 22 I.T.R. 502, 510.) and also the above observation of the Madras High Court. The learned Chief Justice on the occasion added that there was a distinction between the subject-matter of the appeal and the subject-matter of the assessment, and that the Appellant Assistant Commissioners powers under s. 31 were not confined to the subject-matter of the appeal but extended to the subject-matter of the assessment. Those powers included a power of remand to include in the assessment something which ought to have been so included by the Income-tax Officer, and a remand in that case was, therefore, proper.The matter also came before this Court in The Commissioner of Income-tax v. M/s. McMillan & Co. ((1958) S.C.R. 689, 701.); but the question, with which we are concerned, was left open. There is, however, a passage in the judgment, approving of the observations of Chagla, C.J., in Narrondas Manordass v. Commissioner of Income-tax ((1925) I.L.R. 4 Pat. 385.) to the following effect"It is clear that the Appellate Assistant Commissioner has been constituted a revising authority against the decisions of the Income-tax Officer; a revising authority not in the narrow sense of revising what is the subject-matter of the appeal, not in the sense of revising those matters about which the assessee makes a grievance, but a revising authority in the sense that once the appeal is before him he can revise not only the ultimate computation arrived at by the Income-tax Officer but he can revise every process which led to the ultimate computation or assessment. In other words, what he can revise is not merely the ultimate amount which is liable to tax, but he is entitled to revise the various decisions given by the Income-tax Officer in the course of the assessment and also the various incomes or deductions which came in for consideration of the Income-tax Officer."6. The learned Chief Justice in the judgment under appeal considers that this Court has thus given approval to his view and also the view of the Patna High Court in the earlier case.7. In our opinion, this Court must be held not to have expressed its final opinion on the point arising here, in view of what was stated at pp. 709 and 710 of the Report. This Court, however, gave approval to the opinion of the learned Chief Justice of the Bombay High Court that s. 31 of the Income-tax Act confers not only appellate powers upon the Appellate Assistant Commissioner in so far as he is moved by an assessee but also a revisional jurisdiction to revise the assessment with power to enhance the assessment. So much, of course, follows from the language of the section itself. The only question is whether in enhancing the assessment for any year he can travel outside the record, that is to say, the return made by the assessee and the assessment order passed by the Income-tax Officer with a view of finding out new sources of income, not disclosed in either. It is contended by the Commissioner of Income-tax that the word "assessment" here means the ultimate amount which an assessee must pay, regard being had to the charging section and his total income. In this view, it is said that the words "enhance the assessment" are not confined to the assessment reached through a particular process but the amount which ought to have been computed if the true total income had been found. There is no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like s. 34 and 33B which enable escaped income from new sources to be brought to tax after following a special procedure. The assessee contends that the powers of the Appellate Assistant Commissioner extend to matters considered by the Income-tax Officer, and if a new source is to considered, then the power of remand should be exercised. By the exercise of the power to assess fresh sources of income, the assessee is deprived of a finding by two tribunals and one right of appeal.The question is whether we should accept the interpretation suggested by the Commissioner in preference to the one, which has held the field for nearly 37 years. In view of the provisions of ss. 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section. If it were not, one would expect that the legislature would have amended s. 31 and specified the other intention in express words. The Income-tax Act was amended several times in the last 37 years, but no amendment of s. 31(3) was undertaken to nullify the rulings, to which we have referred. In view of this, we do not think that we should interpret s. 31 differently from what has been accepted in India as its true import, particularly as that view is also reasonably possible.8.
### Response:
0
### Explanation:
There is no doubt that the Appellate Assistant Commissioner can "enhance the assessment". It is admitted also by the assessee that within the four corners of the sources processed by the Income-tax Officer, the Appellate Assistant Commissioner can enhance the assessment. This power must, at least, fall within the words "enhance the assessment", if they are not to be rendered wholly nugatory. The controversy in this case is about his discovering new sources, not mentioned in the return and not considered by the Income-taxour opinion, this Court must be held not to have expressed its final opinion on the point arising here, in view of what was stated at pp. 709 and 710 of the Report. This Court, however, gave approval to the opinion of the learned Chief Justice of the Bombay High Court that s. 31 of the Income-tax Act confers not only appellate powers upon the Appellate Assistant Commissioner in so far as he is moved by an assessee but also a revisional jurisdiction to revise the assessment with power to enhance the assessment. So much, of course, follows from the language of the sectionis no doubt that this view is also possible. On the other hand, it must not be overlooked that there are other provisions like s. 34 and 33B which enable escaped income from new sources to be brought to tax after following a specialthe exercise of the power to assess fresh sources of income, the assessee is deprived of a finding by two tribunals and one right ofview of the provisions of ss. 34 and 33B by which escaped income can be brought to tax, there is reason to think that the view expressed uniformly about the limits of the powers of the Appellate Assistant Commissioner to enhance the assessment has been accepted by the legislature as the true exposition of the words of the section. If it were not, one would expect that the legislature would have amended s. 31 and specified the other intention in express words. The Income-tax Act was amended several times in the last 37 years, but no amendment of s. 31(3) was undertaken to nullify the rulings, to which we have referred. In view of this, we do not think that we should interpret s. 31 differently from what has been accepted in India as its true import, particularly as that view is also reasonably possible.
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Sree Ayyanar Spinning & Weaving M. Ltd Vs. Commissioner of Income Tax | years, whereas in the present case the claim of the assessee arose due to the change in the rate of depreciation brought about by Schedule XIV to the Companies Act which was inserted with effect from 2nd April, 1987. It is urged on behalf of the Department that the judgment of this Court in the case of Apollo Tyres (supra) was not applicable as in the present case the assessee had debited excess depreciation of Rs.1,10,09,445/- to the profit and loss account for the period 1.7.1987 to 30.6.1988 which consisted of Rs.19,24,684/-. According to the Department the excess depreciation of Rs.19,24,683/- was due to the change in the method of claiming depreciation from Straight Line Method to Written Down Value Method and, therefore, the judgment of this Court in Apollo Tyres case was not applicable. We have referred to the submissions of both sides on merits with which we are strictly not concerned. In this case we are only concerned with the interpretation of Section 254(2) regarding powers of the Tribunal in the matter of rectification of mistakes apparent from the record. This controversy has arisen because on 9th December, 1996, ITAT in ITA No. 719(MDS)/94 had passed an order upholding the order of CIT (Appeals) on computation of income under Section 115J of the said Act. By the said order ITAT had dismissed the appeal of the assessee on the ground that the profit and loss account of the assessee did not reflect correct picture for the Assessment Year 1989-90. On 2nd August, 2000 assessee had moved Miscellaneous Application bearing No. 40/2000 praying for recall of the order dated 9th December, 1996 by mainly relying upon the judgment of this Court in Apollo Tyres case. At this stage, it may be noted that the miscellaneous application dated 2nd August, 2000 was filed within four years from the date of the Tribunals Order dated 9th December, 1996. To complete the chronology of events, it may be stated that on 31st January, 2003 following the judgment of this Court in Apollo Tyres Limited the Tribunal allowed the rectification application filed by the assessee against which the Department carried the matter in appeal to the High Court under Section 260A of the Income Tax Act. 5. By the impugned judgment the High Court came to the conclusion that under Section 254(2) the Tribunal could not have allowed rectification beyond four years. That, the Tribunal had no power to rectify the mistake after four years which time is set out in Section 254(2) itself for passing an order of rectification either suo motu or an application filed either by the assessee or by the Assessing Officer. The High Court did not go into the merits of the case. The High Court allowed the appeal and set aside the order of the Tribunal only on the ground of limitation. Hence, this Civil Appeal by Special Leave. 6. In the light of the above controversy we set out herein below provisions of Section 254(2) of the 1963 Act which read as follows:- "The Appellate Tribunal, may at any time within four years from the dateof the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer." 7. Analysing the above provisions, we are of the view that Section 254(2) is in two parts. Under the first part, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake apparent from the record and amend any order passed by it under sub-section (1). Under the second part of Section 254(2) reference is to the amendment of the order passed by the Tribunal under sub-section (1) when the mistake is brought to its notice by the assessee or the Assessing Officer. Therefore, in short, the first part of Section 254(2) refers to suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In this case we are concerned with the second part of Section 254(2). As stated above, application for rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application.8. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years. 9. In this connection, our attention is also invited to the judgment of the Rajasthan High Court in the case of Harshvardhan Chemicals and Minerals Ltd. Vs. Union of India and Another (2002 (256) ITR 767) wherein an identical controversy arose for determination and the view taken by that Court was as follows:- "Once the assessee has moved the application within four years from the date of appeal, the Tribunal cannot reject that application on the ground that four years have lapsed, which includes the period of pendency of the application before the Tribunal. If the assessee has moved the application within four years from the date of the order, the Tribunal is bound to decide the application on the merits and not on the ground of limitation. Section 254(2) of the Income Tax Act, 1961, lays down that the Appellate Tribunal may at any time within four years from the date of the order rectify the mistake apparent from the record but that does not mean that if the application is moved within the period allowed, i.e., four years, and remains pending before the Tribunal, after the expiry of four years the Tribunal can reject the application on the ground of limitation." 10. We are in agreement with the view expressed by the Rajasthan High Court in the case of Harshvardhan Chemicals and Minerals Ltd. (supra). | 1[ds]7. Analysing the above provisions, we are of the view that Section 254(2) is in two parts. Under the first part, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake apparent from the record and amend any order passed by it under(1). Under the second part of Section 254(2) reference is to the amendment of the order passed by the Tribunal under(1) when the mistake is brought to its notice by the assessee or the Assessing Officer. Therefore, in short, the first part of Section 254(2) refers to suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In this case we are concerned with the second part of Section 254(2). As stated above, application for rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application.8. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years. | 1 | 1,618 | 249 | ### 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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years, whereas in the present case the claim of the assessee arose due to the change in the rate of depreciation brought about by Schedule XIV to the Companies Act which was inserted with effect from 2nd April, 1987. It is urged on behalf of the Department that the judgment of this Court in the case of Apollo Tyres (supra) was not applicable as in the present case the assessee had debited excess depreciation of Rs.1,10,09,445/- to the profit and loss account for the period 1.7.1987 to 30.6.1988 which consisted of Rs.19,24,684/-. According to the Department the excess depreciation of Rs.19,24,683/- was due to the change in the method of claiming depreciation from Straight Line Method to Written Down Value Method and, therefore, the judgment of this Court in Apollo Tyres case was not applicable. We have referred to the submissions of both sides on merits with which we are strictly not concerned. In this case we are only concerned with the interpretation of Section 254(2) regarding powers of the Tribunal in the matter of rectification of mistakes apparent from the record. This controversy has arisen because on 9th December, 1996, ITAT in ITA No. 719(MDS)/94 had passed an order upholding the order of CIT (Appeals) on computation of income under Section 115J of the said Act. By the said order ITAT had dismissed the appeal of the assessee on the ground that the profit and loss account of the assessee did not reflect correct picture for the Assessment Year 1989-90. On 2nd August, 2000 assessee had moved Miscellaneous Application bearing No. 40/2000 praying for recall of the order dated 9th December, 1996 by mainly relying upon the judgment of this Court in Apollo Tyres case. At this stage, it may be noted that the miscellaneous application dated 2nd August, 2000 was filed within four years from the date of the Tribunals Order dated 9th December, 1996. To complete the chronology of events, it may be stated that on 31st January, 2003 following the judgment of this Court in Apollo Tyres Limited the Tribunal allowed the rectification application filed by the assessee against which the Department carried the matter in appeal to the High Court under Section 260A of the Income Tax Act. 5. By the impugned judgment the High Court came to the conclusion that under Section 254(2) the Tribunal could not have allowed rectification beyond four years. That, the Tribunal had no power to rectify the mistake after four years which time is set out in Section 254(2) itself for passing an order of rectification either suo motu or an application filed either by the assessee or by the Assessing Officer. The High Court did not go into the merits of the case. The High Court allowed the appeal and set aside the order of the Tribunal only on the ground of limitation. Hence, this Civil Appeal by Special Leave. 6. In the light of the above controversy we set out herein below provisions of Section 254(2) of the 1963 Act which read as follows:- "The Appellate Tribunal, may at any time within four years from the dateof the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer." 7. Analysing the above provisions, we are of the view that Section 254(2) is in two parts. Under the first part, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake apparent from the record and amend any order passed by it under sub-section (1). Under the second part of Section 254(2) reference is to the amendment of the order passed by the Tribunal under sub-section (1) when the mistake is brought to its notice by the assessee or the Assessing Officer. Therefore, in short, the first part of Section 254(2) refers to suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In this case we are concerned with the second part of Section 254(2). As stated above, application for rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application.8. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years. 9. In this connection, our attention is also invited to the judgment of the Rajasthan High Court in the case of Harshvardhan Chemicals and Minerals Ltd. Vs. Union of India and Another (2002 (256) ITR 767) wherein an identical controversy arose for determination and the view taken by that Court was as follows:- "Once the assessee has moved the application within four years from the date of appeal, the Tribunal cannot reject that application on the ground that four years have lapsed, which includes the period of pendency of the application before the Tribunal. If the assessee has moved the application within four years from the date of the order, the Tribunal is bound to decide the application on the merits and not on the ground of limitation. Section 254(2) of the Income Tax Act, 1961, lays down that the Appellate Tribunal may at any time within four years from the date of the order rectify the mistake apparent from the record but that does not mean that if the application is moved within the period allowed, i.e., four years, and remains pending before the Tribunal, after the expiry of four years the Tribunal can reject the application on the ground of limitation." 10. We are in agreement with the view expressed by the Rajasthan High Court in the case of Harshvardhan Chemicals and Minerals Ltd. (supra).
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1
### Explanation:
7. Analysing the above provisions, we are of the view that Section 254(2) is in two parts. Under the first part, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake apparent from the record and amend any order passed by it under(1). Under the second part of Section 254(2) reference is to the amendment of the order passed by the Tribunal under(1) when the mistake is brought to its notice by the assessee or the Assessing Officer. Therefore, in short, the first part of Section 254(2) refers to suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In this case we are concerned with the second part of Section 254(2). As stated above, application for rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application.8. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years.
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Jyoti Basu and Others Vs. Debi Ghosal and Others | out a party who is not necessary. Bu t where the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as a curative means to save the petition." Again, in K. Venkateswara Rao &Anr. v. Bekkam Narasimha Reddi and Ors., (1) it was observed:"With regard to the addition of parties which is possible in the case of a suit under the provisions o f O.l r. 10 subject to the added party right to contend that the suit as against him was barred by limitation when he was added, no addition of parties is possible in the case of an election petition except under the provisions of Sub-sec. (4) of Section 86".6. The matter may be looked at from another angle. The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being named as one guilty of a corrupt practice. Parliament however, has not thought fit to expressly provide for his being joined as a party to the election petition either by the election-petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against named and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be named. The right does not extend to participation at all stages and in all matters, a right which he would have if he is joined as a party at the commencement. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition with all its intricacies and ramifications. One may well imagine how mischievous minded persons may harass public personages like the Prime Minister of the country, the Chief Minister of a State or a political leader of a national dimension by impleading him as a party to election petitions, all the country over. All that would be necessary is a seemingly plausible allegation, c asually or spitefully made, with but a facade of truth. Everyone is familiar with such allegations. To permit such a public personage to be impleaded as a party to an election petition on the basis of a mere allegation, without even prime facie proo f, an allegation which may ultimately be found to be unfounded, can cause needless vexation to such personage and prevent him from the effective discharge of his public duties. It would be against the public interest to do so. The ultimate aw ard of costs would be no panacea in such cases, since the public mischief cannot be repaired. That is why public Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which do es not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86 (4). It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be named is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.There is yet another view-point. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other party to recriminate i.e. to give evidence to prove that the e lection of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined a s a party to the petition then, by virtue of his position as a party, he would also be entitled to recriminate under sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert t he petition into a free for all fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec. 86(6) of the Act that the trial of the election petition should be c oncluded in six months. It is just as well to remember that corrupt practice as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined as respondents.7. In vi | 1[ds]A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy becaus e policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issu ance of the notification calling upon a constitutuency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned exce pt in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of theis equally significant that while an y candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Sec. 86 (4), any other person cannot, under that provision seek to be joined as respondent, even if allegations of any c orrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candida tes at the election. If such is the design of the statute, how can the notion of proper parties enter the picture at all ? We think that the concept of proper parties is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved m ay be joined as respondents to theis not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be named is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.There is yet another view-point. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other party to recriminate i.e. to give evidence to prove that the e lection of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined a s a party to the petition then, by virtue of his position as a party, he would also be entitled to recriminate under sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert t he petition into a free for all fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec. 86(6) of the Act that the trial of the election petition should be c oncluded in six months. It is just as well to remember that corrupt practice as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined asview of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. | 1 | 4,531 | 1,203 | ### 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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out a party who is not necessary. Bu t where the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as a curative means to save the petition." Again, in K. Venkateswara Rao &Anr. v. Bekkam Narasimha Reddi and Ors., (1) it was observed:"With regard to the addition of parties which is possible in the case of a suit under the provisions o f O.l r. 10 subject to the added party right to contend that the suit as against him was barred by limitation when he was added, no addition of parties is possible in the case of an election petition except under the provisions of Sub-sec. (4) of Section 86".6. The matter may be looked at from another angle. The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being named as one guilty of a corrupt practice. Parliament however, has not thought fit to expressly provide for his being joined as a party to the election petition either by the election-petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against named and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be named. The right does not extend to participation at all stages and in all matters, a right which he would have if he is joined as a party at the commencement. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition with all its intricacies and ramifications. One may well imagine how mischievous minded persons may harass public personages like the Prime Minister of the country, the Chief Minister of a State or a political leader of a national dimension by impleading him as a party to election petitions, all the country over. All that would be necessary is a seemingly plausible allegation, c asually or spitefully made, with but a facade of truth. Everyone is familiar with such allegations. To permit such a public personage to be impleaded as a party to an election petition on the basis of a mere allegation, without even prime facie proo f, an allegation which may ultimately be found to be unfounded, can cause needless vexation to such personage and prevent him from the effective discharge of his public duties. It would be against the public interest to do so. The ultimate aw ard of costs would be no panacea in such cases, since the public mischief cannot be repaired. That is why public Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which do es not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86 (4). It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be named is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.There is yet another view-point. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other party to recriminate i.e. to give evidence to prove that the e lection of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined a s a party to the petition then, by virtue of his position as a party, he would also be entitled to recriminate under sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert t he petition into a free for all fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec. 86(6) of the Act that the trial of the election petition should be c oncluded in six months. It is just as well to remember that corrupt practice as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined as respondents.7. In vi
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### Explanation:
Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy becaus e policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issu ance of the notification calling upon a constitutuency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned exce pt in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of theis equally significant that while an y candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Sec. 86 (4), any other person cannot, under that provision seek to be joined as respondent, even if allegations of any c orrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candida tes at the election. If such is the design of the statute, how can the notion of proper parties enter the picture at all ? We think that the concept of proper parties is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved m ay be joined as respondents to theis not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Sec. 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be named is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.There is yet another view-point. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other party to recriminate i.e. to give evidence to prove that the e lection of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined a s a party to the petition then, by virtue of his position as a party, he would also be entitled to recriminate under sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert t he petition into a free for all fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec. 86(6) of the Act that the trial of the election petition should be c oncluded in six months. It is just as well to remember that corrupt practice as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined asview of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition.
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Commissioner of Income Tax, West Bengal-II, Calcutta Vs. Kalyanji Mavji and Company | is the relevant clause, being the specific provision in respect of expenditure on current repairs to buildings and machinery, there is no justification for relying on s.10(2) (xv). S. 10(2) (xv) is a residuary clause, and deals with expenditure not being an allowance of the nature described in any of the preceding clauses of s.10(2). The submission is that where repairs are effected to buildings and machinery a deduction under s.10(2) is permissible only in respect of current repairs, and repairs which are not "current repairs" are not intended to be the subject of relief. The Act, it is contended, limits the repairs to "current" repairs. The repairs made by the assessee, it is said, cannot be described as "current repairs" Now, this contention rests on the principle that if a special provision covers the case, resort cannot be had to a general provision. It seems to us that if the renovation of the building, the reconditioning of machinery and the removal of debris cannot be described as "current repairs" and we assume that to be so-the case would be entitled to consideration under s.10(2)(xv). Section 10(2)(v) deals with current repairs only. The subject matter of s.10(2) (v) is "current repairs" and it appears difficult to agree that repairs which are not "current repairs" should not be considered for deduction on general principles or under s.10(2) (xv). There must be very strong evidence that in the case of such repairs, the Legislature intended a departure from the principle that an expenditure , laid out or expended wholly and exclusively for the purposes of the business, and which expenditure is not capital in nature, should not be allowed in computing the income from business. There is nothing in the language of s.10(2) (v) which declares or necessarily implies that repairs, other than, current repairs, will not qualify for the benefit of that principle. We must remember that on accepted commercial practice and trading principles an item of business expenditure must be deducted in order to arrive at the true figure of profits and gains for tax purposes. The rule was held by the Privy Council in C.I.T. v. Chitnis(1) to be applicable in the case of losses, and it has been applied by the courts in India to business expenditure incurred by an assessee. Motipur Sugar Factory Ltd. v. C.I.T., Bihar and Orissa(2) and Devi Films Ltd. v. C.I.T. Madras(3). The principle found favour with this Court in Badridas Daga v. C.I.T.(4) and Calcutta Co. Ltd. v. C.I.T . West Bengal(5). the contents of that rule be true on general principle, there is good reason why the scope of s.10(2) (xv) should be construed liberally. In our opinion, even if the expenditure made by the assessee in the present case cannot be described as "current repairs", he is entitled to invoke the benefit of s. 10(2) (xv). We may mention that in The Law Shipping Co. Ltd. v. Commissioners of Inland Revenue(6) it has been held that accumulated arrears for repairs are non e the less repairs necessary to earn profits, although they have been allowed to accumulate.The question then is whether s. 10(2) (xv) is attracted. There can be little doubt that the expenditure incurred is incidental to the business of the assessee. It was involved in renovating the buildings, reconditioning the machinery and clearing the debris, from the land. All the work done was for the purpose of resuming the operation of the colliery. The expenditure was laid out wholly and exclusively for the purposes of the business. We do not think there can be any dispute as to that. 6. But the more serious question is whether the expenditure can be regarded as capital in nature, for if that be so the benefit of s. 10(2) (xv), on its plain terms, must be denied. Now, whether an expenditure can be described as capital or revenue falls to be decided by several tests, each one of which approaches the question from one perspective or another, condition ed by the particular facts of each case. We need not refer to all of them. On the facts of the present case, it seems sufficient to mention the tests laid down by this Court in Assam Bengal Cement Co. Ltd. v. C.I.T. West Bengal(7). The business o f the assessee in the present case was coal-mining, and it was carried on by the operation of a network of collieries. Hach colliery was a unit of production. While the several units of production continued to be employed and the business continued to be carried on, one alone of the units, the South Samla Colliery was compelled to suspend production. The suspension was expected to be of temporary duration, because the property was merely requisitioned for military use, it was not acquired. As soon as the property was de-requisitioned, the assessee took measures to resume production of coal. It was necessary to remove the impediments which had come in the way by reason of the temporary suspension of work. The buildings were removated, the machinery reconditioned and the accumulated debris removed from the land. The colliery was, in a word, reinstated to the condition necessary for ensuring production. No new asset was brought into existence; no ad vantage for the enduring benefit of the business was acquired. An activity which was continuously in operation but had been temporarily suspended was to be resumed. It is immaterial that during the year under consideration there was no mining activity. That the colliery was regarded as an asset of a continuing business all along, even during the period of military occupation, is evidenced by the fact that expenditure incurred by the assessee during that period in respect of the colliery was allowed as a permissible deduction in its income tax assessments. The expenditure of Rs. 1, 61, 742 under consideration in the present case was also expenditure laid out as part of the process of profit earning. The nature of the expenditure is clearly revenue in character. | 0[ds]It seems to us that if the renovation of the building, the reconditioning of machinery and the removal of debris cannot be described as "current repairs" and we assume that to be so-the case would be entitled to considerationunder s.. Section 10(2)(v) deals with current repairs only. The subject matter of s.10(2) (v) is "current repairs" and it appears difficult to agree that repairs which are not "current repairs" should not be considered for deduction on general principles orunders.10(2) (xv).There must be very strong evidence that in the case of such repairs, the Legislature intended a departure from the principle that an expenditure , laid out or expended wholly and exclusively for the purposes of the business, and which expenditure is not capital in nature, should not be allowed in computing the income from business. There is nothing in the language of s.10(2) (v) which declares or necessarily implies that repairs, other than, current repairs, will not qualify for the benefit of that principle. We must remember that on accepted commercial practice and trading principles an item of business expenditure must be deducted in order to arrive at the true figure of profits and gains for tax purposes. The rule was held by the Privy Council in C.I.T. v. Chitnis(1) to be applicable in the case of losses, and it has been applied by the courts in India to business expenditure incurred by an assessee. Motipur Sugar Factory Ltd. v. C.I.T., Bihar and Orissa(2) and Devi Films Ltd. v. C.I.T. Madras(3). The principle found favour with this Court in Badridas Daga v. C.I.T.(4) and Calcutta Co. Ltd. v. C.I.T . West Bengal(5). the contents of that rule be true on general principle, there is good reason why the scope of s.10(2) (xv) should be construed liberally. In our opinion, even if the expenditure made by the assessee in the present case cannot be described as "current repairs", he is entitled to invoke the benefit of s. 10(2) (xv). We may mention that in The Law Shipping Co. Ltd. v. Commissioners of Inland Revenue(6) it has been held that accumulated arrears for repairs are non e the less repairs necessary to earn profits, although they have been allowed to accumulate.The question then is whether s. 10(2) (xv) is attracted. There can be little doubt that the expenditure incurred is incidental to the business of the assessee. It was involved in renovating the buildings, reconditioning the machinery and clearing the debris, from the land. All the work done was for the purpose of resuming the operation of the colliery. The expenditure was laid out wholly and exclusively for the purposes of the business. We do not think there can be any dispute as to thatOn the facts of the present case, it seems sufficient to mention the tests laid down by this Court in Assam Bengal Cement Co. Ltd. v. C.I.T. West Bengal(7). The business o f the assessee in the present case was coal-mining, and it was carried on by the operation of a network of collieries. Hach colliery was a unit of production. While the several units of production continued to be employed and the business continued to be carried on, one alone of the units, the South Samla Colliery was compelled to suspend production. The suspension was expected to be of temporary duration, because the property was merely requisitioned for military use, it was not acquired. As soon as the property was de-requisitioned, the assessee took measures to resume production of coal. It was necessary to remove the impediments which had come in the way by reason of the temporary suspension of work. The buildings were removated, the machinery reconditioned and the accumulated debris removed from the land. The colliery was, in a word, reinstated to the condition necessary for ensuring production. No new asset was brought into existence; no ad vantage for the enduring benefit of the business was acquired. An activity which was continuously in operation but had been temporarily suspended was to be resumed. It is immaterial that during the yearunderconsideration there was no mining activity. That the colliery was regarded as an asset of a continuing business all along, even during the period of military occupation, is evidenced by the fact that expenditure incurred by the assessee during that period in respect of the colliery was allowed as a permissible deduction in its income tax assessments. The expenditure of Rs.1,consideration in the present case was also expenditure laid out as part of the process of profit earning. The nature of the expenditure is clearly revenue in characterThe contention is without substance. The facts on which the High Court has relied are admitted between the parties or are facts found by thex authorities. We have no hesitation in rejecting the first contention. | 0 | 2,141 | 930 | ### Instruction:
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is the relevant clause, being the specific provision in respect of expenditure on current repairs to buildings and machinery, there is no justification for relying on s.10(2) (xv). S. 10(2) (xv) is a residuary clause, and deals with expenditure not being an allowance of the nature described in any of the preceding clauses of s.10(2). The submission is that where repairs are effected to buildings and machinery a deduction under s.10(2) is permissible only in respect of current repairs, and repairs which are not "current repairs" are not intended to be the subject of relief. The Act, it is contended, limits the repairs to "current" repairs. The repairs made by the assessee, it is said, cannot be described as "current repairs" Now, this contention rests on the principle that if a special provision covers the case, resort cannot be had to a general provision. It seems to us that if the renovation of the building, the reconditioning of machinery and the removal of debris cannot be described as "current repairs" and we assume that to be so-the case would be entitled to consideration under s.10(2)(xv). Section 10(2)(v) deals with current repairs only. The subject matter of s.10(2) (v) is "current repairs" and it appears difficult to agree that repairs which are not "current repairs" should not be considered for deduction on general principles or under s.10(2) (xv). There must be very strong evidence that in the case of such repairs, the Legislature intended a departure from the principle that an expenditure , laid out or expended wholly and exclusively for the purposes of the business, and which expenditure is not capital in nature, should not be allowed in computing the income from business. There is nothing in the language of s.10(2) (v) which declares or necessarily implies that repairs, other than, current repairs, will not qualify for the benefit of that principle. We must remember that on accepted commercial practice and trading principles an item of business expenditure must be deducted in order to arrive at the true figure of profits and gains for tax purposes. The rule was held by the Privy Council in C.I.T. v. Chitnis(1) to be applicable in the case of losses, and it has been applied by the courts in India to business expenditure incurred by an assessee. Motipur Sugar Factory Ltd. v. C.I.T., Bihar and Orissa(2) and Devi Films Ltd. v. C.I.T. Madras(3). The principle found favour with this Court in Badridas Daga v. C.I.T.(4) and Calcutta Co. Ltd. v. C.I.T . West Bengal(5). the contents of that rule be true on general principle, there is good reason why the scope of s.10(2) (xv) should be construed liberally. In our opinion, even if the expenditure made by the assessee in the present case cannot be described as "current repairs", he is entitled to invoke the benefit of s. 10(2) (xv). We may mention that in The Law Shipping Co. Ltd. v. Commissioners of Inland Revenue(6) it has been held that accumulated arrears for repairs are non e the less repairs necessary to earn profits, although they have been allowed to accumulate.The question then is whether s. 10(2) (xv) is attracted. There can be little doubt that the expenditure incurred is incidental to the business of the assessee. It was involved in renovating the buildings, reconditioning the machinery and clearing the debris, from the land. All the work done was for the purpose of resuming the operation of the colliery. The expenditure was laid out wholly and exclusively for the purposes of the business. We do not think there can be any dispute as to that. 6. But the more serious question is whether the expenditure can be regarded as capital in nature, for if that be so the benefit of s. 10(2) (xv), on its plain terms, must be denied. Now, whether an expenditure can be described as capital or revenue falls to be decided by several tests, each one of which approaches the question from one perspective or another, condition ed by the particular facts of each case. We need not refer to all of them. On the facts of the present case, it seems sufficient to mention the tests laid down by this Court in Assam Bengal Cement Co. Ltd. v. C.I.T. West Bengal(7). The business o f the assessee in the present case was coal-mining, and it was carried on by the operation of a network of collieries. Hach colliery was a unit of production. While the several units of production continued to be employed and the business continued to be carried on, one alone of the units, the South Samla Colliery was compelled to suspend production. The suspension was expected to be of temporary duration, because the property was merely requisitioned for military use, it was not acquired. As soon as the property was de-requisitioned, the assessee took measures to resume production of coal. It was necessary to remove the impediments which had come in the way by reason of the temporary suspension of work. The buildings were removated, the machinery reconditioned and the accumulated debris removed from the land. The colliery was, in a word, reinstated to the condition necessary for ensuring production. No new asset was brought into existence; no ad vantage for the enduring benefit of the business was acquired. An activity which was continuously in operation but had been temporarily suspended was to be resumed. It is immaterial that during the year under consideration there was no mining activity. That the colliery was regarded as an asset of a continuing business all along, even during the period of military occupation, is evidenced by the fact that expenditure incurred by the assessee during that period in respect of the colliery was allowed as a permissible deduction in its income tax assessments. The expenditure of Rs. 1, 61, 742 under consideration in the present case was also expenditure laid out as part of the process of profit earning. The nature of the expenditure is clearly revenue in character.
### Response:
0
### Explanation:
It seems to us that if the renovation of the building, the reconditioning of machinery and the removal of debris cannot be described as "current repairs" and we assume that to be so-the case would be entitled to considerationunder s.. Section 10(2)(v) deals with current repairs only. The subject matter of s.10(2) (v) is "current repairs" and it appears difficult to agree that repairs which are not "current repairs" should not be considered for deduction on general principles orunders.10(2) (xv).There must be very strong evidence that in the case of such repairs, the Legislature intended a departure from the principle that an expenditure , laid out or expended wholly and exclusively for the purposes of the business, and which expenditure is not capital in nature, should not be allowed in computing the income from business. There is nothing in the language of s.10(2) (v) which declares or necessarily implies that repairs, other than, current repairs, will not qualify for the benefit of that principle. We must remember that on accepted commercial practice and trading principles an item of business expenditure must be deducted in order to arrive at the true figure of profits and gains for tax purposes. The rule was held by the Privy Council in C.I.T. v. Chitnis(1) to be applicable in the case of losses, and it has been applied by the courts in India to business expenditure incurred by an assessee. Motipur Sugar Factory Ltd. v. C.I.T., Bihar and Orissa(2) and Devi Films Ltd. v. C.I.T. Madras(3). The principle found favour with this Court in Badridas Daga v. C.I.T.(4) and Calcutta Co. Ltd. v. C.I.T . West Bengal(5). the contents of that rule be true on general principle, there is good reason why the scope of s.10(2) (xv) should be construed liberally. In our opinion, even if the expenditure made by the assessee in the present case cannot be described as "current repairs", he is entitled to invoke the benefit of s. 10(2) (xv). We may mention that in The Law Shipping Co. Ltd. v. Commissioners of Inland Revenue(6) it has been held that accumulated arrears for repairs are non e the less repairs necessary to earn profits, although they have been allowed to accumulate.The question then is whether s. 10(2) (xv) is attracted. There can be little doubt that the expenditure incurred is incidental to the business of the assessee. It was involved in renovating the buildings, reconditioning the machinery and clearing the debris, from the land. All the work done was for the purpose of resuming the operation of the colliery. The expenditure was laid out wholly and exclusively for the purposes of the business. We do not think there can be any dispute as to thatOn the facts of the present case, it seems sufficient to mention the tests laid down by this Court in Assam Bengal Cement Co. Ltd. v. C.I.T. West Bengal(7). The business o f the assessee in the present case was coal-mining, and it was carried on by the operation of a network of collieries. Hach colliery was a unit of production. While the several units of production continued to be employed and the business continued to be carried on, one alone of the units, the South Samla Colliery was compelled to suspend production. The suspension was expected to be of temporary duration, because the property was merely requisitioned for military use, it was not acquired. As soon as the property was de-requisitioned, the assessee took measures to resume production of coal. It was necessary to remove the impediments which had come in the way by reason of the temporary suspension of work. The buildings were removated, the machinery reconditioned and the accumulated debris removed from the land. The colliery was, in a word, reinstated to the condition necessary for ensuring production. No new asset was brought into existence; no ad vantage for the enduring benefit of the business was acquired. An activity which was continuously in operation but had been temporarily suspended was to be resumed. It is immaterial that during the yearunderconsideration there was no mining activity. That the colliery was regarded as an asset of a continuing business all along, even during the period of military occupation, is evidenced by the fact that expenditure incurred by the assessee during that period in respect of the colliery was allowed as a permissible deduction in its income tax assessments. The expenditure of Rs.1,consideration in the present case was also expenditure laid out as part of the process of profit earning. The nature of the expenditure is clearly revenue in characterThe contention is without substance. The facts on which the High Court has relied are admitted between the parties or are facts found by thex authorities. We have no hesitation in rejecting the first contention.
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Commissioner of Income Tax, Kerala Vs. P. Krishna Warrier | SHAH J. 1. One P. S. Warrier carried on business in Ayurvedic drugs in the name and style of "Arya Vaidya Shala". He made a will appointing trustees of his estate. The trustees were directed to carry on the "Arya Vaidya Shala" and to maintain a hospital and a school conducted by Warrier and to apply 60% of the income for the benefit of the hospital and the school and the rest for the benefit of two thavazies. Exigibility to tax of 60% of the income directed to be utilised for the hospital and the school was finally decided by this court in Commissioner of Income-tax v. P. Krishna Warriar. In these appeals the dispute relates to the special surcharge on income-tax and super-tax on the balance of the income directed to be given to the two thavazies in the account years relevant to the assessment years 1957-58 to 1961-62 After the original assessments were completed, on coming to learn that 15% surcharge on tax should have been levied in respect of the total income of the trust, which in his view was unearned income, the Income-tax Officer issued notices under section 34(1)(b) and assessed the trustees to special surcharge under the Finance Act, 1957 (2 of 1957). The order was confirmed in appeal by the Appellate Assistant Commissioner and the Appellate Tribunal. At the instance of the trustees three questions were referred to the High Court of Kerala, the last of which alone is relevant in these appeals:(3) Whether the 40 per cent. of the profits of the business of Arya Vaidyashala payable to the two thavazies is assessable as unearned income in the hands of the trustees under section 41 of the Indian Income-tax Act, 1922, and subject to the levy of a special surcharge?" 2. The High Court of Kerala held that the share paid to the thavazies, being earned income, was not liable to surcharge. In the opinion of the High Court the case did not fall within the terms of section 41 of the Indian income-tax Act, 1922, since the business of "Arya Vaidya Shala" was property and the trustees did not carry on the business on behalf of any beneficiaryBy the Finance Act (No. 2), 1957 (2 of 1957), Part I, a surcharge on income-tax is levied. The relevant provision reads:"(ii) In the case of every individual who is not married and every individual or Hindu undivided family whose total income in either case exceeds Rs. 20, 000 and in the case of every unregistered firm or other association of persons The amount of income-tax computed at the rates hereinbefore specified shall be increased by the aggregate of the surcharges calculated as under :-- (a) A surcharge for purposes of the Union equal to the sum of-- (i) five per cent. of the amount of income-tax ; and (b) A special surcharge on unearned income at fifteen per cent. of the difference between the amount of income-tax on the total income and the amount of income-tax on the whole of the earned income, if any included in the total income if such earned income had been the total income : ..." 3. A similar provision is made for the levy of surcharge on super-tax in the case of every individual, Hindu undivided family, unregistered firm and other association of persons, at the rates prescribed therein and surcharge on super-tax is levied under the following provision ;"The amount of super-tax computed at the rates hereinbefore specified shall be increased by the aggregate of the surcharge calculated as under (a) A surcharge for purposes of the Union equal to the sum of, -- (i) five per cent. of the amount of super-tax ; (b) A special surcharge on unearned income at fifteen per cent. of the difference between the amount of super-tax on the total income and the amount of super-tax on the whole of the earned income, if any, included in the total income, if such earned income has been the total income." 4. The Finance Acts of 1958, 1959, 1960 and 1961 contained similar provisions for levy of a surcharge on income-tax and super-taxBy section 2(6AA) it is enacted, in so far as it is relevant for the purpose of these appeals, that:" earned income means any income of an assessee who is an individual, Hindu undivided family, unregistered firm or other association of persons not being a company, a local authority, a registered firm or a firm assessed under clause (b) of sub-section (5) of section 23-- (b) which is chargeable under the head Profits and gains of business, profession or vocation where the business, profession or vocation is carried on by the assessee or, in the case of a firm, where the assessee is a partner actively engaged in the conduct of the business, profession or vocation ; or and includes any such income which, though it is the income of another person, is included in the assessees income under the provisions of this Act, but does not include any such income which is exempt from tax under sub-section (2) of section 14 or under a notification issued under section 60 ; ..." 5. Under the will of P. S. Warrier the trustees were directed to carry on the business of "Arya Vaidya Shala". In the income of the business the trustees had no beneficial interest, but it was still income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees. Being income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees, it was earned income in their hands, and to the earned income the special surcharge under the Finance Acts of 1957, 1958, 1959, 1960 and 1961 had no application. The High Court was right in answering the third question referred by the Tribunal in favour of the trustees 6. | 0[ds]The High Court of Kerala held that the share paid to the thavazies, being earned income, was not liable to surcharge. In the opinion of the High Court the case did not fall within the terms of section 41 of the Indian income-tax Act, 1922, since the business of "Arya Vaidya Shala" was property and the trustees did not carry on the business on behalf of any beneficiaryBy the Finance Act (No. 2), 1957 (2 of 1957), Part I, a surcharge on income-tax is leviedUnder the will of P. S. Warrier the trustees were directed to carry on the business of "Arya Vaidya Shala". In the income of the business the trustees had no beneficial interest, but it was still income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees. Being income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees, it was earned income in their hands, and to the earned income the special surcharge under the Finance Acts of 1957, 1958, 1959, 1960 and 1961 had no application. The High Court was right in answering the third question referred by the Tribunal in favour of the trustees | 0 | 1,128 | 241 | ### 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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SHAH J. 1. One P. S. Warrier carried on business in Ayurvedic drugs in the name and style of "Arya Vaidya Shala". He made a will appointing trustees of his estate. The trustees were directed to carry on the "Arya Vaidya Shala" and to maintain a hospital and a school conducted by Warrier and to apply 60% of the income for the benefit of the hospital and the school and the rest for the benefit of two thavazies. Exigibility to tax of 60% of the income directed to be utilised for the hospital and the school was finally decided by this court in Commissioner of Income-tax v. P. Krishna Warriar. In these appeals the dispute relates to the special surcharge on income-tax and super-tax on the balance of the income directed to be given to the two thavazies in the account years relevant to the assessment years 1957-58 to 1961-62 After the original assessments were completed, on coming to learn that 15% surcharge on tax should have been levied in respect of the total income of the trust, which in his view was unearned income, the Income-tax Officer issued notices under section 34(1)(b) and assessed the trustees to special surcharge under the Finance Act, 1957 (2 of 1957). The order was confirmed in appeal by the Appellate Assistant Commissioner and the Appellate Tribunal. At the instance of the trustees three questions were referred to the High Court of Kerala, the last of which alone is relevant in these appeals:(3) Whether the 40 per cent. of the profits of the business of Arya Vaidyashala payable to the two thavazies is assessable as unearned income in the hands of the trustees under section 41 of the Indian Income-tax Act, 1922, and subject to the levy of a special surcharge?" 2. The High Court of Kerala held that the share paid to the thavazies, being earned income, was not liable to surcharge. In the opinion of the High Court the case did not fall within the terms of section 41 of the Indian income-tax Act, 1922, since the business of "Arya Vaidya Shala" was property and the trustees did not carry on the business on behalf of any beneficiaryBy the Finance Act (No. 2), 1957 (2 of 1957), Part I, a surcharge on income-tax is levied. The relevant provision reads:"(ii) In the case of every individual who is not married and every individual or Hindu undivided family whose total income in either case exceeds Rs. 20, 000 and in the case of every unregistered firm or other association of persons The amount of income-tax computed at the rates hereinbefore specified shall be increased by the aggregate of the surcharges calculated as under :-- (a) A surcharge for purposes of the Union equal to the sum of-- (i) five per cent. of the amount of income-tax ; and (b) A special surcharge on unearned income at fifteen per cent. of the difference between the amount of income-tax on the total income and the amount of income-tax on the whole of the earned income, if any included in the total income if such earned income had been the total income : ..." 3. A similar provision is made for the levy of surcharge on super-tax in the case of every individual, Hindu undivided family, unregistered firm and other association of persons, at the rates prescribed therein and surcharge on super-tax is levied under the following provision ;"The amount of super-tax computed at the rates hereinbefore specified shall be increased by the aggregate of the surcharge calculated as under (a) A surcharge for purposes of the Union equal to the sum of, -- (i) five per cent. of the amount of super-tax ; (b) A special surcharge on unearned income at fifteen per cent. of the difference between the amount of super-tax on the total income and the amount of super-tax on the whole of the earned income, if any, included in the total income, if such earned income has been the total income." 4. The Finance Acts of 1958, 1959, 1960 and 1961 contained similar provisions for levy of a surcharge on income-tax and super-taxBy section 2(6AA) it is enacted, in so far as it is relevant for the purpose of these appeals, that:" earned income means any income of an assessee who is an individual, Hindu undivided family, unregistered firm or other association of persons not being a company, a local authority, a registered firm or a firm assessed under clause (b) of sub-section (5) of section 23-- (b) which is chargeable under the head Profits and gains of business, profession or vocation where the business, profession or vocation is carried on by the assessee or, in the case of a firm, where the assessee is a partner actively engaged in the conduct of the business, profession or vocation ; or and includes any such income which, though it is the income of another person, is included in the assessees income under the provisions of this Act, but does not include any such income which is exempt from tax under sub-section (2) of section 14 or under a notification issued under section 60 ; ..." 5. Under the will of P. S. Warrier the trustees were directed to carry on the business of "Arya Vaidya Shala". In the income of the business the trustees had no beneficial interest, but it was still income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees. Being income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees, it was earned income in their hands, and to the earned income the special surcharge under the Finance Acts of 1957, 1958, 1959, 1960 and 1961 had no application. The High Court was right in answering the third question referred by the Tribunal in favour of the trustees 6.
### Response:
0
### Explanation:
The High Court of Kerala held that the share paid to the thavazies, being earned income, was not liable to surcharge. In the opinion of the High Court the case did not fall within the terms of section 41 of the Indian income-tax Act, 1922, since the business of "Arya Vaidya Shala" was property and the trustees did not carry on the business on behalf of any beneficiaryBy the Finance Act (No. 2), 1957 (2 of 1957), Part I, a surcharge on income-tax is leviedUnder the will of P. S. Warrier the trustees were directed to carry on the business of "Arya Vaidya Shala". In the income of the business the trustees had no beneficial interest, but it was still income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees. Being income chargeable under the head "Profits and gains of business, profession or vocation" carried on by the trustees, it was earned income in their hands, and to the earned income the special surcharge under the Finance Acts of 1957, 1958, 1959, 1960 and 1961 had no application. The High Court was right in answering the third question referred by the Tribunal in favour of the trustees
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P. C. Wadhwa Vs. State Of Haryana & Ors | allowance under the order would not exceed a sum of Rs. 300/- per mensem. Reading Rule 2(b) in conjunction with para (i) (c) (ii) of the order of the Punjab Government, it is manifest that the appellant is doubtless entitled to deputation allowance at the rates mentioned in the order of the Punjab Government which fully applies to Haryana Government also. The argument advanced by the appellant therefore is unanswerable. 5. Mr. Bhagat, appearing for the State of Haryana, submitted that there is no provision either in Rule 6 of the IPS (Cadre) Rules, 1954 or in Rule 9 of the IPS (Pay) Rules 1954 regarding payment of deputation allowance and hence it should be held that any officer belonging to the IPS cadre was debarred from getting any deputation allowance unless there was an express provision in the said rules. Relevant part of rule 6 of the IPS (Cadre) Rules may be extracted thus:"Deputation of Cadre Officers.- (1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantial ly owned or controlled by the Central Government or by another State Government. (2) A cadre officer may also be deputed for service under:- (i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on w hose cadre he is borne, and (ii) ... ... ... Provided that ......... Provided further that no cadre officer shall be deputed under sub-rule (i) or sub rule (2) to a post carrying a prescribed pay which is less than or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation." 6. We are unable to read in any of these rules any prohibition or bar to the payment of deputation allowance to an officer of the IPS Cadre on deputation to any of the authorities mentioned in rule 2(i) above. In the instant case the appellant was sent on deputation to the Board which is a body wholly or substantially owned by the State Government. The mere absence of the provision for payment of deputation allowance cannot be interpreted to mean an absolute bar to the receipt of such deputation allowance by an IPS Cadre officer, if other Rules permit such a course of action. Similarly, Rule 9 of the IPS (Pay) Rules, 1954 contains various clauses which merely protect the Pay and salaries admissible to an IPS officer when sent on deputation. There is no reference to any allowance or other emoluments in the Rule, excepting pay which is clearly set out in Schedule III to those Rules. We have gone through Sub-Rules (1) to (6) of Rule 9 and are unable to find any limitation contained in these rules which could prevent the appellant from getting deputation allowance. Reliance was, however, placed on the proviso to sub-rule (6) which may be extracted thus:"Provided that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4)." 7. The dominant object of the proviso is merely to protect the pay and salary which an IPS officer was getting when he was sent on deputation, so that his being sent on deputation may not cause any prejudice to his career or emoluments. There being no Rules on the subject, it is manifest that in such cases the Residuary Rules would apply. We might mention that the Residuary Rules were made in 1960, about six years after the issuance of IPS (Cadre) Rules and IPS (Pay) Rules. It seems to us that the Central Government realised that, when other officers of the State Government on deputation were entitled to deputation allowance, there was no reason why this privilege should be denied to officers of the cadre of IPS. Perhaps it was with this essential object in view that Rule 2(b) of the Residuary Rules was enacted so as to enable IPS officers to get deputation allowance on the same terms as officers of State Civil Service Class I were getting. This provision would naturally hold the field in the absence of any express Rules made by the Central Government, which have so far not been made. 8. Counsel appearing for the Board submitted before us that the letter of the Governor dated August 14, 1970 laying down the terms of deputation of the appellant does not contain any mention of deputation allowance to be given to the appellant and should therefore be read as a modification made by the Central Government, as contemplated by clause (b) of rule 2 of the Residuary Rules. We are, however, unable to agree with this contention. In the first place, Rule 2 (b) of the Residuary Rules makes an exception only if the Central Government makes an order and that too after consultation with the State Government concerned modifying the Rule. There is no evidence in this case to show that any order was passed by the Central Government after consulting the State Government to modify or take away the effect of rule 2(b) of the Residuary Rules. The order of the Governor of Haryana cannot by any stretch of imagination be construed as an order passed by the Central Government. For these reasons the contentions raised by the respondents must be overruled. For the reasons given above we hold that the appellant is legally entitled under the Statutory Rules as indicated above to get deputation allowance. The Board was therefore in law bound to pay the said deputation allowance to the appellant. | 1[ds]We are unable to read in any of these rules any prohibition or bar to the payment of deputation allowance to an officer of the IPS Cadre on deputation to any of the authorities mentioned in rule 2(i) above. In the instant case the appellant was sent on deputation to the Board which is a body wholly or substantially owned by the State Government. The mere absence of the provision for payment of deputation allowance cannot be interpreted to mean an absolute bar to the receipt of such deputation allowance by an IPS Cadre officer, if other Rules permit such a course of action. Similarly, Rule 9 of the IPS (Pay) Rules, 1954 contains various clauses which merely protect the Pay and salaries admissible to an IPS officer when sent on deputation. There is no reference to any allowance or other emoluments in the Rule, excepting pay which is clearly set out in Schedule III to those Rules. We have gone through Sub-Rules (1) to (6) of Rule 9 and are unable to find any limitation contained in these rules which could prevent the appellant from getting deputation allowance. Reliance was, however, placed on the proviso to sub-rule (6) which may be extractedd that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4)."The dominant object of the proviso is merely to protect the pay and salary which an IPS officer was getting when he was sent on deputation, so that his being sent on deputation may not cause any prejudice to his career or emoluments. There being no Rules on the subject, it is manifest that in such cases the Residuary Rules would apply. We might mention that the Residuary Rules were made in 1960, about six years after the issuance of IPS (Cadre) Rules and IPS (Pay) Rules. It seems to us that the Central Government realised that, when other officers of the State Government on deputation were entitled to deputation allowance, there was no reason why this privilege should be denied to officers of the cadre of IPS. Perhaps it was with this essential object in view that Rule 2(b) of the Residuary Rules was enacted so as to enable IPS officers to get deputation allowance on the same terms as officers of State Civil Service Class I were getting. This provision would naturally hold the field in the absence of any express Rules made by the Central Government, which have so far not been madeIn the first place, Rule 2 (b) of the Residuary Rules makes an exception only if the Central Government makes an order and that too after consultation with the State Government concerned modifying the Rule. There is no evidence in this case to show that any order was passed by the Central Government after consulting the State Government to modify or take away the effect of rule 2(b) of the Residuary Rules. The order of the Governor of Haryana cannot by any stretch of imagination be construed as an order passed by the Central Government. For these reasons the contentions raised by the respondents must be overruled. For the reasons given above we hold that the appellant is legally entitled under the Statutory Rules as indicated above to get deputation allowance. The Board was therefore in law bound to pay the said deputation allowance to the appellant. | 1 | 2,237 | 649 | ### 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:
allowance under the order would not exceed a sum of Rs. 300/- per mensem. Reading Rule 2(b) in conjunction with para (i) (c) (ii) of the order of the Punjab Government, it is manifest that the appellant is doubtless entitled to deputation allowance at the rates mentioned in the order of the Punjab Government which fully applies to Haryana Government also. The argument advanced by the appellant therefore is unanswerable. 5. Mr. Bhagat, appearing for the State of Haryana, submitted that there is no provision either in Rule 6 of the IPS (Cadre) Rules, 1954 or in Rule 9 of the IPS (Pay) Rules 1954 regarding payment of deputation allowance and hence it should be held that any officer belonging to the IPS cadre was debarred from getting any deputation allowance unless there was an express provision in the said rules. Relevant part of rule 6 of the IPS (Cadre) Rules may be extracted thus:"Deputation of Cadre Officers.- (1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantial ly owned or controlled by the Central Government or by another State Government. (2) A cadre officer may also be deputed for service under:- (i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on w hose cadre he is borne, and (ii) ... ... ... Provided that ......... Provided further that no cadre officer shall be deputed under sub-rule (i) or sub rule (2) to a post carrying a prescribed pay which is less than or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation." 6. We are unable to read in any of these rules any prohibition or bar to the payment of deputation allowance to an officer of the IPS Cadre on deputation to any of the authorities mentioned in rule 2(i) above. In the instant case the appellant was sent on deputation to the Board which is a body wholly or substantially owned by the State Government. The mere absence of the provision for payment of deputation allowance cannot be interpreted to mean an absolute bar to the receipt of such deputation allowance by an IPS Cadre officer, if other Rules permit such a course of action. Similarly, Rule 9 of the IPS (Pay) Rules, 1954 contains various clauses which merely protect the Pay and salaries admissible to an IPS officer when sent on deputation. There is no reference to any allowance or other emoluments in the Rule, excepting pay which is clearly set out in Schedule III to those Rules. We have gone through Sub-Rules (1) to (6) of Rule 9 and are unable to find any limitation contained in these rules which could prevent the appellant from getting deputation allowance. Reliance was, however, placed on the proviso to sub-rule (6) which may be extracted thus:"Provided that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4)." 7. The dominant object of the proviso is merely to protect the pay and salary which an IPS officer was getting when he was sent on deputation, so that his being sent on deputation may not cause any prejudice to his career or emoluments. There being no Rules on the subject, it is manifest that in such cases the Residuary Rules would apply. We might mention that the Residuary Rules were made in 1960, about six years after the issuance of IPS (Cadre) Rules and IPS (Pay) Rules. It seems to us that the Central Government realised that, when other officers of the State Government on deputation were entitled to deputation allowance, there was no reason why this privilege should be denied to officers of the cadre of IPS. Perhaps it was with this essential object in view that Rule 2(b) of the Residuary Rules was enacted so as to enable IPS officers to get deputation allowance on the same terms as officers of State Civil Service Class I were getting. This provision would naturally hold the field in the absence of any express Rules made by the Central Government, which have so far not been made. 8. Counsel appearing for the Board submitted before us that the letter of the Governor dated August 14, 1970 laying down the terms of deputation of the appellant does not contain any mention of deputation allowance to be given to the appellant and should therefore be read as a modification made by the Central Government, as contemplated by clause (b) of rule 2 of the Residuary Rules. We are, however, unable to agree with this contention. In the first place, Rule 2 (b) of the Residuary Rules makes an exception only if the Central Government makes an order and that too after consultation with the State Government concerned modifying the Rule. There is no evidence in this case to show that any order was passed by the Central Government after consulting the State Government to modify or take away the effect of rule 2(b) of the Residuary Rules. The order of the Governor of Haryana cannot by any stretch of imagination be construed as an order passed by the Central Government. For these reasons the contentions raised by the respondents must be overruled. For the reasons given above we hold that the appellant is legally entitled under the Statutory Rules as indicated above to get deputation allowance. The Board was therefore in law bound to pay the said deputation allowance to the appellant.
### Response:
1
### Explanation:
We are unable to read in any of these rules any prohibition or bar to the payment of deputation allowance to an officer of the IPS Cadre on deputation to any of the authorities mentioned in rule 2(i) above. In the instant case the appellant was sent on deputation to the Board which is a body wholly or substantially owned by the State Government. The mere absence of the provision for payment of deputation allowance cannot be interpreted to mean an absolute bar to the receipt of such deputation allowance by an IPS Cadre officer, if other Rules permit such a course of action. Similarly, Rule 9 of the IPS (Pay) Rules, 1954 contains various clauses which merely protect the Pay and salaries admissible to an IPS officer when sent on deputation. There is no reference to any allowance or other emoluments in the Rule, excepting pay which is clearly set out in Schedule III to those Rules. We have gone through Sub-Rules (1) to (6) of Rule 9 and are unable to find any limitation contained in these rules which could prevent the appellant from getting deputation allowance. Reliance was, however, placed on the proviso to sub-rule (6) which may be extractedd that the pay allowed to an officer under this sub-rule and sub-rule (5) shall not at any time be less than what he would have drawn had he not been appointed to a post referred to in sub-rule (4)."The dominant object of the proviso is merely to protect the pay and salary which an IPS officer was getting when he was sent on deputation, so that his being sent on deputation may not cause any prejudice to his career or emoluments. There being no Rules on the subject, it is manifest that in such cases the Residuary Rules would apply. We might mention that the Residuary Rules were made in 1960, about six years after the issuance of IPS (Cadre) Rules and IPS (Pay) Rules. It seems to us that the Central Government realised that, when other officers of the State Government on deputation were entitled to deputation allowance, there was no reason why this privilege should be denied to officers of the cadre of IPS. Perhaps it was with this essential object in view that Rule 2(b) of the Residuary Rules was enacted so as to enable IPS officers to get deputation allowance on the same terms as officers of State Civil Service Class I were getting. This provision would naturally hold the field in the absence of any express Rules made by the Central Government, which have so far not been madeIn the first place, Rule 2 (b) of the Residuary Rules makes an exception only if the Central Government makes an order and that too after consultation with the State Government concerned modifying the Rule. There is no evidence in this case to show that any order was passed by the Central Government after consulting the State Government to modify or take away the effect of rule 2(b) of the Residuary Rules. The order of the Governor of Haryana cannot by any stretch of imagination be construed as an order passed by the Central Government. For these reasons the contentions raised by the respondents must be overruled. For the reasons given above we hold that the appellant is legally entitled under the Statutory Rules as indicated above to get deputation allowance. The Board was therefore in law bound to pay the said deputation allowance to the appellant.
|
Gurdev Singh Vs. State Of Punjab | from the notes regarding the representation of the appellant with regard to reversion made by the Inspector General of Police, could not be reverted as he was at the material point of time on deputation from Madhya Pradesh Government on particular terms on contract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period.9. It is also of interest to note that the reversion of the appellant was ordered after mature consideration. A note prepared at the office of the Inspector General of Police which also bears e endorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December, 1954 and he had to be retained for another year and five months before he could be pensioned off. As there was no job of S. P. lying vacant in Pepsu at the moment it was suggested that the appellant who was the "junior (most) D. S. P." officiating as S. P. should revert and S. Ajaib Singh should be posted in his place.10. If the above note was a genuine document - and we have no reason to hold that it was otherwise - it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for S. Ajaib Singh Gill and the axe fell on the appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police. It is true that Kanwar Sains name does not occur in this note but if Kanwar Sain was on deputation from Madhya Pradesh Government on a contract basis no exception can be taken to his having been retained in preference to the appellant.11. It appears that in dismissing the appeal of the appellant to the High Court, the learned Judges proceeded on the assumption that the Indian Police Service Scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption. The learned Judges of the High Court took the view that the appellants grievance even based on List II could not be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view on the strength of a document which was exhibited as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of Pepsu. It purports to show that the Chief Secretarys memorandum to the Government of India on August 13, 1956 containing the assessment of the State Government in respect of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian Police Service cadre in accordance with the provisions contained in paragraph 4 (iii) (b) of the said extension was accepted by the Government of India. As the letter of the Chief Secretary dated 13th August, 1956 was not produced before the Court we are not in a position to say when the assessment of the work of the appellant in connection with the retention of his name in List II was made, i. e., whether it was before 1st December, 1954 or subsequent thereto and in our view the High Court should not have relied on this document. Moreover, the ground for reverting the appellant to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector General of Police and acceded to by the Chief Minister made no reference to any such assessment. It is also noteworthy that no such ground was put forward in the written statement where the only plea raised was founded on administrative convenience.12. Even though we find ourselves unable to uphold the judgment of the High Court based on the contents of Ex. C-2, we take the view that the reversion was justified on administrative grounds and, there was no bar to such reversion by reason of the inclusion of the appellants name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of periodical reviews. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of Police was not ruled out. As the officers in List II had no right to be absorbed in the Indian Police service immediately the direction in the scheme that "officers placed in List II will continue to hold. their present post" merely meant that they would not be made to go out of their posts except on justifiable grounds. Holding a post in an officiating capacity as a Superintendent of Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. All that paragraph 4 (iii) (b) ensured was that if they were found fit with five years they would be absorbed in the All India Service cadre. If they were not found fit after the end of that period they could be reverted to posts outside the cadre of the Indian Police Service or made to retire unless their names were also included in List III - a contingency which has not arisen in this case. | 0[ds]7. As the stand taken by the appellant rests on his claim based on the inclusion of his name in List II of the Indian Police Service Scheme it is necessary to examine the same and find out what right it gave him. The Scheme, an exhibit in this case, shows that it was meant to provide "for the extension of the organisation of the Indian Police Service" so that senior police officers could be available to the Government of the States and the Union of States in India. The primary object of the extension was to maintain and where necessary introduce a standard of efficiency at the highest administrative level in the States comparable to that maintained in all Provincial Governments and at the Centre. The scheme was extended to numerous States including Pepsu. Clause 4 of the Scheme shows the initial constitution of the service. If laid down steps to allow opportunities to existing incumbents of the posts to be encadred and all officers holding posts of similar status were to be considered to be the first and primary source for recruitment to the State cadre of the Indian Police Service at its initial constitution. This was done by each State Government setting up a Selection Board in consultation with the Government of India. The Board was to review cases of all officers of the State Government of the description mentioned, make a preliminary selection from among them of all officers of the State Government of the specified descriptions who were suitable for inclusion in one or the other of the three lists referred to in the subsequent paragraph. The First List was to contain names of officers who were considered suitable for immediate appointment to the Indian Police Service subject to probation, with reference to the minimum. All India Standard adopted in assessing the suitability of Provincial Service Officers. The second list was to "contain names of officers who though not up to the required standard immediately showed sufficient promise to render it likely that they would attain such standard, with further experience during a period not exceeding five years". Officers in List I were to be immediately appointed to the Indian Police Service in the State cadre concerned subject to aitself the order is unexceptionable in that it merely directed the appellant who was serving in an officiating capacity to go back to his substantive post. There is no stigma cast on him and no adverse remark against his character or efficiency. If it be a fact that he was reverted for administrative reasons he could not complain except on the ground that the inclusion of his name in List II gave him a right to hold the post of the Superintendent of Police in an officiating capacity for five years. Apart from the consideration of the rights based on the inclusion of his name in the said list he could have no grievance about the retention of Ram Singh, Daljit Singh and Harpal Singh in the cadre of officiating Superintendents of Police. He could only base his complaint on the retention of Kanwar Sain who was junior to him in the cadre in preference to himself. Kanwar Sain, it appears from the notes regarding the representation of the appellant with regard to reversion made by the Inspector General of Police, could not be reverted as he was at the material point of time on deputation from Madhya Pradesh Government on particular terms on contract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period.9. It is also of interest to note that the reversion of the appellant was ordered after mature consideration. A note prepared at the office of the Inspector General of Police which also bears e endorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December, 1954 and he had to be retained for another year and five months before he could be pensioned off. As there was no job of S. P. lying vacant in Pepsu at the moment it was suggested that the appellant who was the "junior (most) D. S. P." officiating as S. P. should revert and S. Ajaib Singh should be posted in his place.10. If the above note was a genuine document - and we have no reason to hold that it was otherwise - it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for S. Ajaib Singh Gill and the axe fell on the appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police. It is true that Kanwar Sains name does not occur in this note but if Kanwar Sain was on deputation from Madhya Pradesh Government on a contract basis no exception can be taken to his having been retained in preference to the appellant.11. It appears that in dismissing the appeal of the appellant to the High Court, the learned Judges proceeded on the assumption that the Indian Police Service Scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption. The learned Judges of the High Court took the view that the appellants grievance even based on List II could not be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view on the strength of a document which was exhibited as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of Pepsu. It purports to show that the Chief Secretarys memorandum to the Government of India on August 13, 1956 containing the assessment of the State Government in respect of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian Police Service cadre in accordance with the provisions contained in paragraph 4 (iii) (b) of the said extension was accepted by the Government of India. As the letter of the Chief Secretary dated 13th August, 1956 was not produced before the Court we are not in a position to say when the assessment of the work of the appellant in connection with the retention of his name in List II was made, i. e., whether it was before 1st December, 1954 or subsequent thereto and in our view the High Court should not have relied on this document. Moreover, the ground for reverting the appellant to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector General of Police and acceded to by the Chief Minister made no reference to any such assessment. It is also noteworthy that no such ground was put forward in the written statement where the only plea raised was founded on administrative convenience.12. Even though we find ourselves unable to uphold the judgment of the High Court based on the contents of Ex. C-2, we take the view that the reversion was justified on administrative grounds and, there was no bar to such reversion by reason of the inclusion of the appellants name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of periodical reviews. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of Police was not ruled out. As the officers in List II had no right to be absorbed in the Indian Police service immediately the direction in the scheme that "officers placed in List II will continue to hold. their present post" merely meant that they would not be made to go out of their posts except on justifiable grounds. Holding a post in an officiating capacity as a Superintendent of Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. All that paragraph 4 (iii) (b) ensured was that if they were found fit with five years they would be absorbed in the All India Service cadre. If they were not found fit after the end of that period they could be reverted to posts outside the cadre of the Indian Police Service or made to retire unless their names were also included in List III - a contingency which has not arisen in this case. | 0 | 2,835 | 1,618 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
from the notes regarding the representation of the appellant with regard to reversion made by the Inspector General of Police, could not be reverted as he was at the material point of time on deputation from Madhya Pradesh Government on particular terms on contract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period.9. It is also of interest to note that the reversion of the appellant was ordered after mature consideration. A note prepared at the office of the Inspector General of Police which also bears e endorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December, 1954 and he had to be retained for another year and five months before he could be pensioned off. As there was no job of S. P. lying vacant in Pepsu at the moment it was suggested that the appellant who was the "junior (most) D. S. P." officiating as S. P. should revert and S. Ajaib Singh should be posted in his place.10. If the above note was a genuine document - and we have no reason to hold that it was otherwise - it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for S. Ajaib Singh Gill and the axe fell on the appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police. It is true that Kanwar Sains name does not occur in this note but if Kanwar Sain was on deputation from Madhya Pradesh Government on a contract basis no exception can be taken to his having been retained in preference to the appellant.11. It appears that in dismissing the appeal of the appellant to the High Court, the learned Judges proceeded on the assumption that the Indian Police Service Scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption. The learned Judges of the High Court took the view that the appellants grievance even based on List II could not be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view on the strength of a document which was exhibited as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of Pepsu. It purports to show that the Chief Secretarys memorandum to the Government of India on August 13, 1956 containing the assessment of the State Government in respect of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian Police Service cadre in accordance with the provisions contained in paragraph 4 (iii) (b) of the said extension was accepted by the Government of India. As the letter of the Chief Secretary dated 13th August, 1956 was not produced before the Court we are not in a position to say when the assessment of the work of the appellant in connection with the retention of his name in List II was made, i. e., whether it was before 1st December, 1954 or subsequent thereto and in our view the High Court should not have relied on this document. Moreover, the ground for reverting the appellant to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector General of Police and acceded to by the Chief Minister made no reference to any such assessment. It is also noteworthy that no such ground was put forward in the written statement where the only plea raised was founded on administrative convenience.12. Even though we find ourselves unable to uphold the judgment of the High Court based on the contents of Ex. C-2, we take the view that the reversion was justified on administrative grounds and, there was no bar to such reversion by reason of the inclusion of the appellants name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of periodical reviews. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of Police was not ruled out. As the officers in List II had no right to be absorbed in the Indian Police service immediately the direction in the scheme that "officers placed in List II will continue to hold. their present post" merely meant that they would not be made to go out of their posts except on justifiable grounds. Holding a post in an officiating capacity as a Superintendent of Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. All that paragraph 4 (iii) (b) ensured was that if they were found fit with five years they would be absorbed in the All India Service cadre. If they were not found fit after the end of that period they could be reverted to posts outside the cadre of the Indian Police Service or made to retire unless their names were also included in List III - a contingency which has not arisen in this case.
### Response:
0
### Explanation:
from the notes regarding the representation of the appellant with regard to reversion made by the Inspector General of Police, could not be reverted as he was at the material point of time on deputation from Madhya Pradesh Government on particular terms on contract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period.9. It is also of interest to note that the reversion of the appellant was ordered after mature consideration. A note prepared at the office of the Inspector General of Police which also bears e endorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December, 1954 and he had to be retained for another year and five months before he could be pensioned off. As there was no job of S. P. lying vacant in Pepsu at the moment it was suggested that the appellant who was the "junior (most) D. S. P." officiating as S. P. should revert and S. Ajaib Singh should be posted in his place.10. If the above note was a genuine document - and we have no reason to hold that it was otherwise - it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for S. Ajaib Singh Gill and the axe fell on the appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police. It is true that Kanwar Sains name does not occur in this note but if Kanwar Sain was on deputation from Madhya Pradesh Government on a contract basis no exception can be taken to his having been retained in preference to the appellant.11. It appears that in dismissing the appeal of the appellant to the High Court, the learned Judges proceeded on the assumption that the Indian Police Service Scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption. The learned Judges of the High Court took the view that the appellants grievance even based on List II could not be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view on the strength of a document which was exhibited as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of Pepsu. It purports to show that the Chief Secretarys memorandum to the Government of India on August 13, 1956 containing the assessment of the State Government in respect of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian Police Service cadre in accordance with the provisions contained in paragraph 4 (iii) (b) of the said extension was accepted by the Government of India. As the letter of the Chief Secretary dated 13th August, 1956 was not produced before the Court we are not in a position to say when the assessment of the work of the appellant in connection with the retention of his name in List II was made, i. e., whether it was before 1st December, 1954 or subsequent thereto and in our view the High Court should not have relied on this document. Moreover, the ground for reverting the appellant to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector General of Police and acceded to by the Chief Minister made no reference to any such assessment. It is also noteworthy that no such ground was put forward in the written statement where the only plea raised was founded on administrative convenience.12. Even though we find ourselves unable to uphold the judgment of the High Court based on the contents of Ex. C-2, we take the view that the reversion was justified on administrative grounds and, there was no bar to such reversion by reason of the inclusion of the appellants name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of periodical reviews. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of Police was not ruled out. As the officers in List II had no right to be absorbed in the Indian Police service immediately the direction in the scheme that "officers placed in List II will continue to hold. their present post" merely meant that they would not be made to go out of their posts except on justifiable grounds. Holding a post in an officiating capacity as a Superintendent of Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. All that paragraph 4 (iii) (b) ensured was that if they were found fit with five years they would be absorbed in the All India Service cadre. If they were not found fit after the end of that period they could be reverted to posts outside the cadre of the Indian Police Service or made to retire unless their names were also included in List III - a contingency which has not arisen in this case.
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GAJANAN BABULAL BANSODE & ORS Vs. STATE OF MAHARASHTRA & ORS | Court in W.P. No. 3555/2019 Nivrathi Venkatrao Gitte v. State of Maharashtra, wherein the same G.R. dated 22.04.2019 had been challenged. The High Court had directed that the process of selection may proceed, but would be subject to the results of the Writ Petition. 11. Aggrieved by the Order dated 30.11.2019, the Original Applicants / Petitioners herein filed W.P. No. 15045 of 2019 before the Bombay High Court, Aurangabad Bench. The Bombay High Court rejected the Writ Petition, and the prayer to maintain status quo with respect to the 636 additional candidates who were directed to be appointed. The High Court declined to determine whether the G.R. dated 22.04.2019 had been issued in extraordinary circumstances as provided by Rule 5, since the O.A. was pending adjudication before the Tribunal. The High Court however issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period, so that prior to the posting / appointment orders being issued in favour of the additional candidates, the O.A. would be decided. 12. We have heard Mr. Vinay Navare, Senior Advocate for the Appellants, Mr. Sachin Patil, Advocate-on-record for the RespondentState of Maharashtra, Mr. Ravindra Adsure for the Caveators, and Mr. R. Basant, Senior Advocate and Mr. M. N. Rao, Senior Advocate for the Intervenors. With the consent of parties, we are disposing of the Appeal at the admission stage. 13. Article 320(3)(a) of the Constitution of India provides that the Union Public Service Commission, or the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services, and for civil posts. In the present case, we find that the State of Maharashtra has issued the impugned G.R. dated 22.04.2019, without any consultation or prior approval by the MPSC, which is evident from the letter dated 11.07.2019 issued by the MPSC to the Government, expressing its disapproval of the decision taken by the Government unilaterally to make these appointments without any consultation. 14. Rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995 provides that notwithstanding anything contained in these rules, if in the opinion of the Government, the exigencies of service require, the ratio prescribed for appointment by promotion, on the basis of Limited Departmental Examination or nomination, may be relaxed with the prior consultation of the Commission. The Government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power under Rule 5, which may be resorted to only in rare and exceptional circumstances. 15. The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India. 16. The Tribunal has vacated the Order of status quo dated 18.10.2019, on the ground that two of the Applicants had participated in the examination, but failed to qualify. This could not be a justifiable ground to vacate the interim Order, since the promotional prospects of the Petitioners would be seriously prejudiced, since a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the Applicants. 17. The other ground on which the Tribunal has vacated the Interim Order is stated in para 17 of the Order that the Applicants had not challenged the G.R. dated 22.4.2019. This is an erroneous observation which would be evident from the prayers in the O.A. which are set out hereunder for ready reference: - (A) Original Application may kindly be allowed by directing the Respondents to undertake recruitment strictly as per PSI Recruitment Rules, 1995, without any deviation therefrom (B) The recruitment by promotion of as many as 636 candidates sought to be made vide Govt. Resolution dated 22.4.2019, may kindly be quashed and set aside, the same being contrary to Recruitment Rules as well as binding precedent of the Honble Apex Court. € Pending hearing and final disposal of this Application, the Respondents No.1 to 3 may kindly be directed not to take any further action in furtherance of the impugned Govt. Resolution dated 22.4.2019. (D) Pending hearing and final disposal of this Application, the Respondents No.1 to may kindly be directed to maintain status quo in respect of 636 candidates sought to be appointed by promotion, under the Impugned Govt. Resolution dated 22.4.2019. € Any other suitable and equitable relief to which applicants are entitled to and this Honble Tribunal deems appropriate, may kindly be granted in their favour. (emphasis supplied) In view thereof, the said observation cannot be a ground for vacating the interim order of stay granted vide Order dated 18.10.2019. 18. The third ground on which the Tribunal has vacated the Interim Order was that in similar O.As challenging the same G.R. dated 22.4.2019, including O.A. No. 455 of 2019 filed before the Principal Bench, the Applicants in those cases had withdrawn their respective cases, since they were desirous of pursuing their representations with the State Government. This could also not be a justifiable ground for vacating the Order of status quo merely because other parties had chosen to withdraw their O.A. for their own reasons. 19. We find that the High Court in the present Writ Petition has issued a direction to the State to send the additional list of 636 candidates for training of 9 months during the pendency of proceedings before the Tribunal. We are of the view that such a direction ought not to have been passed in the Writ Petition filed by the present Petitioners, who are aggrieved by the impugned Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge. | 1[ds]With the consent of parties, we are disposing of the Appeal at the admission stage.In the present case, we find that the State of Maharashtra has issued the impugned G.R. dated 22.04.2019, without any consultation or prior approval by the MPSC, which is evident from the letter dated 11.07.2019 issued by the MPSC to the Government, expressing its disapproval of the decision taken by the Government unilaterally to make these appointments without any consultation.The Government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power under Rule 5, which may be resorted to only in rare and exceptional circumstances.15. The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.16. The Tribunal has vacated the Order of status quo dated 18.10.2019, on the ground that two of the Applicants had participated in the examination, but failed to qualify.This could not be a justifiable ground to vacate the interim Order, since the promotional prospects of the Petitioners would be seriously prejudiced, since a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the Applicants.17. The other ground on which the Tribunal has vacated the Interim Order is stated in para 17 of the Order that the Applicants had not challenged the G.R. dated 22.4.2019.This is an erroneous observation which would be evident from the prayers in the O.A. which are set out hereunder for ready reference: -(A) Original Application may kindly be allowed by directing the Respondents to undertake recruitment strictly as per PSI Recruitment Rules, 1995, without any deviation therefrom(B) The recruitment by promotion of as many as 636 candidates sought to be made vide Govt. Resolution dated 22.4.2019, may kindly be quashed and set aside, the same being contrary to Recruitment Rules as well as binding precedent of the Honble Apex Court.€ Pending hearing and final disposal of this Application, the Respondents No.1 to 3 may kindly be directed not to take any further action in furtherance of the impugned Govt. Resolution dated 22.4.2019.(D) Pending hearing and final disposal of this Application, the Respondents No.1 to may kindly be directed to maintain status quo in respect of 636 candidates sought to be appointed by promotion, under the Impugned Govt. Resolution dated 22.4.2019.€ Any other suitable and equitable relief to which applicants are entitled to and this Honble Tribunal deems appropriate, may kindly be granted in their favour.In view thereof, the said observation cannot be a ground for vacating the interim order of stay granted vide Order dated 18.10.2019.18. The third ground on which the Tribunal has vacated the Interim Order was that in similar O.As challenging the same G.R. dated 22.4.2019, including O.A. No. 455 of 2019 filed before the Principal Bench, the Applicants in those cases had withdrawn their respective cases, since they were desirous of pursuing their representations with the State Government.This could also not be a justifiable ground for vacating the Order of status quo merely because other parties had chosen to withdraw their O.A. for their own reasons.19. We find that the High Court in the present Writ Petition has issued a direction to the State to send the additional list of 636 candidates for training of 9 months during the pendency of proceedings before the Tribunal.We are of the view that such a direction ought not to have been passed in theWrit Petition filed by the present Petitioners, who are aggrieved by the impugned Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge. | 1 | 2,595 | 718 | ### 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:
Court in W.P. No. 3555/2019 Nivrathi Venkatrao Gitte v. State of Maharashtra, wherein the same G.R. dated 22.04.2019 had been challenged. The High Court had directed that the process of selection may proceed, but would be subject to the results of the Writ Petition. 11. Aggrieved by the Order dated 30.11.2019, the Original Applicants / Petitioners herein filed W.P. No. 15045 of 2019 before the Bombay High Court, Aurangabad Bench. The Bombay High Court rejected the Writ Petition, and the prayer to maintain status quo with respect to the 636 additional candidates who were directed to be appointed. The High Court declined to determine whether the G.R. dated 22.04.2019 had been issued in extraordinary circumstances as provided by Rule 5, since the O.A. was pending adjudication before the Tribunal. The High Court however issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period, so that prior to the posting / appointment orders being issued in favour of the additional candidates, the O.A. would be decided. 12. We have heard Mr. Vinay Navare, Senior Advocate for the Appellants, Mr. Sachin Patil, Advocate-on-record for the RespondentState of Maharashtra, Mr. Ravindra Adsure for the Caveators, and Mr. R. Basant, Senior Advocate and Mr. M. N. Rao, Senior Advocate for the Intervenors. With the consent of parties, we are disposing of the Appeal at the admission stage. 13. Article 320(3)(a) of the Constitution of India provides that the Union Public Service Commission, or the State Public Service Commission shall be consulted on all matters relating to methods of recruitment to civil services, and for civil posts. In the present case, we find that the State of Maharashtra has issued the impugned G.R. dated 22.04.2019, without any consultation or prior approval by the MPSC, which is evident from the letter dated 11.07.2019 issued by the MPSC to the Government, expressing its disapproval of the decision taken by the Government unilaterally to make these appointments without any consultation. 14. Rule 5 of the Police Sub-Inspector (Recruitment) Rules, 1995 provides that notwithstanding anything contained in these rules, if in the opinion of the Government, the exigencies of service require, the ratio prescribed for appointment by promotion, on the basis of Limited Departmental Examination or nomination, may be relaxed with the prior consultation of the Commission. The Government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power under Rule 5, which may be resorted to only in rare and exceptional circumstances. 15. The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India. 16. The Tribunal has vacated the Order of status quo dated 18.10.2019, on the ground that two of the Applicants had participated in the examination, but failed to qualify. This could not be a justifiable ground to vacate the interim Order, since the promotional prospects of the Petitioners would be seriously prejudiced, since a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the Applicants. 17. The other ground on which the Tribunal has vacated the Interim Order is stated in para 17 of the Order that the Applicants had not challenged the G.R. dated 22.4.2019. This is an erroneous observation which would be evident from the prayers in the O.A. which are set out hereunder for ready reference: - (A) Original Application may kindly be allowed by directing the Respondents to undertake recruitment strictly as per PSI Recruitment Rules, 1995, without any deviation therefrom (B) The recruitment by promotion of as many as 636 candidates sought to be made vide Govt. Resolution dated 22.4.2019, may kindly be quashed and set aside, the same being contrary to Recruitment Rules as well as binding precedent of the Honble Apex Court. € Pending hearing and final disposal of this Application, the Respondents No.1 to 3 may kindly be directed not to take any further action in furtherance of the impugned Govt. Resolution dated 22.4.2019. (D) Pending hearing and final disposal of this Application, the Respondents No.1 to may kindly be directed to maintain status quo in respect of 636 candidates sought to be appointed by promotion, under the Impugned Govt. Resolution dated 22.4.2019. € Any other suitable and equitable relief to which applicants are entitled to and this Honble Tribunal deems appropriate, may kindly be granted in their favour. (emphasis supplied) In view thereof, the said observation cannot be a ground for vacating the interim order of stay granted vide Order dated 18.10.2019. 18. The third ground on which the Tribunal has vacated the Interim Order was that in similar O.As challenging the same G.R. dated 22.4.2019, including O.A. No. 455 of 2019 filed before the Principal Bench, the Applicants in those cases had withdrawn their respective cases, since they were desirous of pursuing their representations with the State Government. This could also not be a justifiable ground for vacating the Order of status quo merely because other parties had chosen to withdraw their O.A. for their own reasons. 19. We find that the High Court in the present Writ Petition has issued a direction to the State to send the additional list of 636 candidates for training of 9 months during the pendency of proceedings before the Tribunal. We are of the view that such a direction ought not to have been passed in the Writ Petition filed by the present Petitioners, who are aggrieved by the impugned Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge.
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With the consent of parties, we are disposing of the Appeal at the admission stage.In the present case, we find that the State of Maharashtra has issued the impugned G.R. dated 22.04.2019, without any consultation or prior approval by the MPSC, which is evident from the letter dated 11.07.2019 issued by the MPSC to the Government, expressing its disapproval of the decision taken by the Government unilaterally to make these appointments without any consultation.The Government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power under Rule 5, which may be resorted to only in rare and exceptional circumstances.15. The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27.06.2016. It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.16. The Tribunal has vacated the Order of status quo dated 18.10.2019, on the ground that two of the Applicants had participated in the examination, but failed to qualify.This could not be a justifiable ground to vacate the interim Order, since the promotional prospects of the Petitioners would be seriously prejudiced, since a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the Applicants.17. The other ground on which the Tribunal has vacated the Interim Order is stated in para 17 of the Order that the Applicants had not challenged the G.R. dated 22.4.2019.This is an erroneous observation which would be evident from the prayers in the O.A. which are set out hereunder for ready reference: -(A) Original Application may kindly be allowed by directing the Respondents to undertake recruitment strictly as per PSI Recruitment Rules, 1995, without any deviation therefrom(B) The recruitment by promotion of as many as 636 candidates sought to be made vide Govt. Resolution dated 22.4.2019, may kindly be quashed and set aside, the same being contrary to Recruitment Rules as well as binding precedent of the Honble Apex Court.€ Pending hearing and final disposal of this Application, the Respondents No.1 to 3 may kindly be directed not to take any further action in furtherance of the impugned Govt. Resolution dated 22.4.2019.(D) Pending hearing and final disposal of this Application, the Respondents No.1 to may kindly be directed to maintain status quo in respect of 636 candidates sought to be appointed by promotion, under the Impugned Govt. Resolution dated 22.4.2019.€ Any other suitable and equitable relief to which applicants are entitled to and this Honble Tribunal deems appropriate, may kindly be granted in their favour.In view thereof, the said observation cannot be a ground for vacating the interim order of stay granted vide Order dated 18.10.2019.18. The third ground on which the Tribunal has vacated the Interim Order was that in similar O.As challenging the same G.R. dated 22.4.2019, including O.A. No. 455 of 2019 filed before the Principal Bench, the Applicants in those cases had withdrawn their respective cases, since they were desirous of pursuing their representations with the State Government.This could also not be a justifiable ground for vacating the Order of status quo merely because other parties had chosen to withdraw their O.A. for their own reasons.19. We find that the High Court in the present Writ Petition has issued a direction to the State to send the additional list of 636 candidates for training of 9 months during the pendency of proceedings before the Tribunal.We are of the view that such a direction ought not to have been passed in theWrit Petition filed by the present Petitioners, who are aggrieved by the impugned Government Resolution No. Police -1818/ File 355/Pol 5A dated 22.04.2019, which is the subject matter of challenge.
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Commissioner Of Income-Tax Bombay Vs. Maharashtra Sugar Mills Ltd. Bombay | with the business carried on by him some activity which is not a business? If he is carrying on an activity which is not business, we must leave out of account the receipts of that activity. Thai is the first step. Secondly we must look at Sec. 10 (2) and deduct all the allowances permissible to him. In allowing a deduction which is permissible the question arises: Do we look behind the expenditure and see whether it has the quality of directly or indirectly producing taxable income? The answer must be in the negative for two reasons: First, Parliament has not directed us to undertake this enquiry. There are no words in Section 10 (2) to that effect. On the other hand, indications are to the contrary. In Section 10 (2) (xv) what Parliament requires to be ascertained is whether the expenditure has been laid out or expended wholly and exclusively for the purpose of the business. The legislature stops show at directing that it be ascertained what was the purpose of the expenditure. If the answer is that it is for the purpose of the business, Parliament is not concerned to find out whether the expenditure has produced or will produce taxable income. Secondly, the reason may well be that Parliament assumes that most types of expenditure which are laid out wholly and exclusively for the purpose of business would directly or indirectly produce taxable income, and it is not worth the administrative effort involved to go further and trace the expenditure to some taxable income." 9. On behalf of the department reliance was sought to be placed on the decision of this Court in Badridas Daga v. Commissioner of Income-tax, 34 ITR 10 = (AIR 1958 SC 783 ). The ratio of that decision does not bear on the issue arising for decision in this case. That decision is wholly irrelevant for our present purpose. 10. It was next urged on behalf of the department that in view of Rule 23 of the Rules framed, it was permissible for the Income-tax Officer to split up the commission given to the managing agents. We see no merit in this contention. Rule 23 to the extent material for our present purpose reads :-23 (1) In the case of Income which is partially agricultural income as defined in Section 2 and partially income chargeable to income-tax under the head "business" in determining that part which is chargeable to income-tax the market value of any agricultural produce which has been raised by the assessee or received by him as rent in kind and which has been utilised as raw material in such business or the sale receipts of which are included in the accounts of the business shall be deducted and no further deduction shall be made in respect of any expenditure incurred by the assessee as a cultivator or receiver of rent in kind." 11. Rule 23 lays down the method of computing the taxable income of a business which partly arises front the utilisation of agricultural produce as raw material in the business. It says that in computing the taxable income, agricultural income as defined in Section 2 of the Act should be deducted from the total income for arriving at the taxable income. For determining what the agricultural income is the Income-tax Officer must determine the market value of the agricultural produce used as raw material in the business. The rule further says that "no further deduction shall be made of any expenditure incurred by the assesseeas a cultivator or receiver of rent in kind." (emphasis supplied). 12. The managing agency commission given to the assessee is not an expenditure incurred by the assessee as a cultivator or as a receiver of the rent in kind. The last part of sub-rule (1) of Rule 23 merely stipulates that the expenditure incurred by the assessee for his agricultural operation or incurred by him as receiver of rent in kind is not to be deducted while arriving at the taxable income. Section 2 (1) of the Act defines agricultural income. That section reads :-"agricultural income" means :- (a) any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land-revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such; (b) any income derived from such land by :- (i) agriculture or (ii) the performance by a cultivator or receiver of rent in kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be, taken to market, or (iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in sub-clause (ii). (c) any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator, or the receiver of rent in kind, of any land with respect to which or the produce of which any operation mentioned in sub-clauses (ii) and (iii) of Clause (b) is carried on: Provided that the building is on or in the immediate vicinity of the land, and is a building which the receiver of the rent or revenue or the cultivator or the receiver of the rent-in-kind by reason of his connection with the land, requires as a dwelling house, or as a store-house or other out-building. " 13. If Rule 23 is read along with Section 2 (1) it is clear that reference to expenditure incurred by the assessee as a cultivator applies to the process ordinarily employed by a cultivator in raising the crops and all other incidental and supplementary activities upto the stage of sale of the produce. That rule has nothing to do with disbursements such as payment of managing agency commission. | 0[ds]Equitable considerations are wholly out of place in construing the provisions of a taxing statute. We have to take the provisions of the statute as they stand. If the allowance claimed is permissible under the Act then the same has to be deducted from the gross profit. If it is not permissible under the Act, it has to be rejected.As mentioned earlier, it is not disputed that the cultivation of sugar cane and the manufacture of sugar constituted one single and indivisible business. Section 10 (2) says that profits under Section 10 (1) in respect of a business should be computed after deducting the allowances mentioned therein. One of the allowances allowed is that mentioned in Section 10 (2) (15) which says that any expenditure laid out or expended wholly and exclusively for the purpose of such business shall be deducted as an allowance. The mandate of Section 10 (2) (15) b plain and unambiguous. Undoubtedly the allowance claimed in this case was laid out or expended for the purpose of the business carried on by the assessee. The fact that the income arising from a part of that business is not exigible to tax under the Act is not a relevant circumstance. For the foregoing reasons we agree with the view taken by the High Court4. Turning now to the decided cases, we shall first refer to the decision of the Madras High Court in S. A. S. S. Chellappa Chettiar v. Commissioner of Income-tax, Madras, 5 ITR 97 = (AIR 1937 Mad 393 ). The facts of that case are: the assessee was carrying on the business of money lending in Burma. For the purpose of that business he was borrowing money from others at a lower rate of interest and advancing loans to his constituents at a higher rate. In the course of his business, he was obliged to receive agricultural lands in repayment of his debts from some of his constituents. In his assessment proceedings he claimed deduction of the interest paid by him in respect of his borrowings. Part of the money borrowed by him had been advanced to constituents who, as mentioned earlier, had made over their agricultural lands to the assessee. The question arose whether the interest paid in respect of the money advanced to those constituents was deductible in computing the profits and gains of the assessee. The High Court held that he was entitled to the deduction claimed and further he was also entitled to deduction in respect of the establishment and other charges incurred by him for managing and cultivating such lands and the amount spent for obtaining conveyances of such lands. Sir H. C. Beasley, C. J., speaking for the Court observed :-"It seems to us that the governing section in order to decide this matter must be Section 10 (2) (iii), was the capital borrowed for the purpose of the assessees business? No difficulty arises about that, for it is conceded that it was so borrowed. It was also unquestionably used for the purpose of the business because it is. again conceded that it was lent to the borrowers. Does it continue to be so used? It is in that respect that it is important again to emphasise that this case has been argued before us on the basis that these lands came into and were retained in the possession of the assessee in payment of money lending debt and ex necessitate."5. The test applied by the learned Chief Justice appears to us to be the correct one11. Rule 23 lays down the method of computing the taxable income of a business which partly arises front the utilisation of agricultural produce as raw material in the business. It says that in computing the taxable income, agricultural income as defined in Section 2 of the Act should be deducted from the total income for arriving at the taxable income. For determining what the agricultural income is the Income-tax Officer must determine the market value of the agricultural produce used as raw material in the business. The rule further says that "no further deduction shall be made of any expenditure incurred by the assesseeas a cultivator or receiver of rent in kind."12. The managing agency commission given to the assessee is not an expenditure incurred by the assessee as a cultivator or as a receiver of the rent in kind. The last part of sub-rule (1) of Rule 23 merely stipulates that the expenditure incurred by the assessee for his agricultural operation or incurred by him as receiver of rent in kind is not to be deducted while arriving at the taxable income13. If Rule 23 is read along with Section 2 (1) it is clear that reference to expenditure incurred by the assessee as a cultivator applies to the process ordinarily employed by a cultivator in raising the crops and all other incidental and supplementary activities upto the stage of sale of the produce. That rule has nothing to do with disbursements such as payment of managing agency commission3. The finding of the Tribunal that the cultivation of sugar cane as well as the manufacture of sugar constitutes one business is a finding of fact. | 0 | 3,597 | 947 | ### 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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with the business carried on by him some activity which is not a business? If he is carrying on an activity which is not business, we must leave out of account the receipts of that activity. Thai is the first step. Secondly we must look at Sec. 10 (2) and deduct all the allowances permissible to him. In allowing a deduction which is permissible the question arises: Do we look behind the expenditure and see whether it has the quality of directly or indirectly producing taxable income? The answer must be in the negative for two reasons: First, Parliament has not directed us to undertake this enquiry. There are no words in Section 10 (2) to that effect. On the other hand, indications are to the contrary. In Section 10 (2) (xv) what Parliament requires to be ascertained is whether the expenditure has been laid out or expended wholly and exclusively for the purpose of the business. The legislature stops show at directing that it be ascertained what was the purpose of the expenditure. If the answer is that it is for the purpose of the business, Parliament is not concerned to find out whether the expenditure has produced or will produce taxable income. Secondly, the reason may well be that Parliament assumes that most types of expenditure which are laid out wholly and exclusively for the purpose of business would directly or indirectly produce taxable income, and it is not worth the administrative effort involved to go further and trace the expenditure to some taxable income." 9. On behalf of the department reliance was sought to be placed on the decision of this Court in Badridas Daga v. Commissioner of Income-tax, 34 ITR 10 = (AIR 1958 SC 783 ). The ratio of that decision does not bear on the issue arising for decision in this case. That decision is wholly irrelevant for our present purpose. 10. It was next urged on behalf of the department that in view of Rule 23 of the Rules framed, it was permissible for the Income-tax Officer to split up the commission given to the managing agents. We see no merit in this contention. Rule 23 to the extent material for our present purpose reads :-23 (1) In the case of Income which is partially agricultural income as defined in Section 2 and partially income chargeable to income-tax under the head "business" in determining that part which is chargeable to income-tax the market value of any agricultural produce which has been raised by the assessee or received by him as rent in kind and which has been utilised as raw material in such business or the sale receipts of which are included in the accounts of the business shall be deducted and no further deduction shall be made in respect of any expenditure incurred by the assessee as a cultivator or receiver of rent in kind." 11. Rule 23 lays down the method of computing the taxable income of a business which partly arises front the utilisation of agricultural produce as raw material in the business. It says that in computing the taxable income, agricultural income as defined in Section 2 of the Act should be deducted from the total income for arriving at the taxable income. For determining what the agricultural income is the Income-tax Officer must determine the market value of the agricultural produce used as raw material in the business. The rule further says that "no further deduction shall be made of any expenditure incurred by the assesseeas a cultivator or receiver of rent in kind." (emphasis supplied). 12. The managing agency commission given to the assessee is not an expenditure incurred by the assessee as a cultivator or as a receiver of the rent in kind. The last part of sub-rule (1) of Rule 23 merely stipulates that the expenditure incurred by the assessee for his agricultural operation or incurred by him as receiver of rent in kind is not to be deducted while arriving at the taxable income. Section 2 (1) of the Act defines agricultural income. That section reads :-"agricultural income" means :- (a) any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land-revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such; (b) any income derived from such land by :- (i) agriculture or (ii) the performance by a cultivator or receiver of rent in kind of any process ordinarily employed by a cultivator or receiver of rent-in-kind to render the produce raised or received by him fit to be, taken to market, or (iii) the sale by a cultivator or receiver of rent-in-kind of the produce raised or received by him, in respect of which no process has been performed other than a process of the nature described in sub-clause (ii). (c) any income derived from any building owned and occupied by the receiver of the rent or revenue of any such land, or occupied by the cultivator, or the receiver of rent in kind, of any land with respect to which or the produce of which any operation mentioned in sub-clauses (ii) and (iii) of Clause (b) is carried on: Provided that the building is on or in the immediate vicinity of the land, and is a building which the receiver of the rent or revenue or the cultivator or the receiver of the rent-in-kind by reason of his connection with the land, requires as a dwelling house, or as a store-house or other out-building. " 13. If Rule 23 is read along with Section 2 (1) it is clear that reference to expenditure incurred by the assessee as a cultivator applies to the process ordinarily employed by a cultivator in raising the crops and all other incidental and supplementary activities upto the stage of sale of the produce. That rule has nothing to do with disbursements such as payment of managing agency commission.
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0
### Explanation:
Equitable considerations are wholly out of place in construing the provisions of a taxing statute. We have to take the provisions of the statute as they stand. If the allowance claimed is permissible under the Act then the same has to be deducted from the gross profit. If it is not permissible under the Act, it has to be rejected.As mentioned earlier, it is not disputed that the cultivation of sugar cane and the manufacture of sugar constituted one single and indivisible business. Section 10 (2) says that profits under Section 10 (1) in respect of a business should be computed after deducting the allowances mentioned therein. One of the allowances allowed is that mentioned in Section 10 (2) (15) which says that any expenditure laid out or expended wholly and exclusively for the purpose of such business shall be deducted as an allowance. The mandate of Section 10 (2) (15) b plain and unambiguous. Undoubtedly the allowance claimed in this case was laid out or expended for the purpose of the business carried on by the assessee. The fact that the income arising from a part of that business is not exigible to tax under the Act is not a relevant circumstance. For the foregoing reasons we agree with the view taken by the High Court4. Turning now to the decided cases, we shall first refer to the decision of the Madras High Court in S. A. S. S. Chellappa Chettiar v. Commissioner of Income-tax, Madras, 5 ITR 97 = (AIR 1937 Mad 393 ). The facts of that case are: the assessee was carrying on the business of money lending in Burma. For the purpose of that business he was borrowing money from others at a lower rate of interest and advancing loans to his constituents at a higher rate. In the course of his business, he was obliged to receive agricultural lands in repayment of his debts from some of his constituents. In his assessment proceedings he claimed deduction of the interest paid by him in respect of his borrowings. Part of the money borrowed by him had been advanced to constituents who, as mentioned earlier, had made over their agricultural lands to the assessee. The question arose whether the interest paid in respect of the money advanced to those constituents was deductible in computing the profits and gains of the assessee. The High Court held that he was entitled to the deduction claimed and further he was also entitled to deduction in respect of the establishment and other charges incurred by him for managing and cultivating such lands and the amount spent for obtaining conveyances of such lands. Sir H. C. Beasley, C. J., speaking for the Court observed :-"It seems to us that the governing section in order to decide this matter must be Section 10 (2) (iii), was the capital borrowed for the purpose of the assessees business? No difficulty arises about that, for it is conceded that it was so borrowed. It was also unquestionably used for the purpose of the business because it is. again conceded that it was lent to the borrowers. Does it continue to be so used? It is in that respect that it is important again to emphasise that this case has been argued before us on the basis that these lands came into and were retained in the possession of the assessee in payment of money lending debt and ex necessitate."5. The test applied by the learned Chief Justice appears to us to be the correct one11. Rule 23 lays down the method of computing the taxable income of a business which partly arises front the utilisation of agricultural produce as raw material in the business. It says that in computing the taxable income, agricultural income as defined in Section 2 of the Act should be deducted from the total income for arriving at the taxable income. For determining what the agricultural income is the Income-tax Officer must determine the market value of the agricultural produce used as raw material in the business. The rule further says that "no further deduction shall be made of any expenditure incurred by the assesseeas a cultivator or receiver of rent in kind."12. The managing agency commission given to the assessee is not an expenditure incurred by the assessee as a cultivator or as a receiver of the rent in kind. The last part of sub-rule (1) of Rule 23 merely stipulates that the expenditure incurred by the assessee for his agricultural operation or incurred by him as receiver of rent in kind is not to be deducted while arriving at the taxable income13. If Rule 23 is read along with Section 2 (1) it is clear that reference to expenditure incurred by the assessee as a cultivator applies to the process ordinarily employed by a cultivator in raising the crops and all other incidental and supplementary activities upto the stage of sale of the produce. That rule has nothing to do with disbursements such as payment of managing agency commission3. The finding of the Tribunal that the cultivation of sugar cane as well as the manufacture of sugar constitutes one business is a finding of fact.
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Darasing Dhyansing & Others Vs. State of Gujarat | to the field of Shana Madha. Shana Madha arrived at about 11.00 a.m. and on his arrival P.S.I. Chaudhari started recording his statement. While the statement was being recorded the appellants and five others - who were all Sikh Rakhawalas - came to the spot armed with spears and Farsis and threatened Shana Madha not to involve them falsely. P.S.I Chaudhari asked them to keep quiet and not to interfere with his duties. The appellants and their companions thereupon became excited and appellant 1 Darasing caught hold of the P.S.I. from behind, threw him on the ground and sat upon him. Appellant 1 then asked appellant 2 to remove the revolver which was attached to the strap worn by the P.S.I. Appellate 2 forcibly removed the revolver with the leather case from the strap and thereafter, at the instance of appellant 1, all his companions started beating Shana Madha with the stick portion of the spears and Farsis which they were carrying. Grievous hurt was caused to Shana Madha on his legs and hands and thereafter the appellants and his companions ran away towards another village named Sarda. P.S.I. Chaudhari then asked constable Shanabhai Mathurbhai to sit in the field by the side of the injured Shana Madha and went to Ram Nagar village. He contacted the Police Patil and from there sent a telephone message to the Police Station for reinforcement. The Police Patil went to the scene with others and arranged to remove Shana Madha to the hospital. They brought him to the road side near the canal and placed him in a passing taxi. Just at that time, P.S.I. Chaudhari also came there and got into the taxi. The party then went to Anand. The P.S.I. got down at the Anand Rural Police Station and Shana Madha was taken to the Anand Rural Hospital.The Medical Officer in charge of that hospital was on leave. So Shana Madha removed to Nadiad hospital where, after some treatment, Shana Madha was removed to the S.S.G. Hospital, Baroda for further treatment. P.S.I. Chaudhari lodged his own complaint at the police station and in this complaint he specifically named the present appellants and stated that he would be able to recognize the other companions of the appellants also. After investigation, a charge-sheet was sent against eight accused-two of whom were shown as absconding. 4. There was no serious dispute that an incident, as alleged by the P.S.I. in his complaint, had taken place in the field. The defence was that it was not the accused before the Court who had taken part in the incident. The learned Sessions Judge on a consideration of the evidence held that more than five persons had formed an unlawful assembly with the common object of assaulting the P.S.I. and causing grievous hurt to Shana Madha and that the members of the assembly had been armed with deadly weapons like spears and Farsis. He also held that the appellants were members of this unlawful assembly. As regards the other three before the Court, he had a doubt as to whether they had been properly identified. The benefit of doubt was, therefore, given to them and the present appellants were convicted and sentenced. 5. The only question before the High Court which, according to Mr. Dholakia, was a substantial arguable point related to the identity of the three appellants. Mr. Dholakia contended that there were certain discrepancies and deficiencies in the evidence which deserved serious consideration by the High Court and hence the summary dismissal of the appeal was not justified. In our opinion there is no substance in this contention. 6. It has been pointed out by this Court in Siddappa Apparao Patil v. State of Maharashtra ((1970) 1 SCC 547 ) that normally the High Court should not summarily reject appeals if they raised arguable and substantial points. It was, therefore, necessary for Mr. Dholakia to show that such points are involved in this appeal. In this connection Mr. Dholakia pointed out that P.S.I. Chaudhari, after he came to the village Ram Nagar, had not disclosed the names of the appellants to the Police Patil, nor had he mentioned their names in the telephone message he had sent to the Police Station; and this part of the case deserved serious consideration. We do not think that any great importance can be attached to these points. The evidence of Chaudhari which is considered by the Sessions Court clearly goes to show that all the three appellants had been known to him since before, especially as the first two appellants were accused in the arson case and had been only recently released on bail. There was, therefore, no question of the P.S.I. making any mistake with regard to the identity of these persons because the incident had taken place in broad day light at 11.00 a.m. and P.S.I. himself was the victim of the assault. Moreover P.S.I. Chaudhari has stated in his evidence that when he contacted the Police Patil in the village he had mentioned the names to him though the Police Patil has now turned hostile in Court and refused to acknowledge that any such names had been mentioned to him. As to the telephone message it is true that it does not contain the names of the appellants. But then the P.S.I. was not making a report of an offence but he was only waning reinforcements from the Police Station. That same afternoon he filed his complaint at the Police Station and it is not disputed that the names of all the three appellants have been mentioned in the complaint. The learned Sessions Judge accepted the evidence of the P.S.I. and constable Shanbhai Mathurbhai and of Shana Madha with regard to the identification of the appellants and the High Court, apparently agreed with the Sessions Court on the point. We cannot, therefore, say that there was any arguable or substantial point for closer and more detailed consideration at a regular hearing by the High Court. | 0[ds]6. It has been pointed out by this Court in Siddappa Apparao Patil v. State of Maharashtra ((1970) 1 SCC 547 ) that normally the High Court should not summarily reject appeals if they raised arguable and substantial points. It was, therefore, necessary for Mr. Dholakia to show that such points are involved in this appeal. In this connection Mr. Dholakia pointed out that P.S.I. Chaudhari, after he came to the village Ram Nagar, had not disclosed the names of the appellants to the Police Patil, nor had he mentioned their names in the telephone message he had sent to the Police Station; and this part of the case deserved serious consideration. We do not think that any great importance can be attached to these points. The evidence of Chaudhari which is considered by the Sessions Court clearly goes to show that all the three appellants had been known to him since before, especially as the first two appellants were accused in the arson case and had been only recently released on bail. There was, therefore, no question of the P.S.I. making any mistake with regard to the identity of these persons because the incident had taken place in broad day light at 11.00 a.m. and P.S.I. himself was the victim of the assault. Moreover P.S.I. Chaudhari has stated in his evidence that when he contacted the Police Patil in the village he had mentioned the names to him though the Police Patil has now turned hostile in Court and refused to acknowledge that any such names had been mentioned to him. As to the telephone message it is true that it does not contain the names of the appellants. But then the P.S.I. was not making a report of an offence but he was only waning reinforcements from the Police Station. That same afternoon he filed his complaint at the Police Station and it is not disputed that the names of all the three appellants have been mentioned in the complaint. The learned Sessions Judge accepted the evidence of the P.S.I. and constable Shanbhai Mathurbhai and of Shana Madha with regard to the identification of the appellants and the High Court, apparently agreed with the Sessions Court on the point. We cannot, therefore, say that there was any arguable or substantial point for closer and more detailed consideration at a regular hearing by the High Court. | 0 | 1,456 | 436 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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to the field of Shana Madha. Shana Madha arrived at about 11.00 a.m. and on his arrival P.S.I. Chaudhari started recording his statement. While the statement was being recorded the appellants and five others - who were all Sikh Rakhawalas - came to the spot armed with spears and Farsis and threatened Shana Madha not to involve them falsely. P.S.I Chaudhari asked them to keep quiet and not to interfere with his duties. The appellants and their companions thereupon became excited and appellant 1 Darasing caught hold of the P.S.I. from behind, threw him on the ground and sat upon him. Appellant 1 then asked appellant 2 to remove the revolver which was attached to the strap worn by the P.S.I. Appellate 2 forcibly removed the revolver with the leather case from the strap and thereafter, at the instance of appellant 1, all his companions started beating Shana Madha with the stick portion of the spears and Farsis which they were carrying. Grievous hurt was caused to Shana Madha on his legs and hands and thereafter the appellants and his companions ran away towards another village named Sarda. P.S.I. Chaudhari then asked constable Shanabhai Mathurbhai to sit in the field by the side of the injured Shana Madha and went to Ram Nagar village. He contacted the Police Patil and from there sent a telephone message to the Police Station for reinforcement. The Police Patil went to the scene with others and arranged to remove Shana Madha to the hospital. They brought him to the road side near the canal and placed him in a passing taxi. Just at that time, P.S.I. Chaudhari also came there and got into the taxi. The party then went to Anand. The P.S.I. got down at the Anand Rural Police Station and Shana Madha was taken to the Anand Rural Hospital.The Medical Officer in charge of that hospital was on leave. So Shana Madha removed to Nadiad hospital where, after some treatment, Shana Madha was removed to the S.S.G. Hospital, Baroda for further treatment. P.S.I. Chaudhari lodged his own complaint at the police station and in this complaint he specifically named the present appellants and stated that he would be able to recognize the other companions of the appellants also. After investigation, a charge-sheet was sent against eight accused-two of whom were shown as absconding. 4. There was no serious dispute that an incident, as alleged by the P.S.I. in his complaint, had taken place in the field. The defence was that it was not the accused before the Court who had taken part in the incident. The learned Sessions Judge on a consideration of the evidence held that more than five persons had formed an unlawful assembly with the common object of assaulting the P.S.I. and causing grievous hurt to Shana Madha and that the members of the assembly had been armed with deadly weapons like spears and Farsis. He also held that the appellants were members of this unlawful assembly. As regards the other three before the Court, he had a doubt as to whether they had been properly identified. The benefit of doubt was, therefore, given to them and the present appellants were convicted and sentenced. 5. The only question before the High Court which, according to Mr. Dholakia, was a substantial arguable point related to the identity of the three appellants. Mr. Dholakia contended that there were certain discrepancies and deficiencies in the evidence which deserved serious consideration by the High Court and hence the summary dismissal of the appeal was not justified. In our opinion there is no substance in this contention. 6. It has been pointed out by this Court in Siddappa Apparao Patil v. State of Maharashtra ((1970) 1 SCC 547 ) that normally the High Court should not summarily reject appeals if they raised arguable and substantial points. It was, therefore, necessary for Mr. Dholakia to show that such points are involved in this appeal. In this connection Mr. Dholakia pointed out that P.S.I. Chaudhari, after he came to the village Ram Nagar, had not disclosed the names of the appellants to the Police Patil, nor had he mentioned their names in the telephone message he had sent to the Police Station; and this part of the case deserved serious consideration. We do not think that any great importance can be attached to these points. The evidence of Chaudhari which is considered by the Sessions Court clearly goes to show that all the three appellants had been known to him since before, especially as the first two appellants were accused in the arson case and had been only recently released on bail. There was, therefore, no question of the P.S.I. making any mistake with regard to the identity of these persons because the incident had taken place in broad day light at 11.00 a.m. and P.S.I. himself was the victim of the assault. Moreover P.S.I. Chaudhari has stated in his evidence that when he contacted the Police Patil in the village he had mentioned the names to him though the Police Patil has now turned hostile in Court and refused to acknowledge that any such names had been mentioned to him. As to the telephone message it is true that it does not contain the names of the appellants. But then the P.S.I. was not making a report of an offence but he was only waning reinforcements from the Police Station. That same afternoon he filed his complaint at the Police Station and it is not disputed that the names of all the three appellants have been mentioned in the complaint. The learned Sessions Judge accepted the evidence of the P.S.I. and constable Shanbhai Mathurbhai and of Shana Madha with regard to the identification of the appellants and the High Court, apparently agreed with the Sessions Court on the point. We cannot, therefore, say that there was any arguable or substantial point for closer and more detailed consideration at a regular hearing by the High Court.
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### Explanation:
6. It has been pointed out by this Court in Siddappa Apparao Patil v. State of Maharashtra ((1970) 1 SCC 547 ) that normally the High Court should not summarily reject appeals if they raised arguable and substantial points. It was, therefore, necessary for Mr. Dholakia to show that such points are involved in this appeal. In this connection Mr. Dholakia pointed out that P.S.I. Chaudhari, after he came to the village Ram Nagar, had not disclosed the names of the appellants to the Police Patil, nor had he mentioned their names in the telephone message he had sent to the Police Station; and this part of the case deserved serious consideration. We do not think that any great importance can be attached to these points. The evidence of Chaudhari which is considered by the Sessions Court clearly goes to show that all the three appellants had been known to him since before, especially as the first two appellants were accused in the arson case and had been only recently released on bail. There was, therefore, no question of the P.S.I. making any mistake with regard to the identity of these persons because the incident had taken place in broad day light at 11.00 a.m. and P.S.I. himself was the victim of the assault. Moreover P.S.I. Chaudhari has stated in his evidence that when he contacted the Police Patil in the village he had mentioned the names to him though the Police Patil has now turned hostile in Court and refused to acknowledge that any such names had been mentioned to him. As to the telephone message it is true that it does not contain the names of the appellants. But then the P.S.I. was not making a report of an offence but he was only waning reinforcements from the Police Station. That same afternoon he filed his complaint at the Police Station and it is not disputed that the names of all the three appellants have been mentioned in the complaint. The learned Sessions Judge accepted the evidence of the P.S.I. and constable Shanbhai Mathurbhai and of Shana Madha with regard to the identification of the appellants and the High Court, apparently agreed with the Sessions Court on the point. We cannot, therefore, say that there was any arguable or substantial point for closer and more detailed consideration at a regular hearing by the High Court.
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GANGADHAR alias GANGARAM Vs. THE STATE OF MADHYA PRADESH | impression on the sale document contending that it was a fabricated document. No forensic report was obtained by the prosecution. The witness acknowledged that the appellant did not visit his own house and lived in his new house for the last 15 years denying any knowledge who the owner was. Yet his statement was accepted as gospel truth without any further investigation. 9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417 observing: 58. … An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. 10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution. 11. It is apparent that the police being in a quandary with regard to the ownership and possession of the house in question due to a flawed, defective and incomplete investigation found it convenient to implicate the appellant also, sanguine that at least one of the two would be convicted. Sri Jain is right in the submission that according to normal human prudence, it stands to reason why the appellant who was residing in his new house for the last 15 years would identify his own erstwhile house as that of the accused Gokul Dangi, be a witness to the breaking of the lock and recovery to implicate himself. 12. The appellant had produced the sale agreement, Exhibit P.28 with promptness the very next day. It was never investigated for its genuineness by the police and neither were the panchayat records verified. The panchayat records are public documents and would have been the best evidence to establish the ownership and possession of the house. Despite the best evidence being available the police considered it sufficient to obtain a certificate Exhibit P-37 signed by P.W. 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the co-accused had absconded. 13. The appellant was held guilty and convicted in view of his name being recorded as the owner of the house in the voters list 2008, ignoring the fact that sale agreement was subsequent to the same on 12.06.2009. The prosecution cannot be held to have proved that Exhibit P-18 was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused. 14. In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt. 15. The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed. 16. Normally this Court in exercise of its jurisdiction under Article 136 of the Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence. But in a given case, concerning the liberty of the individual, if the Court is satisfied that the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, this Court shall not be inhibited in protecting the liberty of the individual. | 1[ds]8. Ghasiram, as the village chowkidar was the best person in the know of the ownership and possession of the house. He was one of the two witnesses to the sale agreement Exhibit P-28. The prosecution for inexplicable reasons has not examined him. P.W. 11 denied his thumb impression on the sale document contending that it was a fabricated document. No forensic report was obtained by the prosecution. The witness acknowledged that the appellant did not visit his own house and lived in his new house for the last 15 years denying any knowledge who the owner was. Yet his statement was accepted as gospel truth without any further investigation.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.11. It is apparent that the police being in a quandary with regard to the ownership and possession of the house in question due to a flawed, defective and incomplete investigation found it convenient to implicate the appellant also, sanguine that at least one of the two would be convicted. Sri Jain is right in the submission that according to normal human prudence, it stands to reason why the appellant who was residing in his new house for the last 15 years would identify his own erstwhile house as that of the accused Gokul Dangi, be a witness to the breaking of the lock and recovery to implicate himself.12. The appellant had produced the sale agreement, Exhibit P.28 with promptness the very next day. It was never investigated for its genuineness by the police and neither were the panchayat records verified. The panchayat records are public documents and would have been the best evidence to establish the ownership and possession of the house. Despite the best evidence being available the police considered it sufficient to obtain a certificate Exhibit P-37 signed by P.W. 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the co-accused had absconded.13. The appellant was held guilty and convicted in view of his name being recorded as the owner of the house in the voters list 2008, ignoring the fact that sale agreement was subsequent to the same on 12.06.2009. The prosecution cannot be held to have proved that Exhibit P-18 was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused.14. In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt.15. The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed.16. Normally this Court in exercise of its jurisdiction under Article 136 of the Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence. But in a given case, concerning the liberty of the individual, if the Court is satisfied that the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, this Court shall not be inhibited in protecting the liberty of the individual. | 1 | 1,876 | 901 | ### 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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impression on the sale document contending that it was a fabricated document. No forensic report was obtained by the prosecution. The witness acknowledged that the appellant did not visit his own house and lived in his new house for the last 15 years denying any knowledge who the owner was. Yet his statement was accepted as gospel truth without any further investigation. 9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. That the right of the accused to a fair trial could not be whittled down under the Act was considered in Noor Aga vs. State of Punjab, (2008) 16 SCC 417 observing: 58. … An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt but it is preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt. 10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution. 11. It is apparent that the police being in a quandary with regard to the ownership and possession of the house in question due to a flawed, defective and incomplete investigation found it convenient to implicate the appellant also, sanguine that at least one of the two would be convicted. Sri Jain is right in the submission that according to normal human prudence, it stands to reason why the appellant who was residing in his new house for the last 15 years would identify his own erstwhile house as that of the accused Gokul Dangi, be a witness to the breaking of the lock and recovery to implicate himself. 12. The appellant had produced the sale agreement, Exhibit P.28 with promptness the very next day. It was never investigated for its genuineness by the police and neither were the panchayat records verified. The panchayat records are public documents and would have been the best evidence to establish the ownership and possession of the house. Despite the best evidence being available the police considered it sufficient to obtain a certificate Exhibit P-37 signed by P.W. 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the co-accused had absconded. 13. The appellant was held guilty and convicted in view of his name being recorded as the owner of the house in the voters list 2008, ignoring the fact that sale agreement was subsequent to the same on 12.06.2009. The prosecution cannot be held to have proved that Exhibit P-18 was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused. 14. In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt. 15. The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed. 16. Normally this Court in exercise of its jurisdiction under Article 136 of the Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence. But in a given case, concerning the liberty of the individual, if the Court is satisfied that the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, this Court shall not be inhibited in protecting the liberty of the individual.
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8. Ghasiram, as the village chowkidar was the best person in the know of the ownership and possession of the house. He was one of the two witnesses to the sale agreement Exhibit P-28. The prosecution for inexplicable reasons has not examined him. P.W. 11 denied his thumb impression on the sale document contending that it was a fabricated document. No forensic report was obtained by the prosecution. The witness acknowledged that the appellant did not visit his own house and lived in his new house for the last 15 years denying any knowledge who the owner was. Yet his statement was accepted as gospel truth without any further investigation.9. The presumption against the accused of culpability under Section 35, and under Section 54 of the Act to explain possession satisfactorily, are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with reverse burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.10. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission do not dispense with the requirements of prosecution to establish a prima facie case beyond reasonable doubt after investigation, only where after which the burden of proof shall shift to the accused. The gravity of the sentence and the stringency of the provisions will therefore call for a heightened scrutiny of the evidence for establishment of foundational facts by the prosecution.11. It is apparent that the police being in a quandary with regard to the ownership and possession of the house in question due to a flawed, defective and incomplete investigation found it convenient to implicate the appellant also, sanguine that at least one of the two would be convicted. Sri Jain is right in the submission that according to normal human prudence, it stands to reason why the appellant who was residing in his new house for the last 15 years would identify his own erstwhile house as that of the accused Gokul Dangi, be a witness to the breaking of the lock and recovery to implicate himself.12. The appellant had produced the sale agreement, Exhibit P.28 with promptness the very next day. It was never investigated for its genuineness by the police and neither were the panchayat records verified. The panchayat records are public documents and would have been the best evidence to establish the ownership and possession of the house. Despite the best evidence being available the police considered it sufficient to obtain a certificate Exhibit P-37 signed by P.W. 14 who acknowledged her signature but denied knowledge of the contents of the certificate. The voters list entry of 2008 being prior to the sale is of no consequence. It is not without reason that the co-accused had absconded.13. The appellant was held guilty and convicted in view of his name being recorded as the owner of the house in the voters list 2008, ignoring the fact that sale agreement was subsequent to the same on 12.06.2009. The prosecution cannot be held to have proved that Exhibit P-18 was a fabricated and fictitious document. No appeal has been preferred by the prosecution against the acquittal of the co accused.14. In view of the nature of evidence available it is not possible to hold that the prosecution had established conscious possession of the house with the appellant so as to attribute the presumption under the NDPS Act against him with regard to recovery of the contraband. Conviction could not be based on a foundation of conjectures and surmises to conclude on a preponderance of probabilities, the guilt of the appellant without establishing the same beyond reasonable doubt.15. The police investigation was very extremely casual, perfunctory and shoddy in nature. The appellant has been denied the right to a fair investigation, which is but a facet of a fair trial guaranteed to every accused under Article 21 of the Constitution. The consideration of evidence by the Trial Court, affirmed by the High Court, borders on perversity to arrive at conclusions for which there was no evidence. Gross misappreciation of evidence by two courts, let alone poor investigation by the police, has resulted in the appellant having to suffer incarceration for an offence he had never committed.16. Normally this Court in exercise of its jurisdiction under Article 136 of the Constitution does not interfere with concurrent findings of facts delving into appreciation of evidence. But in a given case, concerning the liberty of the individual, if the Court is satisfied that the prosecution had failed to establish a prima facie case, the evidence led was wholly insufficient and there has been gross misappreciation of evidence by the courts below bordering on perversity, this Court shall not be inhibited in protecting the liberty of the individual.
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The State Of Rajasthan And Ors Vs. Thakur Pratap Singh | class or section of such inhabitants from liability to bear any portion of such cost." Sub-section (6) is omitted as not relevant.3. The notification by which these provisions were invoked and which is impugned in these proceedings was in these terms :-"Whereas the Rajpramukh is satisfied that the area shown in the schedule annexed hereto has been found to be in a disturbed and dangerous state;Now, therefore, in the exercise of the authority vested in him under Section 15(1) of the Police Act (V of 1861), the Rajpramukh is pleased to declare that the 24 villages included in the said schedule shall be deemed to be disturbed area for a period of six months from the date of this notification.Under sub-section (2) of the said section 15 of the Police Act (V of 1861), the Rajpramukh is pleased to authorise the Inspector-General of Police to employ, at the cost of the inhabitants of the said area any Police force in addition to the ordinary fixed complement quartered therein.Under sub-section (5) of section 15 of the said Act the Rajpramukh is further pleased to exempt the Harijan and Muslim inhabitants of these villages from liability to bear any portion of the cost on account of the posting of the additional Police force."4. Then followed the names of the 24 villages.5. The respondent - Thakur Pratap Singh being an inhabitant of Baragaon - one of these 24 villages moved the High Court of Rajasthan for the issue of a writ or direction under Art. 226 of the Constitution impugning the validity of S. 15 of the Police Act and in particular of sub-s. (5) thereof and of the notification and praying for appropriate reliefs. The High Court repelled the wider contentions urged regarding the invalidity of S. 15 of the Police Act in general as also of the powers conferred on the State Government to order the exemption of "any person or classes or sections of such inhabitants" from liability to bear the cost of the additional police force. But the learned Judges held that paragraph 4 of the notification which exempted "Harijan and Muslim inhabitants of the villages" from the levy, was violative of the guarantee in Art. 15(1) of the Constitution against discrimination on the ground of caste or relegion etc., which reads :"The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them" and struck it down as unconstitutional.6. The State of Rajasthan who felt aggrieved by this order applied to the High Court for a certificate under Art. 132(1) to enable it to file an appeal to this Court and this having been granted, the appeal is now before us.7. Learned Counsel for the State made a strenuous effort to show that the exemption of the Harijan and Muslim inhabitants of the villages, was, in the impugned notification, not based "only" on the ground of caste or religion or the other criteria set out in Art. 15(1), but on the ground that persons belonging to these two communities were found by the State not to have been guilty of the conduct which necessitated the stationing of the additional police force. It was the same argument as was addressed to the High Court and was rejected by the learned Judges who observed :"Now this is a very strange argument that only persons of a certain community or caste were law-abiding citizens, while the members of other communities were not. Disturbing elements may be found among members of any community or religion just as much as there may be saner elements among members of that community or religion."8. The view here expressed by the learned Judges is, in our opinion, correct. Even if it be that the bulk of the members of the communities exempted or even all of them were law-abiding, it was not contended on behalf of the State that there were no peaceful and law-abiding persons in these 24 villages belonging to the other communities on whom the punitive levy had been directed to be made. In para 5(f) of the petition filed before the High Court the respondent had averred :"That the aforesaid Notification is ultra vires of the Constitution of India as it discriminates amongst the Citizens of a village on the basis of religion, race or caste, inasmuch as it makes a distinction between persons professing the Mohammadan religion and others and also between persons who are Muslims and Harijans by caste and the rest. It, therefore, contravenes the provisions of Art. 15 of the Constitution of India". The answer to this by the State was in these terms."The Harijan and Muslim inhabitants to these villages have been exempted from liability to bear any portion of the cost of the additional force not because of their religion race or caste but because they were found to be peace-loving and law-abiding citizens, in the 24 villages additional force has been posted."9. It would be seen that it is not the case of the State even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace-loving and law-abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way.If so, it follows that the notification has discriminated against the law-abiding members of the other communities and in favour of the Muslim and Harijan communities, - (assuming that every one of them was "peace loving and law-abiding") on the basis only of "caste" or "religion".If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Art. 15(1), and that para 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification. | 0[ds]8. The view here expressed by the learned Judges is, in our opinion, correct. Even if it be that the bulk of the members of the communities exempted or even all of them were law-abiding, it was not contended on behalf of the State that there were no peaceful and law-abiding persons in these 24 villages belonging to the other communities on whom the punitive levy had been directed to be made.It would be seen that it is not the case of the State even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace-loving and law-abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way.If so, it follows that the notification has discriminated against the law-abiding members of the other communities and in favour of the Muslim and Harijan communities, - (assuming that every one of them was "peace loving and law-abiding") on the basis only of "caste" or "religion".If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Art. 15(1), and that para 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification. | 0 | 1,561 | 275 | ### 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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class or section of such inhabitants from liability to bear any portion of such cost." Sub-section (6) is omitted as not relevant.3. The notification by which these provisions were invoked and which is impugned in these proceedings was in these terms :-"Whereas the Rajpramukh is satisfied that the area shown in the schedule annexed hereto has been found to be in a disturbed and dangerous state;Now, therefore, in the exercise of the authority vested in him under Section 15(1) of the Police Act (V of 1861), the Rajpramukh is pleased to declare that the 24 villages included in the said schedule shall be deemed to be disturbed area for a period of six months from the date of this notification.Under sub-section (2) of the said section 15 of the Police Act (V of 1861), the Rajpramukh is pleased to authorise the Inspector-General of Police to employ, at the cost of the inhabitants of the said area any Police force in addition to the ordinary fixed complement quartered therein.Under sub-section (5) of section 15 of the said Act the Rajpramukh is further pleased to exempt the Harijan and Muslim inhabitants of these villages from liability to bear any portion of the cost on account of the posting of the additional Police force."4. Then followed the names of the 24 villages.5. The respondent - Thakur Pratap Singh being an inhabitant of Baragaon - one of these 24 villages moved the High Court of Rajasthan for the issue of a writ or direction under Art. 226 of the Constitution impugning the validity of S. 15 of the Police Act and in particular of sub-s. (5) thereof and of the notification and praying for appropriate reliefs. The High Court repelled the wider contentions urged regarding the invalidity of S. 15 of the Police Act in general as also of the powers conferred on the State Government to order the exemption of "any person or classes or sections of such inhabitants" from liability to bear the cost of the additional police force. But the learned Judges held that paragraph 4 of the notification which exempted "Harijan and Muslim inhabitants of the villages" from the levy, was violative of the guarantee in Art. 15(1) of the Constitution against discrimination on the ground of caste or relegion etc., which reads :"The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them" and struck it down as unconstitutional.6. The State of Rajasthan who felt aggrieved by this order applied to the High Court for a certificate under Art. 132(1) to enable it to file an appeal to this Court and this having been granted, the appeal is now before us.7. Learned Counsel for the State made a strenuous effort to show that the exemption of the Harijan and Muslim inhabitants of the villages, was, in the impugned notification, not based "only" on the ground of caste or religion or the other criteria set out in Art. 15(1), but on the ground that persons belonging to these two communities were found by the State not to have been guilty of the conduct which necessitated the stationing of the additional police force. It was the same argument as was addressed to the High Court and was rejected by the learned Judges who observed :"Now this is a very strange argument that only persons of a certain community or caste were law-abiding citizens, while the members of other communities were not. Disturbing elements may be found among members of any community or religion just as much as there may be saner elements among members of that community or religion."8. The view here expressed by the learned Judges is, in our opinion, correct. Even if it be that the bulk of the members of the communities exempted or even all of them were law-abiding, it was not contended on behalf of the State that there were no peaceful and law-abiding persons in these 24 villages belonging to the other communities on whom the punitive levy had been directed to be made. In para 5(f) of the petition filed before the High Court the respondent had averred :"That the aforesaid Notification is ultra vires of the Constitution of India as it discriminates amongst the Citizens of a village on the basis of religion, race or caste, inasmuch as it makes a distinction between persons professing the Mohammadan religion and others and also between persons who are Muslims and Harijans by caste and the rest. It, therefore, contravenes the provisions of Art. 15 of the Constitution of India". The answer to this by the State was in these terms."The Harijan and Muslim inhabitants to these villages have been exempted from liability to bear any portion of the cost of the additional force not because of their religion race or caste but because they were found to be peace-loving and law-abiding citizens, in the 24 villages additional force has been posted."9. It would be seen that it is not the case of the State even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace-loving and law-abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way.If so, it follows that the notification has discriminated against the law-abiding members of the other communities and in favour of the Muslim and Harijan communities, - (assuming that every one of them was "peace loving and law-abiding") on the basis only of "caste" or "religion".If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Art. 15(1), and that para 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification.
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8. The view here expressed by the learned Judges is, in our opinion, correct. Even if it be that the bulk of the members of the communities exempted or even all of them were law-abiding, it was not contended on behalf of the State that there were no peaceful and law-abiding persons in these 24 villages belonging to the other communities on whom the punitive levy had been directed to be made.It would be seen that it is not the case of the State even at the stage of the petition before the High Court that there were no persons belonging to the other communities who were peace-loving and law-abiding, though it might very well be, that according to the State, a great majority of these other communities were inclined the other way.If so, it follows that the notification has discriminated against the law-abiding members of the other communities and in favour of the Muslim and Harijan communities, - (assuming that every one of them was "peace loving and law-abiding") on the basis only of "caste" or "religion".If there were other grounds they ought to have been stated in the notification. It is plain that the notification is directly contrary to the terms of Art. 15(1), and that para 4 of the notification has incurred condemnation as violating a specific constitutional prohibition. In our opinion, the learned Judges of the High Court were clearly right in striking down this paragraph of the notification.
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Bipin Chander Jaisinghbhai Shah Vs. Prabhawati | boy. The evidence of these two witnesses on behalf of the defendant is ample corroboration of the defendants case and the evidence in Court that she has all along been ready and willing to go back to the matrimonial home. The learned trial Judge has not noticed this evidence and we have not the advantage of his comment on this corroborative evidence. This body of evidence is in consonance with the natural course of events. The plaintiff himself stated in the witness box that he had sent the solicitors letter by way of a shock treatment to the defendants family so that they might persuade his wife to come back to his matrimonial home. The subsequent telegram and letters (assuming that both the letters of 13th November and 15th November had been posted in the usual course and received by the addresses) would give a shock to the family. Naturally thereafter the members of the family would be up and doing to see that a reconciliation is brought about between the husband and the wife. Hence the visits of the defendants uncle and the father would be a natural conduct after they had been apprised of the rupture between them. We therefore do not see any sufficient reasons for brushing aside all that oral evidence which has been believed by the Lower Appellate Court and had not in terms been disbelieved by the trial Court. This part of the case on behalf of the defendant and her evidence is corroborated by the evidence of the defendants relatives aforesaid. It cannot be seriously argued that that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about reconciliation. They were anxious not only for the welfare of the defendant but were also interested in the good name of the family and the community as is only natural in families like these which have not been so urbanised as to completely ignore the feelings of the community. They would, therefore, be the person most anxious in the interests of all the parties concerned to make efforts to bring the husband and the wife together and to put an end to a controversy which they considered to be derogatory to the good name and prestige of the families concerned. The plaintiffs evidence, on the other hand, on this part of the case is uncorroborated. Indeed his evidence stands uncorroborated in many parts of his case and the letters already discussed run counter to the tenor of his evidence in Court. We, therefore, feel inclined to accept the defendants case that after her leaving her husbands home and after the performance of her cousins marriage she was ready and willing to go back to her husband. It follows from what we have said so far that the wife was not in desertion though she left her husbands home without any fault on the part of the plaintiff which could justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home.24. This conclusion is further supported by the fact that between 1948 and 1951 the defendant stayed with her mother-in-law at Patan whenever she was there, sometimes for months, at other times for weeks. This conduct is wholly inconsistent with the plaintiffs case that the defendant was in desertion during the four years that she was out of her matrimonial home. It is more consistent with the defendants attempts to get herself re-established in her husbands home after the rupture in May 1947 as aforesaid. It is also in evidence that at the suggestion of her mother-in-law the defendant sent her three year old son to Bombay so that he might induce his father to send for the mother. The boy stayed in Bombay for about twenty days and then was brought back to Patan by his father as he (the boy) was unwilling to stay there without the mother. This was in August-September l948 when the defendant deposes to having questioned her husband why she was not been called back and the husbands answer was evasive. Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not allow her little boy of about three years of age, to be sent alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation between the father and the mother. The, defendant has deposed to the several efforts made by her mother-in- law and her father-in-law to intercede on her behalf with the plaintiff but without any result. There is no explanation why the plaintiff could not examine his father and mother in corroboration of his case of continuous desertion for the statutory period by the defendant. Their evidence would have been as valuable, if not more, as that of the defendants father and the cousin as discussed above. Thus, it is not a case where evidence was not available in corroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which could be available to him, we must hold that evidence given by the plaintiff falls short of proving his case of desertion by his wife. Though we do not find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable conduct brought about a rupture in the matrimonial home and caused the plaintiff to become so cold to her after she left him.25. In view of our finding that the plaintiff has failed to prove, his case of desertion by the defendant, it is not necessary to go into the question of animus revertendi on which considerable argument with reference to case law was addressed to us on both sides. | 0[ds]The difficulty is enhanced by the fact that the two courts below have taken diametrically opposite views of the facts of the case which depend mostly upon oral testimony of the plaintiff- husband and the defendant wife and not corroborated in many respects on either side. It is a case of the husbands testimony alone on his side and the wifes testimony aided by that of her father and her cousin. As already indicated, the learned trial Judge was strongly in favour of preferring the husbands testimony to that of the wife whenever there was any conflict. But he made no reference to the testimony of the defendants father and cousin which, if believed, would give an entirely different colour to the case.There was no reason why the husband should have thought of sleeping apart from the wife because there was no suggestion in the record that the husband was aware till then of the alleged relationship between the defendant and Mahendra. But the wife may have been apprehensive that the plaintiff had known of her relations with Mahendra. That apprehension may have induced her to keep out of the plaintiffs way.The tenor of the letter and the defendants explanation or want of explanation in the witness-box of those portions of the letter which very much need explanation would leave no manner of doubt in any person who read that letter that there was something between her and Mahendra which she was interested to keep secret from everybody. Even when given the opportunity to explain, if she could, those portions of the letter, she was not able to put any innocent meaning to her words except saying in a bland way that it was a letter from a sister to a brother. The trial court rightly discredited her testimony relating to her answers with respect to the contents of the letter. The letter shows a correspondence between her and Mahendra which was clearly unworthy of a faithful wife and her pose of innocence by characterising it as between sister and a brother is manifestly disingenuous. Her explanation, if any, is wholly unacceptable. The plaintiff naturally got suspicious of his wife and naturally taxed her with reference to the contents of the letter. That she had a guilty mind in respect of the letter is shown by the fact that she had first denied having written any such letter to Mahendra, a denial in which she persisted even in her answer to the plaint. The plaintiffs evidence that he showed her a photostatic copy of that letter on May 23, 1947, and that she then admitted having written that letter and that she had tender feelings for Mahendra can easily be believed. The learned trial Judge was therefore justified in coming to the conclusion that the letter betrayed on the part of the writer "a consciousness of guilt". But it is questionable how far the learned judge was justified in observing further that the contents of the letter "are only capable of the interpretation that she had misbehaved with Mahendra during the absence of the plaintiff". If he meant by the word "misbehaved" that the defendant had sexual intercourse with Mahendra, he may be said to have jumped to the conclusion which did not necessarily follow as the only conclusion from them. The very fact that a married girl was writing amorous letters to a man other than her husband was reprehensible and easily capable of furnishing good grounds to the husband for suspecting the wifes fidelity. So far there can be no difficulty in assuming that the husband was fully justified in loosing temper with his wife and insisting upon her repentance and assurance of good conduct in future. But we are not prepared to say that the contents of the letter are capable of only that interpretation and no other. On the other hand, the learned judges of the Appeal court were inclined to view this letter as an evidence merely of what is sometimes characterised as "platonic love" between two persons who by reasons of bond of matrimony are compelled to restrained themselves and not to go further than merely showing love and devotion for each other. We are not prepared to take such a lenient, almost indulgent, view of the wifes conduct as betrayed in the letter in question. We cannot but sympathise with the husband in taking a very serious view of the lapse on the wifes part. The learned judges of the Appeal Court have castigated the counsel for the plaintiff for putting those questions to the defendant in cross-examination. They observe in their judgment (speaking through the Chief Justice) that there was no justification for the counsel for the plaintiff to put to the defendant those questions in cross-examination suggesting she had intercourse with Mahendra as a result of which they were apprehending, future trouble in the shape of pregnancy and illegitimate child birth. It is true that it was not in terms the plaintiffs case that there had been an adulterous intercourse between the defendant and Mahendra. That need not have been so because the Act does not recognise adultery as one of the grounds for divorce. But we do not agree with the appellate Court that those questions to the defendant in cross-examination were not justified. The plaintiff proposed to prove that the discovery of the incriminating letter containing those mysterious sentences was the occasion for the defendant to make up her mind to desert the plaintiff. We do not therefore agree with the observations of the Appellate Court in all that they have said in respect of the letter inone suppose by his words and conduct compel the, other spouse to leave the marital home, the former would be guilty of desertion though it is the latter who has physically separated from the other and has been made to leave the martial home.It should be noted that the wife did not cross-petition for divorce or for any other relief. Hence it is no more necessary for us to go into that question. It is enough to point out that we are not prepared to rely upon the uncorroborated testimony of the defendant that she had been compelled to leave her marital home by the threats of the plaintiff.16. The happenings of 24th May 1947, as pointed out above, are consistent with the plaintiffs case of desertion by the wife. But they are also consistent not with the defendants case as actually pleaded in her written statement, but with the facts and circumstances disclosed in the evidence, namely, that the defendant having been discovered in her clandestine amorous correspondence with her supposed paramour Mahendra, she could not face her husband or her husbands people living in the same flat in Bombay and therefore shamefacedly withdrew herself and went to her parents place of business in Jalgaon on the pretext of the marriage of her cousin which was yet far off. That she was not expected at Jalgaon on that day in connection with the marriage is proved by her own admission in the witness box that "when I went to Jalgaon everyone was surprised." As pointed out above, the burden is on the plaintiff to prove desertion without cause for the statutory period of four years that is to say, that the deserting spouse must be in desertion throughout the wholeis true that the defendant did not plead that she had left her husbands home in Bombay in the circumstances indicated above. She, on the other hand, pleaded constructive desertion by the husband. That case, as already observed, she has failed to substantiate, by reliable evidence.But the fact that the defendant has so failed does not necessarily lead to the conclusion that the plaintiff has succeeded in proving his case. The plaintiff must satisfy the court that the defendant had been in desertion for the continuous period of four years as required by the Act.If we come to the conclusion that the happenings of the 24th May 1947 are consistent with both the conflicting theories, it is plain that the plaintiff has not succeeded in bringing the offence of desertion home to the defendant beyond all reasonable doubt. We must therefore examine what other evidence there is in support of the plaintiffs case and in corroboration of his evidence in court.Applying those observations to the facts of the present case, can the plaintiff honestly say that he was all along willing to fulfill the duties of the marriage and that the defendants desertion, if any, continued throughout the statutory period without his consent. The letter, Ex. A, is an emphatic no. In the first place, even the plaintiff in that letter did not allege any desertion and, secondly, he was not prepared to receive her back to the matrimonial home. Realising his difficulty when cross-examined as to the contents of that letter, he wished the court to believe that at the time the letter was written in his presence he was "in a confused state of mind" and did not remember exactly whether he noticed the sentence that he did not desire to keep his wife any longer.In our opinion, the contents of the letter could not thus be explained away by the plaintiff in the witness box. On the other hand, it shows that about seven weeks after the wifes departure, for her fathers place the plaintiff had at least for the time being convinced himself that the defendant was no more a suitable person to live with. That, as found by us, he was justified in this attitude by the reprehensible conduct of his wife during his absence is beside the point. This letter has an importance of its own only in so far as it does not corroborate the plaintiffs version that the defendant was in desertion and that the plaintiff was all along anxious to induce her to come back to him.This letter is more consistent with the supposition that the husband was very angry with her on account of her conduct as betrayed by the letter, Ex. E. and that the wife left her husbands place in shame not having the courage to face him after that discovery.It is true that once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and that it is not necessary for the deserted spouse actually to take steps to bring the deserting spouse back to the matrimonial home.So far we do not find any convincing evidence in proof of the alleged desertion by the wife and naturally therefore the presumption of continued desertion cannot arise.21. But it is not necessary that at the time the wife left her husbands home she should have at the same time theanimus deserendi.In this connection the episode of November 1947 when the plaintiffs mother came from Patan to Bombay is relevant. It appears to be common ground now that the defendant had agreed to come back to Bombay along with the plaintiffs mother or after a few days. But on this information being given to the plaintiff he countermanded any such steps on the wifes part by sending the telegram, Ex. B, aforesaid and the plaintiffs fathers letter dated 15th November 1947. We are keeping out of consideration for the present the letter, Ex. C, dated 13th November 1947, which is not admitted to have been received either by the defendant or her father. The telegram is in peremptory terms: "Must not send Prabha". The letter of 15th November 1947, by the plaintiffs father to the defendants father is equally peremptory. It says "it is absolutely necessary that you should obtain the consent of Chi. Bipinchandra before sending, Chi. Prabbavati". The telegram and the letter which is a supplement to the telegram, as found by the courts below, completely negative the plaintiffs statement in court that he was all along ready and willing to receive the defendant back to his home. The letter of 13th November 1947, Ex. C, which the plaintiff claims to have written to his father-in-law in explanation of the telegram and is a prelude to it is altogether out of tune with the tenor of the letter and the telegram referred to above. The receipt of this letter has been denied by the defendant and her father. In court this letter has been described as a fake in the sense that it was an afterthought and was written with a view to the legal position and particularly with a view to getting rid of the effect of the solicitors letter of 15th July which the plaintiff found it hard to explain away in the witness box. Neither the trial court, which was entirely in favour of the plaintiff, and which had accepted the letter as genuine, nor the appellate Court, which was entirely in favour of the defendant, has placed implicit faith in the bona fides of this letter. The lower appellate Court is rather ironical about it, observing "This letter as it were stands in isolated glory. There is no other letter. There is no other conduct of the plaintiff which is consistent with this letter". Without going into the controversy as to the genuineness or bona fides of this letter, it can be said that the plaintiffs attitude as disclosed therein, was that he was prepared to take her back into the matrimonial home provided she wrote a letter to him expressing real repentance and confession of mistake. This attitude of the plaintiff cannot he said to be unreasonable in the circumstances of the case. He was more sinned against than sinning at the beginning of the controversy between the husband and thetherefore do not see any sufficient reasons for brushing aside all that oral evidence which has been believed by the Lower Appellate Court and had not in terms been disbelieved by the trial Court. This part of the case on behalf of the defendant and her evidence is corroborated by the evidence of the defendants relatives aforesaid. It cannot be seriously argued that that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about reconciliation. They were anxious not only for the welfare of the defendant but were also interested in the good name of the family and the community as is only natural in families like these which have not been so urbanised as to completely ignore the feelings of the community. They would, therefore, be the person most anxious in the interests of all the parties concerned to make efforts to bring the husband and the wife together and to put an end to a controversy which they considered to be derogatory to the good name and prestige of the families concerned. The plaintiffs evidence, on the other hand, on this part of the case is uncorroborated. Indeed his evidence stands uncorroborated in many parts of his case and the letters already discussed run counter to the tenor of his evidence in Court. We, therefore, feel inclined to accept the defendants case that after her leaving her husbands home and after the performance of her cousins marriage she was ready and willing to go back to her husband. It follows from what we have said so far that the wife was not in desertion though she left her husbands home without any fault on the part of the plaintiff which could justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home.24. This conclusion is further supported by the fact that between 1948 and 1951 the defendant stayed with her mother-in-law at Patan whenever she was there, sometimes for months, at other times for weeks. This conduct is wholly inconsistent with the plaintiffs case that the defendant was in desertion during the four years that she was out of her matrimonial home. It is more consistent with the defendants attempts to get herself re-established in her husbands home after the rupture in May 1947 as aforesaid. It is also in evidence that at the suggestion of her mother-in-law the defendant sent her three year old son to Bombay so that he might induce his father to send for the mother. The boy stayed in Bombay for about twenty days and then was brought back to Patan by his father as he (the boy) was unwilling to stay there without the mother. This was in August-September l948 when the defendant deposes to having questioned her husband why she was not been called back and the husbands answer was evasive. Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not allow her little boy of about three years of age, to be sent alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation between the father and the mother. The, defendant has deposed to the several efforts made by her mother-in- law and her father-in-law to intercede on her behalf with the plaintiff but without any result. There is no explanation why the plaintiff could not examine his father and mother in corroboration of his case of continuous desertion for the statutory period by the defendant. Their evidence would have been as valuable, if not more, as that of the defendants father and the cousin as discussed above. Thus, it is not a case where evidence was not available in corroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which could be available to him, we must hold that evidence given by the plaintiff falls short of proving his case of desertion by his wife. Though we do not find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable conduct brought about a rupture in the matrimonial home and caused the plaintiff to become so cold to her after she left him.25. In view of our finding that the plaintiff has failed to prove, his case of desertion by the defendant, it is not necessary to go into the question of animus revertendi on which considerable argument with reference to case law was addressed to us on both sides. | 0 | 12,788 | 3,296 | ### Instruction:
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boy. The evidence of these two witnesses on behalf of the defendant is ample corroboration of the defendants case and the evidence in Court that she has all along been ready and willing to go back to the matrimonial home. The learned trial Judge has not noticed this evidence and we have not the advantage of his comment on this corroborative evidence. This body of evidence is in consonance with the natural course of events. The plaintiff himself stated in the witness box that he had sent the solicitors letter by way of a shock treatment to the defendants family so that they might persuade his wife to come back to his matrimonial home. The subsequent telegram and letters (assuming that both the letters of 13th November and 15th November had been posted in the usual course and received by the addresses) would give a shock to the family. Naturally thereafter the members of the family would be up and doing to see that a reconciliation is brought about between the husband and the wife. Hence the visits of the defendants uncle and the father would be a natural conduct after they had been apprised of the rupture between them. We therefore do not see any sufficient reasons for brushing aside all that oral evidence which has been believed by the Lower Appellate Court and had not in terms been disbelieved by the trial Court. This part of the case on behalf of the defendant and her evidence is corroborated by the evidence of the defendants relatives aforesaid. It cannot be seriously argued that that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about reconciliation. They were anxious not only for the welfare of the defendant but were also interested in the good name of the family and the community as is only natural in families like these which have not been so urbanised as to completely ignore the feelings of the community. They would, therefore, be the person most anxious in the interests of all the parties concerned to make efforts to bring the husband and the wife together and to put an end to a controversy which they considered to be derogatory to the good name and prestige of the families concerned. The plaintiffs evidence, on the other hand, on this part of the case is uncorroborated. Indeed his evidence stands uncorroborated in many parts of his case and the letters already discussed run counter to the tenor of his evidence in Court. We, therefore, feel inclined to accept the defendants case that after her leaving her husbands home and after the performance of her cousins marriage she was ready and willing to go back to her husband. It follows from what we have said so far that the wife was not in desertion though she left her husbands home without any fault on the part of the plaintiff which could justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home.24. This conclusion is further supported by the fact that between 1948 and 1951 the defendant stayed with her mother-in-law at Patan whenever she was there, sometimes for months, at other times for weeks. This conduct is wholly inconsistent with the plaintiffs case that the defendant was in desertion during the four years that she was out of her matrimonial home. It is more consistent with the defendants attempts to get herself re-established in her husbands home after the rupture in May 1947 as aforesaid. It is also in evidence that at the suggestion of her mother-in-law the defendant sent her three year old son to Bombay so that he might induce his father to send for the mother. The boy stayed in Bombay for about twenty days and then was brought back to Patan by his father as he (the boy) was unwilling to stay there without the mother. This was in August-September l948 when the defendant deposes to having questioned her husband why she was not been called back and the husbands answer was evasive. Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not allow her little boy of about three years of age, to be sent alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation between the father and the mother. The, defendant has deposed to the several efforts made by her mother-in- law and her father-in-law to intercede on her behalf with the plaintiff but without any result. There is no explanation why the plaintiff could not examine his father and mother in corroboration of his case of continuous desertion for the statutory period by the defendant. Their evidence would have been as valuable, if not more, as that of the defendants father and the cousin as discussed above. Thus, it is not a case where evidence was not available in corroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which could be available to him, we must hold that evidence given by the plaintiff falls short of proving his case of desertion by his wife. Though we do not find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable conduct brought about a rupture in the matrimonial home and caused the plaintiff to become so cold to her after she left him.25. In view of our finding that the plaintiff has failed to prove, his case of desertion by the defendant, it is not necessary to go into the question of animus revertendi on which considerable argument with reference to case law was addressed to us on both sides.
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legal position and particularly with a view to getting rid of the effect of the solicitors letter of 15th July which the plaintiff found it hard to explain away in the witness box. Neither the trial court, which was entirely in favour of the plaintiff, and which had accepted the letter as genuine, nor the appellate Court, which was entirely in favour of the defendant, has placed implicit faith in the bona fides of this letter. The lower appellate Court is rather ironical about it, observing "This letter as it were stands in isolated glory. There is no other letter. There is no other conduct of the plaintiff which is consistent with this letter". Without going into the controversy as to the genuineness or bona fides of this letter, it can be said that the plaintiffs attitude as disclosed therein, was that he was prepared to take her back into the matrimonial home provided she wrote a letter to him expressing real repentance and confession of mistake. This attitude of the plaintiff cannot he said to be unreasonable in the circumstances of the case. He was more sinned against than sinning at the beginning of the controversy between the husband and thetherefore do not see any sufficient reasons for brushing aside all that oral evidence which has been believed by the Lower Appellate Court and had not in terms been disbelieved by the trial Court. This part of the case on behalf of the defendant and her evidence is corroborated by the evidence of the defendants relatives aforesaid. It cannot be seriously argued that that evidence should be disbelieved, because the witnesses happened to be the defendants relatives. They were naturally the parties most interested in bringing about reconciliation. They were anxious not only for the welfare of the defendant but were also interested in the good name of the family and the community as is only natural in families like these which have not been so urbanised as to completely ignore the feelings of the community. They would, therefore, be the person most anxious in the interests of all the parties concerned to make efforts to bring the husband and the wife together and to put an end to a controversy which they considered to be derogatory to the good name and prestige of the families concerned. The plaintiffs evidence, on the other hand, on this part of the case is uncorroborated. Indeed his evidence stands uncorroborated in many parts of his case and the letters already discussed run counter to the tenor of his evidence in Court. We, therefore, feel inclined to accept the defendants case that after her leaving her husbands home and after the performance of her cousins marriage she was ready and willing to go back to her husband. It follows from what we have said so far that the wife was not in desertion though she left her husbands home without any fault on the part of the plaintiff which could justify her action in leaving him, and that after the lapse of a few months stay at her fathers place she was willing to go back to her matrimonial home.24. This conclusion is further supported by the fact that between 1948 and 1951 the defendant stayed with her mother-in-law at Patan whenever she was there, sometimes for months, at other times for weeks. This conduct is wholly inconsistent with the plaintiffs case that the defendant was in desertion during the four years that she was out of her matrimonial home. It is more consistent with the defendants attempts to get herself re-established in her husbands home after the rupture in May 1947 as aforesaid. It is also in evidence that at the suggestion of her mother-in-law the defendant sent her three year old son to Bombay so that he might induce his father to send for the mother. The boy stayed in Bombay for about twenty days and then was brought back to Patan by his father as he (the boy) was unwilling to stay there without the mother. This was in August-September l948 when the defendant deposes to having questioned her husband why she was not been called back and the husbands answer was evasive. Whether or not this statement of the defendant is true, there can be no doubt that the defendant would not allow her little boy of about three years of age, to be sent alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation between the father and the mother. The, defendant has deposed to the several efforts made by her mother-in- law and her father-in-law to intercede on her behalf with the plaintiff but without any result. There is no explanation why the plaintiff could not examine his father and mother in corroboration of his case of continuous desertion for the statutory period by the defendant. Their evidence would have been as valuable, if not more, as that of the defendants father and the cousin as discussed above. Thus, it is not a case where evidence was not available in corroboration of the plaintiffs case. As the plaintiffs evidence on many important aspects of the case has remained uncorroborated by evidence which could be available to him, we must hold that evidence given by the plaintiff falls short of proving his case of desertion by his wife. Though we do not find that the essential ingredients of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant who had by her objectionable conduct brought about a rupture in the matrimonial home and caused the plaintiff to become so cold to her after she left him.25. In view of our finding that the plaintiff has failed to prove, his case of desertion by the defendant, it is not necessary to go into the question of animus revertendi on which considerable argument with reference to case law was addressed to us on both sides.
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Commissioner of Income-Tax- 8 Vs. Digiwave Infrastructure & Services Limited | 31 October 2005 declaring total loss of Rs.9,00,621/-. It is submitted by Mr. Singh that the Assessee is engaged in the business of procurement & production of media programmes. The assessment was completed on 27 December 2007 determining the total income at Rs.129,23,26,128/-. It has come on record that the Assessee-company borrowed funds from Indya.com, an associate concern, from time to time at commercial rate of interest. Similarly, the Assessee entered into a loan agreement with Music Broadcast Pvt. Ltd. (MBPL), another associate concern, to which loan was advanced of Rs.40,82,58,569/-. Since there was default on the part of MBPL, the Assessee-company claimed the right to convert the balance amount of loan of Rs.139.58 crores into equity share capital of MBPL. The Ministry of Information & Broadcasting alleged that this arrangement was in violation of the terms and conditions of the licence issued to MBPL. There were admittedly certain legal proceedings against this Ministry and at the instance of MBPL. The Assessee-company eventually waived the loan granted to MBPL together with interest. The legal proceedings, therefore, were withdrawn. At the same time Indya.com waived loan of Rs.116.52 crores and interest of Rs.5.47 crores advanced to the Assessee. The Assessee did not offer the same as income for the year under section 28(iv), but the Assessing Officer considered the Assessees reply and bearing in mind this provision considered the amount of Rs.116,52,58,569/- on account of waiver of loan as income of the Assessee for the year under consideration. The Assessing Officer also added an amount of Rs.5,47,70,190/- being the interest amount waived by Indya.com. Both these amounts were added to the total income of the Assessee-company.5. This order of the Assessing Officer was challenged before the Commissioner (First Appellate Authority) and the Commissioner relying upon the judgment of this Court in the case of Mahindra & Mahindra v. CIT [2003] 261 ITR 501 /128 Taxman 394 deleted the additions. The order passed by the Commissioner of Income Tax (Appeals) dated 22 December 2008 was challenged by the Revenue in Appeal and the Tribunal upheld the order of the Commissioner.6. After having heard Mr. Tejveer Singh and Mr. Kaka, learned Sr. Counsel appearing for the Assessee and perusing the findings of the Income Tax Appellate Tribunal in the light of the above noted factual position, we do not find any perversity or error apparent on the face of record in the order of the Tribunal enabling us to interfere with the same in our further Appellate jurisdiction.7. The questions of law are framed on the footing that the Tribunal has misread this provision or rather misconstrued it.8. That does not appear to be the case, inasmuch as, if two loans were taken by the Tribunal into consideration, coupled with the nature of the business of the Assessee, it noted that in the assessment year 2002-03 the Assessee set off brought forward business loss against net interest income by claiming interest to be business income. That is because it was charging interest at the rate of 9% p.a. from MBPL. There the Revenue did not accept the claim of the Assessee and held that the interest income was not connected with the business of the Assessee and hence no set off was allowed against the business losses. Again in assessment year 2004-05, the Revenue Authorities assessed the interest income as income from other sources. The Tribunal noted that when the loan of Rs.116.52 crores has been waived by Indya.com in favour of the Assessee, the Assessing Officer sought to apply section 28(iv) by terming such waiver as income of the Assessee and arising from the business of the Assessee. This stand of the department, therefore, has been commented upon by the Tribunal in para 3 and it held that if section 28(iv) was applied that means the loan was treated as connected with the business of the Assessee. However, in earlier years the Revenue did not accept the loan transactions from Indya.com and to MBPL both as business transactions. It now cannot question or turn around from its findings. Mr.Tejveer Singh would find fault with it, but what we have concluded is that in the given facts and peculiar to the Assessee, that the Tribunal commented on this conflicting stand or versions of the Revenue. Either loans should retain the character originally labled or attached to or it should answer the term as a business loan. We do not find any reason nor any fault with the Tribunal, when it upheld the order of the Commissioner by looking at the matter either way. In para 4 what it has noted is that the Assessee would be entitled to set off, in the sense that if one loan which was advanced to it has been now written off and equally the advance made by this Assessee to MBPL became non-recoverable, then, what it derives by way of loan having been shown as income and what is the amount written off by the Assessee can be adjusted against each other. Because of the waiver, the liability of MBPL to repay the same would enable the Assessee to adjust a receipt or claim a set off. That is how the Tribunal concluded that the Assessing Officer charged to tax receipt of waiver of loan of Rs.116.52 crores as business income together with interest at Rs.5.47 crores but did not allow the deduction for waiver of the loan granted to the Assessee to the tune of Rs.139.58 crores. If both transactions are loan transactions and one part of it is treated as business income then second part could not have, in these peculiar facts, given a different character. We do not see as to how the observations made in para 4 could be seen out of context. Those are made in the backdrop of the peculiar facts and that is how the conclusion of the Commissioner that Rs.122 crores being the difference of the amount cannot be taken as income under section 28(iv) came to be upheld. | 0[ds]6. After having heard Mr. Tejveer Singh and Mr. Kaka, learned Sr. Counsel appearing for the Assessee and perusing the findings of the Income Tax Appellate Tribunal in the light of the above noted factual position, we do not find any perversity or error apparent on the face of record in the order of the Tribunal enabling us to interfere with the same in our further Appellate jurisdiction.7. The questions of law are framed on the footing that the Tribunal has misread this provision or rather misconstrued it.8. That does not appear to be the case, inasmuch as, if two loans were taken by the Tribunal into consideration, coupled with the nature of the business of the Assessee, it noted that in the assessment yearthe Assessee set off brought forward business loss against net interest income by claiming interest to be business income. That is because it was charging interest at the rate of 9% p.a. from MBPL. There the Revenue did not accept the claim of the Assessee and held that the interest income was not connected with the business of the Assessee and hence no set off was allowed against the business losses. Again in assessment yearthe Revenue Authorities assessed the interest income as income from other sources. The Tribunal noted that when the loan of Rs.116.52 crores has been waived by Indya.com in favour of the Assessee, the Assessing Officer sought to apply section 28(iv) by terming such waiver as income of the Assessee and arising from the business of the Assessee. This stand of the department, therefore, has been commented upon by the Tribunal in para 3 and it held that if section 28(iv) was applied that means the loan was treated as connected with the business of the Assessee. However, in earlier years the Revenue did not accept the loan transactions from Indya.com and to MBPL both as business transactions. It now cannot question or turn around from its findings. Mr.Tejveer Singh would find fault with it, but what we have concluded is that in the given facts and peculiar to the Assessee, that the Tribunal commented on this conflicting stand or versions of the Revenue. Either loans should retain the character originally labled or attached to or it should answer the term as a business loan. We do not find any reason nor any fault with the Tribunal, when it upheld the order of the Commissioner by looking at the matter either way. In para 4 what it has noted is that the Assessee would be entitled to set off, in the sense that if one loan which was advanced to it has been now written off and equally the advance made by this Assessee to MBPL becamethen, what it derives by way of loan having been shown as income and what is the amount written off by the Assessee can be adjusted against each other. Because of the waiver, the liability of MBPL to repay the same would enable the Assessee to adjust a receipt or claim a set off. That is how the Tribunal concluded that the Assessing Officer charged to tax receipt of waiver of loan of Rs.116.52 crores as business income together with interest at Rs.5.47 crores but did not allow the deduction for waiver of the loan granted to the Assessee to the tune of Rs.139.58 crores. If both transactions are loan transactions and one part of it is treated as business income then second part could not have, in these peculiar facts, given a different character. We do not see as to how the observations made in para 4 could be seen out of context. Those are made in the backdrop of the peculiar facts and that is how the conclusion of the Commissioner that Rs.122 crores being the difference of the amount cannot be taken as income under section 28(iv) came to be upheld. | 0 | 1,294 | 703 | ### Instruction:
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31 October 2005 declaring total loss of Rs.9,00,621/-. It is submitted by Mr. Singh that the Assessee is engaged in the business of procurement & production of media programmes. The assessment was completed on 27 December 2007 determining the total income at Rs.129,23,26,128/-. It has come on record that the Assessee-company borrowed funds from Indya.com, an associate concern, from time to time at commercial rate of interest. Similarly, the Assessee entered into a loan agreement with Music Broadcast Pvt. Ltd. (MBPL), another associate concern, to which loan was advanced of Rs.40,82,58,569/-. Since there was default on the part of MBPL, the Assessee-company claimed the right to convert the balance amount of loan of Rs.139.58 crores into equity share capital of MBPL. The Ministry of Information & Broadcasting alleged that this arrangement was in violation of the terms and conditions of the licence issued to MBPL. There were admittedly certain legal proceedings against this Ministry and at the instance of MBPL. The Assessee-company eventually waived the loan granted to MBPL together with interest. The legal proceedings, therefore, were withdrawn. At the same time Indya.com waived loan of Rs.116.52 crores and interest of Rs.5.47 crores advanced to the Assessee. The Assessee did not offer the same as income for the year under section 28(iv), but the Assessing Officer considered the Assessees reply and bearing in mind this provision considered the amount of Rs.116,52,58,569/- on account of waiver of loan as income of the Assessee for the year under consideration. The Assessing Officer also added an amount of Rs.5,47,70,190/- being the interest amount waived by Indya.com. Both these amounts were added to the total income of the Assessee-company.5. This order of the Assessing Officer was challenged before the Commissioner (First Appellate Authority) and the Commissioner relying upon the judgment of this Court in the case of Mahindra & Mahindra v. CIT [2003] 261 ITR 501 /128 Taxman 394 deleted the additions. The order passed by the Commissioner of Income Tax (Appeals) dated 22 December 2008 was challenged by the Revenue in Appeal and the Tribunal upheld the order of the Commissioner.6. After having heard Mr. Tejveer Singh and Mr. Kaka, learned Sr. Counsel appearing for the Assessee and perusing the findings of the Income Tax Appellate Tribunal in the light of the above noted factual position, we do not find any perversity or error apparent on the face of record in the order of the Tribunal enabling us to interfere with the same in our further Appellate jurisdiction.7. The questions of law are framed on the footing that the Tribunal has misread this provision or rather misconstrued it.8. That does not appear to be the case, inasmuch as, if two loans were taken by the Tribunal into consideration, coupled with the nature of the business of the Assessee, it noted that in the assessment year 2002-03 the Assessee set off brought forward business loss against net interest income by claiming interest to be business income. That is because it was charging interest at the rate of 9% p.a. from MBPL. There the Revenue did not accept the claim of the Assessee and held that the interest income was not connected with the business of the Assessee and hence no set off was allowed against the business losses. Again in assessment year 2004-05, the Revenue Authorities assessed the interest income as income from other sources. The Tribunal noted that when the loan of Rs.116.52 crores has been waived by Indya.com in favour of the Assessee, the Assessing Officer sought to apply section 28(iv) by terming such waiver as income of the Assessee and arising from the business of the Assessee. This stand of the department, therefore, has been commented upon by the Tribunal in para 3 and it held that if section 28(iv) was applied that means the loan was treated as connected with the business of the Assessee. However, in earlier years the Revenue did not accept the loan transactions from Indya.com and to MBPL both as business transactions. It now cannot question or turn around from its findings. Mr.Tejveer Singh would find fault with it, but what we have concluded is that in the given facts and peculiar to the Assessee, that the Tribunal commented on this conflicting stand or versions of the Revenue. Either loans should retain the character originally labled or attached to or it should answer the term as a business loan. We do not find any reason nor any fault with the Tribunal, when it upheld the order of the Commissioner by looking at the matter either way. In para 4 what it has noted is that the Assessee would be entitled to set off, in the sense that if one loan which was advanced to it has been now written off and equally the advance made by this Assessee to MBPL became non-recoverable, then, what it derives by way of loan having been shown as income and what is the amount written off by the Assessee can be adjusted against each other. Because of the waiver, the liability of MBPL to repay the same would enable the Assessee to adjust a receipt or claim a set off. That is how the Tribunal concluded that the Assessing Officer charged to tax receipt of waiver of loan of Rs.116.52 crores as business income together with interest at Rs.5.47 crores but did not allow the deduction for waiver of the loan granted to the Assessee to the tune of Rs.139.58 crores. If both transactions are loan transactions and one part of it is treated as business income then second part could not have, in these peculiar facts, given a different character. We do not see as to how the observations made in para 4 could be seen out of context. Those are made in the backdrop of the peculiar facts and that is how the conclusion of the Commissioner that Rs.122 crores being the difference of the amount cannot be taken as income under section 28(iv) came to be upheld.
### Response:
0
### Explanation:
6. After having heard Mr. Tejveer Singh and Mr. Kaka, learned Sr. Counsel appearing for the Assessee and perusing the findings of the Income Tax Appellate Tribunal in the light of the above noted factual position, we do not find any perversity or error apparent on the face of record in the order of the Tribunal enabling us to interfere with the same in our further Appellate jurisdiction.7. The questions of law are framed on the footing that the Tribunal has misread this provision or rather misconstrued it.8. That does not appear to be the case, inasmuch as, if two loans were taken by the Tribunal into consideration, coupled with the nature of the business of the Assessee, it noted that in the assessment yearthe Assessee set off brought forward business loss against net interest income by claiming interest to be business income. That is because it was charging interest at the rate of 9% p.a. from MBPL. There the Revenue did not accept the claim of the Assessee and held that the interest income was not connected with the business of the Assessee and hence no set off was allowed against the business losses. Again in assessment yearthe Revenue Authorities assessed the interest income as income from other sources. The Tribunal noted that when the loan of Rs.116.52 crores has been waived by Indya.com in favour of the Assessee, the Assessing Officer sought to apply section 28(iv) by terming such waiver as income of the Assessee and arising from the business of the Assessee. This stand of the department, therefore, has been commented upon by the Tribunal in para 3 and it held that if section 28(iv) was applied that means the loan was treated as connected with the business of the Assessee. However, in earlier years the Revenue did not accept the loan transactions from Indya.com and to MBPL both as business transactions. It now cannot question or turn around from its findings. Mr.Tejveer Singh would find fault with it, but what we have concluded is that in the given facts and peculiar to the Assessee, that the Tribunal commented on this conflicting stand or versions of the Revenue. Either loans should retain the character originally labled or attached to or it should answer the term as a business loan. We do not find any reason nor any fault with the Tribunal, when it upheld the order of the Commissioner by looking at the matter either way. In para 4 what it has noted is that the Assessee would be entitled to set off, in the sense that if one loan which was advanced to it has been now written off and equally the advance made by this Assessee to MBPL becamethen, what it derives by way of loan having been shown as income and what is the amount written off by the Assessee can be adjusted against each other. Because of the waiver, the liability of MBPL to repay the same would enable the Assessee to adjust a receipt or claim a set off. That is how the Tribunal concluded that the Assessing Officer charged to tax receipt of waiver of loan of Rs.116.52 crores as business income together with interest at Rs.5.47 crores but did not allow the deduction for waiver of the loan granted to the Assessee to the tune of Rs.139.58 crores. If both transactions are loan transactions and one part of it is treated as business income then second part could not have, in these peculiar facts, given a different character. We do not see as to how the observations made in para 4 could be seen out of context. Those are made in the backdrop of the peculiar facts and that is how the conclusion of the Commissioner that Rs.122 crores being the difference of the amount cannot be taken as income under section 28(iv) came to be upheld.
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Hardeo Narain Singh Vs. Surajdeo Singh and Others | Ramlakhan Prasad and the Magistrate A. N. Ghosh both ran in the direction from where the gun fire had been shot. The Sub-Inspector gave evidence that he found Dukhan Yadav injured. The Sub-Inspector wrote the First Information Report. Dukhan Yadav supported the F.I.R. and said that the statements contained therein were made by him. The F.I.R. was attested by Rameshwar Mahto and Ramkishun Yadav. Both of them gave evidence. The Sub-Inspector P.W. 46 said that he saw both the appellant and Nagendra Singh on a jeep and that Nagendra Prasad singh was carrying a gun in his hand.13. Dukhan Yadav said that Nagendra Singh was carrying a gun. The appellant and Nagendra Singh asked Dukhan Yadav and others as to where they were going to vote. Dukhan Yadav and others said that they would cast vote for Machhli Chhap (fish symbol). Thereupon the appellant asked Nagendra Singh to shoot. Dukhan like others started fleeing away from that place. But Dukhan received the pellet injury in his neck.14. The Magistrate A. N. Ghosh P.W. 48 said that he along with his officers was standing in the booth when he heard a gun fire shot. The magistrate and his officers went towards the side from which the gun fire shot had been heard. While going that way the Magistrate saw a jeep and a car. The Magistrate recognised the two persons sitting in the jeep and they were the appellant and Nagendra Singh. The magistrate said that Nagendra Singh was the lawyers at Gaya. The Magistrate also said that he knew both Nagendra Singh and the appellant and that he had seen Nagendra Singh and the appellant before in connection with the election. The Magistrate referred to Exhibit 4 The first Information Report and said that the Sub-Inspector of police recorded the first information report and he put his signatures on Exhibit 4, the first information report.15. P.W. 17 Rameshwar Mahto said that at about 3 or 3.30 p.m. a gun fire was heard and about 100 to 125 persons were standing in a line to cast their votes. Some of them got afraid and fled away. Rameshwar Mahto also said that he saw a jeep and a car coming towards the polling booth. Rameshwar Mahto also said that when the jeep passed near the booth Sakaldip Singh and Nand Bihari Singh cried out maro maro and the voters got frightened and were scared away.16. P.W. 27 Rambilas Singh said that he was standing in the line for casting his vote when he heard the gun fire. He was confused. The line was broken. Some people fled away. Rambilas saw a jeep coming followed by a taxi or car. The witness saw in the jeep the appellant and Nagendra Singh who had a gun in his hand. Rambilas Singh said that at the sight of the car Sakaldip Singh and Nand Bihari Singh raised the cry of maro maro and at the cry the witness and the others fled away.17. The evidence of Rameshwar Mahto was criticised on the ground that he was interested and inimical. The High Court rightly answered that criticism by holding that Rameshwar Mahto was the polling agent of Shoshit Dal and not of the election petitioner. Again, the evidence of Rambilas Singh was criticised on the ground that he was not examined as an eye-witness before the investigating officer. It may not always be possible to examine all the witness before the investigating officer.18. Nagendra Singh said that he had gone to Kayeea in the company of the appellant. He also saw the Magistrate and the Sub-Inspector of police. He heard the cry of maro maro. He however could not ascertain till the day of his deposition as to who had fired the gun.19. The appellants also said that he had gone to Kayeea in the company of Nagendra Singh and that both of them were in a jeep.20. There was some common place comment at the trial about the witnesses namely that they were inimical or partisan or they were not consistent about the time of the occurrence. Mr. Gupta however did not rely on such comments on the evidence. He put it quite surely that it was really a question as to belief of the evidence on behalf of the petitioner.21. The broad and basic features of the petitioners case have been established beyond doubt.22. The first Information Report Exhibit 4 was recorded at 4.15 p.m. on February 9, 1969. It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry of maro-maro raised by Sakaldip Singh and Nand Bihari Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea Polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement. This was on after thought to extricate from the established evidence of firing by Nagendra Singh who was in the company of the appellant.24. The High Court rightly accepted the oral evidence as well as the documentary evidence adduced on behalf of the petitioner and came to the conclusion that the appellant was guilty of corrupt practice at Kayeea polling station. | 0[ds]It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry ofraised by Sakaldip Singh and Nand Bihari Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea Polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement. This was on after thought to extricate from the established evidence of firing by Nagendra Singh who was in the company of the appellant.The High Court rightly accepted the oral evidence as well as the documentary evidence adduced on behalf of the petitioner and came to the conclusion that the appellant was guilty of corrupt practice at Kayeea polling station.There was some common place comment at the trial about the witnesses namely that they were inimical or partisan or they were not consistent about the time of the occurrence. Mr. Gupta however did not rely on such comments on the evidence. He put it quite surely that it was really a question as to belief of the evidence on behalf of the petitioner.21. The broad and basic features of the petitioners case have been established beyond doubt.22. The first Information Report Exhibit 4 was recorded at 4.15 p.m. on February 9, 1969.It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry ofd by Sakaldip Singh and Nand Bihari Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea Polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement. This was on after thought to extricate from the established evidence of firing by Nagendra Singh who was in the company of the appellant. | 0 | 2,361 | 595 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
Ramlakhan Prasad and the Magistrate A. N. Ghosh both ran in the direction from where the gun fire had been shot. The Sub-Inspector gave evidence that he found Dukhan Yadav injured. The Sub-Inspector wrote the First Information Report. Dukhan Yadav supported the F.I.R. and said that the statements contained therein were made by him. The F.I.R. was attested by Rameshwar Mahto and Ramkishun Yadav. Both of them gave evidence. The Sub-Inspector P.W. 46 said that he saw both the appellant and Nagendra Singh on a jeep and that Nagendra Prasad singh was carrying a gun in his hand.13. Dukhan Yadav said that Nagendra Singh was carrying a gun. The appellant and Nagendra Singh asked Dukhan Yadav and others as to where they were going to vote. Dukhan Yadav and others said that they would cast vote for Machhli Chhap (fish symbol). Thereupon the appellant asked Nagendra Singh to shoot. Dukhan like others started fleeing away from that place. But Dukhan received the pellet injury in his neck.14. The Magistrate A. N. Ghosh P.W. 48 said that he along with his officers was standing in the booth when he heard a gun fire shot. The magistrate and his officers went towards the side from which the gun fire shot had been heard. While going that way the Magistrate saw a jeep and a car. The Magistrate recognised the two persons sitting in the jeep and they were the appellant and Nagendra Singh. The magistrate said that Nagendra Singh was the lawyers at Gaya. The Magistrate also said that he knew both Nagendra Singh and the appellant and that he had seen Nagendra Singh and the appellant before in connection with the election. The Magistrate referred to Exhibit 4 The first Information Report and said that the Sub-Inspector of police recorded the first information report and he put his signatures on Exhibit 4, the first information report.15. P.W. 17 Rameshwar Mahto said that at about 3 or 3.30 p.m. a gun fire was heard and about 100 to 125 persons were standing in a line to cast their votes. Some of them got afraid and fled away. Rameshwar Mahto also said that he saw a jeep and a car coming towards the polling booth. Rameshwar Mahto also said that when the jeep passed near the booth Sakaldip Singh and Nand Bihari Singh cried out maro maro and the voters got frightened and were scared away.16. P.W. 27 Rambilas Singh said that he was standing in the line for casting his vote when he heard the gun fire. He was confused. The line was broken. Some people fled away. Rambilas saw a jeep coming followed by a taxi or car. The witness saw in the jeep the appellant and Nagendra Singh who had a gun in his hand. Rambilas Singh said that at the sight of the car Sakaldip Singh and Nand Bihari Singh raised the cry of maro maro and at the cry the witness and the others fled away.17. The evidence of Rameshwar Mahto was criticised on the ground that he was interested and inimical. The High Court rightly answered that criticism by holding that Rameshwar Mahto was the polling agent of Shoshit Dal and not of the election petitioner. Again, the evidence of Rambilas Singh was criticised on the ground that he was not examined as an eye-witness before the investigating officer. It may not always be possible to examine all the witness before the investigating officer.18. Nagendra Singh said that he had gone to Kayeea in the company of the appellant. He also saw the Magistrate and the Sub-Inspector of police. He heard the cry of maro maro. He however could not ascertain till the day of his deposition as to who had fired the gun.19. The appellants also said that he had gone to Kayeea in the company of Nagendra Singh and that both of them were in a jeep.20. There was some common place comment at the trial about the witnesses namely that they were inimical or partisan or they were not consistent about the time of the occurrence. Mr. Gupta however did not rely on such comments on the evidence. He put it quite surely that it was really a question as to belief of the evidence on behalf of the petitioner.21. The broad and basic features of the petitioners case have been established beyond doubt.22. The first Information Report Exhibit 4 was recorded at 4.15 p.m. on February 9, 1969. It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry of maro-maro raised by Sakaldip Singh and Nand Bihari Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea Polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement. This was on after thought to extricate from the established evidence of firing by Nagendra Singh who was in the company of the appellant.24. The High Court rightly accepted the oral evidence as well as the documentary evidence adduced on behalf of the petitioner and came to the conclusion that the appellant was guilty of corrupt practice at Kayeea polling station.
### Response:
0
### Explanation:
It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry ofraised by Sakaldip Singh and Nand Bihari Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea Polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement. This was on after thought to extricate from the established evidence of firing by Nagendra Singh who was in the company of the appellant.The High Court rightly accepted the oral evidence as well as the documentary evidence adduced on behalf of the petitioner and came to the conclusion that the appellant was guilty of corrupt practice at Kayeea polling station.There was some common place comment at the trial about the witnesses namely that they were inimical or partisan or they were not consistent about the time of the occurrence. Mr. Gupta however did not rely on such comments on the evidence. He put it quite surely that it was really a question as to belief of the evidence on behalf of the petitioner.21. The broad and basic features of the petitioners case have been established beyond doubt.22. The first Information Report Exhibit 4 was recorded at 4.15 p.m. on February 9, 1969.It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry ofd by Sakaldip Singh and Nand Bihari Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea Polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement. This was on after thought to extricate from the established evidence of firing by Nagendra Singh who was in the company of the appellant.
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Lok Nath and Company, The Mall, Shimla Vs. Commissioner of Wealth Tax, Patiala | do not feel any necessity of giving a finding whether Section 16(3) assessments in this case were in fact invalid, as argued by Shri B.R. Gupta. What we are keeping in mind is that the Commissioner of Wealth-tax while taking recount (recourse?) to Section 25(2) provisions thought those assessments to be invalid and once such was the case, his application of mind for vacating the assessments which he himself thought to be invalid and void ab-initio could not clothe him with power or authority of ordering fresh assessments. 5. The Tribunal also characterised the reason given by the Commissioner for revising as imaginary and unreal. 6. The High Court answered the question aforesaid in favour of Revenue on three grounds, viz., (1) the orders of the Wealth Tax Officer though purporting to be under Sub-section (3) are in substance and effect under Sub-section (1) of Section 16 of the Act, since he had accepted the revised returns submitted by the assessee. It cannot, therefore, be said that the orders of assessment are defective for violation of Section 16(2) of the Act, (2) the Commissioner was well within his jurisdiction when he was satisfied that all material facts necessary for the assessment had not been disclosed and that there had been an under-assessment. In such cases, the Commissioner is empowered to exercise his jurisdiction under Section 25(2) and (3) even if it is held that the assessment order ere made under Sub-section (3) of Section 16, yet the failure to issue a notice under Sub-section (2) of Section 16, does not affect the jurisdiction of the Wealth Tax Officer and it cannot be said that the orders of assessment are without jurisdiction. 7. As would be evident from the order of the Commissioner, the main ground upon which he exercised his power under Section 25(2) is that the assessment orders made by the Wealth Tax Officer purporting to act under Sub-section (3) of Section 16 were bad since no order of assessment could have been made under Sub-section (3) unless a notice under Sub-section (2) was given. In this case, admittedly no notice under Section 16(2) was issued. Sub-sections (1), (2) and (3) of Section 16, as they stood at the relevant time read as follows: 16.(1) If the Wealth-tax Officer is satisfied without requiring the presence of the assessee or production by him of any evidence that a return made under Section 14 or 15 is correct and complete, he shall assess the net wealth of the assessee and determine the amount of wealth-tax payable by him or the amount refundable to him on the basis of such return. (2) If the Wealth-tax Officer is not so satisfied, he shall serve a notice on the assessee either to attend in person at his office on a date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the assessee may rely in support of his return. (3) The Wealth-tax Officer, after hearing such evidence as the person may produce and such other evidence as he may require on any specified points, and after taking into account all relevant material which the Wealth-tax Officer has gathered, shall, by order writing, assess the net wealth of the assessee and determine the amount of wealth-tax payable by or the amount refundable to him on the basis of such assessment. 8. The Commissioner then expressed the following apprehension, which forms the basis of his order: Such an assessment can always be challenged by the assessee legally even after the period for re-opening the assessment under Section 17 of the Wealth-tax Act, is over. And if this happens, the Department would have no remedy for collecting the wealth-tax dues from the assessee for this year as it will be outside its purview. Therefore, the assessment order made by the Wealth-tax Officer is not only erroneous but also prejudicial to the interests of the revenue. 9. We are of the opinion that once the High Court opined, and in our opinion rightly, that quoting of Sub-section (3) in the assessment orders was really a case of quoting the wrong provision of law and does not affect its legality, question of setting aside the assessment orders did not arise. The revised returns filed by the assessee-appellant were accepted by the Wealth Tax Officer and the assessment made. The assessment order for the Assessment Year 1959-60, which is in identical words as all the assessment orders, is a brief one. It reads: Assessment order. Return declaring total Wealth of Rs. Nil was filed on 30.8.1968 which is late. Consequently notice under Section 18(1)(a) has been issued separately. A revised return declaring total wealth of Rs. 706077/- has been filed by the assessee which is accepted as declared. Assessed. Issue demand notice and challan. 10. (Under the Column Section and sub-section under which the assessment aide, in the Preamble to the order, the Wealth Tax Officer mentioned 16(3).) 11. The assessment order is obviously the one made under Sub-section (1) though wrongly mentioning Section 16(3). Indeed, the High Court has held further that even if the said assessment are deemed to be under Sub-section (3), yet they cannot be held to be without jurisdiction merely because notice under Sub-section (2) was not issued. 12. Now, coming to the apprehension expressed by the Commissioner, which constitutes the basis of his order, it is, in our opinion, a remote one at best. The counsel for the Revenue could not also explain the observation of the Commissioner that if an assessment is made under Sub-section (3) without issuing a notice under Sub-section (2) of Section 16, such an assessment can always be challenged by the assessee legally even after the period of re-opening the assessment under Section 17 is over and in which case, the Revenue will be totally helpless. In our opinion, the Commissioner has acted on certain assumptions which are, at best, too remote, besides being difficult to appreciate. | 1[ds]7. As would be evident from the order of the Commissioner, the main ground upon which he exercised his power under Section 25(2) is that the assessment orders made by the Wealth Tax Officer purporting to act under Sub-section (3) of Section 16 were bad since no order of assessment could have been made under Sub-section (3) unless a notice under Sub-section (2) was given. In this case, admittedly no notice under Section 16(2) was issued.8. The Commissioner then expressed the following apprehension, which forms the basis of his order: Such an assessment can always be challenged by the assessee legally even after the period for re-opening the assessment under Section 17 of the Wealth-tax Act, is over. And if this happens, the Department would have no remedy for collecting the wealth-tax dues from the assessee for this year as it will be outside its purview. Therefore, the assessment order made by the Wealth-tax Officer is not only erroneous but also prejudicial to the interests of the revenue.9. We are of the opinion that once the High Court opined, and in our opinion rightly, that quoting of Sub-section (3) in the assessment orders was really a case of quoting the wrong provision of law and does not affect its legality, question of setting aside the assessment orders did not arise. The revised returns filed by the assessee-appellant were accepted by the Wealth Tax Officer and the assessment made. The assessment order for the Assessment Year 1959-60, which is in identical words as all the assessment orders, is a brief one. It reads:Assessment order.Return declaring total Wealth of Rs. Nil was filed on 30.8.1968 which is late. Consequently notice under Section 18(1)(a) has been issued separately. A revised return declaring total wealth of Rs. 706077/- has been filed by the assessee which is accepted as declared. Assessed. Issue demand notice and challan.10. (Under the Column Section and sub-section under which the assessment aide, in the Preamble to the order, the Wealth Tax Officer mentioned 16(3).)11. The assessment order is obviously the one made under Sub-section (1) though wrongly mentioning Section 16(3). Indeed, the High Court has held further that even if the said assessment are deemed to be under Sub-section (3), yet they cannot be held to be without jurisdiction merely because notice under Sub-section (2) was not issued.12. Now, coming to the apprehension expressed by the Commissioner, which constitutes the basis of his order, it is, in our opinion, a remote one at best. The counsel for the Revenue could not also explain the observation of the Commissioner that if an assessment is made under Sub-section (3) without issuing a notice under Sub-section (2) of Section 16, such an assessment can always be challenged by the assessee legally even after the period of re-opening the assessment under Section 17 is over and in which case, the Revenue will be totally helpless. In our opinion, the Commissioner has acted on certain assumptions which are, at best, too remote, besides being difficult to appreciate. | 1 | 1,985 | 598 | ### 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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do not feel any necessity of giving a finding whether Section 16(3) assessments in this case were in fact invalid, as argued by Shri B.R. Gupta. What we are keeping in mind is that the Commissioner of Wealth-tax while taking recount (recourse?) to Section 25(2) provisions thought those assessments to be invalid and once such was the case, his application of mind for vacating the assessments which he himself thought to be invalid and void ab-initio could not clothe him with power or authority of ordering fresh assessments. 5. The Tribunal also characterised the reason given by the Commissioner for revising as imaginary and unreal. 6. The High Court answered the question aforesaid in favour of Revenue on three grounds, viz., (1) the orders of the Wealth Tax Officer though purporting to be under Sub-section (3) are in substance and effect under Sub-section (1) of Section 16 of the Act, since he had accepted the revised returns submitted by the assessee. It cannot, therefore, be said that the orders of assessment are defective for violation of Section 16(2) of the Act, (2) the Commissioner was well within his jurisdiction when he was satisfied that all material facts necessary for the assessment had not been disclosed and that there had been an under-assessment. In such cases, the Commissioner is empowered to exercise his jurisdiction under Section 25(2) and (3) even if it is held that the assessment order ere made under Sub-section (3) of Section 16, yet the failure to issue a notice under Sub-section (2) of Section 16, does not affect the jurisdiction of the Wealth Tax Officer and it cannot be said that the orders of assessment are without jurisdiction. 7. As would be evident from the order of the Commissioner, the main ground upon which he exercised his power under Section 25(2) is that the assessment orders made by the Wealth Tax Officer purporting to act under Sub-section (3) of Section 16 were bad since no order of assessment could have been made under Sub-section (3) unless a notice under Sub-section (2) was given. In this case, admittedly no notice under Section 16(2) was issued. Sub-sections (1), (2) and (3) of Section 16, as they stood at the relevant time read as follows: 16.(1) If the Wealth-tax Officer is satisfied without requiring the presence of the assessee or production by him of any evidence that a return made under Section 14 or 15 is correct and complete, he shall assess the net wealth of the assessee and determine the amount of wealth-tax payable by him or the amount refundable to him on the basis of such return. (2) If the Wealth-tax Officer is not so satisfied, he shall serve a notice on the assessee either to attend in person at his office on a date to be specified in the notice or to produce or cause to be produced on that date any evidence on which the assessee may rely in support of his return. (3) The Wealth-tax Officer, after hearing such evidence as the person may produce and such other evidence as he may require on any specified points, and after taking into account all relevant material which the Wealth-tax Officer has gathered, shall, by order writing, assess the net wealth of the assessee and determine the amount of wealth-tax payable by or the amount refundable to him on the basis of such assessment. 8. The Commissioner then expressed the following apprehension, which forms the basis of his order: Such an assessment can always be challenged by the assessee legally even after the period for re-opening the assessment under Section 17 of the Wealth-tax Act, is over. And if this happens, the Department would have no remedy for collecting the wealth-tax dues from the assessee for this year as it will be outside its purview. Therefore, the assessment order made by the Wealth-tax Officer is not only erroneous but also prejudicial to the interests of the revenue. 9. We are of the opinion that once the High Court opined, and in our opinion rightly, that quoting of Sub-section (3) in the assessment orders was really a case of quoting the wrong provision of law and does not affect its legality, question of setting aside the assessment orders did not arise. The revised returns filed by the assessee-appellant were accepted by the Wealth Tax Officer and the assessment made. The assessment order for the Assessment Year 1959-60, which is in identical words as all the assessment orders, is a brief one. It reads: Assessment order. Return declaring total Wealth of Rs. Nil was filed on 30.8.1968 which is late. Consequently notice under Section 18(1)(a) has been issued separately. A revised return declaring total wealth of Rs. 706077/- has been filed by the assessee which is accepted as declared. Assessed. Issue demand notice and challan. 10. (Under the Column Section and sub-section under which the assessment aide, in the Preamble to the order, the Wealth Tax Officer mentioned 16(3).) 11. The assessment order is obviously the one made under Sub-section (1) though wrongly mentioning Section 16(3). Indeed, the High Court has held further that even if the said assessment are deemed to be under Sub-section (3), yet they cannot be held to be without jurisdiction merely because notice under Sub-section (2) was not issued. 12. Now, coming to the apprehension expressed by the Commissioner, which constitutes the basis of his order, it is, in our opinion, a remote one at best. The counsel for the Revenue could not also explain the observation of the Commissioner that if an assessment is made under Sub-section (3) without issuing a notice under Sub-section (2) of Section 16, such an assessment can always be challenged by the assessee legally even after the period of re-opening the assessment under Section 17 is over and in which case, the Revenue will be totally helpless. In our opinion, the Commissioner has acted on certain assumptions which are, at best, too remote, besides being difficult to appreciate.
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7. As would be evident from the order of the Commissioner, the main ground upon which he exercised his power under Section 25(2) is that the assessment orders made by the Wealth Tax Officer purporting to act under Sub-section (3) of Section 16 were bad since no order of assessment could have been made under Sub-section (3) unless a notice under Sub-section (2) was given. In this case, admittedly no notice under Section 16(2) was issued.8. The Commissioner then expressed the following apprehension, which forms the basis of his order: Such an assessment can always be challenged by the assessee legally even after the period for re-opening the assessment under Section 17 of the Wealth-tax Act, is over. And if this happens, the Department would have no remedy for collecting the wealth-tax dues from the assessee for this year as it will be outside its purview. Therefore, the assessment order made by the Wealth-tax Officer is not only erroneous but also prejudicial to the interests of the revenue.9. We are of the opinion that once the High Court opined, and in our opinion rightly, that quoting of Sub-section (3) in the assessment orders was really a case of quoting the wrong provision of law and does not affect its legality, question of setting aside the assessment orders did not arise. The revised returns filed by the assessee-appellant were accepted by the Wealth Tax Officer and the assessment made. The assessment order for the Assessment Year 1959-60, which is in identical words as all the assessment orders, is a brief one. It reads:Assessment order.Return declaring total Wealth of Rs. Nil was filed on 30.8.1968 which is late. Consequently notice under Section 18(1)(a) has been issued separately. A revised return declaring total wealth of Rs. 706077/- has been filed by the assessee which is accepted as declared. Assessed. Issue demand notice and challan.10. (Under the Column Section and sub-section under which the assessment aide, in the Preamble to the order, the Wealth Tax Officer mentioned 16(3).)11. The assessment order is obviously the one made under Sub-section (1) though wrongly mentioning Section 16(3). Indeed, the High Court has held further that even if the said assessment are deemed to be under Sub-section (3), yet they cannot be held to be without jurisdiction merely because notice under Sub-section (2) was not issued.12. Now, coming to the apprehension expressed by the Commissioner, which constitutes the basis of his order, it is, in our opinion, a remote one at best. The counsel for the Revenue could not also explain the observation of the Commissioner that if an assessment is made under Sub-section (3) without issuing a notice under Sub-section (2) of Section 16, such an assessment can always be challenged by the assessee legally even after the period of re-opening the assessment under Section 17 is over and in which case, the Revenue will be totally helpless. In our opinion, the Commissioner has acted on certain assumptions which are, at best, too remote, besides being difficult to appreciate.
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Union Of India Vs. Nanak Singh | that order, with special leave, the Union of India has appealed to this Court. 4. The first question which falls to be determined in this appeal is whether the judgment of the High Court in the writ petition operated as res judicata in the Civil Suit filed by Nanak Singh. Nanak Singh, it may be recalled claimed relief on two alternative grounds -(1) infringement of the protection under Article 311 of the Constitution, and (2) absence of authority in the Officer who terminated his employment under Rule 5 of the Central Civil Services (Temporary Service. Rules, 1949. Each ground, if successful was sufficient to support an order in his favour. Gurdev Singh, J., decided both the grounds in favour of Nanak Singh The High Court reversed the judgment of Gurdev Singh, J., and dismissed the petition filed by Nanak Singh: thereby the High Court must be deemed to have rejected troth the grounds on which the petition was founded. On the plea that the order of termination of his employment amounted to dismissal, the High Court gave detailed reasons and observed that by the termination of his employment, Nanak Singh was not visited with any punishment. The second plea about the authority of Mr. Kane also must be deemed to have been negatived by the High Court. For the High Court could not without reversing the judgment of Gurdev Singh. J., have dismissed the petition. It is true that in the judgment of the Court of Appeal some obscure statement has been made, and it is difficult to appreciate the true purport thereof. But what operates as res judicata is the decision and not the reasons given by the Court in support of the decision. We are unable to agree with counsel for Nanak Singh, that the High Court reserved to Nanak Singh the right to agitate the question about the authority of Mr. Kane in a separate suit. There is no such express reservation, and it cannot be implied, for such an implication is plainly inconsistent with the find order passed by the High Court Even assuming that the High Court was in error in holding that the appeal could be decided only on the first point, the order dismissing the petition must still operate as res judicata in respect of both the points on which the petition was founded. 5. This Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of S. 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude, such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. The Court in Gulabchands case, AIR 1965 SC 1153 left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided. 6. In the order of the High Court in appeal from he order in the writ petition operated constructively as res judicata, it might have been necessary to consider the question which was left open by the Court in Gulabchands case, AIR 1965 SC 1153 . But in our view the judgment in the previous case operates by express decision as res judicata. It is true that in order that the previous adjudication between the parties may operate as res judicata, the question must have been heard and decided or that the parties must have an opportunity of raising their contentions thereon. In the present case, Gurdev Singh, J., dealt with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground, and they recorded no express finding on the second ground. But once the appeal was allowed and the petition was dismissed, the dismissal of the petition operated as a rejection of both the grounds on which it was founded. The judgment of the Privy Council on which reliance was placed by counsel for Nanak Singh - Abdullah Ashger Ali Khan v. Ganesh Das, AIR 1917 PC 201 has in our judgment no application. In that case a suit was dismissed by the Court of the Judicial Commissioner on the view that its constitution was defective, and no opinion on the merits of the dispute between the parties was expressed. The judgment of the Judicial Commissioner was held not to operate as res judicata in a subsequent suit between the parties to the previous suit, because the dispute was not decided on its merits in the previous suit expressly or even by implication. It is unnecessary on that view to adjudicate upon the question whether Mr. Kane had authority to determine the employment of Nanak Singh. 7. The appeal is allowed and the decree passed by the High Court is set aside. The decree passed by the Court of First Instance is restored. | 1[ds]In the present case, Gurdev Singh, J., dealt with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground, and they recorded no express finding on the second ground. But once the appeal was allowed and the petition was dismissed, the dismissal of the petition operated as a rejection of both the grounds on which it was founded. The judgment of the Privy Council on which reliance was placed by counsel for Nanak Singh - Abdullah Ashger Ali Khan v. Ganesh Das, AIR 1917 PC 201 has in our judgment no application. In that case a suit was dismissed by the Court of the Judicial Commissioner on the view that its constitution was defective, and no opinion on the merits of the dispute between the parties was expressed. The judgment of the Judicial Commissioner was held not to operate as res judicata in a subsequent suit between the parties to the previous suit, because the dispute was not decided on its merits in the previous suit expressly or even by implication. It is unnecessary on that view to adjudicate upon the question whether Mr. Kane had authority to determine the employment of Nanak Singh7. The appeal is allowed and the decree passed by the High Court is set aside. The decree passed by the Court of First Instance is restored. | 1 | 1,696 | 269 | ### 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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that order, with special leave, the Union of India has appealed to this Court. 4. The first question which falls to be determined in this appeal is whether the judgment of the High Court in the writ petition operated as res judicata in the Civil Suit filed by Nanak Singh. Nanak Singh, it may be recalled claimed relief on two alternative grounds -(1) infringement of the protection under Article 311 of the Constitution, and (2) absence of authority in the Officer who terminated his employment under Rule 5 of the Central Civil Services (Temporary Service. Rules, 1949. Each ground, if successful was sufficient to support an order in his favour. Gurdev Singh, J., decided both the grounds in favour of Nanak Singh The High Court reversed the judgment of Gurdev Singh, J., and dismissed the petition filed by Nanak Singh: thereby the High Court must be deemed to have rejected troth the grounds on which the petition was founded. On the plea that the order of termination of his employment amounted to dismissal, the High Court gave detailed reasons and observed that by the termination of his employment, Nanak Singh was not visited with any punishment. The second plea about the authority of Mr. Kane also must be deemed to have been negatived by the High Court. For the High Court could not without reversing the judgment of Gurdev Singh. J., have dismissed the petition. It is true that in the judgment of the Court of Appeal some obscure statement has been made, and it is difficult to appreciate the true purport thereof. But what operates as res judicata is the decision and not the reasons given by the Court in support of the decision. We are unable to agree with counsel for Nanak Singh, that the High Court reserved to Nanak Singh the right to agitate the question about the authority of Mr. Kane in a separate suit. There is no such express reservation, and it cannot be implied, for such an implication is plainly inconsistent with the find order passed by the High Court Even assuming that the High Court was in error in holding that the appeal could be decided only on the first point, the order dismissing the petition must still operate as res judicata in respect of both the points on which the petition was founded. 5. This Court in Gulabchand Chhotalal v. State of Gujarat, AIR 1965 SC 1153 observed that the provisions of S. 11 of the Code of Civil Procedure are not exhaustive with respect to all earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. There is no good reason to preclude, such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. The Court in Gulabchands case, AIR 1965 SC 1153 left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided. 6. In the order of the High Court in appeal from he order in the writ petition operated constructively as res judicata, it might have been necessary to consider the question which was left open by the Court in Gulabchands case, AIR 1965 SC 1153 . But in our view the judgment in the previous case operates by express decision as res judicata. It is true that in order that the previous adjudication between the parties may operate as res judicata, the question must have been heard and decided or that the parties must have an opportunity of raising their contentions thereon. In the present case, Gurdev Singh, J., dealt with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground, and they recorded no express finding on the second ground. But once the appeal was allowed and the petition was dismissed, the dismissal of the petition operated as a rejection of both the grounds on which it was founded. The judgment of the Privy Council on which reliance was placed by counsel for Nanak Singh - Abdullah Ashger Ali Khan v. Ganesh Das, AIR 1917 PC 201 has in our judgment no application. In that case a suit was dismissed by the Court of the Judicial Commissioner on the view that its constitution was defective, and no opinion on the merits of the dispute between the parties was expressed. The judgment of the Judicial Commissioner was held not to operate as res judicata in a subsequent suit between the parties to the previous suit, because the dispute was not decided on its merits in the previous suit expressly or even by implication. It is unnecessary on that view to adjudicate upon the question whether Mr. Kane had authority to determine the employment of Nanak Singh. 7. The appeal is allowed and the decree passed by the High Court is set aside. The decree passed by the Court of First Instance is restored.
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### Explanation:
In the present case, Gurdev Singh, J., dealt with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground, and they recorded no express finding on the second ground. But once the appeal was allowed and the petition was dismissed, the dismissal of the petition operated as a rejection of both the grounds on which it was founded. The judgment of the Privy Council on which reliance was placed by counsel for Nanak Singh - Abdullah Ashger Ali Khan v. Ganesh Das, AIR 1917 PC 201 has in our judgment no application. In that case a suit was dismissed by the Court of the Judicial Commissioner on the view that its constitution was defective, and no opinion on the merits of the dispute between the parties was expressed. The judgment of the Judicial Commissioner was held not to operate as res judicata in a subsequent suit between the parties to the previous suit, because the dispute was not decided on its merits in the previous suit expressly or even by implication. It is unnecessary on that view to adjudicate upon the question whether Mr. Kane had authority to determine the employment of Nanak Singh7. The appeal is allowed and the decree passed by the High Court is set aside. The decree passed by the Court of First Instance is restored.
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Maqbool Alam Khan Vs. Mst. Khodaija & Ors | of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift. Considering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift. 5. We also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam, 49 Ind App 195 at p. 209: (AIR 1922 PC 281 at p. 288). Sir John Edge said:"For a valid gift inter vivos under the Mohomedan law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus: (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively (Mahomedan Law, by Syed Ameer Ali, 4th Edn., vol. i, p. 41)." 6. The Prophet has said: "A gift is not valid without seisin." The rule of law is:"Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary "because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamiltons Hedaya (Gradys Edn.), p. 482]. 7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 at p. 1123.But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. In Mahomed Buksh Khan v. Hosseini Bibi, (1888) 15 Ind App 81 at p. 95 (PC), Lord Macnaghten said:"In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibbanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at the time." 8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid.In Macnaghtens Muhammadan Law, Precedents of Gifts, Case No. VI the question was:"A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, of which he (the donor) was not in possession, but to recover which he had brought an action, then pending, against his wife...... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances is his claim, under the deed, allowable?", and the answer has that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid. 9. It follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babulal, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him. The respondent contended that in the circumstances the entire appeal has become defective for non-joinder of necessary parties and must be dismissed. | 0[ds]4. The appellant must, therefore, establish his title to the land. He claims that after the preliminary decree Najma orally gave him her entire movable and immovable properties including the tenure, and she died after making over possession of the same. She died leaving her father and mother as her heirs. Both her parents filed petitions in Title Suit No. 127 of 1939 supporting the oral gift of the suit land. This circumstance favours the case of oral gift. The appellant examined himself as a witness in this case. He said that the gift was made on 10-2-1943 in the presence of his parents. His mother was alive, but she was not examined as a witness. The date of the gift was not mentioned in the plaint or in any earlier document; it was disclosed for the first time in the witness-box, and even then, it was not made clear how he remembered the date in the absence of any record. In the petition filed by him on 10-4-1948 in Title Suit No. 127 of 1939 he had made a different case and had stated that the gift was made a few months before her death on 26-2-1943. His case now is that Najma made a gift of her entire movable and immovable properties. This case was not made in the petitions filed in Title Suit No. 127 of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift. Considering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift5. We also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 at p. 1123.But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalidThe precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid9. It follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babulal, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him. | 0 | 2,777 | 876 | ### Instruction:
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of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift. Considering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift. 5. We also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam, 49 Ind App 195 at p. 209: (AIR 1922 PC 281 at p. 288). Sir John Edge said:"For a valid gift inter vivos under the Mohomedan law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus: (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively (Mahomedan Law, by Syed Ameer Ali, 4th Edn., vol. i, p. 41)." 6. The Prophet has said: "A gift is not valid without seisin." The rule of law is:"Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary "because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamiltons Hedaya (Gradys Edn.), p. 482]. 7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 at p. 1123.But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. In Mahomed Buksh Khan v. Hosseini Bibi, (1888) 15 Ind App 81 at p. 95 (PC), Lord Macnaghten said:"In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibbanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at the time." 8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid.In Macnaghtens Muhammadan Law, Precedents of Gifts, Case No. VI the question was:"A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, of which he (the donor) was not in possession, but to recover which he had brought an action, then pending, against his wife...... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances is his claim, under the deed, allowable?", and the answer has that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid. 9. It follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babulal, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him. The respondent contended that in the circumstances the entire appeal has become defective for non-joinder of necessary parties and must be dismissed.
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4. The appellant must, therefore, establish his title to the land. He claims that after the preliminary decree Najma orally gave him her entire movable and immovable properties including the tenure, and she died after making over possession of the same. She died leaving her father and mother as her heirs. Both her parents filed petitions in Title Suit No. 127 of 1939 supporting the oral gift of the suit land. This circumstance favours the case of oral gift. The appellant examined himself as a witness in this case. He said that the gift was made on 10-2-1943 in the presence of his parents. His mother was alive, but she was not examined as a witness. The date of the gift was not mentioned in the plaint or in any earlier document; it was disclosed for the first time in the witness-box, and even then, it was not made clear how he remembered the date in the absence of any record. In the petition filed by him on 10-4-1948 in Title Suit No. 127 of 1939 he had made a different case and had stated that the gift was made a few months before her death on 26-2-1943. His case now is that Najma made a gift of her entire movable and immovable properties. This case was not made in the petitions filed in Title Suit No. 127 of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift. Considering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift5. We also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 at p. 1123.But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalidThe precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid9. It follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babulal, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him.
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Rashik Lal and Company Vs. Commissioner of Income Tax | scope for any argument that even though under the Indian Partnership Act, an HUF not being a person cannot be a partner, but the payment of commission to the nominee partner will tantamount to payment to the HUF and therefore, such payment will not come within the mischief of S. 13 of the Partnership Act or S. 40(b) of the IT Act. To repeat what has been stated in Mullas Hindu Law only the members who have entered into partnership are to be regarded as partners. The position of the other members is no higher than sub-partnership.17. The application for registration of a firm has to be made under S. 184 of the IT Act. It is specifically provided that :(1) the partnership must be evidenced by an instrument in writing;(2) the individual shares of partners must be specified in that instrument;(3) the application for registration shall be signed by all the partners.The very fact that individual shares of the partners have to be specified and that such partners must personally sign the partnership deed and also the application for registration go to show that even if a person joins a firm as a representative of an HUF or any other body or association, within the firm his position is that of an individual. He may have an agreement with a third party to divide the profits received from the firm, but that agreement does not bind the firm nor does it alter the position of the partners under the Partnership Act or the IT Act. This aspect of the matter was explained by Subba Rao, J. (as his Lordship, then was) in the case of CIT vs. Bagyalakshmi & Co. 1985 (55) ITR 660 (SC) : TC 33R.1334 in the following words : "A partnership is a creature of contract. Under Hindu Law a joint family is one of status and right to partition is one of its incidents. The IT law gives the ITO a power to assess the income of a person in the manner provided by the Act. Except where there is a specific provision of the IT Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties." * This judgment given by a Bench of three Judges of this Court is a complete answer to the argument advanced on behalf of the assessee. A partner does not act in a representative capacity in the partnership. He functions in his personal capacity like any other partner. The provisions of the Partnership Act and the IT Act relating to partners and partnership firms will apply in full force in respect of such a partner. If any remuneration is paid or a commission is given to a partner by a partnership firm, S. 40(b) will apply even if the partner has joined the firm as a nominee of an HUF. The HUF or its representative does not have any special status in the Partnership Act. Although the partnership firm is not a legal entity, it has been treated as an independent unit of assessment under the IT Act. The assessment of a firm will have to be made strictly in accordance with the provisions of the IT Act. The law has to be taken as it is. Sec. 40(b) applies to certain payments made by a firm to its partners. Neither the firm nor its partners can evade the tax law on the pretext that although in law he is a partner but in reality he is not so. He may have to hand over the money to somebody else. That may be his position qua a third party. But the firm has nothing to do with it. It has paid the commission to one of its partners. It cannot get any deduction in its assessment for that payment because of S. 40(b) of the Act expressly prohibits such deduction.18. The basic principle that a firm is a compendious mode of describing the persons constituting the firm must not be overlooked. It is the individuals constituting the firm who are its partners. The partner may be under an obligation to hand over the monies received by him to somebody else by virtue of a sub-contract or any other arrangement. That will not change the character of the payment by the firm to its partner or the status of the partner in the firm. The firm is not entitled to get any deduction on account of payment of commission to a partner merely because the partner has an obligation to share the money with somebody else. So far as the firm was concerned, the commission was paid to one of the partners in his personal capacity.The provisions relating to assessment of the firm should not be construed in a way to defeat its object. Sec. 40(b) forbids deduction of any amount paid by way of commission to partner. In the instant case, Rashiklal is a partner of the firm Rashiklal & Co. The commission received by him from the partnership firm cannot be allowed as a deduction from the business income of the partnership. 19. | 0[ds]16. Under the IT Act, 1961, firm, partner and partnership have been given the same meaning as assigned to them in the Partnership Act. But the expression partner has been extended to include any person who, being a minor, has been admitted to the benefits of a partnership. Therefore, there is no scope for any argument that even though under the Indian Partnership Act, an HUF not being a person cannot be a partner, but the payment of commission to the nominee partner will tantamount to payment to the HUF and therefore, such payment will not come within the mischief of S. 13 of the Partnership Act or S. 40(b) of the IT Act. To repeat what has been stated in Mullas Hindu Law only the members who have entered into partnership are to be regarded as partners. The position of the other members is no higher than sub-partnership.17. The application for registration of a firm has to be made under S. 184 of the IT Act. It is specifically provided that :(1) the partnership must be evidenced by an instrument in writing;(2) the individual shares of partners must be specified in that instrument;(3) the application for registration shall be signed by all the partners.The very fact that individual shares of the partners have to be specified and that such partners must personally sign the partnership deed and also the application for registration go to show that even if a person joins a firm as a representative of an HUF or any other body or association, within the firm his position is that of an individual. He may have an agreement with a third party to divide the profits received from the firm, but that agreement does not bind the firm nor does it alter the position of the partners under the Partnership Act or the IT Act. This aspect of the matter was explained by Subba Rao, J. (as his Lordship, then was) in the case of CIT vs. Bagyalakshmi & Co. 1985 (55) ITR 660 (SC) : TC 33R.1334 in the following wordspartnership is a creature of contract. Under Hindu Law a joint family is one of status and right to partition is one of its incidents. The IT law gives the ITO a power to assess the income of a person in the manner provided by the Act. Except where there is a specific provision of the IT Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties."judgment given by a Bench of three Judges of this Court is a complete answer to the argument advanced on behalf of the assessee. A partner does not act in a representative capacity in the partnership. He functions in his personal capacity like any other partner. The provisions of the Partnership Act and the IT Act relating to partners and partnership firms will apply in full force in respect of such a partner. If any remuneration is paid or a commission is given to a partner by a partnership firm, S. 40(b) will apply even if the partner has joined the firm as a nominee of an HUF. The HUF or its representative does not have any special status in the Partnership Act. Although the partnership firm is not a legal entity, it has been treated as an independent unit of assessment under the IT Act. The assessment of a firm will have to be made strictly in accordance with the provisions of the IT Act. The law has to be taken as it is. Sec. 40(b) applies to certain payments made by a firm to its partners. Neither the firm nor its partners can evade the tax law on the pretext that although in law he is a partner but in reality he is not so. He may have to hand over the money to somebody else. That may be his position qua a third party. But the firm has nothing to do with it. It has paid the commission to one of its partners. It cannot get any deduction in its assessment for that payment because of S. 40(b) of the Act expressly prohibits such deduction.18. The basic principle that a firm is a compendious mode of describing the persons constituting the firm must not be overlooked. It is the individuals constituting the firm who are its partners. The partner may be under an obligation to hand over the monies received by him to somebody else by virtue of a sub-contract or any other arrangement. That will not change the character of the payment by the firm to its partner or the status of the partner in the firm. The firm is not entitled to get any deduction on account of payment of commission to a partner merely because the partner has an obligation to share the money with somebody else. So far as the firm was concerned, the commission was paid to one of the partners in his personal capacity.The provisions relating to assessment of the firm should not be construed in a way to defeat its object. Sec. 40(b) forbids deduction of any amount paid by way of commission to partner. In the instant case, Rashiklal is a partner of the firm Rashiklal & Co. The commission received by him from the partnership firm cannot be allowed as a deduction from the business income of the partnership. | 0 | 4,737 | 1,164 | ### 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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scope for any argument that even though under the Indian Partnership Act, an HUF not being a person cannot be a partner, but the payment of commission to the nominee partner will tantamount to payment to the HUF and therefore, such payment will not come within the mischief of S. 13 of the Partnership Act or S. 40(b) of the IT Act. To repeat what has been stated in Mullas Hindu Law only the members who have entered into partnership are to be regarded as partners. The position of the other members is no higher than sub-partnership.17. The application for registration of a firm has to be made under S. 184 of the IT Act. It is specifically provided that :(1) the partnership must be evidenced by an instrument in writing;(2) the individual shares of partners must be specified in that instrument;(3) the application for registration shall be signed by all the partners.The very fact that individual shares of the partners have to be specified and that such partners must personally sign the partnership deed and also the application for registration go to show that even if a person joins a firm as a representative of an HUF or any other body or association, within the firm his position is that of an individual. He may have an agreement with a third party to divide the profits received from the firm, but that agreement does not bind the firm nor does it alter the position of the partners under the Partnership Act or the IT Act. This aspect of the matter was explained by Subba Rao, J. (as his Lordship, then was) in the case of CIT vs. Bagyalakshmi & Co. 1985 (55) ITR 660 (SC) : TC 33R.1334 in the following words : "A partnership is a creature of contract. Under Hindu Law a joint family is one of status and right to partition is one of its incidents. The IT law gives the ITO a power to assess the income of a person in the manner provided by the Act. Except where there is a specific provision of the IT Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties." * This judgment given by a Bench of three Judges of this Court is a complete answer to the argument advanced on behalf of the assessee. A partner does not act in a representative capacity in the partnership. He functions in his personal capacity like any other partner. The provisions of the Partnership Act and the IT Act relating to partners and partnership firms will apply in full force in respect of such a partner. If any remuneration is paid or a commission is given to a partner by a partnership firm, S. 40(b) will apply even if the partner has joined the firm as a nominee of an HUF. The HUF or its representative does not have any special status in the Partnership Act. Although the partnership firm is not a legal entity, it has been treated as an independent unit of assessment under the IT Act. The assessment of a firm will have to be made strictly in accordance with the provisions of the IT Act. The law has to be taken as it is. Sec. 40(b) applies to certain payments made by a firm to its partners. Neither the firm nor its partners can evade the tax law on the pretext that although in law he is a partner but in reality he is not so. He may have to hand over the money to somebody else. That may be his position qua a third party. But the firm has nothing to do with it. It has paid the commission to one of its partners. It cannot get any deduction in its assessment for that payment because of S. 40(b) of the Act expressly prohibits such deduction.18. The basic principle that a firm is a compendious mode of describing the persons constituting the firm must not be overlooked. It is the individuals constituting the firm who are its partners. The partner may be under an obligation to hand over the monies received by him to somebody else by virtue of a sub-contract or any other arrangement. That will not change the character of the payment by the firm to its partner or the status of the partner in the firm. The firm is not entitled to get any deduction on account of payment of commission to a partner merely because the partner has an obligation to share the money with somebody else. So far as the firm was concerned, the commission was paid to one of the partners in his personal capacity.The provisions relating to assessment of the firm should not be construed in a way to defeat its object. Sec. 40(b) forbids deduction of any amount paid by way of commission to partner. In the instant case, Rashiklal is a partner of the firm Rashiklal & Co. The commission received by him from the partnership firm cannot be allowed as a deduction from the business income of the partnership. 19.
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of a partnership. Therefore, there is no scope for any argument that even though under the Indian Partnership Act, an HUF not being a person cannot be a partner, but the payment of commission to the nominee partner will tantamount to payment to the HUF and therefore, such payment will not come within the mischief of S. 13 of the Partnership Act or S. 40(b) of the IT Act. To repeat what has been stated in Mullas Hindu Law only the members who have entered into partnership are to be regarded as partners. The position of the other members is no higher than sub-partnership.17. The application for registration of a firm has to be made under S. 184 of the IT Act. It is specifically provided that :(1) the partnership must be evidenced by an instrument in writing;(2) the individual shares of partners must be specified in that instrument;(3) the application for registration shall be signed by all the partners.The very fact that individual shares of the partners have to be specified and that such partners must personally sign the partnership deed and also the application for registration go to show that even if a person joins a firm as a representative of an HUF or any other body or association, within the firm his position is that of an individual. He may have an agreement with a third party to divide the profits received from the firm, but that agreement does not bind the firm nor does it alter the position of the partners under the Partnership Act or the IT Act. This aspect of the matter was explained by Subba Rao, J. (as his Lordship, then was) in the case of CIT vs. Bagyalakshmi & Co. 1985 (55) ITR 660 (SC) : TC 33R.1334 in the following wordspartnership is a creature of contract. Under Hindu Law a joint family is one of status and right to partition is one of its incidents. The IT law gives the ITO a power to assess the income of a person in the manner provided by the Act. Except where there is a specific provision of the IT Act which derogates from any other statutory law or personal law, the provision will have to be considered in the light of the relevant branches of law. A contract of partnership has no concern with the obligation of the partners to others in respect of their shares of profit in the partnership. It only regulates the rights and liabilities of the partners. A partner may be the Karta of a joint Hindu family; he may be a trustee; he may enter into a sub-partnership with others; he may, under an agreement, express or implied, be the representative of a group of persons; he may be a benamidar for another. In all such cases he occupies a dual position. Qua the partnership, he functions in his personal capacity; qua the third parties, in his representative capacity. The third parties, whom one of the partners represents, cannot enforce their rights against the other partners nor the other partners can do so against the said third parties."judgment given by a Bench of three Judges of this Court is a complete answer to the argument advanced on behalf of the assessee. A partner does not act in a representative capacity in the partnership. He functions in his personal capacity like any other partner. The provisions of the Partnership Act and the IT Act relating to partners and partnership firms will apply in full force in respect of such a partner. If any remuneration is paid or a commission is given to a partner by a partnership firm, S. 40(b) will apply even if the partner has joined the firm as a nominee of an HUF. The HUF or its representative does not have any special status in the Partnership Act. Although the partnership firm is not a legal entity, it has been treated as an independent unit of assessment under the IT Act. The assessment of a firm will have to be made strictly in accordance with the provisions of the IT Act. The law has to be taken as it is. Sec. 40(b) applies to certain payments made by a firm to its partners. Neither the firm nor its partners can evade the tax law on the pretext that although in law he is a partner but in reality he is not so. He may have to hand over the money to somebody else. That may be his position qua a third party. But the firm has nothing to do with it. It has paid the commission to one of its partners. It cannot get any deduction in its assessment for that payment because of S. 40(b) of the Act expressly prohibits such deduction.18. The basic principle that a firm is a compendious mode of describing the persons constituting the firm must not be overlooked. It is the individuals constituting the firm who are its partners. The partner may be under an obligation to hand over the monies received by him to somebody else by virtue of a sub-contract or any other arrangement. That will not change the character of the payment by the firm to its partner or the status of the partner in the firm. The firm is not entitled to get any deduction on account of payment of commission to a partner merely because the partner has an obligation to share the money with somebody else. So far as the firm was concerned, the commission was paid to one of the partners in his personal capacity.The provisions relating to assessment of the firm should not be construed in a way to defeat its object. Sec. 40(b) forbids deduction of any amount paid by way of commission to partner. In the instant case, Rashiklal is a partner of the firm Rashiklal & Co. The commission received by him from the partnership firm cannot be allowed as a deduction from the business income of the partnership.
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Satwant Kaur Sandhu Vs. New India Assurance Company Ltd | the purpose of a mediclaim policy and its non-disclosure was tantamount to suppression of material facts enabling the Insurance Company to repudiate its liability under the policy? 17. The term "material fact" is not defined in the Act and, therefore, it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be "material". 18. As stated in Pollock and Mullas Indian Contract and Specific Relief Acts `any fact the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of risks in fixing the rate of premium is a material fact. 19. In this regard, it would be apposite to make a reference to Regulation 2(1)(d) of the Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002, which explains the meaning of term "material". The Regulation reads thus: "2. Definitions.--In these regulations, unless the context otherwise requires,--(a) xxx xxx xxx(b) xxx xxx xxx(c) xxx xxx xxx(d) "Proposal Form" means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.Explanation: "Material" for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer." Thus, the Regulation also defines the word "material" to mean and include all "important", "essential" and "relevant" information in the context of guiding the insurer to decide whether to undertake the risk or not. 20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance. 21. Bearing in mind the aforestated legal position, we may advert to the facts in hand. As noted earlier, the proposal form contained the following two questions: "10. Details of illness/would : Sound Health which may require treatment in near future11. Details of Treatment/surgical : Nil operation in the last two months Details of Treatment Duration of TreatmentFrom.....to......Doctor / HospitalIf fully recovered, attached certificateFor attending Doctor/Surgeon" 22. Answers given by the proposer to the two questions were "Sound Health" and "Nil" respectively. It would be beyond anybodys comprehension that the insured was not aware of the state of his health and the fact that he was suffering from Diabetes as also chronic Renal failure, more so when he was stated to be on regular haemodialysis. There can hardly be any scope for doubt that the information required in the afore-extracted questions was on material facts and answers given to those questions were definitely factors which would have influenced and guided the respondent - Insurance Company to enter into the Contract of Mediclaim Insurance with the insured. It is also pertinent to note that in the claim form the appellant had stated that the deceased was suffering from Chronic Renal Failure and Diabetic Nephropathy from 1st June, 1990, i.e. within three weeks of taking the policy. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent - insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorises the insurer to seek information from any hospital he had attended or may attend concerning any decease or illness which may affect his health.23. Before parting with the case, we may also deal with the submission of learned counsel for the appellant that the order of the National Commission is flawed because it has declined to interfere on a wrong premise that both the Fora below had arrived at "concurrent findings", which was not so. It is true that there is an apparent error in the order of the National Commission, inasmuch as the State Commission had, in fact, disagreed with the view taken by the District Forum but having regard to the fact that on our independent examination of the material on record, the claim by the appellant has been found to be fraudulent, we are of the opinion that no useful purpose would be served by remitting the matter to the National Commission for fresh adjudication on merits. | 0[ds]20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance.Answers given by the proposer to the two questions were "Sound Health" and "Nil" respectively. It would be beyond anybodys comprehension that the insured was not aware of the state of his health and the fact that he was suffering from Diabetes as also chronic Renal failure, more so when he was stated to be on regular haemodialysis. There can hardly be any scope for doubt that the information required in thequestions was on material facts and answers given to those questions were definitely factors which would have influenced and guided the respondentInsurance Company to enter into the Contract of Mediclaim Insurance with the insured. It is also pertinent to note that in the claim form the appellant had stated that the deceased was suffering from Chronic Renal Failure and Diabetic Nephropathy from 1st June, 1990, i.e. within three weeks of taking the policy. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondentinsurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorises the insurer to seek information from any hospital he had attended or may attend concerning any decease or illness which may affect his health.23. Before parting with the case, we may also deal with the submission of learned counsel for the appellant that the order of the National Commission is flawed because it has declined to interfere on a wrong premise that both the Fora below had arrived at "concurrent findings", which was not so. It is true that there is an apparent error in the order of the National Commission, inasmuch as the State Commission had, in fact, disagreed with the view taken by the District Forum but having regard to the fact that on our independent examination of the material on record, the claim by the appellant has been found to be fraudulent, we are of the opinion that no useful purpose would be served by remitting the matter to the National Commission for fresh adjudication on merits. | 0 | 3,475 | 633 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the purpose of a mediclaim policy and its non-disclosure was tantamount to suppression of material facts enabling the Insurance Company to repudiate its liability under the policy? 17. The term "material fact" is not defined in the Act and, therefore, it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be "material". 18. As stated in Pollock and Mullas Indian Contract and Specific Relief Acts `any fact the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of risks in fixing the rate of premium is a material fact. 19. In this regard, it would be apposite to make a reference to Regulation 2(1)(d) of the Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations, 2002, which explains the meaning of term "material". The Regulation reads thus: "2. Definitions.--In these regulations, unless the context otherwise requires,--(a) xxx xxx xxx(b) xxx xxx xxx(c) xxx xxx xxx(d) "Proposal Form" means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.Explanation: "Material" for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer." Thus, the Regulation also defines the word "material" to mean and include all "important", "essential" and "relevant" information in the context of guiding the insurer to decide whether to undertake the risk or not. 20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance. 21. Bearing in mind the aforestated legal position, we may advert to the facts in hand. As noted earlier, the proposal form contained the following two questions: "10. Details of illness/would : Sound Health which may require treatment in near future11. Details of Treatment/surgical : Nil operation in the last two months Details of Treatment Duration of TreatmentFrom.....to......Doctor / HospitalIf fully recovered, attached certificateFor attending Doctor/Surgeon" 22. Answers given by the proposer to the two questions were "Sound Health" and "Nil" respectively. It would be beyond anybodys comprehension that the insured was not aware of the state of his health and the fact that he was suffering from Diabetes as also chronic Renal failure, more so when he was stated to be on regular haemodialysis. There can hardly be any scope for doubt that the information required in the afore-extracted questions was on material facts and answers given to those questions were definitely factors which would have influenced and guided the respondent - Insurance Company to enter into the Contract of Mediclaim Insurance with the insured. It is also pertinent to note that in the claim form the appellant had stated that the deceased was suffering from Chronic Renal Failure and Diabetic Nephropathy from 1st June, 1990, i.e. within three weeks of taking the policy. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent - insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorises the insurer to seek information from any hospital he had attended or may attend concerning any decease or illness which may affect his health.23. Before parting with the case, we may also deal with the submission of learned counsel for the appellant that the order of the National Commission is flawed because it has declined to interfere on a wrong premise that both the Fora below had arrived at "concurrent findings", which was not so. It is true that there is an apparent error in the order of the National Commission, inasmuch as the State Commission had, in fact, disagreed with the view taken by the District Forum but having regard to the fact that on our independent examination of the material on record, the claim by the appellant has been found to be fraudulent, we are of the opinion that no useful purpose would be served by remitting the matter to the National Commission for fresh adjudication on merits.
### Response:
0
### Explanation:
20. The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance.Answers given by the proposer to the two questions were "Sound Health" and "Nil" respectively. It would be beyond anybodys comprehension that the insured was not aware of the state of his health and the fact that he was suffering from Diabetes as also chronic Renal failure, more so when he was stated to be on regular haemodialysis. There can hardly be any scope for doubt that the information required in thequestions was on material facts and answers given to those questions were definitely factors which would have influenced and guided the respondentInsurance Company to enter into the Contract of Mediclaim Insurance with the insured. It is also pertinent to note that in the claim form the appellant had stated that the deceased was suffering from Chronic Renal Failure and Diabetic Nephropathy from 1st June, 1990, i.e. within three weeks of taking the policy. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondentinsurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members at the time of admission in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorises the insurer to seek information from any hospital he had attended or may attend concerning any decease or illness which may affect his health.23. Before parting with the case, we may also deal with the submission of learned counsel for the appellant that the order of the National Commission is flawed because it has declined to interfere on a wrong premise that both the Fora below had arrived at "concurrent findings", which was not so. It is true that there is an apparent error in the order of the National Commission, inasmuch as the State Commission had, in fact, disagreed with the view taken by the District Forum but having regard to the fact that on our independent examination of the material on record, the claim by the appellant has been found to be fraudulent, we are of the opinion that no useful purpose would be served by remitting the matter to the National Commission for fresh adjudication on merits.
|
The Chief Personnel Officer & Ors Vs. A Nishanth George | in the lowest recruitment grade of the respective category of the employee seeking retirement. As a matter of fact, clause (6) of para 2 of the letter of the Railway Board dated 2 January 2004 clearly stipulates that: The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability, but not in any other category. 22. On 11 September 2010, when the Railway Board decided to extend the benefit of the scheme to other safety categories of staff with the grade pay of Rs 1800 per month, it was envisaged that save and except for certain modifications inter alia in regard to the categories and the period of qualifying service, the other terms and conditions of the scheme will remain unchanged. The respondents father was a Trackman. For the respondent to have been appointed under the scheme, he must have fulfilled the criteria for the appointment to the category in which his father was serving. Therefore, in terms of the scheme, though the respondent fulfilled the medical criteria requirement for some other posts, he could not be considered for appointment. It is clearly evident that on the plain terms of the scheme as it stood, the case of the respondent did not fulfil the criteria envisaged in the scheme. 23. In the companion appeal which arose from SLP (C) No. 906 of 2021, an application was submitted on 2 December 2010 by the father of the respondent seeking employment for his son, which was received by the Department on 7 December 2010. There was an endorsement on the letter, as noted by the High Court to the effect that there was no pending vigilance case against the respondents father but the date of birth was mentioned incorrectly as 16 February 1954 instead of 16 December 1954. The application was rejected on the ground that he had crossed 57 years as on the cut-off date. It appears that this mistake was realized and another application was submitted on 28 January 2014 mentioning the correct date of birth. The Tribunal rejected his application on the ground that even assuming that the date of birth was 16 December 1954, the respondents father had as on the cut-off date crossed the age of 57 years. On appeal, the High Court held that even assuming that a wrong date of birth had been mentioned, the date of birth of the respondents father should be reckoned as 16 December 1954, in which event the application was not barred by time. The divergence in the views of the Tribunal and the High Court was because the Tribunal had considered the eligibility with respect to the second application of the respondent made in 2014 while the High Court considered it against the first application made in 2011. 24. The respondent submitted that according to the notification issued by the Ministry of Railways on 29 March 2011, the recruitment process under LARSGESS scheme must be done twice in a year according to the fixed time schedule. It was submitted that according to the time schedule, the cut-off date for determining the eligibility of the employee and their ward was 1 January for the first half; and the last date for receiving applications was 31 January. For the second half of July- December, the cut-off date was 1 July; and the last date for receiving applications was 31 July. The first application of the respondent was submitted on 2 December 2010. According to the appellant, the first application was submitted by the respondents father even before the LARSGESS Scheme was notified. The reliance of the respondent on the notification of 29 March 2011 to justify the application is erroneous. Clause (2) of the notification states that the process of retirement/recruitment may be started from July 2011 for the calendar year of 2011. This is evident from the letter dated 11 April 2011 where the application submitted by the respondents father was rejected on the ground that he would be 57 years 4 month 14 days old as on the cut-off date of 30 June 2011. Further, the Divisional Office of Southern Office issued a notification on 30 June 2011 stating that the last date for receipt of application is 31 July 2011 and that all those applications submitted prior to the circular would not be considered. On the rejection of the application of the respondents father on 11 April 2011, a fresh application ought to have been filled before 31 July 2011, mentioning the correct date of birth. However, the respondent filled the second application on 28 January 2014, nearly 3 years later when he was 59 years and 15 days as on the cut-off date of 1 January 2014. When he submitted his second application, he had already superannuated and was above the age criteria of 57 years. 25. The Tribunal in the present case dismissed the OA filed by the respondent noting that the constitutional validity of the scheme was suspect and that moreover the father of the respondent had retired on attaining the normal age of superannuation. On a considered view of the matter, we hold that there was no error in the judgment of the Tribunal. We have addressed in detail the history of the LARSGESS scheme and the doubt expressed on its validity by the Division Bench of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to the decision of the Union government to terminate the scheme. While noticing the above backdrop, the three judge Bench of this Court in Manjit (supra) clearly noted that the Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. In this backdrop, the impugned judgment of the High Court of Madras issuing a mandamus for the appointment of the respondent cannot be sustained. | 1[ds]8. In Manjit v. Union of India 2021 SCC OnLine SC 49, the jurisdiction of this Court was invoked under Article 32 of the Constitution seeking a mandamus directing the Union of India and the Railways to appoint the petitioners in terms of the LARSGESS Scheme. Declining to accede to the request, this Court observed:6 The reliefs which have been sought in the present case, as already noted earlier, are for a writ of mandamus to the Union of India to appoint the petitioners in their respective cadres. A conscious decision has been taken by the Union of India to terminate the Scheme. This has been noticed in the order of this Court dated 6 March 2019, which has been extracted above. While taking this decision on 5 March 2019, the Union of India had stated that where wards had completed all formalities prior to 27 October 2017 (the date of termination of the Scheme) and were found fit, since the matter was pending consideration before this Court, further instructions would be issued in accordance with the directions of this Court. Noticing the above decision, this Court, in its order dated 6 March 2019, specifically observed that since the Scheme stands terminated and is no longer in existence, nothing further need be done in the matter. The Scheme provided for an avenue of a back door entry into the service of the railways. This would be fundamentally at odds with Article 16 of the Constitution. The Union government has with justification discontinued the scheme. The petitioners can claim neither a vested right nor a legitimate expectation under such a Scheme. All claims based on the Scheme must now be closed.9. The Court observed that: (i) the grant of reliefs to the petitioners would only enable them to seek back door entry; (ii) the Union of India had correctly terminated the scheme; and (iii) no person can claim a vested right or legitimate expectation under the scheme.10. At this stage, it would be material to note that in Narinder Siraswal v. Union of India 2019 SCC OnLine SC 1966, which was decided on 6 March 2019 by a two-Judge Bench (prior to the judgment of the 3-Judge Bench in Manjit (supra)), this Court allowed the petitioners before it to move the authorities with an appropriate representation since they were claiming the benefit of the scheme which was prevalent when their applications had been filed. The decision in Narinder Siraswal (supra) was noticed in the judgment of the 3-Judge Bench in Manjit (supra).20. From the above judgment, it is evident that a coordinate Bench of the High Court had taken the view that the benefit of the LARSGESS scheme could not be extended where an employee had attained the age of superannuation in the normal course before 27 October 2017. The respondents fathers superannuated on 31 May 2016 (SLP (C) No. 1417 of 2019) and on 31 December 2014 (SLP (C) No. 906 of 2021). The contention of the respondents that since the claims were pending adjudication before various fora, the delay cannot be attributed to them is erroneous. This Court in Manjit (supra) held that pending claims under the scheme must be closed. The respondents cannot claim any vested right under the scheme. Clause (x) of notification which was issued on 2 January 2004 states that discretion to accept the request for retirement will vest with the administration depending on the suitability of the wards for appointment in the same category as the employee. Therefore, the respondents cannot be brought within the purview of the exception merely because the claim was made before 27 October 2017.21. Moreover, we also find that the individual cases of the respondents do not hold any merit. In the appeal arising out of SLP (C) No 1417 of 2019, the respondent was found to be medically unfit for the post of trackman under the LARSGESS scheme. The basis of the claim of the respondent originates in the order of the Tribunal dated 1 April 2016. The Tribunal proceeded on the basis that though the respondent was found unfit for the post of Trackman, he was medically fit for any CEE ONE post and posts below. After due consideration, appointment was denied by a letter dated 31 May 2016 on the ground that the ward of an employee can be considered under the LARSGESS scheme only in the lowest recruitment grade of the respective category of the employee seeking retirement.22. On 11 September 2010, when the Railway Board decided to extend the benefit of the scheme to other safety categories of staff with the grade pay of Rs 1800 per month, it was envisaged that save and except for certain modifications inter alia in regard to the categories and the period of qualifying service, the other terms and conditions of the scheme will remain unchanged. The respondents father was a Trackman. For the respondent to have been appointed under the scheme, he must have fulfilled the criteria for the appointment to the category in which his father was serving. Therefore, in terms of the scheme, though the respondent fulfilled the medical criteria requirement for some other posts, he could not be considered for appointment. It is clearly evident that on the plain terms of the scheme as it stood, the case of the respondent did not fulfil the criteria envisaged in the scheme.23. In the companion appeal which arose from SLP (C) No. 906 of 2021, an application was submitted on 2 December 2010 by the father of the respondent seeking employment for his son, which was received by the Department on 7 December 2010. There was an endorsement on the letter, as noted by the High Court to the effect that there was no pending vigilance case against the respondents father but the date of birth was mentioned incorrectly as 16 February 1954 instead of 16 December 1954. The application was rejected on the ground that he had crossed 57 years as on the cut-off date. It appears that this mistake was realized and another application was submitted on 28 January 2014 mentioning the correct date of birth. The Tribunal rejected his application on the ground that even assuming that the date of birth was 16 December 1954, the respondents father had as on the cut-off date crossed the age of 57 years. On appeal, the High Court held that even assuming that a wrong date of birth had been mentioned, the date of birth of the respondents father should be reckoned as 16 December 1954, in which event the application was not barred by time. The divergence in the views of the Tribunal and the High Court was because the Tribunal had considered the eligibility with respect to the second application of the respondent made in 2014 while the High Court considered it against the first application made in 2011.The reliance of the respondent on the notification of 29 March 2011 to justify the application is erroneous. Clause (2) of the notification states that the process of retirement/recruitment may be started from July 2011 for the calendar year of 2011. This is evident from the letter dated 11 April 2011 where the application submitted by the respondents father was rejected on the ground that he would be 57 years 4 month 14 days old as on the cut-off date of 30 June 2011. Further, the Divisional Office of Southern Office issued a notification on 30 June 2011 stating that the last date for receipt of application is 31 July 2011 and that all those applications submitted prior to the circular would not be considered. On the rejection of the application of the respondents father on 11 April 2011, a fresh application ought to have been filled before 31 July 2011, mentioning the correct date of birth. However, the respondent filled the second application on 28 January 2014, nearly 3 years later when he was 59 years and 15 days as on the cut-off date of 1 January 2014. When he submitted his second application, he had already superannuated and was above the age criteria of 57 years.25. The Tribunal in the present case dismissed the OA filed by the respondent noting that the constitutional validity of the scheme was suspect and that moreover the father of the respondent had retired on attaining the normal age of superannuation. On a considered view of the matter, we hold that there was no error in the judgment of the Tribunal. We have addressed in detail the history of the LARSGESS scheme and the doubt expressed on its validity by the Division Bench of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to the decision of the Union government to terminate the scheme. While noticing the above backdrop, the three judge Bench of this Court in Manjit (supra) clearly noted that the Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. In this backdrop, the impugned judgment of the High Court of Madras issuing a mandamus for the appointment of the respondent cannot be sustained. | 1 | 6,198 | 1,678 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
in the lowest recruitment grade of the respective category of the employee seeking retirement. As a matter of fact, clause (6) of para 2 of the letter of the Railway Board dated 2 January 2004 clearly stipulates that: The ward will be considered for appointment only in the lowest recruitment grade of the respective category from which the respective category from which the employee seeks retirement, depending upon his/her eligibility and suitability, but not in any other category. 22. On 11 September 2010, when the Railway Board decided to extend the benefit of the scheme to other safety categories of staff with the grade pay of Rs 1800 per month, it was envisaged that save and except for certain modifications inter alia in regard to the categories and the period of qualifying service, the other terms and conditions of the scheme will remain unchanged. The respondents father was a Trackman. For the respondent to have been appointed under the scheme, he must have fulfilled the criteria for the appointment to the category in which his father was serving. Therefore, in terms of the scheme, though the respondent fulfilled the medical criteria requirement for some other posts, he could not be considered for appointment. It is clearly evident that on the plain terms of the scheme as it stood, the case of the respondent did not fulfil the criteria envisaged in the scheme. 23. In the companion appeal which arose from SLP (C) No. 906 of 2021, an application was submitted on 2 December 2010 by the father of the respondent seeking employment for his son, which was received by the Department on 7 December 2010. There was an endorsement on the letter, as noted by the High Court to the effect that there was no pending vigilance case against the respondents father but the date of birth was mentioned incorrectly as 16 February 1954 instead of 16 December 1954. The application was rejected on the ground that he had crossed 57 years as on the cut-off date. It appears that this mistake was realized and another application was submitted on 28 January 2014 mentioning the correct date of birth. The Tribunal rejected his application on the ground that even assuming that the date of birth was 16 December 1954, the respondents father had as on the cut-off date crossed the age of 57 years. On appeal, the High Court held that even assuming that a wrong date of birth had been mentioned, the date of birth of the respondents father should be reckoned as 16 December 1954, in which event the application was not barred by time. The divergence in the views of the Tribunal and the High Court was because the Tribunal had considered the eligibility with respect to the second application of the respondent made in 2014 while the High Court considered it against the first application made in 2011. 24. The respondent submitted that according to the notification issued by the Ministry of Railways on 29 March 2011, the recruitment process under LARSGESS scheme must be done twice in a year according to the fixed time schedule. It was submitted that according to the time schedule, the cut-off date for determining the eligibility of the employee and their ward was 1 January for the first half; and the last date for receiving applications was 31 January. For the second half of July- December, the cut-off date was 1 July; and the last date for receiving applications was 31 July. The first application of the respondent was submitted on 2 December 2010. According to the appellant, the first application was submitted by the respondents father even before the LARSGESS Scheme was notified. The reliance of the respondent on the notification of 29 March 2011 to justify the application is erroneous. Clause (2) of the notification states that the process of retirement/recruitment may be started from July 2011 for the calendar year of 2011. This is evident from the letter dated 11 April 2011 where the application submitted by the respondents father was rejected on the ground that he would be 57 years 4 month 14 days old as on the cut-off date of 30 June 2011. Further, the Divisional Office of Southern Office issued a notification on 30 June 2011 stating that the last date for receipt of application is 31 July 2011 and that all those applications submitted prior to the circular would not be considered. On the rejection of the application of the respondents father on 11 April 2011, a fresh application ought to have been filled before 31 July 2011, mentioning the correct date of birth. However, the respondent filled the second application on 28 January 2014, nearly 3 years later when he was 59 years and 15 days as on the cut-off date of 1 January 2014. When he submitted his second application, he had already superannuated and was above the age criteria of 57 years. 25. The Tribunal in the present case dismissed the OA filed by the respondent noting that the constitutional validity of the scheme was suspect and that moreover the father of the respondent had retired on attaining the normal age of superannuation. On a considered view of the matter, we hold that there was no error in the judgment of the Tribunal. We have addressed in detail the history of the LARSGESS scheme and the doubt expressed on its validity by the Division Bench of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to the decision of the Union government to terminate the scheme. While noticing the above backdrop, the three judge Bench of this Court in Manjit (supra) clearly noted that the Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. In this backdrop, the impugned judgment of the High Court of Madras issuing a mandamus for the appointment of the respondent cannot be sustained.
### Response:
1
### Explanation:
must be closed. The respondents cannot claim any vested right under the scheme. Clause (x) of notification which was issued on 2 January 2004 states that discretion to accept the request for retirement will vest with the administration depending on the suitability of the wards for appointment in the same category as the employee. Therefore, the respondents cannot be brought within the purview of the exception merely because the claim was made before 27 October 2017.21. Moreover, we also find that the individual cases of the respondents do not hold any merit. In the appeal arising out of SLP (C) No 1417 of 2019, the respondent was found to be medically unfit for the post of trackman under the LARSGESS scheme. The basis of the claim of the respondent originates in the order of the Tribunal dated 1 April 2016. The Tribunal proceeded on the basis that though the respondent was found unfit for the post of Trackman, he was medically fit for any CEE ONE post and posts below. After due consideration, appointment was denied by a letter dated 31 May 2016 on the ground that the ward of an employee can be considered under the LARSGESS scheme only in the lowest recruitment grade of the respective category of the employee seeking retirement.22. On 11 September 2010, when the Railway Board decided to extend the benefit of the scheme to other safety categories of staff with the grade pay of Rs 1800 per month, it was envisaged that save and except for certain modifications inter alia in regard to the categories and the period of qualifying service, the other terms and conditions of the scheme will remain unchanged. The respondents father was a Trackman. For the respondent to have been appointed under the scheme, he must have fulfilled the criteria for the appointment to the category in which his father was serving. Therefore, in terms of the scheme, though the respondent fulfilled the medical criteria requirement for some other posts, he could not be considered for appointment. It is clearly evident that on the plain terms of the scheme as it stood, the case of the respondent did not fulfil the criteria envisaged in the scheme.23. In the companion appeal which arose from SLP (C) No. 906 of 2021, an application was submitted on 2 December 2010 by the father of the respondent seeking employment for his son, which was received by the Department on 7 December 2010. There was an endorsement on the letter, as noted by the High Court to the effect that there was no pending vigilance case against the respondents father but the date of birth was mentioned incorrectly as 16 February 1954 instead of 16 December 1954. The application was rejected on the ground that he had crossed 57 years as on the cut-off date. It appears that this mistake was realized and another application was submitted on 28 January 2014 mentioning the correct date of birth. The Tribunal rejected his application on the ground that even assuming that the date of birth was 16 December 1954, the respondents father had as on the cut-off date crossed the age of 57 years. On appeal, the High Court held that even assuming that a wrong date of birth had been mentioned, the date of birth of the respondents father should be reckoned as 16 December 1954, in which event the application was not barred by time. The divergence in the views of the Tribunal and the High Court was because the Tribunal had considered the eligibility with respect to the second application of the respondent made in 2014 while the High Court considered it against the first application made in 2011.The reliance of the respondent on the notification of 29 March 2011 to justify the application is erroneous. Clause (2) of the notification states that the process of retirement/recruitment may be started from July 2011 for the calendar year of 2011. This is evident from the letter dated 11 April 2011 where the application submitted by the respondents father was rejected on the ground that he would be 57 years 4 month 14 days old as on the cut-off date of 30 June 2011. Further, the Divisional Office of Southern Office issued a notification on 30 June 2011 stating that the last date for receipt of application is 31 July 2011 and that all those applications submitted prior to the circular would not be considered. On the rejection of the application of the respondents father on 11 April 2011, a fresh application ought to have been filled before 31 July 2011, mentioning the correct date of birth. However, the respondent filled the second application on 28 January 2014, nearly 3 years later when he was 59 years and 15 days as on the cut-off date of 1 January 2014. When he submitted his second application, he had already superannuated and was above the age criteria of 57 years.25. The Tribunal in the present case dismissed the OA filed by the respondent noting that the constitutional validity of the scheme was suspect and that moreover the father of the respondent had retired on attaining the normal age of superannuation. On a considered view of the matter, we hold that there was no error in the judgment of the Tribunal. We have addressed in detail the history of the LARSGESS scheme and the doubt expressed on its validity by the Division Bench of the Punjab and Haryana High Court in Kala Singh (supra) which eventually led to the decision of the Union government to terminate the scheme. While noticing the above backdrop, the three judge Bench of this Court in Manjit (supra) clearly noted that the Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. In this backdrop, the impugned judgment of the High Court of Madras issuing a mandamus for the appointment of the respondent cannot be sustained.
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Jagat Kishore Prasad Narain Singh Vs. Rajendra Kumar Poddar And Ors | been set up by the Communist Party of India and the Jana Sangh respectively. (c) In paragraph 28 of the original the following passage occurs: "Particulars of the gifts and gratifications in the form of bribe offered by respondent No. 8 and his election agent and his assent with the connivance and consent of the said respondent No. 8 and his election agent are set out in Annexure D hereto annexed". But the passage in Ext. O reads : "Particulars of the gifts and gratifications in the form of bribe offered by respondent No. 8 and his election agent and his agent with the connivance and consent of the said respondent No. 1 and his election agent are set out in Annexure D hereto annexed" (d) In paragraph 3 of the verification at page 25 of the original, it has been stated, inter alia, that the statements made in paragraph 3 of the election petition are true to the petitioners information, but in Exh. O no verification has been made with respect to the statements made in paragraph 3 of the election petition and instead verification has been made twice with respect to the statements made in paragraph 2, once as true to the petitioners knowledge and again as true to his information. (e) In paragraph 3 of Annexure B a list of 20 persons has been given, one of which is Shri Brindaban Swana, M. L. A., in the original and Shri Brindaban Swansi, M. L A in Ext .O. (f) In Annexure C relating to the particulars of corrupt practice mentioned in paragraph 25 of the election petition, it has been stated in the original that Shri Munshi Hansda, M. L. A. had offered money and promised to pay money to Shri Jehta Kiski, M. L. A. for casting his first preference vote in favour of respondent No. 1 at the M. L. A. Flat on 19-3-1968, but in Ext. O mention has been made of the name of Paul Hansda, M. L. A., as the alleged offerer of money to Shri Jetha Kisku, M. L. A.; and (g) In Annexure C again, the original reads that the offer of money and promise of payment of money was made to Shri Mahabir Paswan by respondent No. 1 and Shri Balwant Nath Singh, M. L. A. on 26-3-1968 but in Ext. O this date has been stated as 28-3-1968" 6. Mr. M. C. Chagla, learned Counsel for the appellant contended that Section 81 (3) is merely directory and not mandatory. We do not think it necessary to go into that question, as in our opinion that provision has not even been substantially complied with. The requirements of Sec. 81 (3) have been laid down by this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (l964) 3 SCR 573 = (AIR 1964 SC 1545 ). In that case this Court ruled that the word copy in Section 81 (3) of the Act did not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person. The same view was taken by this Court in Ch. Subbarao v. Member Election Tribunal, Hyderabad, (1964) 6 SCR 213 = (AIR 1964 SC 1027 ).In our opinion, it is not necessary to refer to the discrepancies between the original petition and the copy served excepting that referred to in Clause (f) of paragraph 15 of the trial Courts judgment. Admittedly Shri Munshi Hansda and Paul Hansda are members of the Patna Legislative Assembly. In the election petition it was stated that money was offered to Shri Jetha Kisku, M. L. A. by Munshi Hansda but in Exh. O it was stated that money was offered to the said Jetha Kisku by Paul Hansda. This divergence was bound to mislead the contesting respondents and prejudice their defence. Pleadings in a case has great importance and that is more so in election petitions particularly when the returned candidate is charged with corrupt practice. He must know what the charge against him is so that he may prepare his defence. If relying on the allegations in the copy of the petition served on him that the money was paid to Jetha Kisku through Paul Hansda, the 1st respondent had collected evidence to show that that allegation is false then the entire basis of his defence would have fallen to the ground because at a later stage he had to meet a totally different case. The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore, we have no doubt in our mind that the election petition is liable to be dismissed under Section 86 of the Act. Mr. Chagla tried to extricate his client from the difficult position in which he had placed himself by urging that two copies of the election petition had been served on the 1st respondent as required by the rules of the Patna High Court, one through the Court and another through registered post; the 1st respondent has produced only one of those copies; it is not known whether the other copy was also defective and therefore there is no ground to reject the election petition at the very threshold. We are unable to entertain this contention. If it was the case of the appellant that the 1st respondent was not prejudiced by the service of Exh. O, he should have got summoned the other copy said to have been served on him. No such attempt appears to have been made. No explanation was offered how several wrong statements came to be made in Exh. O. There is hardly any doubt that the relevant papers filed in Court on behalf of the appellant were prepared in a callous manner. | 0[ds]6. Mr. M. C. Chagla, learned Counsel for the appellant contended that Section 81 (3) is merely directory and not mandatory. We do not think it necessary to go into that question, as in our opinion that provision has not even been substantially complied with. The requirements of Sec. 81 (3) have been laid down by this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (l964) 3 SCR 573 = (AIR 1964 SC 1545 ). In that case this Court ruled that the word copy in Section 81 (3) of the Act did not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person. The same view was taken by this Court in Ch. Subbarao v. Member Election Tribunal, Hyderabad, (1964) 6 SCR 213 = (AIR 1964 SC 1027 ).In our opinion, it is not necessary to refer to the discrepancies between the original petition and the copy served excepting that referred to in Clause (f) of paragraph 15 of the trial Courts judgment. Admittedly Shri Munshi Hansda and Paul Hansda are members of the Patna Legislative Assembly. In the election petition it was stated that money was offered to Shri Jetha Kisku, M. L. A. by Munshi Hansda but in Exh. O it was stated that money was offered to the said Jetha Kisku by Paul Hansda. This divergence was bound to mislead the contesting respondents and prejudice their defence. Pleadings in a case has great importance and that is more so in election petitions particularly when the returned candidate is charged with corrupt practice. He must know what the charge against him is so that he may prepare his defence. If relying on the allegations in the copy of the petition served on him that the money was paid to Jetha Kisku through Paul Hansda, the 1st respondent had collected evidence to show that that allegation is false then the entire basis of his defence would have fallen to the ground because at a later stage he had to meet a totally different case. The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore, we have no doubt in our mind that the election petition is liable to be dismissed under Section 86 of the ActMr. Chagla tried to extricate his client from the difficult position in which he had placed himself by urging that two copies of the election petition had been served on the 1st respondent as required by the rules of the Patna High Court, one through the Court and another through registered post; the 1st respondent has produced only one of those copies; it is not known whether the other copy was also defective and therefore there is no ground to reject the election petition at the very threshold. We are unable to entertain this contention. If it was the case of the appellant that the 1st respondent was not prejudiced by the service of Exh. O, he should have got summoned the other copy said to have been served on him. No such attempt appears to have been made. No explanation was offered how several wrong statements came to be made in Exh. O. There is hardly any doubt that the relevant papers filed in Court on behalf of the appellant were prepared in a callous manner. | 0 | 1,864 | 658 | ### 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:
been set up by the Communist Party of India and the Jana Sangh respectively. (c) In paragraph 28 of the original the following passage occurs: "Particulars of the gifts and gratifications in the form of bribe offered by respondent No. 8 and his election agent and his assent with the connivance and consent of the said respondent No. 8 and his election agent are set out in Annexure D hereto annexed". But the passage in Ext. O reads : "Particulars of the gifts and gratifications in the form of bribe offered by respondent No. 8 and his election agent and his agent with the connivance and consent of the said respondent No. 1 and his election agent are set out in Annexure D hereto annexed" (d) In paragraph 3 of the verification at page 25 of the original, it has been stated, inter alia, that the statements made in paragraph 3 of the election petition are true to the petitioners information, but in Exh. O no verification has been made with respect to the statements made in paragraph 3 of the election petition and instead verification has been made twice with respect to the statements made in paragraph 2, once as true to the petitioners knowledge and again as true to his information. (e) In paragraph 3 of Annexure B a list of 20 persons has been given, one of which is Shri Brindaban Swana, M. L. A., in the original and Shri Brindaban Swansi, M. L A in Ext .O. (f) In Annexure C relating to the particulars of corrupt practice mentioned in paragraph 25 of the election petition, it has been stated in the original that Shri Munshi Hansda, M. L. A. had offered money and promised to pay money to Shri Jehta Kiski, M. L. A. for casting his first preference vote in favour of respondent No. 1 at the M. L. A. Flat on 19-3-1968, but in Ext. O mention has been made of the name of Paul Hansda, M. L. A., as the alleged offerer of money to Shri Jetha Kisku, M. L. A.; and (g) In Annexure C again, the original reads that the offer of money and promise of payment of money was made to Shri Mahabir Paswan by respondent No. 1 and Shri Balwant Nath Singh, M. L. A. on 26-3-1968 but in Ext. O this date has been stated as 28-3-1968" 6. Mr. M. C. Chagla, learned Counsel for the appellant contended that Section 81 (3) is merely directory and not mandatory. We do not think it necessary to go into that question, as in our opinion that provision has not even been substantially complied with. The requirements of Sec. 81 (3) have been laid down by this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (l964) 3 SCR 573 = (AIR 1964 SC 1545 ). In that case this Court ruled that the word copy in Section 81 (3) of the Act did not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person. The same view was taken by this Court in Ch. Subbarao v. Member Election Tribunal, Hyderabad, (1964) 6 SCR 213 = (AIR 1964 SC 1027 ).In our opinion, it is not necessary to refer to the discrepancies between the original petition and the copy served excepting that referred to in Clause (f) of paragraph 15 of the trial Courts judgment. Admittedly Shri Munshi Hansda and Paul Hansda are members of the Patna Legislative Assembly. In the election petition it was stated that money was offered to Shri Jetha Kisku, M. L. A. by Munshi Hansda but in Exh. O it was stated that money was offered to the said Jetha Kisku by Paul Hansda. This divergence was bound to mislead the contesting respondents and prejudice their defence. Pleadings in a case has great importance and that is more so in election petitions particularly when the returned candidate is charged with corrupt practice. He must know what the charge against him is so that he may prepare his defence. If relying on the allegations in the copy of the petition served on him that the money was paid to Jetha Kisku through Paul Hansda, the 1st respondent had collected evidence to show that that allegation is false then the entire basis of his defence would have fallen to the ground because at a later stage he had to meet a totally different case. The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore, we have no doubt in our mind that the election petition is liable to be dismissed under Section 86 of the Act. Mr. Chagla tried to extricate his client from the difficult position in which he had placed himself by urging that two copies of the election petition had been served on the 1st respondent as required by the rules of the Patna High Court, one through the Court and another through registered post; the 1st respondent has produced only one of those copies; it is not known whether the other copy was also defective and therefore there is no ground to reject the election petition at the very threshold. We are unable to entertain this contention. If it was the case of the appellant that the 1st respondent was not prejudiced by the service of Exh. O, he should have got summoned the other copy said to have been served on him. No such attempt appears to have been made. No explanation was offered how several wrong statements came to be made in Exh. O. There is hardly any doubt that the relevant papers filed in Court on behalf of the appellant were prepared in a callous manner.
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0
### Explanation:
6. Mr. M. C. Chagla, learned Counsel for the appellant contended that Section 81 (3) is merely directory and not mandatory. We do not think it necessary to go into that question, as in our opinion that provision has not even been substantially complied with. The requirements of Sec. 81 (3) have been laid down by this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (l964) 3 SCR 573 = (AIR 1964 SC 1545 ). In that case this Court ruled that the word copy in Section 81 (3) of the Act did not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person. The same view was taken by this Court in Ch. Subbarao v. Member Election Tribunal, Hyderabad, (1964) 6 SCR 213 = (AIR 1964 SC 1027 ).In our opinion, it is not necessary to refer to the discrepancies between the original petition and the copy served excepting that referred to in Clause (f) of paragraph 15 of the trial Courts judgment. Admittedly Shri Munshi Hansda and Paul Hansda are members of the Patna Legislative Assembly. In the election petition it was stated that money was offered to Shri Jetha Kisku, M. L. A. by Munshi Hansda but in Exh. O it was stated that money was offered to the said Jetha Kisku by Paul Hansda. This divergence was bound to mislead the contesting respondents and prejudice their defence. Pleadings in a case has great importance and that is more so in election petitions particularly when the returned candidate is charged with corrupt practice. He must know what the charge against him is so that he may prepare his defence. If relying on the allegations in the copy of the petition served on him that the money was paid to Jetha Kisku through Paul Hansda, the 1st respondent had collected evidence to show that that allegation is false then the entire basis of his defence would have fallen to the ground because at a later stage he had to meet a totally different case. The law requires that a true copy of the election petition should be served on the respondents. That requirement has not been either fully or substantially complied with. Therefore, we have no doubt in our mind that the election petition is liable to be dismissed under Section 86 of the ActMr. Chagla tried to extricate his client from the difficult position in which he had placed himself by urging that two copies of the election petition had been served on the 1st respondent as required by the rules of the Patna High Court, one through the Court and another through registered post; the 1st respondent has produced only one of those copies; it is not known whether the other copy was also defective and therefore there is no ground to reject the election petition at the very threshold. We are unable to entertain this contention. If it was the case of the appellant that the 1st respondent was not prejudiced by the service of Exh. O, he should have got summoned the other copy said to have been served on him. No such attempt appears to have been made. No explanation was offered how several wrong statements came to be made in Exh. O. There is hardly any doubt that the relevant papers filed in Court on behalf of the appellant were prepared in a callous manner.
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A.V.G.V. Ramu Vs. A.S.R. Bharathi | Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed by the husband against the final judgment and order dated 29.08.2016 passed by the Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in F.C.A. No. 131 of 2016 whereby the High Court dismissed the appeal filed by the appellant herein against the order dated 14.09.2015 passed by the Family Court, Hyderabad in O.P. No.9 of 2015 dismissing the petition filed by both the parties for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act").3. Facts of the case lie in a narrow compass so also the issue involved in the appeal is very short. It would be clear from the narration of the facts infra.4. The appellant is the husband whereas the respondent is the wife. Both have married second time. The husband has one daughter aged around 7 years from his first marriage whereas the respondent has no issue from the first marriage or the second one. The marriage in question took place on 11.08.2013.5. Unfortunately, the second marriage also did not go well. The appellant and the respondent had several differences soon after the marriage, which eventually resulted in their living separately which continued till date.6. On 30.12.2014, the appellant and the respondent with a view to end all disputes and their marriage entered into an Agreement/MOU (Annexure-P-8) for dissolution of their marriage with consent and agreed to make an application under Section 13-B of the Act.7. Pursuant thereto both, the appellant and respondent, filed an application under Section 13-B of the Act before the Family Court at Hyderabad on 31.12.2014 being O.P.No. 9/2015. Thereafter the case was adjourned for 06.07.2015, 07.07.2015 and 12.09.2015. The respondent, however, did not appear on any of these dates. The Family Judge, however, on 14.09.2015 took up the case on expiry of six months cooling period and finding that the respondent did not appear in the proceedings dismissed the application.8. The appellant felt aggrieved and filed appeal under Section 28 of the Act in the High Court of Andhra Pradesh out of which this appeal arises. In the said appeal, learned counsel appearing for the respondent (wife) stated that her client (wife) does not give consent for dissolution of marriage. The High Court, therefore, dismissed the appeal by impugned judgment, which has given rise to filing of this appeal by way of special leave in this Court by the husband.9. Notice of this appeal was sent to the respondent. Despite service, no one appeared for the respondent on any of the dates of hearing of this appeal. | 1[ds]11. First, the parties have admittedly entered into an Agreement/MOU dated 30.12.20148) agreeing therein to get their marriage dissolved by obtaining decree from the Court. Second, the Agreement/MOU bears the signatures of the appellant and respondent. Third, respondent never denied her signature on the Agreement/MOU nor its execution and nor its contents. Fourth, both the parties pursuant to Agreement/MOU actually filed an application under Sectionof the Act seeking dissolution of their marriage duly signed. Fifth, the respondent never stated before the Family Court during the cooling period of six months that she wants to wriggle out of the application and does not wish to give her consent for mutual divorce. Sixth, the respondent also did not appear in person before the High Court and nor filed any affidavit except to say through her lawyer. Seventh, parties have been living separately for the last four years due to which their marriage has become irretrievable and there is no point in keeping such marriage alive because when asked the appellant whether he is prepared to continue with the marriage and would like to live with the respondent, his lawyer declined. Lastly, despite service of the notice of this appeal, the respondent too has also not appeared in this Court on any of the dates of hearing and nor sent any letter/affidavit/application or written request of any kind so as to know her stand in the appeal. This shows that the respondent is also not interested in keeping the marital relations alive with the appellant.12. In a situation like the one arising in the case, there is no reason for us to doubt the genuineness of the Agreement/MOU and its contents. Keeping in view the conduct of the respondent and further in the light of eight reasons set out above, we find this case to be fit one where we invoke our powers under Article 142 for passing a decree for dissolution of marriage between the parties in terms of the joint petition dated 30.12.2014 (Annexure | 1 | 500 | 362 | ### 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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Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed by the husband against the final judgment and order dated 29.08.2016 passed by the Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in F.C.A. No. 131 of 2016 whereby the High Court dismissed the appeal filed by the appellant herein against the order dated 14.09.2015 passed by the Family Court, Hyderabad in O.P. No.9 of 2015 dismissing the petition filed by both the parties for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act").3. Facts of the case lie in a narrow compass so also the issue involved in the appeal is very short. It would be clear from the narration of the facts infra.4. The appellant is the husband whereas the respondent is the wife. Both have married second time. The husband has one daughter aged around 7 years from his first marriage whereas the respondent has no issue from the first marriage or the second one. The marriage in question took place on 11.08.2013.5. Unfortunately, the second marriage also did not go well. The appellant and the respondent had several differences soon after the marriage, which eventually resulted in their living separately which continued till date.6. On 30.12.2014, the appellant and the respondent with a view to end all disputes and their marriage entered into an Agreement/MOU (Annexure-P-8) for dissolution of their marriage with consent and agreed to make an application under Section 13-B of the Act.7. Pursuant thereto both, the appellant and respondent, filed an application under Section 13-B of the Act before the Family Court at Hyderabad on 31.12.2014 being O.P.No. 9/2015. Thereafter the case was adjourned for 06.07.2015, 07.07.2015 and 12.09.2015. The respondent, however, did not appear on any of these dates. The Family Judge, however, on 14.09.2015 took up the case on expiry of six months cooling period and finding that the respondent did not appear in the proceedings dismissed the application.8. The appellant felt aggrieved and filed appeal under Section 28 of the Act in the High Court of Andhra Pradesh out of which this appeal arises. In the said appeal, learned counsel appearing for the respondent (wife) stated that her client (wife) does not give consent for dissolution of marriage. The High Court, therefore, dismissed the appeal by impugned judgment, which has given rise to filing of this appeal by way of special leave in this Court by the husband.9. Notice of this appeal was sent to the respondent. Despite service, no one appeared for the respondent on any of the dates of hearing of this appeal.
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11. First, the parties have admittedly entered into an Agreement/MOU dated 30.12.20148) agreeing therein to get their marriage dissolved by obtaining decree from the Court. Second, the Agreement/MOU bears the signatures of the appellant and respondent. Third, respondent never denied her signature on the Agreement/MOU nor its execution and nor its contents. Fourth, both the parties pursuant to Agreement/MOU actually filed an application under Sectionof the Act seeking dissolution of their marriage duly signed. Fifth, the respondent never stated before the Family Court during the cooling period of six months that she wants to wriggle out of the application and does not wish to give her consent for mutual divorce. Sixth, the respondent also did not appear in person before the High Court and nor filed any affidavit except to say through her lawyer. Seventh, parties have been living separately for the last four years due to which their marriage has become irretrievable and there is no point in keeping such marriage alive because when asked the appellant whether he is prepared to continue with the marriage and would like to live with the respondent, his lawyer declined. Lastly, despite service of the notice of this appeal, the respondent too has also not appeared in this Court on any of the dates of hearing and nor sent any letter/affidavit/application or written request of any kind so as to know her stand in the appeal. This shows that the respondent is also not interested in keeping the marital relations alive with the appellant.12. In a situation like the one arising in the case, there is no reason for us to doubt the genuineness of the Agreement/MOU and its contents. Keeping in view the conduct of the respondent and further in the light of eight reasons set out above, we find this case to be fit one where we invoke our powers under Article 142 for passing a decree for dissolution of marriage between the parties in terms of the joint petition dated 30.12.2014 (Annexure
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M/S. Suryalakshmi Cotton Mills Ltd Vs. M/S. Rajvir Industries Ltd. | substance should be permitted to be raised only by way of defence. What has failed to attract the attention of the High Court was that maintainability of a criminal proceeding like the present one should not be determined only upon raising a presumption in terms of Section 139 of the Negotiable Instruments Act, it being a rebuttable one.20. The High Court, in our opinion, should have further taken into consideration the fact that in the event, the defence of the appellant is accepted in the criminal case, it will have no remedy to prosecute the respondents again. To contend that the acquittal of the appellant would have been the springboard for filing a complaint will not be correct. Nobody knows when the criminal case would come to an end. In a given situation, even it may become barred by limitation. It must also be borne in mind that commercial expediencies may lead a person to issue blank cheques. The course of action in the aforementioned situation, in our opinion, which could be taken recourse to was to make an attempt to find out as to whether the complaint petition even if given face value and taken to be correct in its entirety constitutes an offence under Section 420, 406, 463 of the Indian Penal Code or not. 21. Ingredients of cheating are; (i) deception of a person either by making a false or misleading representation or by other action or omission; and (ii) fraudulent or dishonest inducement of that person to either deliver any property to any person or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. A bare perusal of Section 415 read with Section 420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage. 22. For the said purpose, we may only notice that blank cheques were handed over to the accused during the period 2000-2004 for use thereof for business purposes till the dispute between the parties admittedly arose much thereafter i.e. in 2005. In B. Suresh Yadav Vs. Sharifa Bee [2007 (12) SCALE 364 ], it was held; “13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so.” No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out. 23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so. Although, Section 120B of the Code has been added, there does not exist any averment that the respondent Nos. 2 and 3 have entered into any conspiracy with their employees. No case for proceeding with the offence of forgery against the respondents has, thus, also been made out. 24. However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed. We cannot also lose sight of the fact that the respondents were keeping watch over the matter. As soon as a first information report was lodged, a notice was immediately sent. A quashing application was filed within a few days for the lodging of the first information report. The investigation was not allowed to take place at all. Whereas it would have been the duty of the Court to uphold and/or to protect the personal liberty of an accused in a case; but where the first information report prima facie discloses commission of a cognizable offence, the High Court, ordinarily, shall not have interfered with investigation thereof by the statutory authority. | 1[ds]16. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled.20. The High Court, in our opinion, should have further taken into consideration the fact that in the event, the defence of the appellant is accepted in the criminal case, it will have no remedy to prosecute the respondents again. To contend that the acquittal of the appellant would have been the springboard for filing a complaint will not be correct. Nobody knows when the criminal case would come to an end. In a given situation, even it may become barred by limitation. It must also be borne in mind that commercial expediencies may lead a person to issue blank cheques. The course of action in the aforementioned situation, in our opinion, which could be taken recourse to was to make an attempt to find out as to whether the complaint petition even if given face value and taken to be correct in its entirety constitutes an offence under Section 420, 406, 463 of the Indian Penal Code or not.However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed. We cannot also lose sight of the fact that the respondents were keeping watch over the matter. As soon as a first information report was lodged, a notice was immediately sent. A quashing application was filed within a few days for the lodging of the first information report. The investigation was not allowed to take place at all. Whereas it would have been the duty of the Court to uphold and/or to protect the personal liberty of an accused in a case; but where the first information report prima facie discloses commission of a cognizable offence, the High Court, ordinarily, shall not have interfered with investigation thereof by the statutory authority. | 1 | 4,042 | 471 | ### 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:
substance should be permitted to be raised only by way of defence. What has failed to attract the attention of the High Court was that maintainability of a criminal proceeding like the present one should not be determined only upon raising a presumption in terms of Section 139 of the Negotiable Instruments Act, it being a rebuttable one.20. The High Court, in our opinion, should have further taken into consideration the fact that in the event, the defence of the appellant is accepted in the criminal case, it will have no remedy to prosecute the respondents again. To contend that the acquittal of the appellant would have been the springboard for filing a complaint will not be correct. Nobody knows when the criminal case would come to an end. In a given situation, even it may become barred by limitation. It must also be borne in mind that commercial expediencies may lead a person to issue blank cheques. The course of action in the aforementioned situation, in our opinion, which could be taken recourse to was to make an attempt to find out as to whether the complaint petition even if given face value and taken to be correct in its entirety constitutes an offence under Section 420, 406, 463 of the Indian Penal Code or not. 21. Ingredients of cheating are; (i) deception of a person either by making a false or misleading representation or by other action or omission; and (ii) fraudulent or dishonest inducement of that person to either deliver any property to any person or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. A bare perusal of Section 415 read with Section 420 of the Indian Penal Code would clearly lead to the conclusion that fraudulent or dishonest inducement on the part of the accused must be at the inception and not at a subsequent stage. 22. For the said purpose, we may only notice that blank cheques were handed over to the accused during the period 2000-2004 for use thereof for business purposes till the dispute between the parties admittedly arose much thereafter i.e. in 2005. In B. Suresh Yadav Vs. Sharifa Bee [2007 (12) SCALE 364 ], it was held; “13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so.” No case for proceeding against the respondent under Section 420 of the Indian Penal Code is therefore, made out. 23. Filling up of the blanks in a cheque by itself would not amount to forgery. Whereas in the complaint petition, allegations have been made that it was respondent Nos. 2 and 3 who had entered into a conspiracy to commit the said offence as indicated hereinbefore, in the counter affidavit, it has been alleged that the employees of the Respondent Company did so. Although, Section 120B of the Code has been added, there does not exist any averment that the respondent Nos. 2 and 3 have entered into any conspiracy with their employees. No case for proceeding with the offence of forgery against the respondents has, thus, also been made out. 24. However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed. We cannot also lose sight of the fact that the respondents were keeping watch over the matter. As soon as a first information report was lodged, a notice was immediately sent. A quashing application was filed within a few days for the lodging of the first information report. The investigation was not allowed to take place at all. Whereas it would have been the duty of the Court to uphold and/or to protect the personal liberty of an accused in a case; but where the first information report prima facie discloses commission of a cognizable offence, the High Court, ordinarily, shall not have interfered with investigation thereof by the statutory authority.
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16. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled.20. The High Court, in our opinion, should have further taken into consideration the fact that in the event, the defence of the appellant is accepted in the criminal case, it will have no remedy to prosecute the respondents again. To contend that the acquittal of the appellant would have been the springboard for filing a complaint will not be correct. Nobody knows when the criminal case would come to an end. In a given situation, even it may become barred by limitation. It must also be borne in mind that commercial expediencies may lead a person to issue blank cheques. The course of action in the aforementioned situation, in our opinion, which could be taken recourse to was to make an attempt to find out as to whether the complaint petition even if given face value and taken to be correct in its entirety constitutes an offence under Section 420, 406, 463 of the Indian Penal Code or not.However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed. We cannot also lose sight of the fact that the respondents were keeping watch over the matter. As soon as a first information report was lodged, a notice was immediately sent. A quashing application was filed within a few days for the lodging of the first information report. The investigation was not allowed to take place at all. Whereas it would have been the duty of the Court to uphold and/or to protect the personal liberty of an accused in a case; but where the first information report prima facie discloses commission of a cognizable offence, the High Court, ordinarily, shall not have interfered with investigation thereof by the statutory authority.
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T. Devadasan Vs. M/S. Gordon Woodroffe & Co. (Madras) Privateltd. & Anr | bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the Company. His services can only be terminated by the Madras Company in terms of paragraph 5 of the order and under Paragraph 5 he was required to work either in Madras Office (Office hours 9.15 a. m. to 5.30 p.m.) or Pallavaram (Office hours 8. A.m. to 4.30 p.m.) or at any other office or place of business of the Company. It is clear from this letter of appointment that he has to work wherever the company directs him to work. As such he would be a person wholly or principally employed in connection with the business of the Madras Company. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the Company it will be considered to be a part of the business of the company as indeed the words "business of the company" in Paragraph 5 govern not only the obligation to work at Pallavaram but at any other place or places where the company directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the contracts of all Assistants of the company. It is also to be noticed that the bonus was paid by the Madras Company nor is it disputed that his salary and bonus was being paid by that company. The Income-tax deductions were made by the Madras company which also furnished a certificate to the tax authority as per Ext. P. 9. That company further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that company were. It may also be mentioned that the appellants leave had to be granted by the Madras Company and not by the Pallavaram Company. Ext. M-II would show that the application for leave was made by the appellant to the Managing director of the Madras Company. One other fact which appears from the evidence of P. W. 1, Director of the Madras Company who was the also the Secretary of the Pallavaram Company is that appellant was signing bills for Tullies Woodrofee factory at Pallavaram which is another subsidiary of the Madras company. He was also signing the bills of sale of all such manufacture purely for administrative convenience. All these facts support the conclusion that the appellant was employed on business of the Madras Company because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does not make him an employee of that company nor does the Pallavaram company become his employer because neither that company pays his salary nor does it grant leave, nor has it any obligation towards the appellant in respect of Provident Fund, bonus of any other emoluments, nor for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by the Madras Company and not by the Pallavaram company. On the 15th October, 1966 this is what the Director of the Madras company wrote to the appellant:-"I refer to our letter of appointment of 19th October, 1963. I have given very serious consideration to the question of renewing your Agreement but have come to the conclusion that in the period during which you have been employed by this company your work has not reached the standard which was expected and therefore it is not possible to renew appointment. Will you kindly therefore take this letter as being the requisite one months notice of termination of your services in accordance with Paragraph 6 of the letter under reference. If you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October but I must advice you that I have taken an irrevocable decision in the matter." 12. This letter clearly shows that the employer is the Madras Company because it is only the employer who can terminate the services of an employee.It is, therefore, idle to suggest that the Pallavaram company was the employer merely because the Madras company had asked him to work in that company. 13. It is further submitted by the respondent that the Madras company and the Pallavaram company being two incorporated companies they were separate and independent legal entities and that merely because the Madras company has a controlling interest in the Pallavaram company does not vest the administration of Pallavaram company in the Madras Company. Whether it is so or not we have no evidence, nor is there anything to show under what arrangements between the two companies, the Madras company was managing the affairs of the Pallavaram company. If we have to accept the contention of the learned Advocate for the respondent that because the appellant was permitted by the Madras company to work in the Pallavaram company he was employed wholly or principally in connection with the business of the Pallavaram company, he will be an employer-less-employee because even though Pallavaram company has no control over him or his work nor has it the power to suspend or discharge him, he would nonetheless be an employee of that company for the purposes of S. (12) (iii). This would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is not a person employed. We do not think that such a result was intended, nor is a conclusion so baneful deducible from the provisions of the Act. | 1[ds]9. What was considered in the first case is not whether the person is a person employed within the meaning of Section 2 (12) of the Act but whether under Section 4 (1) (a) which provides that nothing contained in the Act shall apply to persons employed in any establishment in a position of management, the 2nd respondent therein was a person in the position of management; if so whether his appeal under Section 41 (2) was incompetent. It is evident from this case that the two objections to the maintainability of the appeal preferred by the second respondent under Section 41 (2) of the Act which were taken before the Additional Commissioner were: (1) that under Section 4 (1) (a) of the Act the second respondent had been employed in the Bank in a position of management and (2) that the contention of the second respondent that if he could not be re-instated as Secretary, he could be reinstated as Cashier was untainable because by a valid notification issued by the Government, Cashiers had been excluded from the purview of the Act. The Additional Commissioner did not record any specific findings on the issue whether the second respondent had been employed as Cashier and whether he is entitled to prefer the appeal under Section 41 (2). That Court did not in view of the facts of that case consider it necessary to pursue the matter further. It was only on the question whether the second respondent was occupying a position of management, as such his appeal could not be entertained under Section 4 (1) (a) that was considered and decided. The observations of Rajapalan, J. at Page 257 that he was using the expression employed only to mean assign the work of are being sought to support the contention that these words would furnish a test in determining whether a person is a person employed under Section 2 (12) (iii). These observations have been torn out of the context because what the learned Judge says immediately thereafter would negative any such contention. What is said is this:-"In my opinion it is an assignment of work, a valid assignment of the work by the employer, that should furnish the real test in deciding whether a given employee is a person employed in a position of management within the meaning of Section4 (1) (a)."We find that throughout the judgment the question whether a person was a person employed within the meaning of Section 2 (12) (iii) has not been mooted. In the second case of Chandra also this question was not considered as is clearly apparent from the observations of the learned Chief Justice delivering the judgment of the Bench at page 669 that it was not contended before them that the Appellant was not a person employed within the meaning of Section 2 (12) of the Act10. In the third case similarly the decision of this Court turned on the question whether the appellant therein was employed in a position of management. It was held on the facts of that case that he was not a person employed in a position of management and as such did not fall within the exemption of Section 4 (1) (a). On the other hand what has been stated by reference to Section 2 (12) (iii) is useful. Gajendragadkar, J. ashe then was observed at page 1036:11. The key of Sec. 2 (12) (iii) is whether a person is wholly or principally employed in connection with the business of the commercial establishment. On the very threshold. What we have to determine is by whom the respondent (appellant?) is employed. Is he employed by the Madras company or by the Pallavaram company which is a factory and if he is by the former which it is not disputed he is, is he wholly or principally employed by it ? It is contended that the Appellant is employed wholly or principally by the Pallavaram Company because it is the place where he has been working.In our view there is no validity in this submission. On the facts of this case the Pallavaram company is not the employer of the appellant. All relevant facts that have been established and are not disputed point to the irresistible conclusion that the employer is the Madras Company. It was this Company that appointed the appellant. The appointment Order of 19th October, 1963 shows that he was appointed as an Assistant in that Company. The terms of the Order further show that apart from the salary set out therein on which he was appointed, he was to receiver dearness allowance at the rate of 35 per cent of the basic salary or such other rate as the Board of that company may decide from time to time. He has to become a member of the Provident Fund to which both he and the Madras Company have to subscribe. The annual bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the Company. His services can only be terminated by the Madras Company in terms of paragraph 5 of the order and under Paragraph 5 he was required to work either in Madras Office (Office hours 9.15 a. m. to 5.30 p.m.) or Pallavaram (Office hours 8. A.m. to 4.30 p.m.) or at any other office or place of business of the Company. It is clear from this letter of appointment that he has to work wherever the company directs him to work. As such he would be a person wholly or principally employed in connection with the business of the Madras Company. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the Company it will be considered to be a part of the business of the company as indeed the words "business of the company" in Paragraph 5 govern not only the obligation to work at Pallavaram but at any other place or places where the company directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the contracts of all Assistants of the company. It is also to be noticed that the bonus was paid by the Madras Company nor is it disputed that his salary and bonus was being paid by that company. The Income-tax deductions were made by the Madras company which also furnished a certificate to the tax authority as per Ext. P. 9. That company further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that company were. It may also be mentioned that the appellants leave had to be granted by the Madras Company and not by the Pallavaram Company. Ext. M-II would show that the application for leave was made by the appellant to the Managing director of the Madras Company. One other fact which appears from the evidence of P. W. 1, Director of the Madras Company who was the also the Secretary of the Pallavaram Company is that appellant was signing bills for Tullies Woodrofee factory at Pallavaram which is another subsidiary of the Madras company. He was also signing the bills of sale of all such manufacture purely for administrative convenience. All these facts support the conclusion that the appellant was employed on business of the Madras Company because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does not make him an employee of that company nor does the Pallavaram company become his employer because neither that company pays his salary nor does it grant leave, nor has it any obligation towards the appellant in respect of Provident Fund, bonus of any other emoluments, nor for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by the Madras Company and not by the Pallavaram company. On the 15th October, 1966 this is what the Director of the Madras company wrote to the appellant:-"I refer to our letter of appointment of 19th October, 1963I have given very serious consideration to the question of renewing your Agreement but have come to the conclusion that in the period during which you have been employed by this company your work has not reached the standard which was expected and therefore it is not possible to renew appointmentWill you kindly therefore take this letter as being the requisite one months notice of termination of your services in accordance with Paragraph 6 of the letter under referenceIf you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October but I must advice you that I have taken an irrevocable decision in the matter."12. This letter clearly shows that the employer is the Madras Company because it is only the employer who can terminate the services of an employee.It is, therefore, idle to suggest that the Pallavaram company was the employer merely because the Madras company had asked him to work in that companyThis would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is not a person employed. We do not think that such a result was intended, nor is a conclusion so baneful deducible from the provisions of the Act. | 1 | 4,409 | 1,786 | ### 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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bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the Company. His services can only be terminated by the Madras Company in terms of paragraph 5 of the order and under Paragraph 5 he was required to work either in Madras Office (Office hours 9.15 a. m. to 5.30 p.m.) or Pallavaram (Office hours 8. A.m. to 4.30 p.m.) or at any other office or place of business of the Company. It is clear from this letter of appointment that he has to work wherever the company directs him to work. As such he would be a person wholly or principally employed in connection with the business of the Madras Company. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the Company it will be considered to be a part of the business of the company as indeed the words "business of the company" in Paragraph 5 govern not only the obligation to work at Pallavaram but at any other place or places where the company directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the contracts of all Assistants of the company. It is also to be noticed that the bonus was paid by the Madras Company nor is it disputed that his salary and bonus was being paid by that company. The Income-tax deductions were made by the Madras company which also furnished a certificate to the tax authority as per Ext. P. 9. That company further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that company were. It may also be mentioned that the appellants leave had to be granted by the Madras Company and not by the Pallavaram Company. Ext. M-II would show that the application for leave was made by the appellant to the Managing director of the Madras Company. One other fact which appears from the evidence of P. W. 1, Director of the Madras Company who was the also the Secretary of the Pallavaram Company is that appellant was signing bills for Tullies Woodrofee factory at Pallavaram which is another subsidiary of the Madras company. He was also signing the bills of sale of all such manufacture purely for administrative convenience. All these facts support the conclusion that the appellant was employed on business of the Madras Company because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does not make him an employee of that company nor does the Pallavaram company become his employer because neither that company pays his salary nor does it grant leave, nor has it any obligation towards the appellant in respect of Provident Fund, bonus of any other emoluments, nor for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by the Madras Company and not by the Pallavaram company. On the 15th October, 1966 this is what the Director of the Madras company wrote to the appellant:-"I refer to our letter of appointment of 19th October, 1963. I have given very serious consideration to the question of renewing your Agreement but have come to the conclusion that in the period during which you have been employed by this company your work has not reached the standard which was expected and therefore it is not possible to renew appointment. Will you kindly therefore take this letter as being the requisite one months notice of termination of your services in accordance with Paragraph 6 of the letter under reference. If you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October but I must advice you that I have taken an irrevocable decision in the matter." 12. This letter clearly shows that the employer is the Madras Company because it is only the employer who can terminate the services of an employee.It is, therefore, idle to suggest that the Pallavaram company was the employer merely because the Madras company had asked him to work in that company. 13. It is further submitted by the respondent that the Madras company and the Pallavaram company being two incorporated companies they were separate and independent legal entities and that merely because the Madras company has a controlling interest in the Pallavaram company does not vest the administration of Pallavaram company in the Madras Company. Whether it is so or not we have no evidence, nor is there anything to show under what arrangements between the two companies, the Madras company was managing the affairs of the Pallavaram company. If we have to accept the contention of the learned Advocate for the respondent that because the appellant was permitted by the Madras company to work in the Pallavaram company he was employed wholly or principally in connection with the business of the Pallavaram company, he will be an employer-less-employee because even though Pallavaram company has no control over him or his work nor has it the power to suspend or discharge him, he would nonetheless be an employee of that company for the purposes of S. (12) (iii). This would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is not a person employed. We do not think that such a result was intended, nor is a conclusion so baneful deducible from the provisions of the Act.
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wholly or principally employed by it ? It is contended that the Appellant is employed wholly or principally by the Pallavaram Company because it is the place where he has been working.In our view there is no validity in this submission. On the facts of this case the Pallavaram company is not the employer of the appellant. All relevant facts that have been established and are not disputed point to the irresistible conclusion that the employer is the Madras Company. It was this Company that appointed the appellant. The appointment Order of 19th October, 1963 shows that he was appointed as an Assistant in that Company. The terms of the Order further show that apart from the salary set out therein on which he was appointed, he was to receiver dearness allowance at the rate of 35 per cent of the basic salary or such other rate as the Board of that company may decide from time to time. He has to become a member of the Provident Fund to which both he and the Madras Company have to subscribe. The annual bonus was to be calculated in the same manner as the annual bonus payable to other Assistants of the Company. His services can only be terminated by the Madras Company in terms of paragraph 5 of the order and under Paragraph 5 he was required to work either in Madras Office (Office hours 9.15 a. m. to 5.30 p.m.) or Pallavaram (Office hours 8. A.m. to 4.30 p.m.) or at any other office or place of business of the Company. It is clear from this letter of appointment that he has to work wherever the company directs him to work. As such he would be a person wholly or principally employed in connection with the business of the Madras Company. Inasmuch as it is apparent that the obligation to work at Pallavaram is under the directions of the Company it will be considered to be a part of the business of the company as indeed the words "business of the company" in Paragraph 5 govern not only the obligation to work at Pallavaram but at any other place or places where the company directs him to work. The revised terms of employment of the appellant dated the 28th October, 1965 also show that those terms are applicable to the contracts of all Assistants of the company. It is also to be noticed that the bonus was paid by the Madras Company nor is it disputed that his salary and bonus was being paid by that company. The Income-tax deductions were made by the Madras company which also furnished a certificate to the tax authority as per Ext. P. 9. That company further certified to the Madras Housing Board on January 8, 1966 what the appellants salary per month and the total salary and allowances which are paid to him by that company were. It may also be mentioned that the appellants leave had to be granted by the Madras Company and not by the Pallavaram Company. Ext. M-II would show that the application for leave was made by the appellant to the Managing director of the Madras Company. One other fact which appears from the evidence of P. W. 1, Director of the Madras Company who was the also the Secretary of the Pallavaram Company is that appellant was signing bills for Tullies Woodrofee factory at Pallavaram which is another subsidiary of the Madras company. He was also signing the bills of sale of all such manufacture purely for administrative convenience. All these facts support the conclusion that the appellant was employed on business of the Madras Company because he was working under their directions wherever they wanted him to work and whatever work was entrusted to him in terms of the appointment order. The mere fact that he was working in Pallavaram does not make him an employee of that company nor does the Pallavaram company become his employer because neither that company pays his salary nor does it grant leave, nor has it any obligation towards the appellant in respect of Provident Fund, bonus of any other emoluments, nor for that matter can it suspend or dismiss him. Indeed the very order of termination of his services was made by the Madras Company and not by the Pallavaram company. On the 15th October, 1966 this is what the Director of the Madras company wrote to the appellant:-"I refer to our letter of appointment of 19th October, 1963I have given very serious consideration to the question of renewing your Agreement but have come to the conclusion that in the period during which you have been employed by this company your work has not reached the standard which was expected and therefore it is not possible to renew appointmentWill you kindly therefore take this letter as being the requisite one months notice of termination of your services in accordance with Paragraph 6 of the letter under referenceIf you wish to discuss this matter with me I will be available at 3.30 p.m. on Tuesday the 18th October but I must advice you that I have taken an irrevocable decision in the matter."12. This letter clearly shows that the employer is the Madras Company because it is only the employer who can terminate the services of an employee.It is, therefore, idle to suggest that the Pallavaram company was the employer merely because the Madras company had asked him to work in that companyThis would result in an incongruity and would have the effect of arming the employer with a device to circumvent the provisions of the Act inasmuch as all that an employer has to do is to make the employee work at places which are factories or industrial undertakings and plead, when he dismisses him without reasonable cause, that he is not a person employed. We do not think that such a result was intended, nor is a conclusion so baneful deducible from the provisions of the Act.
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Chandro Devi & Etc Vs. Union Of India | they have been rehabilitated and earned for 5 years they can earn their own livelihood without any support from the Army and other persons, who had suffered during this period, can be given this benefit. There is nothing arbitrary in this policy. The learned Single Judge dealt with this issue specifically. He has made reference to clause 17 of the SOP of 2001 and clause 18 of the SOP of 2007 and held as follows:"7. In terms of the above Clause 18, the right to get the licences renewed immediately on the expiry of five years has been withdrawn. The allottees are expected to apply again after a minimum break of three years. In terms of the revised policy, the Respondents issued letters to the Petitioners declining renewal of licences. The copies of letters requiring the Petitioners to vacate the shops under their occupation have been enclosed with the petition."11. Before the learned Single Judge, the appellant had raised her claim on the basis of principle of legitimate expectation and this was rejected by the learned Single Judge in the following terms:"47. This Court finds that the Petitioners have not been able to, in the first place, show that there is any specific representation either to any of them or to all of them generally that their licences would stand automatically renewed year after year by the Respondents. The mere fact that as a matter of practice the licences were renewed does not constitute the specific representation by the Respondents to each of them that indeed their licences would be renewed. The renewal, it must be recalled, was only for a year at a time and was in accordance with the prevailing policy and Clause 17. In other words, the only "representation" or "assurance" to each of them was that at the most the licence would be renewed for one more year at the discretion of the Respondent. No challenge was laid to Clause 17 of the SOP dated 10th August, 2001, which left it to the discretion of the respondents to renew the licence at the end of a year. The reasons for the change in the policy as explained by the Respondents appear to this Court to constitute sufficient justification for such change. The scope of judicial review of such policy change is indeed limited. Unless it is shown to be not informed by any reasonable criterion or not being in public interest, the Court cannot and should not interfere. Given the fact that the number of shopping complexes is unlikely to increase, and the waiting list of applicants is a growing one, the concern of the Respondents that those exservicemen waiting in the expectation of allotment of a shop should also be accounted for, cannot be said to be an unreasonable one. Both groups of exservicemen, i.e., the present allottees and those awaiting allotment are from the same "catchment". The demand for shops far exceeds the supply. There has to be a balancing of these two sets of "expectations". If the Respondents take a call and decide to change the policy so that the chance of those in the queue waiting for allotment of shops improves, the Court cannot be expected to judicially review such policy. As explained in Madras City Wine Merchant, no question of legitimate expectation would arise if there is a change in policy or the position is altered by a rule or legislation.48. The Petitioners have not questioned the DSC Rules, 2006 or the Guidelines issued in September, 2008. It appears that each of these Petitioners has been a beneficiary of renewal of licence several times over. Each of them has been granted renewal for more than three years which is the maximum period of licence envisaged under Rule 13 of the DSC Rules. It has been made clear in Clause 8 of the September, 2008 Guidelines that the DSC Rules would apply to the shopping complexes covered by 3.42.1 of SOA 1983. Consequently, even procedurally, none of the Petitioner can harbour a legitimate expectation of being consulted before change in the policy."12. It is true that in Para 48 of the judgment the learned Single Judge also referred to the Defence Shopping Complexes (Maintenance and Administration) Rules, 2006 and the guidelines issued in 2008, but the Court also found that the change in the SOP in limiting the maximum period of lease to 5 years was not arbitrary or irrational. We may refer to the following findings of the learned Single Judge:"51. This Court is unable to find the decision of the Respondents to restrict the licence period in respect of shops in shopping complexes to five years with the opportunity of again applying after a break of three years to be either discriminatory or arbitrary. Also, any prejudice that may be caused to the Petitioners in whose cases the licences were renewed prior to the change in the policy has been neutralised by the fact that they have continued in possession for nearly three years thereafter (amounting to more than two renewals) under the interim orders of this Court. As regards those Petitioners seeking transfer of the existing licence in their capacity as widows of ex-servicemen, they would be governed by Rule 7 of the DSC Rules 2006 and in any event, they too have continued to be in the premises far beyond the period of licence under the interim orders of this Court."13. This judgment of the learned Single Judge was upheld by the Division Bench and also by this Court though in a petition filed by some other petitioner. On going through the SOPs of 2001 and 2007, we do not find that the appellant had any vested right to continue in possession even after 5 years. Even, as per the SOP of 2001, the Station Commander was to renew lease from year to year and there was no inherent right to continue as a lessee in perpetuity. These leases have been determined in a non-discriminatory and non-arbitrary manner. | 0[ds]There can be no dispute with the proposition that if there is fraud, which leads to passing of a judgment, then fraud vitiates all actions taken consequent to such fraud and this would mean that the judgment would be set aside. However, before setting aside the judgment, we must come to the conclusion that the action was fraudulent. Every wrong action is not a fraudulent action. Assuming that the letter dated 4th September, 2008 was only a draft letter, it does not mean that this letter was fraudulently introduced by the Union of India. In the letter placed before the court the word `DGL find mention. It may be true that the counsel for the Union of India did not inform the court that the words `DGL stood for `Draft Government Letter, but, it is equally true that even the counsel for the appellant did not make any efforts to find out what the words `DGL stood for. Even the Court did not look into this aspect. Fraud has to be pleaded and proved. Mere allegations of fraud made for the first time in this Court are not sufficient. We are not, in any manner, approving the action of the Union of India in putting forth this letter before the Court. However, it cannot be said that this improper act is a fraudulent action on the part of the Union of India. The learned Single Judge as well as the Division Bench did place reliance on this letter and since this letter is now said to be a draft government letter only, we may ignore it for the purposes of deciding this case. Even if we were to ignore this letter, the appellant cannotour view, this contention is totally misplaced. No doubt, vide letter dated 25th February, 2005 the Ministry of Defence proposed to take over the management of all shopping complexes and to frame guidelines in this regard, but as per Para 3 of this letter, amendments to clause 2(v) would be applicable from 1st April 2005 or from the date when the guidelines/rules, as envisaged in clause 2(vi) are framed, whichever is later. The Ministry of Defence issued Defence Shopping Complexes (Maintenance and Administration) Rules in the year 2006. It is the case of the appellant herself that these Rules are not applicable to shops constructed on defence lands by public funds. Therefore, as per the appellant, these rules are not applicable to the present case. Vide letter dated 4th September, 2008 the guidelines were circulated. The appellant contends that this was only a draft government letter and, therefore, these guidelines are also not applicable to them. If that be so, it clearly means that no guidelines have been framed with regard to the shops on defence lands created out of government funds. If no fresh guidelines have been framed then amended clause 2(v) would not come into play. Then SOP of 2001 would be applicable and that can be amended by the Station Commander himself. The SOP of 2007 provides that no shops will be leased out for a period of more than 5 years.It is true that in Para 48 of the judgment the learned Single Judge also referred to the Defence Shopping Complexes (Maintenance and Administration) Rules, 2006 and the guidelines issued in 2008, but the Court also found that the change in the SOP in limiting the maximum period of lease to 5 years was not arbitrary or irrational.This judgment of the learned Single Judge was upheld by the Division Bench and also by this Court though in a petition filed by some other petitioner. On going through the SOPs of 2001 and 2007, we do not find that the appellant had any vested right to continue in possession even after 5 years. Even, as per the SOP of 2001, the Station Commander was to renew lease from year to year and there was no inherent right to continue as a lessee in perpetuity. These leases have been determined in aL APPEAL NO. 11361 OF 2017 (Arising out of SLP (C) NO. 33397 OFIn addition to the reasons given hereinabove, this appeal is also liable to be dismissed and is dismissed, because of the following two additionalThat the appellants in this appeal had earlier filed review petition which was dismissed and, thereafter, they filed second Review Petition No. 717 of 2011, which was rightly dismissed by the Delhi High Court as not maintainable being a second review petition;(ii) That the appellants had approached this Court and their special leave petition was dismissed by this Court on 04.02.2011. However, the appellants were granted time till 30th November, 2011 to vacate the premises on their furnishing undertaking. They availed of the benefit granted to them and now they cannot be permitted to raise fresh grounds in this appeal. | 0 | 3,044 | 901 | ### 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:
they have been rehabilitated and earned for 5 years they can earn their own livelihood without any support from the Army and other persons, who had suffered during this period, can be given this benefit. There is nothing arbitrary in this policy. The learned Single Judge dealt with this issue specifically. He has made reference to clause 17 of the SOP of 2001 and clause 18 of the SOP of 2007 and held as follows:"7. In terms of the above Clause 18, the right to get the licences renewed immediately on the expiry of five years has been withdrawn. The allottees are expected to apply again after a minimum break of three years. In terms of the revised policy, the Respondents issued letters to the Petitioners declining renewal of licences. The copies of letters requiring the Petitioners to vacate the shops under their occupation have been enclosed with the petition."11. Before the learned Single Judge, the appellant had raised her claim on the basis of principle of legitimate expectation and this was rejected by the learned Single Judge in the following terms:"47. This Court finds that the Petitioners have not been able to, in the first place, show that there is any specific representation either to any of them or to all of them generally that their licences would stand automatically renewed year after year by the Respondents. The mere fact that as a matter of practice the licences were renewed does not constitute the specific representation by the Respondents to each of them that indeed their licences would be renewed. The renewal, it must be recalled, was only for a year at a time and was in accordance with the prevailing policy and Clause 17. In other words, the only "representation" or "assurance" to each of them was that at the most the licence would be renewed for one more year at the discretion of the Respondent. No challenge was laid to Clause 17 of the SOP dated 10th August, 2001, which left it to the discretion of the respondents to renew the licence at the end of a year. The reasons for the change in the policy as explained by the Respondents appear to this Court to constitute sufficient justification for such change. The scope of judicial review of such policy change is indeed limited. Unless it is shown to be not informed by any reasonable criterion or not being in public interest, the Court cannot and should not interfere. Given the fact that the number of shopping complexes is unlikely to increase, and the waiting list of applicants is a growing one, the concern of the Respondents that those exservicemen waiting in the expectation of allotment of a shop should also be accounted for, cannot be said to be an unreasonable one. Both groups of exservicemen, i.e., the present allottees and those awaiting allotment are from the same "catchment". The demand for shops far exceeds the supply. There has to be a balancing of these two sets of "expectations". If the Respondents take a call and decide to change the policy so that the chance of those in the queue waiting for allotment of shops improves, the Court cannot be expected to judicially review such policy. As explained in Madras City Wine Merchant, no question of legitimate expectation would arise if there is a change in policy or the position is altered by a rule or legislation.48. The Petitioners have not questioned the DSC Rules, 2006 or the Guidelines issued in September, 2008. It appears that each of these Petitioners has been a beneficiary of renewal of licence several times over. Each of them has been granted renewal for more than three years which is the maximum period of licence envisaged under Rule 13 of the DSC Rules. It has been made clear in Clause 8 of the September, 2008 Guidelines that the DSC Rules would apply to the shopping complexes covered by 3.42.1 of SOA 1983. Consequently, even procedurally, none of the Petitioner can harbour a legitimate expectation of being consulted before change in the policy."12. It is true that in Para 48 of the judgment the learned Single Judge also referred to the Defence Shopping Complexes (Maintenance and Administration) Rules, 2006 and the guidelines issued in 2008, but the Court also found that the change in the SOP in limiting the maximum period of lease to 5 years was not arbitrary or irrational. We may refer to the following findings of the learned Single Judge:"51. This Court is unable to find the decision of the Respondents to restrict the licence period in respect of shops in shopping complexes to five years with the opportunity of again applying after a break of three years to be either discriminatory or arbitrary. Also, any prejudice that may be caused to the Petitioners in whose cases the licences were renewed prior to the change in the policy has been neutralised by the fact that they have continued in possession for nearly three years thereafter (amounting to more than two renewals) under the interim orders of this Court. As regards those Petitioners seeking transfer of the existing licence in their capacity as widows of ex-servicemen, they would be governed by Rule 7 of the DSC Rules 2006 and in any event, they too have continued to be in the premises far beyond the period of licence under the interim orders of this Court."13. This judgment of the learned Single Judge was upheld by the Division Bench and also by this Court though in a petition filed by some other petitioner. On going through the SOPs of 2001 and 2007, we do not find that the appellant had any vested right to continue in possession even after 5 years. Even, as per the SOP of 2001, the Station Commander was to renew lease from year to year and there was no inherent right to continue as a lessee in perpetuity. These leases have been determined in a non-discriminatory and non-arbitrary manner.
### Response:
0
### Explanation:
There can be no dispute with the proposition that if there is fraud, which leads to passing of a judgment, then fraud vitiates all actions taken consequent to such fraud and this would mean that the judgment would be set aside. However, before setting aside the judgment, we must come to the conclusion that the action was fraudulent. Every wrong action is not a fraudulent action. Assuming that the letter dated 4th September, 2008 was only a draft letter, it does not mean that this letter was fraudulently introduced by the Union of India. In the letter placed before the court the word `DGL find mention. It may be true that the counsel for the Union of India did not inform the court that the words `DGL stood for `Draft Government Letter, but, it is equally true that even the counsel for the appellant did not make any efforts to find out what the words `DGL stood for. Even the Court did not look into this aspect. Fraud has to be pleaded and proved. Mere allegations of fraud made for the first time in this Court are not sufficient. We are not, in any manner, approving the action of the Union of India in putting forth this letter before the Court. However, it cannot be said that this improper act is a fraudulent action on the part of the Union of India. The learned Single Judge as well as the Division Bench did place reliance on this letter and since this letter is now said to be a draft government letter only, we may ignore it for the purposes of deciding this case. Even if we were to ignore this letter, the appellant cannotour view, this contention is totally misplaced. No doubt, vide letter dated 25th February, 2005 the Ministry of Defence proposed to take over the management of all shopping complexes and to frame guidelines in this regard, but as per Para 3 of this letter, amendments to clause 2(v) would be applicable from 1st April 2005 or from the date when the guidelines/rules, as envisaged in clause 2(vi) are framed, whichever is later. The Ministry of Defence issued Defence Shopping Complexes (Maintenance and Administration) Rules in the year 2006. It is the case of the appellant herself that these Rules are not applicable to shops constructed on defence lands by public funds. Therefore, as per the appellant, these rules are not applicable to the present case. Vide letter dated 4th September, 2008 the guidelines were circulated. The appellant contends that this was only a draft government letter and, therefore, these guidelines are also not applicable to them. If that be so, it clearly means that no guidelines have been framed with regard to the shops on defence lands created out of government funds. If no fresh guidelines have been framed then amended clause 2(v) would not come into play. Then SOP of 2001 would be applicable and that can be amended by the Station Commander himself. The SOP of 2007 provides that no shops will be leased out for a period of more than 5 years.It is true that in Para 48 of the judgment the learned Single Judge also referred to the Defence Shopping Complexes (Maintenance and Administration) Rules, 2006 and the guidelines issued in 2008, but the Court also found that the change in the SOP in limiting the maximum period of lease to 5 years was not arbitrary or irrational.This judgment of the learned Single Judge was upheld by the Division Bench and also by this Court though in a petition filed by some other petitioner. On going through the SOPs of 2001 and 2007, we do not find that the appellant had any vested right to continue in possession even after 5 years. Even, as per the SOP of 2001, the Station Commander was to renew lease from year to year and there was no inherent right to continue as a lessee in perpetuity. These leases have been determined in aL APPEAL NO. 11361 OF 2017 (Arising out of SLP (C) NO. 33397 OFIn addition to the reasons given hereinabove, this appeal is also liable to be dismissed and is dismissed, because of the following two additionalThat the appellants in this appeal had earlier filed review petition which was dismissed and, thereafter, they filed second Review Petition No. 717 of 2011, which was rightly dismissed by the Delhi High Court as not maintainable being a second review petition;(ii) That the appellants had approached this Court and their special leave petition was dismissed by this Court on 04.02.2011. However, the appellants were granted time till 30th November, 2011 to vacate the premises on their furnishing undertaking. They availed of the benefit granted to them and now they cannot be permitted to raise fresh grounds in this appeal.
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