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Hindustan Steel Works Const Ltd Vs. Hindustan Steel Works Const Ltd. Employees' Union, Hyderabad | the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end. Separate office was apparently set up for this venture and on the completion of the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and we have no hesitation in agreeing with its view. 15. In the Workmen of the Straw Board Manufacturing Co. Ltd. v. M/s. Straw Board Manufacturing Company Ltd., 1974 (3) SCR 703 , this Court held : "The most important aspect in this particular case relating to closure, in our opinion, is whether one unit has such componential relation that closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integrality will assume an added significance in a case of closure of a branch or unit. That the R. Mill is capable of functioning in isolation is of very material import in the case of closure. There is bound to be a shift of emphasis in application of various tests from one case to another. In other words, whether independent functioning of the R. Mill can at all be said to be affected by the closing of the S. Mill........ The fact of the unity of ownership, supervision and control and some other common features, which we have noticed above, do not justify a contrary conclusion on this aspect in the present case. There is considerable force in the submission of Mr. Chitaley that the R. Mill is a different line of business and the closure of the S. Mill has nothing to do with the functioning of the R. Mill. The matter may be absolutely different when in an otherwise going concern or a functioning unit some workmens services were terminated as being redundant or surplus to requirements. That most of the conditions of service of the two Mills were substantially identical can be easily explained by the fact that,being owned by the same employer and the two units being situated in close proximity, it will not be in the interest of the management and peace and well being of the Company to treat the employees differently creating heart burning and discrimination. For the same reason, there is no particular significance in this case even in the application of the standing orders of the Company to the employees of the R. Mill which, because of the non-requisite number of employees employed in the latter, is not even required under the law to have separate standing order. It is, in our opinion, a clear case of closure of an independent unit of a company and not a closure of a part of an establishment. 16. This decision was followed in Isha Steel Treatment, Bombay v. Association of Engineering Workers, Bombay, 1987 (2) SCR 414. 17. It has been held repeatedly that all the tests evolved in the several decisions of this Court need not all be satisfied in every case. One has also to look to the nature and character of the undertaking while deciding the question. The tests evolved are merely to serve as guidelines. Now, let us look at the appellant-company. It is a government company wholly owned and controlled by the Government of India. Its job is to undertake construction works both in India and abroad. The construction works are not permanent works in the sense that as soon as the construction work is over, the establishment comes to an end at that place. In such a case, functional integrality assumes significance. The nature of the construction work may also differ from work to work or place to place, as the case may be. It is not even suggested by the respondent-Union that there is any functional integrality between the several units or several construction works undertaken by the appellant. It is not suggested that closure of one leads to the closure of others. There is no proximity between the several units/works undertaken by the appellant; they are spread all over India, indeed all over the world. It would thus appear that each of the works or construction projects undertaken by the appellant represent distinct establishments and did not constitute units of a single establishment. The Division Bench, however, was influenced by the fact that (i) when the workers are transferred from one unit to other unit they carried their seniority with them; (ii) the orders of appointment say that the employees are liable to be transferred to one place to other; that indeed, forty-three out of hundred workers concerned herein were brought to Hyderabad on transfer from other places and (iii) initially, Hederabad and Visakhapatnam were under the same administrative control and that when they were separated the workers were not asked to exercise their option to remain in one or the other unit. In our opinion, however, the fact that the Management reserved to itself the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment. In the case of a construction company like the appellant which undertakes construction works wherever awarded, does that work and winds up its establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work, mere unity of ownership, management and control are not of much significance. Having regard to the facts and circumstances of this case and the material on record, the conclusion is inevitable that the units at Hyderabad were distinct establishments. Once this is so, workmen of the said unit had no right to demand absorption in other units on the Hyderabad units completing their job. | 1[ds]We have been taken through the relevant material. It clearly discloses that both the works had come to a close; only certain very minor works remained to be done which were assigned to private contractors. Indeed, both the workmen and management were acting on the assumption that the works had come to an end. The retrenchment notices say so; the questions referred to the Tribunal are based upon the said assumption. If the works at Hyderabad were not completed, question of absorption of these workmen elsewhere would not have arisen. We, therefore, agree with thethat the works at Hyderabad had indeed come to aIndustrial Tribunal has taken one view which has been set aside by the learned Single Judge, whose view in turn has been upset by the Division Bench. It is in these circumstances that we are obliged to go into the said question. The tests relevant in this behalf have been laid down by this court in a number of decisions. Though it is not necessary to refer to all of them, a brief reference to a few of them would be in order.It has been held repeatedly that all the tests evolved in the several decisions of this Court need not all be satisfied in every case. One has also to look to the nature and character of the undertaking while deciding the question. The tests evolved are merely to serve as guidelines. Now, let us look at theIt is a government company wholly owned and controlled by the Government of India. Its job is to undertake construction works both in India and abroad. The construction works are not permanent works in the sense that as soon as the construction work is over, the establishment comes to an end at that place. In such a case, functional integrality assumes significance. The nature of the construction work may also differ from work to work or place to place, as the case may be. It is not even suggested by thethat there is any functional integrality between the several units or several construction works undertaken by the appellant. It is not suggested that closure of one leads to the closure of others. There is no proximity between the several units/works undertaken by the appellant; they are spread all over India, indeed all over the world. It would thus appear that each of the works or construction projects undertaken by the appellant represent distinct establishments and did not constitute units of a single establishment. The Division Bench, however, was influenced by the fact that (i) when the workers are transferred from one unit to other unit they carried their seniority with them; (ii) the orders of appointment say that the employees are liable to be transferred to one place to other; that indeed,out of hundred workers concerned herein were brought to Hyderabad on transfer from other places and (iii) initially, Hederabad and Visakhapatnam were under the same administrative control and that when they were separated the workers were not asked to exercise their option to remain in one or the other unit. In our opinion, however, the fact that the Management reserved to itself the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment. In the case of a construction company like the appellant which undertakes construction works wherever awarded, does that work and winds up its establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work, mere unity of ownership, management and control are not of much significance. Having regard to the facts and circumstances of this case and the material on record, the conclusion is inevitable that the units at Hyderabad were distinct establishments. Once this is so, workmen of the said unit had no right to demand absorption in other units on the Hyderabad units completing their92 OF 1987In the yearabout two hundred workers including the respondents herein were transferred to Kudremukh unit. On March 27, 1981, 175 workers including the respondents were retrenched on the ground that they were surplus. On a dispute being raised by the appellants, the Government of Karnataka referred the following question to the Additional Industrial trial Tribunal, Bangalore for adjudicationthe Management of Hindustan Steel Works Construction Limited, Kudremukh Malleshwara, Chickmaglur District justified in retrenching 101 workmen with effect from 27.3.Pending disposal of the said dispute, the respondents applied for interim relief. The Tribunal granted the same at the rate of sixty per cent of their wages with effect from November 1, 1982. That order was challenged by the Management before the High Court of Karnataka. A learned Single Judge, by his order dated April 22, 1983, modified the order of the Tribunal and directed that the Management shall pay interim relief at the rate ofof their wages for a period of three months from the month of April, 1983. The order of the learned Single Judge was left undisturbed by the Division Bench.25. While the dispute was pending before the Tribunal at Bangalore, the Industrial Tribunal, Hyderabad made its award in I.D. No. 21 of 1982 (subject of Civil Appeal Nos.of 1985). The allowing of a writ petition filed by the Management against the award of the Hyderabad Tribunal and the setting aside of the judgment of the learned Single Judge by the Division Bench of the Andhra Pradesh High Court (referred to in our order in Civil Appeal Nos.of 1985) all took place during the pendency of the present dispute before the Bangalore Tribunal. The workmen filed the copies of the judgment of the Division Bench of the Andhra Pradesh High Court before the Tribunal and asked for a similar relief. The workmen also brought to the notice of the Tribunal the interim orders passed by this court in the aforesaid appeals. By its award dated July 31, 1986, the Tribunal held that though the retrenchment of 104 workmen by the Management was unjustified, the workmen are not entitled to an order of reinstatement in view of the facts and circumstances of the case but only to compensation equal to three months wages in addition to the retrenchment compensation already paid to them. Paras 35 and 36 of the Tribunals award, relevant on this aspect, read thuslast point for consideration would be regarding the nature of the relief that should be granted to the workmen. Normally, if retrenchment is held as invalid, they are entitled to reinstatement with consequential benefits. But, when we analyse the facts of these references, it will be clear that the management will be placed in a predicament and great hardship will be caused if the rule of reinstatement is adhered to. The management has to work up the seniority of all these workmen and their fitment in an appropriate scale at this distance of time. If the different units are facing the burden of excess manpower the reinstatement of these workmen will be an additional burden which should not be normally imposed. Apart from that, it would cause a considerable confusion and unrest amongst all the concerned defeating the very object of Sectionof the Industrial Disputes Act. In similar circumstances in the workmen of National Radio and Electronics Company v. Presiding Officer, Labour Court, Writ Petition No. 6334 of 1974, the Karnataka High Court has awarded compensation to the workmen as redressal of their grievances. In the Industrial Chemicals Ltd. v. Labour Court, Madras, 1977 (ii) LLJ 137, it has been held as followsis settled position of law that once it is found that retrenchment is unjustified and improper it is for the Labour Court to consider what relief the retrenched worker is entitled to. It is open to the Labour Court, in exercise of its jurisdiction, to take note of the circumstances, in the particular case and decide not to grant the relief of reinstatement, but grant instead of relief by way of compensation to thefollows therefore that, whenever the retrenchment is held to be unreasonable and improper and if their reinstatement works great hardship on the management, then the Court may grant compensation to them. Hence, the workers in these references are entitled to compensation.For the reasons foregoing, in my opinion, the management has not justified the reasonableness or proprietary of the retrenchment of these workmen. The retrenched workmen should be awarded a compensation of three months wages each in addition to the retrenchment compensation which is already paid to them.The appellants have not been able to satisfy us that the several reasons given by the Tribunal for not directing reinstatement of theare incorrect as a fact or that they are irrelevant or impermissible in law. That theis groaning under the weight of surplus and excessiveis not denied as a fact; indeed, it is an undeniable fact. The Industrial Tribunal is entitled to take note of the said fact and to mould the relief to suit the justice of the case. In exercise of this Courts power under Article 136 of the Constitution, it is not open to us to substitute our opinion for that of the Industrial Tribunal unless we find that the reasons given by it in the paras aforesaid are either incorrect factually or irrelevant or impermissible inL NO. 4115 OF 1984On a consideration of the material placed before it, the Tribunal held that the retrenchment was not legal but having regard to the facts and circumstances of the case, it did not think it appropriate to order reinstatement and other incidental benefits. In lieu thereof, it granted compensation equal to the wages of two months in addition to wages of one month already paid exclusive of the retrenchment compensation. Para 44 of the award brings out the reasons for not granting the relief of retrenchment, back wages and continuity of service. It readsThe workmen have contended that seniors have been retrenched, though many juniors have been retained. Not a single incident has been shown as to show was the said junior retained at Kudremukh even after 24.9.1980. If some of the persons who had been already transferred were juniors to these persons, it has been already held that as on 15.9.1980, they were no longer in the service of theestablishment of Kudremukh and it cannot be said that they were still the juniors of these workmen. However, the facts and circumstances of the case make it clear that on 2 points the management is not on a firm ground. The first of them is that the management has not proved that only the seniors were transferred irrespective of the unit seniority or otherwise, though they had professed to do so in their various meetings with the unions. Secondly the retrenchment compensation and wages in lieu of one months notice have not been paid either earlier to or at the very moment of the time of retrenchment. The learned counsel for the management referred to the case of Workmen of Coimbatore Pioneer ``B Mills Ltd. v. Labour Court and others, 1980 (1) LLJ 503 and contended that in every case, there need not be any order of reinstatement and that even if it is found that there is some lacuna, the Tribunal may not order for reinstatement and especially in view of the fact that themanagement is labouring under a heavy load of surplus labour force. The fact of the reported case disclose that the Labour Court has held that the retrenchment was bona fide, but that there was noncompliance of clause (b) of SectionIn that context, the Honble High Court had enhanced the compensation to two months wages and the Honble Supreme Court of India added a sum of Rs. 750/to each worker in lieu of reinstatement. In my view, for such infirmity as discussed above, the workman of the present case should be paid a fair and reasonable compensation of wages of two months, in addition to the wages of one month already paid (exclusive of the retrenchment compensation).The reason once again is the ``heavy load of surplus labour force with the Management. It is not shown that the said reason is either incorrect as a fact or irrelevant or impermissible in law. | 1 | 3,154 | 2,213 | ### Instruction:
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the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the appellant and it had a distinct beginning and an end. Separate office was apparently set up for this venture and on the completion of the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and we have no hesitation in agreeing with its view. 15. In the Workmen of the Straw Board Manufacturing Co. Ltd. v. M/s. Straw Board Manufacturing Company Ltd., 1974 (3) SCR 703 , this Court held : "The most important aspect in this particular case relating to closure, in our opinion, is whether one unit has such componential relation that closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integrality will assume an added significance in a case of closure of a branch or unit. That the R. Mill is capable of functioning in isolation is of very material import in the case of closure. There is bound to be a shift of emphasis in application of various tests from one case to another. In other words, whether independent functioning of the R. Mill can at all be said to be affected by the closing of the S. Mill........ The fact of the unity of ownership, supervision and control and some other common features, which we have noticed above, do not justify a contrary conclusion on this aspect in the present case. There is considerable force in the submission of Mr. Chitaley that the R. Mill is a different line of business and the closure of the S. Mill has nothing to do with the functioning of the R. Mill. The matter may be absolutely different when in an otherwise going concern or a functioning unit some workmens services were terminated as being redundant or surplus to requirements. That most of the conditions of service of the two Mills were substantially identical can be easily explained by the fact that,being owned by the same employer and the two units being situated in close proximity, it will not be in the interest of the management and peace and well being of the Company to treat the employees differently creating heart burning and discrimination. For the same reason, there is no particular significance in this case even in the application of the standing orders of the Company to the employees of the R. Mill which, because of the non-requisite number of employees employed in the latter, is not even required under the law to have separate standing order. It is, in our opinion, a clear case of closure of an independent unit of a company and not a closure of a part of an establishment. 16. This decision was followed in Isha Steel Treatment, Bombay v. Association of Engineering Workers, Bombay, 1987 (2) SCR 414. 17. It has been held repeatedly that all the tests evolved in the several decisions of this Court need not all be satisfied in every case. One has also to look to the nature and character of the undertaking while deciding the question. The tests evolved are merely to serve as guidelines. Now, let us look at the appellant-company. It is a government company wholly owned and controlled by the Government of India. Its job is to undertake construction works both in India and abroad. The construction works are not permanent works in the sense that as soon as the construction work is over, the establishment comes to an end at that place. In such a case, functional integrality assumes significance. The nature of the construction work may also differ from work to work or place to place, as the case may be. It is not even suggested by the respondent-Union that there is any functional integrality between the several units or several construction works undertaken by the appellant. It is not suggested that closure of one leads to the closure of others. There is no proximity between the several units/works undertaken by the appellant; they are spread all over India, indeed all over the world. It would thus appear that each of the works or construction projects undertaken by the appellant represent distinct establishments and did not constitute units of a single establishment. The Division Bench, however, was influenced by the fact that (i) when the workers are transferred from one unit to other unit they carried their seniority with them; (ii) the orders of appointment say that the employees are liable to be transferred to one place to other; that indeed, forty-three out of hundred workers concerned herein were brought to Hyderabad on transfer from other places and (iii) initially, Hederabad and Visakhapatnam were under the same administrative control and that when they were separated the workers were not asked to exercise their option to remain in one or the other unit. In our opinion, however, the fact that the Management reserved to itself the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment. In the case of a construction company like the appellant which undertakes construction works wherever awarded, does that work and winds up its establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work, mere unity of ownership, management and control are not of much significance. Having regard to the facts and circumstances of this case and the material on record, the conclusion is inevitable that the units at Hyderabad were distinct establishments. Once this is so, workmen of the said unit had no right to demand absorption in other units on the Hyderabad units completing their job.
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to the retrenchment compensation already paid to them. Paras 35 and 36 of the Tribunals award, relevant on this aspect, read thuslast point for consideration would be regarding the nature of the relief that should be granted to the workmen. Normally, if retrenchment is held as invalid, they are entitled to reinstatement with consequential benefits. But, when we analyse the facts of these references, it will be clear that the management will be placed in a predicament and great hardship will be caused if the rule of reinstatement is adhered to. The management has to work up the seniority of all these workmen and their fitment in an appropriate scale at this distance of time. If the different units are facing the burden of excess manpower the reinstatement of these workmen will be an additional burden which should not be normally imposed. Apart from that, it would cause a considerable confusion and unrest amongst all the concerned defeating the very object of Sectionof the Industrial Disputes Act. In similar circumstances in the workmen of National Radio and Electronics Company v. Presiding Officer, Labour Court, Writ Petition No. 6334 of 1974, the Karnataka High Court has awarded compensation to the workmen as redressal of their grievances. In the Industrial Chemicals Ltd. v. Labour Court, Madras, 1977 (ii) LLJ 137, it has been held as followsis settled position of law that once it is found that retrenchment is unjustified and improper it is for the Labour Court to consider what relief the retrenched worker is entitled to. It is open to the Labour Court, in exercise of its jurisdiction, to take note of the circumstances, in the particular case and decide not to grant the relief of reinstatement, but grant instead of relief by way of compensation to thefollows therefore that, whenever the retrenchment is held to be unreasonable and improper and if their reinstatement works great hardship on the management, then the Court may grant compensation to them. Hence, the workers in these references are entitled to compensation.For the reasons foregoing, in my opinion, the management has not justified the reasonableness or proprietary of the retrenchment of these workmen. The retrenched workmen should be awarded a compensation of three months wages each in addition to the retrenchment compensation which is already paid to them.The appellants have not been able to satisfy us that the several reasons given by the Tribunal for not directing reinstatement of theare incorrect as a fact or that they are irrelevant or impermissible in law. That theis groaning under the weight of surplus and excessiveis not denied as a fact; indeed, it is an undeniable fact. The Industrial Tribunal is entitled to take note of the said fact and to mould the relief to suit the justice of the case. In exercise of this Courts power under Article 136 of the Constitution, it is not open to us to substitute our opinion for that of the Industrial Tribunal unless we find that the reasons given by it in the paras aforesaid are either incorrect factually or irrelevant or impermissible inL NO. 4115 OF 1984On a consideration of the material placed before it, the Tribunal held that the retrenchment was not legal but having regard to the facts and circumstances of the case, it did not think it appropriate to order reinstatement and other incidental benefits. In lieu thereof, it granted compensation equal to the wages of two months in addition to wages of one month already paid exclusive of the retrenchment compensation. Para 44 of the award brings out the reasons for not granting the relief of retrenchment, back wages and continuity of service. It readsThe workmen have contended that seniors have been retrenched, though many juniors have been retained. Not a single incident has been shown as to show was the said junior retained at Kudremukh even after 24.9.1980. If some of the persons who had been already transferred were juniors to these persons, it has been already held that as on 15.9.1980, they were no longer in the service of theestablishment of Kudremukh and it cannot be said that they were still the juniors of these workmen. However, the facts and circumstances of the case make it clear that on 2 points the management is not on a firm ground. The first of them is that the management has not proved that only the seniors were transferred irrespective of the unit seniority or otherwise, though they had professed to do so in their various meetings with the unions. Secondly the retrenchment compensation and wages in lieu of one months notice have not been paid either earlier to or at the very moment of the time of retrenchment. The learned counsel for the management referred to the case of Workmen of Coimbatore Pioneer ``B Mills Ltd. v. Labour Court and others, 1980 (1) LLJ 503 and contended that in every case, there need not be any order of reinstatement and that even if it is found that there is some lacuna, the Tribunal may not order for reinstatement and especially in view of the fact that themanagement is labouring under a heavy load of surplus labour force. The fact of the reported case disclose that the Labour Court has held that the retrenchment was bona fide, but that there was noncompliance of clause (b) of SectionIn that context, the Honble High Court had enhanced the compensation to two months wages and the Honble Supreme Court of India added a sum of Rs. 750/to each worker in lieu of reinstatement. In my view, for such infirmity as discussed above, the workman of the present case should be paid a fair and reasonable compensation of wages of two months, in addition to the wages of one month already paid (exclusive of the retrenchment compensation).The reason once again is the ``heavy load of surplus labour force with the Management. It is not shown that the said reason is either incorrect as a fact or irrelevant or impermissible in law.
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INDIAN OVERSEAS BANK Vs. M/S RCM INFRASTRUCTURE LTD. AND ANOTHER | the sale in question was complete on its confirmation on 13th December 2018 and as such, the admission of the petition on 3rd January 2019 by the learned NCLT would not affect the said sale. Relying on the provisions of Section 54 of the TP Act, the learned Solicitor General submitted that merely because a part of the payment was received subsequently after initiation of CIRP, it will not deprive the appellant Bank from receiving the said money in pursuance to the sale which has already been completed. A reliance in this respect is placed on various judgments of this Court. 29. Insofar as the judgment of this Court in the case of Vidhyadhar (supra) is concerned, no doubt that it has been held that even if the full price of the property has not been paid, the transaction of the sale will take effect and the title would pass on that transaction. This Court has further held that the real test is the intention of the parties. It has been held that the parties must intend to transfer ownership of the property and that they must also intend that the price would be paid either in praesenti or in future. However, it is to be noted that in the said case, the defendant No.2 had not only executed the sale deed in favour of the plaintiff but had presented it for registration, admitted its execution before the Sub-Registrar before whom the remaining part of the sale consideration was paid and thereafter, the document was registered. 30. In the case of B. Arvind Kumar (supra), the property in question was a suit property and was sold in a public auction. The sale was confirmed by the District Judge, Civil and Military Station, Bangalore. What has been held by this Court is that when a property is sold by public auction in pursuance of the order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. It has been held that a sale certificate is issued to the purchaser only when the sale becomes absolute. It was held that when the auction purchaser derives title on confirmation of sale in his favour and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. Additionally, in the said case, the Court found that the sale certificate itself was registered. 31. In the case of Kaliaperumal (supra) also, the sale deed was registered on partial payment of consideration. However, in spite of registration of the sale deed, in the facts of the said case, the Court held that what was important is the intention of the parties. It was held that normally the ownership and the title of the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. However, that was not an invariable rule. What was paramount, was the intention of the parties. In the facts of the said case, the Court held that the parties intended that the ownership of the property would be transferred to the appellant only after the receipt of the entire sale consideration by the vendors as a condition precedent. Upon interpretation of the sale deed, the Court found that the title was intended to be passed only on the payment of the balance consideration. 32. It is further to be noted that the present case arises out of a statutory sale. The sale would be governed by Rules 8 and 9 of the said Rules. The sale would be complete only when the auction purchaser makes the entire payment and the authorised officer, exercising the power of sale, shall issue a certificate of sale of the property in favour of the purchaser in the Form given in Appendix V to the said Rules. 33. In the case of Shakeena and Another v. Bank of India and Others 2019 SCC OnLine SC 1059, which was a case arising out of SARFAESI Act, this Court has held that the sale certificate issued in favour of the respondent No.3 did not require registration and that the sale process was complete on issuance of the sale certificate. The same has been followed by this Court in the case of S. Karthik (supra). 34. Undisputedly, in the present case, the balance amount has been accepted by the appellant Bank on 8th March 2019. The sale under the statutory scheme as contemplated under Rules 8 and 9 of the said Rules would stand completed only on 8th March 2019. Admittedly, this date falls much after 3rd January 2019, i.e., on which date CIRP commenced and moratorium was ordered. As such, we are unable to accept the argument on behalf of the appellant Bank that the sale was complete upon receipt of the part payment. 35. In view of the provisions of Section 14(1)(c) of the IBC, which have overriding effect over any other law, any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited. We are of the view that the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered. 36. Insofar as the contention of the appellant Bank that the petition filed by the Corporate Debtor was mala fide is concerned, we do not find any merit in the said contention. All the details with regard to action taken by the appellant Bank have been specifically mentioned in the petition filed by the Corporate Debtor. Insofar as the contention with regard to liquidation order being passed is concerned, the same is already under challenge before the learned NCLAT. As such, we need not make any observation with regard to the same. | 0[ds]24. It is thus clear that after the CIRP is initiated, there is moratorium for any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act. It is clear that once the CIRP is commenced, there is complete prohibition for any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property. The words including any action under the SARFAESI Act are significant. The legislative intent is clear that after the CIRP is initiated, all actions including any action under the SARFAESI Act to foreclose, recover or enforce any security interest are prohibited.26. It could thus be seen that the provisions of the IBC shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.27. It has been consistently held by this Court that the IBC is a complete Code in itself and in view of the provisions of Section 238 of the IBC, the provisions of the IBC would prevail notwithstanding anything inconsistent therewith contained in any other law for the time being in force. A reference in this respect could be placed on the judgments of this Court in the cases of Innoventive Industries Limited v. ICICI Bank and Another (2018) 1 SCC 407, Principal Commissioner of Income Tax v. Monnet Ispat and Energy Limited (2018) 18 SCC 786 and Ghanashyam Mishra and Sons Private Limited through the Authorised Signatory v. Edelweiss Asset Reconstruction Company Limited through the Director and Others (2021) 9 SCC 657 .29. Insofar as the judgment of this Court in the case of Vidhyadhar (supra) is concerned, no doubt that it has been held that even if the full price of the property has not been paid, the transaction of the sale will take effect and the title would pass on that transaction. This Court has further held that the real test is the intention of the parties. It has been held that the parties must intend to transfer ownership of the property and that they must also intend that the price would be paid either in praesenti or in future. However, it is to be noted that in the said case, the defendant No.2 had not only executed the sale deed in favour of the plaintiff but had presented it for registration, admitted its execution before the Sub-Registrar before whom the remaining part of the sale consideration was paid and thereafter, the document was registered.31. In the case of Kaliaperumal (supra) also, the sale deed was registered on partial payment of consideration. However, in spite of registration of the sale deed, in the facts of the said case, the Court held that what was important is the intention of the parties. It was held that normally the ownership and the title of the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. However, that was not an invariable rule. What was paramount, was the intention of the parties. In the facts of the said case, the Court held that the parties intended that the ownership of the property would be transferred to the appellant only after the receipt of the entire sale consideration by the vendors as a condition precedent. Upon interpretation of the sale deed, the Court found that the title was intended to be passed only on the payment of the balance consideration.32. It is further to be noted that the present case arises out of a statutory sale. The sale would be governed by Rules 8 and 9 of the said Rules. The sale would be complete only when the auction purchaser makes the entire payment and the authorised officer, exercising the power of sale, shall issue a certificate of sale of the property in favour of the purchaser in the Form given in Appendix V to the said Rules.33. In the case of Shakeena and Another v. Bank of India and Others 2019 SCC OnLine SC 1059, which was a case arising out of SARFAESI Act, this Court has held that the sale certificate issued in favour of the respondent No.3 did not require registration and that the sale process was complete on issuance of the sale certificate. The same has been followed by this Court in the case of S. Karthik (supra).34. Undisputedly, in the present case, the balance amount has been accepted by the appellant Bank on 8th March 2019. The sale under the statutory scheme as contemplated under Rules 8 and 9 of the said Rules would stand completed only on 8th March 2019. Admittedly, this date falls much after 3rd January 2019, i.e., on which date CIRP commenced and moratorium was ordered. As such, we are unable to accept the argument on behalf of the appellant Bank that the sale was complete upon receipt of the part payment.35. In view of the provisions of Section 14(1)(c) of the IBC, which have overriding effect over any other law, any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited. We are of the view that the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered.36. Insofar as the contention of the appellant Bank that the petition filed by the Corporate Debtor was mala fide is concerned, we do not find any merit in the said contention. All the details with regard to action taken by the appellant Bank have been specifically mentioned in the petition filed by the Corporate Debtor. Insofar as the contention with regard to liquidation order being passed is concerned, the same is already under challenge before the learned NCLAT. As such, we need not make any observation with regard to the same. | 0 | 4,726 | 1,103 | ### 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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the sale in question was complete on its confirmation on 13th December 2018 and as such, the admission of the petition on 3rd January 2019 by the learned NCLT would not affect the said sale. Relying on the provisions of Section 54 of the TP Act, the learned Solicitor General submitted that merely because a part of the payment was received subsequently after initiation of CIRP, it will not deprive the appellant Bank from receiving the said money in pursuance to the sale which has already been completed. A reliance in this respect is placed on various judgments of this Court. 29. Insofar as the judgment of this Court in the case of Vidhyadhar (supra) is concerned, no doubt that it has been held that even if the full price of the property has not been paid, the transaction of the sale will take effect and the title would pass on that transaction. This Court has further held that the real test is the intention of the parties. It has been held that the parties must intend to transfer ownership of the property and that they must also intend that the price would be paid either in praesenti or in future. However, it is to be noted that in the said case, the defendant No.2 had not only executed the sale deed in favour of the plaintiff but had presented it for registration, admitted its execution before the Sub-Registrar before whom the remaining part of the sale consideration was paid and thereafter, the document was registered. 30. In the case of B. Arvind Kumar (supra), the property in question was a suit property and was sold in a public auction. The sale was confirmed by the District Judge, Civil and Military Station, Bangalore. What has been held by this Court is that when a property is sold by public auction in pursuance of the order of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. It has been held that a sale certificate is issued to the purchaser only when the sale becomes absolute. It was held that when the auction purchaser derives title on confirmation of sale in his favour and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. Additionally, in the said case, the Court found that the sale certificate itself was registered. 31. In the case of Kaliaperumal (supra) also, the sale deed was registered on partial payment of consideration. However, in spite of registration of the sale deed, in the facts of the said case, the Court held that what was important is the intention of the parties. It was held that normally the ownership and the title of the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. However, that was not an invariable rule. What was paramount, was the intention of the parties. In the facts of the said case, the Court held that the parties intended that the ownership of the property would be transferred to the appellant only after the receipt of the entire sale consideration by the vendors as a condition precedent. Upon interpretation of the sale deed, the Court found that the title was intended to be passed only on the payment of the balance consideration. 32. It is further to be noted that the present case arises out of a statutory sale. The sale would be governed by Rules 8 and 9 of the said Rules. The sale would be complete only when the auction purchaser makes the entire payment and the authorised officer, exercising the power of sale, shall issue a certificate of sale of the property in favour of the purchaser in the Form given in Appendix V to the said Rules. 33. In the case of Shakeena and Another v. Bank of India and Others 2019 SCC OnLine SC 1059, which was a case arising out of SARFAESI Act, this Court has held that the sale certificate issued in favour of the respondent No.3 did not require registration and that the sale process was complete on issuance of the sale certificate. The same has been followed by this Court in the case of S. Karthik (supra). 34. Undisputedly, in the present case, the balance amount has been accepted by the appellant Bank on 8th March 2019. The sale under the statutory scheme as contemplated under Rules 8 and 9 of the said Rules would stand completed only on 8th March 2019. Admittedly, this date falls much after 3rd January 2019, i.e., on which date CIRP commenced and moratorium was ordered. As such, we are unable to accept the argument on behalf of the appellant Bank that the sale was complete upon receipt of the part payment. 35. In view of the provisions of Section 14(1)(c) of the IBC, which have overriding effect over any other law, any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited. We are of the view that the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered. 36. Insofar as the contention of the appellant Bank that the petition filed by the Corporate Debtor was mala fide is concerned, we do not find any merit in the said contention. All the details with regard to action taken by the appellant Bank have been specifically mentioned in the petition filed by the Corporate Debtor. Insofar as the contention with regard to liquidation order being passed is concerned, the same is already under challenge before the learned NCLAT. As such, we need not make any observation with regard to the same.
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is initiated, there is moratorium for any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act. It is clear that once the CIRP is commenced, there is complete prohibition for any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property. The words including any action under the SARFAESI Act are significant. The legislative intent is clear that after the CIRP is initiated, all actions including any action under the SARFAESI Act to foreclose, recover or enforce any security interest are prohibited.26. It could thus be seen that the provisions of the IBC shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.27. It has been consistently held by this Court that the IBC is a complete Code in itself and in view of the provisions of Section 238 of the IBC, the provisions of the IBC would prevail notwithstanding anything inconsistent therewith contained in any other law for the time being in force. A reference in this respect could be placed on the judgments of this Court in the cases of Innoventive Industries Limited v. ICICI Bank and Another (2018) 1 SCC 407, Principal Commissioner of Income Tax v. Monnet Ispat and Energy Limited (2018) 18 SCC 786 and Ghanashyam Mishra and Sons Private Limited through the Authorised Signatory v. Edelweiss Asset Reconstruction Company Limited through the Director and Others (2021) 9 SCC 657 .29. Insofar as the judgment of this Court in the case of Vidhyadhar (supra) is concerned, no doubt that it has been held that even if the full price of the property has not been paid, the transaction of the sale will take effect and the title would pass on that transaction. This Court has further held that the real test is the intention of the parties. It has been held that the parties must intend to transfer ownership of the property and that they must also intend that the price would be paid either in praesenti or in future. However, it is to be noted that in the said case, the defendant No.2 had not only executed the sale deed in favour of the plaintiff but had presented it for registration, admitted its execution before the Sub-Registrar before whom the remaining part of the sale consideration was paid and thereafter, the document was registered.31. In the case of Kaliaperumal (supra) also, the sale deed was registered on partial payment of consideration. However, in spite of registration of the sale deed, in the facts of the said case, the Court held that what was important is the intention of the parties. It was held that normally the ownership and the title of the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. However, that was not an invariable rule. What was paramount, was the intention of the parties. In the facts of the said case, the Court held that the parties intended that the ownership of the property would be transferred to the appellant only after the receipt of the entire sale consideration by the vendors as a condition precedent. Upon interpretation of the sale deed, the Court found that the title was intended to be passed only on the payment of the balance consideration.32. It is further to be noted that the present case arises out of a statutory sale. The sale would be governed by Rules 8 and 9 of the said Rules. The sale would be complete only when the auction purchaser makes the entire payment and the authorised officer, exercising the power of sale, shall issue a certificate of sale of the property in favour of the purchaser in the Form given in Appendix V to the said Rules.33. In the case of Shakeena and Another v. Bank of India and Others 2019 SCC OnLine SC 1059, which was a case arising out of SARFAESI Act, this Court has held that the sale certificate issued in favour of the respondent No.3 did not require registration and that the sale process was complete on issuance of the sale certificate. The same has been followed by this Court in the case of S. Karthik (supra).34. Undisputedly, in the present case, the balance amount has been accepted by the appellant Bank on 8th March 2019. The sale under the statutory scheme as contemplated under Rules 8 and 9 of the said Rules would stand completed only on 8th March 2019. Admittedly, this date falls much after 3rd January 2019, i.e., on which date CIRP commenced and moratorium was ordered. As such, we are unable to accept the argument on behalf of the appellant Bank that the sale was complete upon receipt of the part payment.35. In view of the provisions of Section 14(1)(c) of the IBC, which have overriding effect over any other law, any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the SARFAESI Act is prohibited. We are of the view that the appellant Bank could not have continued the proceedings under the SARFAESI Act once the CIRP was initiated and the moratorium was ordered.36. Insofar as the contention of the appellant Bank that the petition filed by the Corporate Debtor was mala fide is concerned, we do not find any merit in the said contention. All the details with regard to action taken by the appellant Bank have been specifically mentioned in the petition filed by the Corporate Debtor. Insofar as the contention with regard to liquidation order being passed is concerned, the same is already under challenge before the learned NCLAT. As such, we need not make any observation with regard to the same.
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City Of Nagpur Corporation Vs. John Servage Phillip & Anr | of the appellant Corporation to make use of the knowledge gained at the Congress was extremely limited. There are no materials on the record on which this observation can be justified. The appellant Corporation can no doubt increase its capacity. In any event, it would, after the delegation had returned, have been in a better position to discharge its functions concerning public health within its present cape city. It would be absurd to say that the appellant Corporation did not have the capacity to improve its public health services. There was no warrant to issue the writ on the ground of want of capacity.6. The High Court also relied on certain sections dealing with the budget. It was said that there was no provision in the budget for expenses of sending a delegation abroad. Under S. 84 of the incorporating statute, no payment can be made out of the municipal funds unless the expenditure is covered by the budget. The high Court, therefore, observed that the resolution sanctioning expenses for the sending of the delegation abroad was beyond the powers of the appellant Corporation. In the first place, we are not sure that the budget did not provide for such expenses. There was a head in it which dealt with allowances payable to the members of the Corporation. It may reasonably be contended that the expenses of the members for the visit to the Congress are such allowances. But assume, they are not. Section 88 of the Act gives the Corporation power to transfer the amount of one budget grant from one major head to another provided however a certain balance is maintained in the budget. There is nothing to show that the appellant Corporation could not have acted in this case under S. 88 and altered the provisions of the budget making express provision for the expenses of the delegation. It was not even suggested that the appellant Corporation could not do so.7. We think it right also to point out that in the petition for the writ it had not been said that the resolution was bad because the expenses sanctioned by it were outside the budget. That being so, this point should not have been taken into consideration by the High Court. It is true that the Corporation at the request of the High Court placed before the High Court some of the papers in connection with the budget. That the Corporation out of respect to the High Court should have done and, therefore, actually did. From this it cannot be contended that the appellant Corporation never objected to the resolution being challenged on the around of a want of express provision in the budget for the expenses of the delegation or would not have been prejudiced in the hearing of the petition if the resolution was attacked on the ground of want of a provision in the budget. This challenge involved a question of fact and without proper pleadings, the appellant Corporation was surely at a disadvantage in meeting it. Furthermore, we are not sure that S. 84 would have made the resolution invalid. That section only prohibits an expenditure for which the budget does not provide. So it may be that all that S. 84 affects is the actual expenditure. It may not affect the resolution itself.8. We think it right to point out that the High Court held that the appellant Corporation had acted honestly. It observed that the circumstances did not warrant the inference that the action of the Corporation was mala fide. That being so, and the action proposed being clearly within the statutory powers of the appellant Corporation, we think that the High court was in error in issuing the writ.9. We may now notice one or two points of minor importance argued at the bar on behalf of the respondents. It was said that the question raised in this appeal had become academic since the Congress was long over. It may be stated that the Congress was held from April 27 to May 1, 1959 and the writ was issued by the High Court on April 23, 1959. It is suggested that it is not, therefore, a fit case for decision in an appeal under Art. 136 of the Constitution. We are not at all impressed by this contention. It seems to us that it is a matter of the utmost importance for the appellant Corporation to know its rights under its incorporating statute. It will have to guide itself according to our decision in future when a similar point arises again. If we do not decide the point raised now, then on every subsequent occasion the Corporation would be bound by the judgment of the High Court under appeal and by the time the matter is brought up here the same argument that the question has become academic can always be raised to defeat the point. We think that the point raised by the appellant Corporation as to its powers under the statute and how far courts can review the exercise of its power by the appellant Corporation is of great importance and must be decided in this appeal.10. It is also said that in 1948 when the City of Nagpur Corporation Act was passed, these delegations were not in contemplation. Therefore, S. 58 (s) cannot be interpreted as including promotion of public health by sending of delegations. Thus is, in our view, a completely idle contention. We have no reason to think that the delegations were not sent in 1948.In any case, statutes cannot be confined only to thoughts prevalent at the time when they were enacted. They are put in general words to embrace innovations as they come along. Therefore, even if in 1948, delegations by Corporations were not in contemplation, there is nothing to prevent us interpreting S. 58 (s) as including within matters likely to promote public health, actions involving the sending of delegations where promotion of public health becomes likely as a result thereof. | 1[ds]7. We think it right also to point out that in the petition for the writ it had not been said that the resolution was bad because the expenses sanctioned by it were outside the budget. That being so, this point should not have been taken into consideration by the High Court. It is true that the Corporation at the request of the High Court placed before the High Court some of the papers in connection with the budget. That the Corporation out of respect to the High Court should have done and, therefore, actually did. From this it cannot be contended that the appellant Corporation never objected to the resolution being challenged on the around of a want of express provision in the budget for the expenses of the delegation or would not have been prejudiced in the hearing of the petition if the resolution was attacked on the ground of want of a provision in the budget. This challenge involved a question of fact and without proper pleadings, the appellant Corporation was surely at a disadvantage in meeting it. Furthermore, we are not sure that S. 84 would have made the resolution invalid. That section only prohibits an expenditure for which the budget does not provide. So it may be that all that S. 84 affects is the actual expenditure. It may not affect the resolution itself.8. We think it right to point out that the High Court held that the appellant Corporation had acted honestly. It observed that the circumstances did not warrant the inference that the action of the Corporation was mala fide. That being so, and the action proposed being clearly within the statutory powers of the appellant Corporation, we think that the High court was in error in issuing the writ.9. We may now notice one or two points of minor importance argued at the bar on behalf of the respondents. It was said that the question raised in this appeal had become academic since the Congress was long over. It may be stated that the Congress was held from April 27 to May 1, 1959 and the writ was issued by the High Court on April 23, 1959. It is suggested that it is not, therefore, a fit case for decision in an appeal under Art. 136 of the Constitution. We are not at all impressed by this contention. It seems to us that it is a matter of the utmost importance for the appellant Corporation to know its rights under its incorporating statute. It will have to guide itself according to our decision in future when a similar point arises again. If we do not decide the point raised now, then on every subsequent occasion the Corporation would be bound by the judgment of the High Court under appeal and by the time the matter is brought up here the same argument that the question has become academic can always be raised to defeat the point. We think that the point raised by the appellant Corporation as to its powers under the statute and how far courts can review the exercise of its power by the appellant Corporation is of great importance and must be decided in this appeal.10. It is also said that in 1948 when the City of Nagpur Corporation Act was passed, these delegations were not in contemplation. Therefore, S. 58 (s) cannot be interpreted as including promotion of public health by sending of delegations. Thus is, in our view, a completely idle contention. We have no reason to think that the delegations were not sent in 1948.In any case, statutes cannot be confined only to thoughts prevalent at the time when they were enacted. They are put in general words to embrace innovations as they come along. Therefore, even if in 1948, delegations by Corporations were not in contemplation, there is nothing to prevent us interpreting S. 58 (s) as including within matters likely to promote public health, actions involving the sending of delegations where promotion of public health becomes likely as a result thereof. | 1 | 1,967 | 739 | ### 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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of the appellant Corporation to make use of the knowledge gained at the Congress was extremely limited. There are no materials on the record on which this observation can be justified. The appellant Corporation can no doubt increase its capacity. In any event, it would, after the delegation had returned, have been in a better position to discharge its functions concerning public health within its present cape city. It would be absurd to say that the appellant Corporation did not have the capacity to improve its public health services. There was no warrant to issue the writ on the ground of want of capacity.6. The High Court also relied on certain sections dealing with the budget. It was said that there was no provision in the budget for expenses of sending a delegation abroad. Under S. 84 of the incorporating statute, no payment can be made out of the municipal funds unless the expenditure is covered by the budget. The high Court, therefore, observed that the resolution sanctioning expenses for the sending of the delegation abroad was beyond the powers of the appellant Corporation. In the first place, we are not sure that the budget did not provide for such expenses. There was a head in it which dealt with allowances payable to the members of the Corporation. It may reasonably be contended that the expenses of the members for the visit to the Congress are such allowances. But assume, they are not. Section 88 of the Act gives the Corporation power to transfer the amount of one budget grant from one major head to another provided however a certain balance is maintained in the budget. There is nothing to show that the appellant Corporation could not have acted in this case under S. 88 and altered the provisions of the budget making express provision for the expenses of the delegation. It was not even suggested that the appellant Corporation could not do so.7. We think it right also to point out that in the petition for the writ it had not been said that the resolution was bad because the expenses sanctioned by it were outside the budget. That being so, this point should not have been taken into consideration by the High Court. It is true that the Corporation at the request of the High Court placed before the High Court some of the papers in connection with the budget. That the Corporation out of respect to the High Court should have done and, therefore, actually did. From this it cannot be contended that the appellant Corporation never objected to the resolution being challenged on the around of a want of express provision in the budget for the expenses of the delegation or would not have been prejudiced in the hearing of the petition if the resolution was attacked on the ground of want of a provision in the budget. This challenge involved a question of fact and without proper pleadings, the appellant Corporation was surely at a disadvantage in meeting it. Furthermore, we are not sure that S. 84 would have made the resolution invalid. That section only prohibits an expenditure for which the budget does not provide. So it may be that all that S. 84 affects is the actual expenditure. It may not affect the resolution itself.8. We think it right to point out that the High Court held that the appellant Corporation had acted honestly. It observed that the circumstances did not warrant the inference that the action of the Corporation was mala fide. That being so, and the action proposed being clearly within the statutory powers of the appellant Corporation, we think that the High court was in error in issuing the writ.9. We may now notice one or two points of minor importance argued at the bar on behalf of the respondents. It was said that the question raised in this appeal had become academic since the Congress was long over. It may be stated that the Congress was held from April 27 to May 1, 1959 and the writ was issued by the High Court on April 23, 1959. It is suggested that it is not, therefore, a fit case for decision in an appeal under Art. 136 of the Constitution. We are not at all impressed by this contention. It seems to us that it is a matter of the utmost importance for the appellant Corporation to know its rights under its incorporating statute. It will have to guide itself according to our decision in future when a similar point arises again. If we do not decide the point raised now, then on every subsequent occasion the Corporation would be bound by the judgment of the High Court under appeal and by the time the matter is brought up here the same argument that the question has become academic can always be raised to defeat the point. We think that the point raised by the appellant Corporation as to its powers under the statute and how far courts can review the exercise of its power by the appellant Corporation is of great importance and must be decided in this appeal.10. It is also said that in 1948 when the City of Nagpur Corporation Act was passed, these delegations were not in contemplation. Therefore, S. 58 (s) cannot be interpreted as including promotion of public health by sending of delegations. Thus is, in our view, a completely idle contention. We have no reason to think that the delegations were not sent in 1948.In any case, statutes cannot be confined only to thoughts prevalent at the time when they were enacted. They are put in general words to embrace innovations as they come along. Therefore, even if in 1948, delegations by Corporations were not in contemplation, there is nothing to prevent us interpreting S. 58 (s) as including within matters likely to promote public health, actions involving the sending of delegations where promotion of public health becomes likely as a result thereof.
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7. We think it right also to point out that in the petition for the writ it had not been said that the resolution was bad because the expenses sanctioned by it were outside the budget. That being so, this point should not have been taken into consideration by the High Court. It is true that the Corporation at the request of the High Court placed before the High Court some of the papers in connection with the budget. That the Corporation out of respect to the High Court should have done and, therefore, actually did. From this it cannot be contended that the appellant Corporation never objected to the resolution being challenged on the around of a want of express provision in the budget for the expenses of the delegation or would not have been prejudiced in the hearing of the petition if the resolution was attacked on the ground of want of a provision in the budget. This challenge involved a question of fact and without proper pleadings, the appellant Corporation was surely at a disadvantage in meeting it. Furthermore, we are not sure that S. 84 would have made the resolution invalid. That section only prohibits an expenditure for which the budget does not provide. So it may be that all that S. 84 affects is the actual expenditure. It may not affect the resolution itself.8. We think it right to point out that the High Court held that the appellant Corporation had acted honestly. It observed that the circumstances did not warrant the inference that the action of the Corporation was mala fide. That being so, and the action proposed being clearly within the statutory powers of the appellant Corporation, we think that the High court was in error in issuing the writ.9. We may now notice one or two points of minor importance argued at the bar on behalf of the respondents. It was said that the question raised in this appeal had become academic since the Congress was long over. It may be stated that the Congress was held from April 27 to May 1, 1959 and the writ was issued by the High Court on April 23, 1959. It is suggested that it is not, therefore, a fit case for decision in an appeal under Art. 136 of the Constitution. We are not at all impressed by this contention. It seems to us that it is a matter of the utmost importance for the appellant Corporation to know its rights under its incorporating statute. It will have to guide itself according to our decision in future when a similar point arises again. If we do not decide the point raised now, then on every subsequent occasion the Corporation would be bound by the judgment of the High Court under appeal and by the time the matter is brought up here the same argument that the question has become academic can always be raised to defeat the point. We think that the point raised by the appellant Corporation as to its powers under the statute and how far courts can review the exercise of its power by the appellant Corporation is of great importance and must be decided in this appeal.10. It is also said that in 1948 when the City of Nagpur Corporation Act was passed, these delegations were not in contemplation. Therefore, S. 58 (s) cannot be interpreted as including promotion of public health by sending of delegations. Thus is, in our view, a completely idle contention. We have no reason to think that the delegations were not sent in 1948.In any case, statutes cannot be confined only to thoughts prevalent at the time when they were enacted. They are put in general words to embrace innovations as they come along. Therefore, even if in 1948, delegations by Corporations were not in contemplation, there is nothing to prevent us interpreting S. 58 (s) as including within matters likely to promote public health, actions involving the sending of delegations where promotion of public health becomes likely as a result thereof.
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Ram Prasad Sharma Vs. State Of Bihar | Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention.10. Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma.11. According to the entries in this document, Ext. D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks column of this register he is described as "Bahanoi (brother-in-law) of Asarfi Yadav." We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy had been obtained by the defense. The only dates this document bears are the date of attestation (October 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge (June 25, 1962). As rightly pointed out by the High Court the learned Session Judge took this copy on record in an extraordinary manner. The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof. On the same day an order was passed calling for the original. On the very next day the Public Prosecutor filed a petition objecting to the admission of this document and alleged that the document was bogus. The hearing of the argument thereafter proceeded on July 4, 1962. The Public Prosecution again filed a petition that this document be not taken in evidence. The learned Additional Session Judge disposed of this petition with the following order:"Let the petition be placed with the record. The original has once again been called for. The matter will be discussed in the judgment."It is pointed out by the High Court that there is no further reference to the document in the order sheet. After the arguments concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document, The High Court, following Sanatan Senapati v. Emperor, AIR 1945 Pat 489 and Brij Mohan Sinha v. Priya Brat Narain Sinha, 1968-3 SCR 861 = (AIR 1965 SC 282 ) held that the document was inadmissible in evidence.12. We agree with the conclusion arrived at by the High Court. Section 35 of the Evidence Act provides:"An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book register, or record is kept, is itself a relevant fact."In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in 1965-3 SCR 861 at p. 864 = (AIR 1965 SC 282 at p. 286)"the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high."No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible.13. The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant , Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further Kaleshwars son and widow, P. Ws. 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a Kudal and had gone to Chaksafia Danr along with others. They further deposed that on the next day they learnt from Nandai Lal Singh, P. W. 17, that Kaleshwar had been killed.The High Court further accepted the explanation of P. W. 1, who had made the F. I. R., that he had named Choltan as being the person shot and killed by Ram Prasad because he had heard a hulla that Choltan had been murdered. It seems to us that the High Court came to a correct conclusion and was right in accepting the explanation of P. W.1.14. The learned counsel further contends that it was doubtful that 12 rounds would have been fired. He points out the number of injuries received by the villagers. But these injuries support the prosecution story. From the injuries on the various persons examined by Dwarka Nath Prasad P. W. 41, apart from the persons who had died and whose bodies had been held to have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired. | 0[ds]It is pointed out by the High Court that there is no further reference to the document in the order sheet. After the arguments concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document, The High Court, following Sanatan Senapati v. Emperor, AIR 1945 Pat 489 and Brij Mohan Sinha v. Priya Brat Narain Sinha, 1968-3 SCR 861 = (AIR 1965 SC 282 ) held that the document was inadmissible in evidence.12. We agree with the conclusion arrived at by the Highthis case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in 1965-3 SCR 861 at p. 864 = (AIR 1965 SC 282 at p. 286)"the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high."No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible.The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant , Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further Kaleshwars son and widow, P. Ws. 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a Kudal and had gone to Chaksafia Danr along with others. They further deposed that on the next day they learnt from Nandai Lal Singh, P. W. 17, that Kaleshwar had been killed.The High Court further accepted the explanation of P. W. 1, who had made the F. I. R., that he had named Choltan as being the person shot and killed by Ram Prasad because he had heard a hulla that Choltan had been murdered. It seems to us that the High Court came to a correct conclusion and was right in accepting the explanation of P.these injuries support the prosecution story.From the injuries on the various persons examined by Dwarka Nath Prasad P. W. 41, apart from the persons who had died and whose bodies had been held to have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired. | 0 | 2,217 | 635 | ### Instruction:
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Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention.10. Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma.11. According to the entries in this document, Ext. D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks column of this register he is described as "Bahanoi (brother-in-law) of Asarfi Yadav." We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy had been obtained by the defense. The only dates this document bears are the date of attestation (October 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge (June 25, 1962). As rightly pointed out by the High Court the learned Session Judge took this copy on record in an extraordinary manner. The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof. On the same day an order was passed calling for the original. On the very next day the Public Prosecutor filed a petition objecting to the admission of this document and alleged that the document was bogus. The hearing of the argument thereafter proceeded on July 4, 1962. The Public Prosecution again filed a petition that this document be not taken in evidence. The learned Additional Session Judge disposed of this petition with the following order:"Let the petition be placed with the record. The original has once again been called for. The matter will be discussed in the judgment."It is pointed out by the High Court that there is no further reference to the document in the order sheet. After the arguments concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document, The High Court, following Sanatan Senapati v. Emperor, AIR 1945 Pat 489 and Brij Mohan Sinha v. Priya Brat Narain Sinha, 1968-3 SCR 861 = (AIR 1965 SC 282 ) held that the document was inadmissible in evidence.12. We agree with the conclusion arrived at by the High Court. Section 35 of the Evidence Act provides:"An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book register, or record is kept, is itself a relevant fact."In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in 1965-3 SCR 861 at p. 864 = (AIR 1965 SC 282 at p. 286)"the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high."No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible.13. The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant , Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further Kaleshwars son and widow, P. Ws. 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a Kudal and had gone to Chaksafia Danr along with others. They further deposed that on the next day they learnt from Nandai Lal Singh, P. W. 17, that Kaleshwar had been killed.The High Court further accepted the explanation of P. W. 1, who had made the F. I. R., that he had named Choltan as being the person shot and killed by Ram Prasad because he had heard a hulla that Choltan had been murdered. It seems to us that the High Court came to a correct conclusion and was right in accepting the explanation of P. W.1.14. The learned counsel further contends that it was doubtful that 12 rounds would have been fired. He points out the number of injuries received by the villagers. But these injuries support the prosecution story. From the injuries on the various persons examined by Dwarka Nath Prasad P. W. 41, apart from the persons who had died and whose bodies had been held to have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired.
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It is pointed out by the High Court that there is no further reference to the document in the order sheet. After the arguments concluded on July 7, 1962, the case was adjourned for judgment. The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about its genuineness. The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document, The High Court, following Sanatan Senapati v. Emperor, AIR 1945 Pat 489 and Brij Mohan Sinha v. Priya Brat Narain Sinha, 1968-3 SCR 861 = (AIR 1965 SC 282 ) held that the document was inadmissible in evidence.12. We agree with the conclusion arrived at by the Highthis case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in 1965-3 SCR 861 at p. 864 = (AIR 1965 SC 282 at p. 286)"the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high."No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible.The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant , Ram Prasad Sharma. The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone wrong in coming to the conclusion. The High Court states that ten witnesses have named Kaleshwar being the second person who was shot. Further Kaleshwars son and widow, P. Ws. 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a Kudal and had gone to Chaksafia Danr along with others. They further deposed that on the next day they learnt from Nandai Lal Singh, P. W. 17, that Kaleshwar had been killed.The High Court further accepted the explanation of P. W. 1, who had made the F. I. R., that he had named Choltan as being the person shot and killed by Ram Prasad because he had heard a hulla that Choltan had been murdered. It seems to us that the High Court came to a correct conclusion and was right in accepting the explanation of P.these injuries support the prosecution story.From the injuries on the various persons examined by Dwarka Nath Prasad P. W. 41, apart from the persons who had died and whose bodies had been held to have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired.
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Kamalam (M) Vs. Dr. V. A. Syed Mohamad | part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. The scope and ambit of sub-section (2) was explained in the following words by Hidayatullah, J speaking on behalf o f the Court in Sahodarbais case (supra) at pages 19-20:" We are quite clear that sub-section (2) of section 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is, to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of these averments and in proof thereof." 8. It would, therefore, be seen that if a schedule or annexure is an integra part of the election petition, it must be signed by the petitioner an verified. since it forms part of the election petition. The subject-matter sub-section (2) is thus a schedule or annexure forming part of the election petition and hence it is placed in section 83 which deals wit contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83, sub-section (1) also forms part of the elect ion petition. The election petition is in truth and reality one document consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to section 83, sub-section (1). The copy of the election petition required to be filed under the first part of sub-section (3) of section 81, would, therefore, on a fair read in of that provision along with section 83, include a copy of the affidavit. That is why the appellant attac hed a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition. Now, it is true that no signature was appended by the appellant on the copy of the election peti tion proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub- section (3) of section 81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit, it was tantamount to appending signature on the copy of the election petition. The l aw does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao case ( supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit const ituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a: true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part of sub-section (3) of section 81 was complied with by the appellant inasmuch as the copy of the election petition. was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition. The High Court was clearly in error dismissing the election petition under sub-s. (1) of sec. 86. 9. | 1[ds]It was in compliance with the proviso to section 83, sub-section (1) that along with the election petition an affidavit in the prescribed form was filed by the appellant in support of the allegations of corrupt practice set out in the petition and the particulars of such corrupt practice. The two copies of the election petition filed by the appellant also carried copies of this affidavit attached to them and the signature of the appellant appeared at the foot of each of the copies of the affidavit. Section 84 is not material and we may omit reference to itThere were two copies of the election petition filed by the appellant and to each of these two copies was attached a copy of the affidavit. Both these copies were identical and hence we may look at either of ment of the last part of sub- section (3) of s. 81. What that part requires is that every copy of the election petition filed by the petitioner " shall be attested by the petitioner under his own signature to be a true copy of the petition."Now, one thing is clear as a result of the decision of this court in Ch. Subbarao v. Member, Election Tribunal, Hyderabad([1964] 6 S.C.R. 213.) that it is not necessary that there should be a statement in so many terms in the copy of the election petition that the signature of the petitioner has been put by way of authenticating it to be a true copy and it is enough that the copy of the election petition bears the signature of the petitioner, because when the petitioner has put his original signature on the copy of the election petition, it can only be for the purpose of attesting it as a true copy. But here in the present case the signature of the appellant appeared only at the foot of the copy of the affidavit and there was no signature of the appellant at anyplace in the copy of the election petition and there was thus, according to the respondent,noncompliance withthe last part of sub-section (3) of section 81. The appellant, however, submitted that the affidavit was a part of the election petition and the copy of the election petition, therefore, consisted of two parts, one being copy of the election petition proper, if we may so call it, and the other being copy of the affidavit. The signature of the appellant at the foot of the copy of the affidavit was, therefore, said the appellant, referable not only to the copy of the affidavit but also to the copy of the election petition proper and hence the requirement of the last part of sub-section (3) of section 81 was complied with by the appellant. These rival contentions raise an interesting question of law depending on the interpretation ofsection 81,sub-section (3)in the light of section 83 and section 86, sub-section (1).Now, the first question which arises is as to what constitute an election petition for the purpose ofsection 81,sub-section(3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated insub-section(2) of section 83 or a supporting affidavit referred to in the proviso to section 83,sub-section(1) ? To answer this question, we must turn to section 83 which deals with contents of an election petition. Sub-section (1) of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in theCode of Civil Procedure 1908 for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, prescribed form in support of the allegation of such corrupt practice the election petition shall also be accompanied by an affidavit in the and the particulars thereof. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to asubsectionwhich lays down what shall be the contents of an election petition. Sub-section (2) also by analogy supports this inference. It provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition. It is now established by the decision of this Court in Sahodrabaj Rai v. Ram.Singh Aharwar([1968] 3 S.C.R. 13.) thatsub-section(2) applies only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. The scope and ambit ofsub-section(2) was explained in the following words by Hidayatullah, J speaking on behalf o f the Court in Sahodarbais case (supra) at pages" We are quite clear thatsub-section(2) of section 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is, to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of these averments and in proof thereof."It would, therefore, be seen that if a schedule or annexure is an integra part of the election petition, it must be signed by the petitioner an verified. since it forms part of the election petition. The subject-mattersub-section(2) is thus a schedule or annexure forming part of the election petition and hence it is placed in section 83 which deals wit contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83,sub-section(1) also forms part of the elect ion petition. The election petition is in truth and reality one document consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to section 83,sub-section(1). The copy of the election petition required to be filed under the first part ofsub-section(3) of section81,would, therefore, on a fair read in of that provision along with section 83, include a copy of the affidavit. That is why the appellant attac hed a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition. Now, it is true that no signature was appended by the appellant on the copy of the election peti tion proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub- section(3) of section81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit, it was tantamount to appending signature on the copy of the election petition. The l aw does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao case ( supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit const ituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a: true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part ofsub-section(3) of section81 was complied with by the appellant inasmuch as the copy of the election petition. was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition. The High Court was clearly in error dismissing the election petition under sub-s. (1) of sec. 86. | 1 | 3,448 | 1,939 | ### Instruction:
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part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. The scope and ambit of sub-section (2) was explained in the following words by Hidayatullah, J speaking on behalf o f the Court in Sahodarbais case (supra) at pages 19-20:" We are quite clear that sub-section (2) of section 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is, to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of these averments and in proof thereof." 8. It would, therefore, be seen that if a schedule or annexure is an integra part of the election petition, it must be signed by the petitioner an verified. since it forms part of the election petition. The subject-matter sub-section (2) is thus a schedule or annexure forming part of the election petition and hence it is placed in section 83 which deals wit contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83, sub-section (1) also forms part of the elect ion petition. The election petition is in truth and reality one document consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to section 83, sub-section (1). The copy of the election petition required to be filed under the first part of sub-section (3) of section 81, would, therefore, on a fair read in of that provision along with section 83, include a copy of the affidavit. That is why the appellant attac hed a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition. Now, it is true that no signature was appended by the appellant on the copy of the election peti tion proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub- section (3) of section 81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit, it was tantamount to appending signature on the copy of the election petition. The l aw does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao case ( supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit const ituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a: true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part of sub-section (3) of section 81 was complied with by the appellant inasmuch as the copy of the election petition. was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition. The High Court was clearly in error dismissing the election petition under sub-s. (1) of sec. 86. 9.
### Response:
1
### Explanation:
this Court in Sahodrabaj Rai v. Ram.Singh Aharwar([1968] 3 S.C.R. 13.) thatsub-section(2) applies only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it. The scope and ambit ofsub-section(2) was explained in the following words by Hidayatullah, J speaking on behalf o f the Court in Sahodarbais case (supra) at pages" We are quite clear thatsub-section(2) of section 83 has reference not to a document which is produced as evidence of the averments o f the election petition but to averments of the election petition which are put, not in the election petition but in the accompanying schedules or annexures. We can give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is, to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of these averments and in proof thereof."It would, therefore, be seen that if a schedule or annexure is an integra part of the election petition, it must be signed by the petitioner an verified. since it forms part of the election petition. The subject-mattersub-section(2) is thus a schedule or annexure forming part of the election petition and hence it is placed in section 83 which deals wit contents of an election petition. Similarly, and for the same reasons, the affidavit referred to in the proviso to Section 83,sub-section(1) also forms part of the elect ion petition. The election petition is in truth and reality one document consisting of two parts, one being the election petition proper and the other being the affidavit referred to in the proviso to section 83,sub-section(1). The copy of the election petition required to be filed under the first part ofsub-section(3) of section81,would, therefore, on a fair read in of that provision along with section 83, include a copy of the affidavit. That is why the appellant attac hed a copy of the affidavit to the copy of the election petition proper and filed the two as one single document along with the election petition. Now, it is true that no signature was appended by the appellant on the copy of the election peti tion proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub- section(3) of section81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit, it was tantamount to appending signature on the copy of the election petition. The l aw does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao case ( supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit const ituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a: true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part ofsub-section(3) of section81 was complied with by the appellant inasmuch as the copy of the election petition. was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition. The High Court was clearly in error dismissing the election petition under sub-s. (1) of sec. 86.
|
V.T. Khanzode and Others Vs. Reserve Bank of India and Another | or static chapter and it is wrong to think that t he officers of the various groups were kept, as it were, in quarantine. The group system has been a continuous process of trial and error and the impugned scheme of inter-group mobility has emerged as the best solution out of the e xperience of the past. Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. It is clear that inter-group mobility and commo n seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot override public interest an d an effort has to be made to harmonize the two considerations. No scheme governing service matters can be fool-proof and some section or the other employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. V ested interests are prone to hold on to their acquisitions and we understand the feelings of Group I officers who have to surrender a part of the benefits which had accrued to them in a water-tight system of grouping. Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities. The reports of the Cardre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity. We see no justification for undoing what these com mittees have achieved after an objective and integral examination of the whole issue. We may mention that the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later Indias Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt. of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 th at the final decision was taken by the Central Board to introduce inter-group mobility and combined seniority.In Reserve Bank of India v. N.C. Paliwal, a Combined Seniority Scheme was introduced by the Reserve Bank of India, consisting of two parts, one part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments, while the other provided for the switch-over and integration of the non-clerical staff with the clerical staff in all the Departments of the Bank. The Delhi High Court set aside the Scheme on the ground that it violated Articles 14 and 16 of the Constitution. While setting aside the judgment of the High Court, this Court held that th e integration of different cadres into one cadre did not involve violation of the equality clause and that neither Article 14 nor Article 16 forbids creation of different cadres in Government service. Whether there should be a combined seniori ty in different cadres or groups was, according to the Court, a matter of policy which did not attract the applicability of the equality clause. The integration of non-clerical with clerical services which was effectuated by the Combined Seniority Scheme was, in the circumstances, held to be not violative of the guarantee contained in Articles 14 and 16.28. As regards the retrospective operation given to the Scheme with effect from May 22, 1974, it does appear that the Board has st ruck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III. But that was inevitable and we consider it as the best solution in the peculiar circumstances of the case. In order to rectify the imbalances and anomalies caused by the compartmentalised and group-wise seniority, it was necessary to give retrospective effect to the Combined Seniority List. Officers belonging to Group I urged that the Scheme should be b rought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to be brought into effect from January 1, 1970. The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade A and part of Grade B officers was announced. It was, again, on that date that the Bank had announced that a similar de cision in regard to the remaining grade, of officers was under its considerations. Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force. If a certain section o f officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified. That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers. Shri Nariman has drawn our attention to various individual cases of officers in Group I whose old seniority has gone down by several steps in the new Scheme. As we have stated earlier, any scheme of seniority is bound to produce isolated aberrations. That cannot justify the argument that the entire Scheme is for that reason violative of the guarantee of equality.We are, therefore, of the opinion that the imp ugned Administration Circular, the Office Order and the Combined Seniority List are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution.29. | 0[ds]Section 58 (1) of the Act confers power on the Central Board of Directors of the Bank to make regulations in order to provide for all matters for which provisions is necessary or c onvenient for the purpose of giving effect to the provisions of the Act. It seems to us clear that it is not only convenient but manifestly necessary to provide for the service conditions of the Banks staff in order to give effect to the p rovisions of the Act. The Act was passed in order to constitute a Bank for achieving economic purposes of the highest national importance: regulating the issue of Bank notes, keeping reserves with a view to securing monetary stability in Indi a and generally to operate the currency and credit system of the country to its advantage. It is, in our view, not open to any question either on the basis of reason or authority that the power to provide for service conditions of the staff is at least incidental to the obligation to carry out the purposes for which the Bank was constituted. As observed in Armour v. Liverpool Corporation, (1) "To assist in removing from the minds of its employees the fear of an unprotected o ld age, to foster their happiness and contentment and to procure their good and efficient service, these are objects which, even if economic considerations alone count, are incidental, if not vital, to the proper carrying on of any undertaking as well by a municipal as any other corporation." The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood, "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires." (See Attorney-General v. Great Eastern Ry. Co.(2) The Central Boa rd has, therefore, the power to make service regulations under section 58 (1) of the Act.Shri Nariman pleads for such a power but his purpose in doing so is to urge that section 58 (7) is the sole repository of the power of the Central Boar d to provide for the conditions of service of the Banks staff. He contends that statutory corporations like the Reserve Bank of India have no inherent or residuary powers and that they must seek and find their powers and obligations in the Charter of their creation Therefore, the argument proceeds, it is imperative that regulations governing terms and conditions of service of the Banks staff must be framed under section 58 (1) only and cannot be framed by administrative circulars issued in the exercise of any non-statutory poweris no doubt that a statutory corporation can do only such acts as are authorised by the statute creati ng it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it mu st be taken to be prohibited. This cannot, however, produce the result for which Shri Nariman contends. His contention is not that the Central Board has no power to frame staff regulations but that it must do so under section 58 (1) only. On that argument, it is material to note that section 58 (1) is in the nature of an enabling provision under which the Central Board "may" make regulations in order to provide for all matters for which it is necessary or convenient to make pr ovision for the purpose of giving effect to the provisions of the Act. This provision does not justify the argument that staff regulations must be framed under it or not at all. The substance of the matter is that the Central Board has the power to frame regulations relating to the conditions of service of the Banks staff. If it has that power, it may exercise it either in accordance with section 58 (1) or by acting appropriately in the exercise of its general power of administration andconsidered the entire material on this subject including the correspondence t hat has transpired between the Reserve Bank and the Central Government, we find it difficult to take the view that the Staff Regulations of 1948 were framed in the exercise of power conferred by section 58. One fact which stands out in t his regard is that whereas section 58 (1) envisages the making of regulations "with the previous sanction of the Central Government", the Regulations of 1948 do not purport to have been made with such sanction. Indeed, in so far as the ex facie asp ect of the matter is concerned, the Regulations of 1948 do not purport to have been made under section 58 at all. It is true that this by itself is not conclusive because, failure to mention the source of power cannot invalidate the exercise of power, if the power is possessed by the authority which exercises it. But, the common course of the manner in which the Central Board exercises its power when it purports to do so under section 58 is not without relevance and has an imp ortant bearing on the question under consideration. The Employees Provident Fund Regulations of 1935, the Note Issue Regulations of 1935 the General Regulations of 1949, the Scheduled Banks Regulations of 1951 and the Guarantee Fund Regulat ions, which were all framed under section 58, contain a preamble reciting that they were framed under that section and that they were framed with the previous sanction of the Centralconsidered the correspondence bearing on the subject and particularly the aforesaid Memorandum, we see no reason to doubt the contention of the Bank that the Regulations of 194 8 were not framed under section 58 and that they were not made with the previous sanction of the Central Government. The then Governor of the Reserve Bank of India, Shri C. D. Deshmukh, a distinguished Economist and Civilian, was perhaps justified in assuming from the correspondence that the Central Government has no objection to the proposed regulations, which explains his statement, that they were made with the "approval" of the Central Government. But, it is one thing to infer that the Regulations had the approval of the Central Government since no objection was raised by it to the making of the regulations and quite another that they were made with its previous sanction. The supplementary affidavit dated March, 1980 w hich was filed on behalf of the Reserve Bank by Shri Pradeep Madhav Joshi, Deputy Manager in the Department of Administration and Personnel, has dealt fully with the correspondence on the subject of previous sanction of the Central Government to the Regulations of 1948. We are inclined to accept the statement contained in paragraph 9 of the said affidavit that the Memorandum of January 21, 1949 contains a "factual mistake" to the effect that the Staff Regulations, (which would inclu de the Regulations of 1948) were made with the approval of Central Government. We therefore conclude that the Reserve Bank of India (Staff) Regulations of 1948 were not made under section 58 of the Act and that, in fact, the Central Board had not obtained the sanction of the Central Government to the making of those Regulations.The High Courts of Bombay, (1) Calcutta and Delhi(2) have all taken the view that the Staff Regulations of 1948 are not statutory, not having been framed under section 58 of the Act. We endorse the correctness of thatcase of the petitioners is tha t the Administrative Circular and the draft Combined Seniority list are violative of their rights under articles 14 and 16 of the Constitution because; (a) The combined fixation of seniority has the effect of treating unequals as equals in so far as officers belonging to different groups are concerned, whose appointment, recruitment, promotion and seniority had all along been fixed, accepted and acted upon on a group-wise basis; and (b) Recruitment, selection and promotion of off icers having been made on a group-wise basis from time to time and their seniority having been fixed accordingly, the seniority is now fixed retrospectively from an arbitrary date viz., May 22, 1974.These contentions, particularly the first, h ave to be answered in the light of historical data governing the constitution and management of Services under the Reserve Bank, from time to time. Without an awareness of the history leading to the events which the petitioners have challenged as unconstitutional, it will not be possible either to appreciate their contention or to provide an answer toThareja Committee, like the Cadre Review Committee, unanimously recommended the introduction of combined seniority simultaneously for all grades of officers. However, on the question of the operative date, it was divided in its views. Whereas Shri Thareja and Shri Katara, both Group I officers, recommended that the scheme be given retrospective effect from January 1, 1976, the other two members representing Groups II and III, were of the view that it should be given effect from January 1, 1970. The Bank, by the impugned circular, accepted May 22, 1974 as the date from which the combined seniority list was to have effect.It is clear from this narration of historical events that the various Departments of the Reserve Bank were grouped and regrouped from time to time. Such adjustments in t he administrative affairs of the Bank are a necessary sequel to the growing demands of new situations which are bound to arise in any developing economy. The group system has never been a closed or static chapter and it is wrong to think that t he officers of the various groups were kept, as it were, in quarantine. The group system has been a continuous process of trial and error and the impugned scheme of inter-group mobility has emerged as the best solution out of the e xperience of the past. Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. It is clear that inter-group mobility and commo n seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot override public interest an d an effort has to be made to harmonize the two considerations. No scheme governing service matters can be fool-proof and some section or the other employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. V ested interests are prone to hold on to their acquisitions and we understand the feelings of Group I officers who have to surrender a part of the benefits which had accrued to them in a water-tight system of grouping. Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities. The reports of the Cardre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity. We see no justification for undoing what these com mittees have achieved after an objective and integral examination of the whole issue. We may mention that the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later Indias Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt. of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 th at the final decision was taken by the Central Board to introduce inter-group mobility and combined seniority.In Reserve Bank of India v. N.C. Paliwal, a Combined Seniority Scheme was introduced by the Reserve Bank of India, consisting of two parts, one part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments, while the other provided for the switch-over and integration of the non-clerical staff with the clerical staff in all the Departments of the Bank. The Delhi High Court set aside the Scheme on the ground that it violated Articles 14 and 16 of the Constitution. While setting aside the judgment of the High Court, this Court held that th e integration of different cadres into one cadre did not involve violation of the equality clause and that neither Article 14 nor Article 16 forbids creation of different cadres in Government service. Whether there should be a combined seniori ty in different cadres or groups was, according to the Court, a matter of policy which did not attract the applicability of the equality clause. The integration of non-clerical with clerical services which was effectuated by the Combined Seniority Scheme was, in the circumstances, held to be not violative of the guarantee contained in Articles 14 andregards the retrospective operation given to the Scheme with effect from May 22, 1974, it does appear that the Board has st ruck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III. But that was inevitable and we consider it as the best solution in the peculiar circumstances of the case. In order to rectify the imbalances and anomalies caused by the compartmentalised and group-wise seniority, it was necessary to give retrospective effect to the Combined Seniority List. Officers belonging to Group I urged that the Scheme should be b rought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to be brought into effect from January 1, 1970. The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade A and part of Grade B officers was announced. It was, again, on that date that the Bank had announced that a similar de cision in regard to the remaining grade, of officers was under its considerations. Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force. If a certain section o f officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified. That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers. Shri Nariman has drawn our attention to various individual cases of officers in Group I whose old seniority has gone down by several steps in the new Scheme. As we have stated earlier, any scheme of seniority is bound to produce isolated aberrations. That cannot justify the argument that the entire Scheme is for that reason violative of the guarantee of equality.We are, therefore, of the opinion that the imp ugned Administration Circular, the Office Order and the Combined Seniority List are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution. | 0 | 11,644 | 2,840 | ### 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:
or static chapter and it is wrong to think that t he officers of the various groups were kept, as it were, in quarantine. The group system has been a continuous process of trial and error and the impugned scheme of inter-group mobility has emerged as the best solution out of the e xperience of the past. Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. It is clear that inter-group mobility and commo n seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot override public interest an d an effort has to be made to harmonize the two considerations. No scheme governing service matters can be fool-proof and some section or the other employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. V ested interests are prone to hold on to their acquisitions and we understand the feelings of Group I officers who have to surrender a part of the benefits which had accrued to them in a water-tight system of grouping. Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities. The reports of the Cardre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity. We see no justification for undoing what these com mittees have achieved after an objective and integral examination of the whole issue. We may mention that the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later Indias Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt. of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 th at the final decision was taken by the Central Board to introduce inter-group mobility and combined seniority.In Reserve Bank of India v. N.C. Paliwal, a Combined Seniority Scheme was introduced by the Reserve Bank of India, consisting of two parts, one part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments, while the other provided for the switch-over and integration of the non-clerical staff with the clerical staff in all the Departments of the Bank. The Delhi High Court set aside the Scheme on the ground that it violated Articles 14 and 16 of the Constitution. While setting aside the judgment of the High Court, this Court held that th e integration of different cadres into one cadre did not involve violation of the equality clause and that neither Article 14 nor Article 16 forbids creation of different cadres in Government service. Whether there should be a combined seniori ty in different cadres or groups was, according to the Court, a matter of policy which did not attract the applicability of the equality clause. The integration of non-clerical with clerical services which was effectuated by the Combined Seniority Scheme was, in the circumstances, held to be not violative of the guarantee contained in Articles 14 and 16.28. As regards the retrospective operation given to the Scheme with effect from May 22, 1974, it does appear that the Board has st ruck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III. But that was inevitable and we consider it as the best solution in the peculiar circumstances of the case. In order to rectify the imbalances and anomalies caused by the compartmentalised and group-wise seniority, it was necessary to give retrospective effect to the Combined Seniority List. Officers belonging to Group I urged that the Scheme should be b rought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to be brought into effect from January 1, 1970. The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade A and part of Grade B officers was announced. It was, again, on that date that the Bank had announced that a similar de cision in regard to the remaining grade, of officers was under its considerations. Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force. If a certain section o f officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified. That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers. Shri Nariman has drawn our attention to various individual cases of officers in Group I whose old seniority has gone down by several steps in the new Scheme. As we have stated earlier, any scheme of seniority is bound to produce isolated aberrations. That cannot justify the argument that the entire Scheme is for that reason violative of the guarantee of equality.We are, therefore, of the opinion that the imp ugned Administration Circular, the Office Order and the Combined Seniority List are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution.29.
### Response:
0
### Explanation:
been a closed or static chapter and it is wrong to think that t he officers of the various groups were kept, as it were, in quarantine. The group system has been a continuous process of trial and error and the impugned scheme of inter-group mobility has emerged as the best solution out of the e xperience of the past. Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. It is clear that inter-group mobility and commo n seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot override public interest an d an effort has to be made to harmonize the two considerations. No scheme governing service matters can be fool-proof and some section or the other employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. V ested interests are prone to hold on to their acquisitions and we understand the feelings of Group I officers who have to surrender a part of the benefits which had accrued to them in a water-tight system of grouping. Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities. The reports of the Cardre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity. We see no justification for undoing what these com mittees have achieved after an objective and integral examination of the whole issue. We may mention that the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later Indias Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt. of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 th at the final decision was taken by the Central Board to introduce inter-group mobility and combined seniority.In Reserve Bank of India v. N.C. Paliwal, a Combined Seniority Scheme was introduced by the Reserve Bank of India, consisting of two parts, one part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments, while the other provided for the switch-over and integration of the non-clerical staff with the clerical staff in all the Departments of the Bank. The Delhi High Court set aside the Scheme on the ground that it violated Articles 14 and 16 of the Constitution. While setting aside the judgment of the High Court, this Court held that th e integration of different cadres into one cadre did not involve violation of the equality clause and that neither Article 14 nor Article 16 forbids creation of different cadres in Government service. Whether there should be a combined seniori ty in different cadres or groups was, according to the Court, a matter of policy which did not attract the applicability of the equality clause. The integration of non-clerical with clerical services which was effectuated by the Combined Seniority Scheme was, in the circumstances, held to be not violative of the guarantee contained in Articles 14 andregards the retrospective operation given to the Scheme with effect from May 22, 1974, it does appear that the Board has st ruck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III. But that was inevitable and we consider it as the best solution in the peculiar circumstances of the case. In order to rectify the imbalances and anomalies caused by the compartmentalised and group-wise seniority, it was necessary to give retrospective effect to the Combined Seniority List. Officers belonging to Group I urged that the Scheme should be b rought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to be brought into effect from January 1, 1970. The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade A and part of Grade B officers was announced. It was, again, on that date that the Bank had announced that a similar de cision in regard to the remaining grade, of officers was under its considerations. Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force. If a certain section o f officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified. That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers. Shri Nariman has drawn our attention to various individual cases of officers in Group I whose old seniority has gone down by several steps in the new Scheme. As we have stated earlier, any scheme of seniority is bound to produce isolated aberrations. That cannot justify the argument that the entire Scheme is for that reason violative of the guarantee of equality.We are, therefore, of the opinion that the imp ugned Administration Circular, the Office Order and the Combined Seniority List are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution.
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G. Sundarrajan Vs. Union of India (UOI) and Ors | a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life meant not for the rich and famous alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector and also have to invite foreign investment. Generation of electricity is of extreme importance for their establishment and functioning and also for domestic consumption. Power generation with the traditional means, through hydro, thermal electric project, coal etc. are not effective substitution to the power generation through Nuclear Plant. India has a mammoth population unlike developed countries, and the consumption of electricity in domestic, industries, agricultural sector etc. is going up day-by-day. Most of the States are in the grip of power cut; day and night, for a number of hours, which has adverse effect on their economic and industrial growth. To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also increasing, nuclear power in the long run will be much cheaper than other forms of energy. 183. This Court in Chameli Singh and Ors. v. State of U.P. and Anr. (1996) 2 SCC 549 held that an organized society right to live as a human being is not ensured by meeting only the animal needs of man, but secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and civil amenities like road etc. so as to have easy access to his daily avocation. 184. Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The Petitioners contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution, is therefore has no basis. On the other hand it will only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act. EXPERTS VIEWS-TECHNICAL AND SCIENTIFIC 185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already taken at KKNPP which are to be given due weight that they deserve. Further, as already indicated NPCIL Task Force Report on Security of all NPPs including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert Opinion on Design Committee Safety dated 31.8.2011, 15 Member Expert Team Committee Report (post Fukishama) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, report submitted by Sri R. Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP. 186. MoEF, EAC, TNPCB, Report of IOM, Anna University dated July 2008 on Impact of NPP on Marine Eco-system, Committee on Conservation of Sea-Shore of the State of Tamil Nadu, Report of Engineers India Limited with CHFRI dated August 2011, NEERI dated May 2002 and January 2003 on the Impact on Air, Water, Land, Eco-system etc. are all unanimous that the radiation as well as the discharge of water from NPP to the sea shore will not have serious impact on the marine ecology or on marine life. 187. A Constitution Bench of this Court in University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491 , held that, normally, Court should be slow to interfere with the opinion expressed by the Experts and it would normally be wise and safe for the courts to leave the decisions to experts who are more familiar with the problems which they face than the courts generally can be which has been the consistent view taken by this Court. Reference may be made to the judgments of this Court in State of Bihar v. Asis Kumar Mukherjee (Dr.) (1975) 3 SCC 602 , Dalpat Abasaheb Solunke v. B.S. Mahajan (1990) 1 SCC 305 , Central Areca Nut and Cocoa Marketing and Processing Coop. Ltd. v. State of Karnataka (1997) 8 SCC 31 , Dental Council of India v. Subharti K.K.B. Charitable Trust and Anr. (2001) 5 SCC 486 , Basavaiah (Dr.) v. Dr. H.L. Ramesh (2010) 8 SCC 372 and Avishek Goenka v. Union of India (2012) 5 SCC 275. In Woon Tankan and Seven Others v. Asian Rare Earth Sdn. Ehd. CLJ (1992) 2 207, the Supreme Court of Malaysia vide its judgment dated 23.12.1993 examined the effect of low-level radioactive waste on the health of the population. The Supreme Court upheld the plea of the company, placing reliance on the expert opinion expressed by the Atomic Energy Licensing Board (AELB) and took the view that since the company has been operating under license granted by AELB, an expert body, it will be taken that the expert body had the expertise to speak on the radiation level of the radioactive waste, on the health of the population. 188. We have noticed that, so far as this case is concerned, from the safety and security point of view of life and property, on environment and all that related aspects, all the Expert Bodies are unanimous in their opinion that KKNPP has fully satisfied all safety norms to safeguard the human life, property and environment which, we are sure, will allay the fears and apprehensions expressed by the people living in and around Kudankulam. The Court, in our view, cannot sit in judgment on the views expressed by the Technical and Scientific Bodies in setting up of KKNPP plant at Kudankulam and on its safety and security. CONCLUSION | 1[ds]9. India draws bulk of its electricity, above 64%, from thermal sources, especially coal. Hydro power comes second of 18% and then renewable sources provide small share at about 15%. We are informed that, at present, the share of nuclear energy is hardly three per cent of Indias total electricity production, while France accounts for 74.6% as on 2008. NPPs provide about 6% of the worlds energy and 13-14% of the worlds electricity with U.S., France and Japan together accounting for about 50% of nuclear generated electricity. U.S.A. has 104 nuclear reactors and more than 100,000 MWe of electricity is produced by nuclear generation. International Atomic Energy Agency (IAEA) has reported that in the year 2007, there were 439 Nuclear Power Reactors in operation in the world operating in thirty one countries. The DAE, it is reported, plans to increase its nuclear energy production to 20000 MWe by 2020 and 63,000 by 2030. The Policy makers consider that the nuclear energy remains as an important element in Indias energy mix for sustaining economic growth of natural and domestic use. One of the reasons for preferring nuclear energy as an alternative source of energy is that it is a clean, safe, reliable and competitive energy source which can replace a significant part of the fossil fuels like coal, oil, gas etc. Oil and natural gas resources might exhaust themselves. Coal is also not an effective substitution since forests are also no longer able to satisfy the energy requirements. Major source of electricity generation, about 66%, is still contributed by fossil thermal powers, like coal. To put into practice the national policy, India has already entered into various collaborations with most of the developed countries which have proved expertise and experience in the field of establishment and production of nuclear energy.10. Economic growth and energy support have to go hand in hand, for the countrys development for which India has entered into various collaboration agreements with U.S.A., Canada, Russia etc. and several NPPs have already been set up in the country. Government of India, in implementation of its national policy, had made a joint statement with U.S.A., called Indo-U.S. Joint Statement 2005, for a renewed global civil nuclear energy co-operation. A co-operation agreement called 2007 Co-operation Agreement was also entered into between India and U.S.A. for the peaceful uses of nuclear energy. This was later followed by the Indo-France Joint Statement in September, 2008. A Joint Statement was made in February 2010 with United Kingdom. Above facts would indicate that in order to give effect to the National Policy for development, control and use of atomic energy, India has entered into various bilateral treaties and arrangements with countries which have considerable expertise and experience. For establishing the NPP at Kudankulam, India had entered into an inter-governmental agreement with the erstwhile USSR in November 1988 followed by a supplementary agreement on 21.06.1998 signed by India and Russia which is in tune with Indias National Policy.11. Indias National Policy has been clearly and unequivocally expressed by the legislature in the Atomic Energy Act. National and International policy of the country is to develop control and use of atomic energy for the welfare of the people and for other peaceful purposes. NPP has been set up at Kudankulam as part of the national policy which is discernible from the Preamble of the Act and the provisions contained therein. It is not for Courts to determine whether a particular policy or a particular decision taken in fulfillment of a policy, is fair. Reason is obvious, it is not the province of a court to scan the wisdom or reasonableness of the policy behind the Statute.13. This Court in M.P. Oil Extraction and Anr. v. State of M.P. and Ors. (1997) 7 SCC 592 held that unless the policy framed is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is invalid in constitutional or statutory mandate, courts interference is not called for. Reference may also be made in the judgment of this Court in M/s. Ugar Sugar Works Ltd. v. Delhi Administration and Ors. (2001) 3 SCC 635 ; Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal and Ors. (2007) 8 SCC 418 and Delhi Bar Association v. Union of India and Ors. (2008) 13 SCC 628. We are therefore firmly of the opinion that we cannot sit in judgment over the decision taken by the Government of India, NPCIL etc. for setting up of KKNPP at Kudankulam in view of the Indo-Russia agreement. Courts also cannot stand in the way of the Union of India honouring its Inter-Governmental Agreement entered into between India and Russia.14. We may, however, focus our attention on various other issues raised in these appeals in the light of the provisions of the Atomic Energy Act, Rules and Regulations framed thereunder, International conventions, covenants entered into by India with other countries, AERB Code of Practices and Safety Guides, Experts opinion, Environmental and other related laws.22. We have already indicated that these issues are to be addressed to policy makers, not to courts because the destiny of a nation is shaped by the peoples representatives and not by a handful of judges, unless there is an attempt to tamper with the fundamental Constitutional principles or basic structure of the Constitution.23. We are however deeply concerned with the safety and security of the people of this country, its environment, its flora and fauna, its marine life, ecology, bio-diversity and so on which the policy makers cannot be on the guise of national policy, mutilate or rob of, in such an event the courts can unveil the mask and find out the truth for the safety, security and welfare of the people and the mother earth.34. Various codes and safety standards issued by the AERB, referred to above, mainly deal with siting, design, construction, operation, quality assurance, decommissioning etc. Safety codes and safety standards are formulated on the basis of nationally and internationally accepted safety criteria for design, construction and operation of specific equipment, systems, structures and components of nuclear and radiation facilities. Further, India has also entered into various bilateral treaties and is also a party to various international conventions on nuclear safety, physical protection of nuclear material, nuclear accident, radiological emergency and so on. India, as already stated, is also governed by the safety and security standards laid down by IAEA. A brief reference to those conventions, treaties and IAEA may be apposite.Few facts and trends highlighted in the report prepared by an independent commission at the request of the IAEA in May 2008 highlights the ten key facts and trends which frame the nuclear opportunities and challenges the world now faces. The report highlights that to sustain rapid global economic growth, it is necessary to double the supply of energy and tripling supply of electricity by 2050. Further, it is stated billions of poor people need energy and other life saving and job creating technologies. The report also noticed that energy prices are increasing, a broader reliance on nuclear energy whose prices are much less dependent on its fuel costs conceivably could help to ameliorate those tensions and risks. The report highlights that the world still dependent on burning coal, oil and natural gas for 80% of its energy supply surging energy use causes surging emissions of greenhouse gases disrupting the climate with potentially catastrophic results. Nuclear energy, it is stated, is a readily expandable source of low-carbon baseload electricity and in the future might also help to meet other energy needs such as hydrogen production and water desalination.45. The IAEAs International Project on Innovative Nuclear Reactor and Fuel Cycles (INPRO) brings many States together to consider approaches to safer, cheaper, more secure and more proliferation-resistant nuclear systems with effective management of nuclear waste. India is in partnership with the IAEA and has incorporated many of its directives in the code of practice framed by the AERB, hence there could be no compromise on safety and security of the NPPs in the country. We have elaborately discussed the Safety and Security Code of Practices laid down by AERB, IAEA and its supports so as to allay the apprehension or fears expressed from various quarters on the safety and security of KKNPP and its effect on human life, property and environment and we notice that adequate and effective protection measures are in place.46. Parliament, as we have already indicated, is very much concerned with the safety and security of its people and its environment. The Preamble of the Act pronounces in an eloquent terms that it has been enacted for the development, control and use of atomic energy for the welfare of the people of India. Peoples comfort, happiness, prosperity and the economic growth of the nation is always the concern of their representatives in the Parliament. Safety and security of people in that process have to be in the uppermost mind of the legislature. Keeping in mind that concern, special provisions have been incorporated for the safety and security. Reference has already been made to Section 17 of the Act which casts an obligation on the Central Government to ensure proper rules with regard to the safety, which we have already examined at length. We have also examined both nationally as well as internationally accepted guidelines for safety and security of the people of the Nation and notice that those are being followed. In Peoples Union for Civil Liberties and Anr. v. Union of India and Ors. (2004) 2 SCC 476 , the Court held that the Atomic Energy Act deals with a sensitive subject. Statutory scheme contained in the provisions of the Act, the Rules framed thereunder, composition of the AEC and AERB leave no manner of doubt that the effective functions of the nuclear power plants are sensitive in nature. Various Codes of Practice, safety guidelines, extensively discussed above and the decision taken in various international conventions and the guidelines laid down by various international agencies followed by India are meant to protect the life and property of people including the environment, guaranteed under Article 21 of the Constitution of India.55. Management of radioactive waste includes all types of radioactive waste generated from the entire fuel cycle right from mining uranium fuel fabrication through reactor operations, and whole re-processing spent fuel. A coherent, comprehensive and consistent set of principles by way of IAEA document titled Storage and Disposal of Spent Fuel and High Level Radioactive Waste, AERB Safety Guide to AERB Management of Radioactive Waste Code 2007 are already in place. Further, the 15 member team in its report, in December 2011, has to say this on spent fuel management.6.3 Spent Fuel Management:First and foremost it should be remembered that Spent Fuel is not a waste in the Indian Nuclear Programme. A closed fuel cycle is followed, where the valuable fissile materials like Uranium and Plutonium which are present in the Spent Fuel are recovered to reuse.1) Spent fuel is therefore an asset that needs to be preserved. At Kudankulam, Spent Fuel from the Reactors will be carefully stored in Storage Pools, which are always filled with pure, demineralised borated water which is constantly recirculated. These pools are high integrity concrete pools which are additionally lined with stainless steel sheets, to ensure effective containment for extended periods of time. The Department of Atomic Energy has long experience and expertise of a high order in the safe management of Spent Fuel.2) There is no plan to do the reprocessing of the Spent Fuel at Kudankulam site. As such the storage of Spent Fuel at Kudankulam is to be considered only as an interim measure till they are transported to a Reprocessing Facility.3) Adequate Technology and years of experience are available with Department of Atomic Energy for transporting Spent Fuel from one site to another through both Railways and by roadways, in a safe manner without any public hazard. This is done as per stipulations of AERB, regarding Transport Regulations that govern safety.NSF WASTE - TRANSPORTATION:57. The SNF from NPPs, after an adequate storage period, is transported to reprocessing facilities located within the country, following the International and AERB guidelines and standards. NPCIL, DAE and MoEF have maintained the stand that they are aware of the importance of safety and security and have taken care to ensure that the management and transportation of spent fuel is carried out safely following the international recognized norms and Regulations and the same is being done under the observation of AERB and the Government of India.58. SNF poses a dangerous, long-term health and environmental risk and it is often said that it remains dangerous for time spans seemingly beyond human comprehension. Issue, needless to say, is of great concern. It may be noted, twenty years of work on establishing a geologic repository at Yucca Mountain, USA, had to be abandoned when the Department of Energy decided to withdraw its licence application for the facility. NPCIL has maintained SNF is being kept at the site for re-processing or transported to a permanent repository and how save it is, if not properly kept, as we have already indicated, can cause serious health hazard not only to the present generation but to the future generation as well, to whom we owe a responsibility.59. India has got the capability for re-processing SNF, experts say. Currently, India has three operating processing plants based on solvent extraction process - one each at Trombay, Tarapur and Kalpakkam. Trombay plant reprocesses the spent fuel from research reactors with the capacity of 60 tons per year. The plants at Tarapur and Kalpakkan process off-site fuels from PHWRs with operating capacity of 100 tons per year each. Additional re-processing facilities are being set up with the active participation of the Indian industry to accelerate the programme.60. We notice that with the limited resources of uranium available in India, the indigenous achievable NP is estimated to be 10,000 MWe by PHWR, without re-processing. With the help of re-processing, the achievable capacity could go up to 63000 MWe imported LWR and recycling LWR fuel to 275,000 MWe, by 2052. NPCIL has, therefore, taken up the stand that reprocessing of spent fuel is the key to the countrys three stage nuclear power programme. 97% of the SNF is capable of being re-used, but what has to be done with regard to the remaining 3% SNF, is a moot question, since it is not re-useable, which consists of various fission products and minor actinides. This 3% waste comprises of minor actinides which have a long half-life of lakhs of years. Experts, however, say that if the minor actinides are partitioned or removed, the rest of the waste is dominated by FPs having a half-life of about 30 years and so in 10 half-lives (300 years) will have negligible activity and the partitioned minor actinides can then be transmuted or burnt by inducing fission in Fast Breeder Reactors or in Accelerator Driven Systems (ADS).61. We may, in this connection, refer to the judgment of the US Court of Appeals in State of New York, ETAL v. NRC and USA dated 8.6.2012. In that case, the Court was dealing with the issue regarding temporary storage and permanent disposal of nuclear waste. The Court held that the Nuclear Regulatory Commissions evaluation of the risks of spent nuclear fuel is deficient in two ways: First, in concluding that permanent storage will be available when necessary, the Commission did not calculate the environmental effects of failing to secure permanent storage - a possibility that cannot be ignored. Second, in determining that spent fuel can safely be stored on site at nuclear plants for sixty years after the expiration of a plants license, the Commission failed to property examine future dangers and key consequences.62. We notice that the above decision would not directly apply to the facts of the present case. United States is following open fuel cycle process where spent fuel is not reprocessed, but disposed of treating the same as waste but, in India, we follow close fuel cycle process, where reprocessing of SNF to obtain uranium and plutonium is an essential step.63. AERB, way back in 1989, had recommended to have an Away from Rector Storage (AFR) facility at KKNPP for prolonged storage of SNF while granting siting clearance. Design-Safety aspects of AFR, it is stated, would be reviewed by AERB, one such facility is already available at Tarapur, where it is reported that there has been no adverse impact on the environment issue of such storage. AERB, in subsequent reviews, made recommendations with respect to AFR facilities. In ACPSR 126th Meeting held on 15/16.9.2011, the issue related to AFR was reviewed and it was recommended that AFR should be finalized well before 5 years of operation.DEEP GEOLOGICAL REPOSITORY (DGR):64. Permanent DGR, India may require, after a few decades, states NPCIL. Research and development work, we are informed, are in progress over three decades in the field of in-situ experiments, natural barrier characterisation, numerical modelling, conceptual design and natural analogue of waste forms and repository processes. Keeping in line with the international developments, initial focus of work in 80s centred mainly on setting up of generic Underground Research Laboratory (URL), in one of the abandoned mines in India and resulted in the development of an underground chamber in Kolar goldmine located in South India. Current efforts within the Indian geological repository programme are directed towards granite based URL. The experts feel that setting up of a DGR is not much of a technological challenge, but as is the case internationally everywhere, the issue is more of a sociopolitical issue.65. We are of the view that these issues have to be dealt with by the Experts in the field, evidently, without much delay. The AERB Safety Code on Management of Redioactive Waste of 2007 does not deal with the requirements for DGR. The problem of this nature is being faced by all the nuclear plant operating countries, including India. Research is on to handle SNF in DGR which, in the near future, let us hope, would be a reality, but that shall not deter us in holding up of such a project which has been established at KKNPP in implementation of the Indias Nuclear Policy.66. We may, however, caution that it is of utmost importance that the Union of India, NPCIL etc. should find out a place for a permanent DGR. Storing of SNF at NPP site will, in the long run, poses a dangerous, long term health and environmental risk. NPCIL and the Union of India is bound to look at the probabilities of potentially harmful events and the consequences in future. Noticeably, NPCIL does not seem to have a long term plan, other than, stating and hoping that in the near future, it would establishes a DGR. The Atomic Energy Act, especially Section 17, envisages present and future safety of our NPPs and the lives and environment around. NPCIL and the Union of India must have a hard look at the environmental consequences of its action of setting up of NPPs, hence a permanent DGR is of utmost importance, which they should plan now.Radioactive material67. We are all exposed to the naturally occurring radiation in our daily lives. Cosmic radiation from outside the solar system is also common phenomenon. Earths crust is radioactive, so also above the earths surface where we fly by aeroplane, we also get doses of radiation. Medical diagnostic treatment such as X-Ray, CT-Scan, angiography, angioplasty also radiates radioactive dose. However, the development of nuclear reactors which, for the first time, made possible the production of radioisotopes of many different elements, expanded the field of radioactive materials. Production and use of it, therefore, is bound to create a little bit of marginal radiation which seldom can be prevented. The Atomic Energy (Radiation Protection) Rules, (Radio Protection Rules now) were initially framed and revised in 2004. According to the Rules no person could handle radioactive material or operate any radiation generating equipment except in accordance with the terms and conditions of a licence. The Atomic Energy (Control of Irradiation of Food) Rules, 1990 (revised in 1996) seeks to regulate the irradiation of foods in the country. Provisions of the Act, statutory rules and Regulations, various codes, safety standards etc. issued by the AERB buttressed by the technical assistance provided by IAEA, NEA, The World Association of Nuclear Operations (WANO) etc. are being followed in India in respect of 20 operating power reactors which are existing in this country. Safeguarding the nuclear plants, radioactive materials and ensuring its physical security have therefore become a central part of nuclear law. Risks arising from NPP, do affect not merely the country which choose to use that technology but can have catastrophic consequences to the neighboring countries as well. Non-proliferation, disarmament and peaceful use are stated to be the three pillars of all the international conventions. Nuclear technologies and techniques, it is well accepted, can offer vital benefits for improving human-well being, like health care, radio-therapy, food security, agricultural advantages to the present and generation.73. We are convinced that KKNPP design incorporates advanced safety features complying with the current standards of redundancy, reliability, independence and prevention of common cause failures in its safety systems. Design also takes care of Anticipated Operational Occurrences (AOO), Design Basis Accidents (DBA) and Beyond Design Basis Accidents (BDBA) like Station Black Out (SBO), Anticipated Transients Without Scram (ATWS), Metal Water reaction in the water core and provision of core catcher to take care of core degradation. The design also includes the provisions for withstanding external events like earthquake, tsunami/storm, tidal waves, cyclones, shock waves, aircraft impact on main buildings and fire. The 17 recommendations were made after Fukushima accident the cause of which is natural phenomenon. The facts would indicate that Tsunami-genic zone along East Coast of India is more than 1300 km away from the nearest NPP site (Madras/Kalpakkam) and about 1000 km. away from Kudakulam. The possibility of hitting tsunami at Kudakulam, as the one that hit Fukushima, seems to be very remote.83. Strict Liability Principle has been examined by this Court in the environmental point of view in several judgments. In M.C. Mehta v. Union of India AIR 1987 SC 1086 (Oleum Gas Leakage case), this Court held that the industries which are engaged in hazardous or inherently dangerous activity, possess serious threat to health and safety of persons and have an absolute and non-delegable duty to ensure that no harm is caused to the life and safety of the people. In Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212 , this Court held that once the activity carried on in hazardous or inherently dangerous, the person carrying on such activity is liable to make good losses caused to any other person by his activity, irrespective of the fact that he took reasonable care while carrying on his activity. In Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647 , this Court held that once the activity carried on is hazardous or potential hazardous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity, irrespective of the fact that he took reasonable care. The absolute liability extends not only to compensate the victims of pollution, but also the cost of restoring environmental degradation. In Vellore Citizens Welfare Forum (supra), this Court reiterated the polluter pays principles. It is unnecessary to multiply the authorities on the principle of strict liability, precautionary principle, polluter pays etc., which find their expression in Articles 21, 47, 48A, 51A(g) of the Constitution of India.84. We have examined the above principles only to highlight the importance of the Act and the steps taken for its effective implementation. People in this country have not forgotten the incidents which had happened in the Union Carbide Pesticides Plant in Bhopal in the night of 24.12.1984. This Court in Union Carbide Corporation v. Union of India (1989) 2 SCC 40, based on an earlier settlement, directed the Union Carbide to pay US $ 470 million to the Union of India in full and final settlement of all claims, rights and liabilities related to and arising out of Bhopal Gas Tragedy. Following that, it was ordered that all civil proceedings arising out of Bhopal Gas Disaster, shall stand concluded in terms of the settlement and all criminal proceedings related to and arising out of the disaster shall stand quashed, wherever they were pending. Later, this Court modified that order upholding the settlement except the condition of quashing criminal charges in Union Carbide Corporation v. Union of India AIR 1992 SC 248 .85. Considering Indias population density and our National Policy for setting up various NPPs in the country, safety and security of the plants are of extreme importance, lest a nuclear accident can cause immense damage both in terms of human life as well as environmental destruction. Provisions have also to be made for remedying or compensating environmental damage caused by the accidents, without merely limiting it to personal injury and damage to property.DISASTER MANAGEMENT PLAN:86. Disaster Management Plan (DMP) is of paramount importance, since we are dealing with a substance which has huge potential of causing immense damage to human beings and to the environment, which may cross over generations after generations.87. After the accidents in Three Mile Island, Chernobyl and Fukoshima, there has been an uproar all over the world including India for adopting sufficient safety measures for handling nuclear/radiological emergencies which may likely to occur in various NPPs situated in the country. Any radiation incident resulting in or having a potential to result in exposure and/or contamination in excess of the respective permissible limits can lead to a nuclear/radiological emergency. Situations are, of course, not bound to occur quite often, but one must be prepared to face nuclear/radiological emergencies because of high population density in a country like India. Nuclear/radiological emergencies can occur due to factors beyond the control of the operating agencies, for example, human error, system failure, sabotage, earthquake, cyclone, flood etc. Noticing the above factors, the Central Government decided to enact a law on Disaster Management to provide for requisite institutional mechanisms for drawing up and monitoring the implementation of the disaster management plans, ensuring measure by various wings of Government for prevention and mitigating affects of disasters and for undertaking a holistic, coordinated and prompt response to any disaster situation.88. The Parliament enacted the Disaster Management Act, 2005 (DM Act), following that, the National Disaster Management Authority (NDMA) was constituted with the Prime Minister as the Chairperson. Similar authorities have been created in various States with their Chief Ministers as the Chairpersons. NDMA has assumed the responsibility of strengthening the existing nuclear/radiological emergency management framework by involving all stake holders in a holistic approach through a series of mutually interactive, reciprocal and supplementary actions to be taken on the basis of a common thread - the National Guidelines. Following that, NDMA, after conducting a detailed discussion with all the stake holders, issued the National Disaster Management Guidelines, 2009, which has the concurrence of the DAE, AREB. The guidelines recommended a series of actions on the part of various stake holders at different levels of administration that would (i) mitigate the accident at source; (ii) prevent deterministic health effects in individuals and limit the probability of stochastic effects in the population; (iii) provide first aid and treatment of injuries; (iv) reduce the psychological impact on the population; and (v) protect the environment and property. The guidelines have been prepared to provide direction to the central Ministries/departments, State Governments and local authorities for preparing detailed action plans to ensure inbuilt capabilities to handle nuclear and radiological emergencies as part of an all-hazard Disaster Management plan in the public domain.95. The necessity to accord proper training to the personnel involved in the management of radiation emergencies, which includes education of senior public functionaries like the district or state-level officials who would manage a radiation emergency as well as the first responders, needs special emphasis. This would also include RSOs, civil defence personnel and home guards, police and fire and emergency services personnel and medical professionals. The guidelines also highlight the necessity of a proper network of roads and transport system. An off-site emergency situation, the emergency response plans envisage evacuation of the public from the affected zone which requires well-defined routes and evacuation strategies. The availability of both adequate transport and good roads, which would provide the evacuation routes, is of paramount importance. Further, certain radiation emergency scenarios envisage a sheltering requirement for a large number of people. Normally, community centres, schools, colleges, religious places, marriage halls, etc. are chosen for this purpose. SDMAs/DDMAs should identify those places during a non-emergency period, with assistance from DAE/DRDO.96. It is also highly necessary to identify alternate sources of food, water and hygiene facilities. Because of the assembly of a large number of persons at the emergency shelters, poor hygiene facilities may lead to the spread of diseases, including epidemics. In addition to providing good hygiene facilities, good medical care with adequate stock of medicines, should be made available in all areas of possible nuclear emergencies/disasters.99. Facts presented indicate that there is no population in the Exclusion Zone of KKNPP. Exclusion Zone is under the exclusive control of the plant operator NPCIL, guarded by CISF, where no public habitation is permitted. The property wall at a distance of 2 km from the reactor buildings existing at KKNPP, which encloses the exclusion zone, and no people reside permanently inside the property wall. A sterilised area around the exclusion area covering an area of up to 5 km radius from the plant has also been established. As per AERB Citing Code, the desirable population within the sterilised zone is about 20000. As per the documents available, 3 villages are within SZ of KKNPP, namely, Kudankulam, Vijayapathi (Idinthikarai) and Irrukkandurai. As per 2001 census, the population residing with SZ consisting of these three villages is approximately 23960, which has been taken care of while preparation of the Emergency Preparedness Plan (EPP) of KKNPP.100. NPCIL, after due concurrence with AERB, as already indicated, has prepared the Emergency Preparedness Plan Vol. V for off-site emergency at KKNPP. The EPP has listed the composition of Off-Site Emergency Response Co-ordination Committee (OERCC) comprising of 14 district administration officials for implementing counter measures in public domain in case of an emergency. The District Collector, Tirunelveli is the Off-Site Emergency Director and the members are District Revenue Office, Site Director, KKNPP, Superintendent of Police, District Forest Officer, Joint Director (Fisheries), Deputy Controller (Civil Defence), Divisional Fire Officer, Executive Engineer (Irrigation), Joint Director (Agriculture), Deputy Director (Animal Husbandry), District Supply Officer, Regional Transport Officer, Deputy Director (Health Services). The overall responsibility of OERCC and individual responsibilities of the members of the Committee have been chartered in the Emergency Preparedness Plan for effective implementation of counter measures. Eleven Emergency response teams such as warning and advise Team, Emergency Response Teams, Traffic Control Team, Prophylactics Distribution Team, Evacuation Advice Team, Convoy Team, Decontamination Team, Rallying Post Team, Patrolling Team, Information Team and Services Support Team have also been formed and are in place as well.102. The Off-Site Emergency Exercise was carried out as per the requirements of AERB Safety Guide on Consenting Process for NPPs. Off-Site Emergency Exercise is required to be carried out once in two years and that NPCIL and State Authorities would conduct such exercises in other nearby villages frequently. Such mock-drills are conducted to educate the public not to scare them away, but make them understand that the Project is part of the National Policy, participatory in nature, and hence we cannot remain as a nuclear isolated Nation. We have to find out a substitute for other sources of energy. Such exercise was carried out annually to assess whether plant management and the local authorities, including the communication and infrastructure facilities, are geared up for tackling with a real emergency situation, in case it arises.103. We heard Shri Rakesh Diwedi, learned senior counsel appearing for the State of Tamil Nadu, who gave an overall view of the steps taken by the State Government and the District Collector, Tiruvelveli for implementing the Neighbourhood Development Scheme relating to housing, steps taken for off-site emergencies, awareness programme, other infrastructural facilities. We have also gone through the detailed affidavit filed by the District Collector, Tirunelveli District on December 2012 and noticed the steps taken by the District Administration and the State to meet the Off-Site emergencies, awareness programmes and the other steps taken to provide infrastructural facilities like up-gradation of Primary Health Centres, opening of New Primary Health Centres, setting up of Desalinate place at Uvari, solar energy lighting system etc.CORPORATE SOCIAL RESPONSIBILITY (CSR):104. Sustainable Development and CSR are inseparable twins, integrated into the principles of Inter and Intra-Generational Equity, not merely human-centric, but eco-centric. CSR is much more when the Project proponent sets up NPPs, thermal power plants, since every step taken for generation of energy from such hazardous substances, is bound to have some impact on human beings and environment, even though it is marginal. The Department of Public Enterprises (DPE), recently, issued a Comprehensive Guidelines on CSR for Central Public Sector Enterprises, which includes NPCIL, to create, through the Board Resolution, a CSR budget as a specific percentage of net profit of the previous year. CSR is envisaged as a commitment to meet its social obligations by playing an active role to improve the quality of life to the communities and stake-holders on a sustainable basis, preferably, in the project area where it is operating. CSR strategy has to be put in practice in line with the millennium development goals as lodged by United Nations and adopted by the Government of India in the 11th Five Year Plan i.e. 2007-2012, which could cover the areas of education, health, drinking water/sanitation, environment, solar lighting system, infrastructure for backward areas, community development and social empowerment, promotion of sports and traditional forms of arts and culture, generation of employment opportunities and livelihood to be a part of the National/Local initiatives to provide reliefs/rehabilitation in terms of natural disaster, calamities etc.We notice that, apart from the above, Rs. 500 crores has been allocated for Neighbourhood Development Programme (NDP) around the nuclear plant at Kudankulam, which would be utilized for taking up various development works like setting up of cold storage and fishing marketing area, Public board motor works, housing facilities, levelling of roads, upgradation of health services, grownes and drinking water etc. The Chief Secretary of Tamil Nadu convened a meeting on 15.5.2012 following CSR, in which it was decided to set up a fund of Rs. 300 crores for the housing scheme for a projected period from 2012 to 2015. The proposal is to construct 10000 houses in the housing project with a unit cost of Rs. 3,00,000/- per house with a plinth area of 300 sq. Feet under NDS. Various other development activities are also being undertaken as part of CSR, like upgradation of public health centres, establishment of new public health centres etc.106. This Court in Banwasi Seva Ashram v. State of U.P. AIR 1987 SC 374 allowed the construction of NPP in a displaced forest area, but ordered inter alia that every family of forest dwellers be provided with a housing plot of specified dimensions elsewhere, that health, education, sanitation services and the like, be provided there, as part of CSR.107. NPCIL in association with the District Collector, Tirunelveli should take effective steps to discharge their CSR in accordance with the DPE Guidelines. Needless to say, there must be an effective and proper monitoring and supervision of the various projects undertaken under CSR, to the fullest benefit of the people who are residing in and around the NPP.PART II109. Public opinion, national policy, economic growth, sustainable development, energy security are all intrinsically interlinked. One cannot be divorced from other, all the same, a balance has to be struck. National policy of this country, as already stated, is that atomic energy has a unique position in the emerging economics in India. Nuclear energy is, therefore, considered to be a viable source of energy and it is necessary to increase countrys economic growth. Nuclear energy is now considered in India as a sustainable source of energy and India cannot afford to be a nuclear isolated nation, when most of the developed countries consider it as a major source of energy for their economic growth. Renewed momentum against the setting up of NPPs picked up fast after accidents at the Three Miles Island Power Plant in USA, Chernobyl in Ukraine and Fukoshima in Japan. Primary reason for such opposition seems to be on the issues of the impact of nuclear installations on life and property, environment, flora and fauna, marine life, nuclear waste disposal, health, displacement of people etc. which has a direct link with Article 21 of the Constitution of India and the environmental laws of the country.124. The Government of India after due deliberation with AEC, AERB, NPCIL and other organizations decided, in principle, to set up a NPP, for which Site Selection Committee of DAE was constituted and the Committee examined various sites in the Coromandel Coast of Tamil Nadu and selected the site at Kudankulam as the most ideal for selling up of NPP on scientific, technical, safety, security and environmental point of view. No regulatory requirement of CZR (except 500 metres norm) at the sea coast was in force at that time. The Prime Minister of India had written a letter in November 1981 to all the Chief Ministers of Coastal States in which it was stated as under:The degradation and misutilization of beaches in the coastal states is worrying as the beaches have aesthetic and environmental value as well as other values. They have to be kept clear of all activities at least up to 500 metres from the water at the maximum high tide. If the area is vulnerable to erosion, suitable trees and plants have to be planted on the beaches without marring their beauty. Beaches must be kept free from all kinds of artificial development. Pollution from industrial and town wastes must also be avoided totally.125. Following the letter of the Prime Minister, a nine Member Working Group comprising experts in the fields of marine biology, nature conservation, tourism, pollution control and human settlements was constituted to formulate guidelines for the development of beaches. The Committee formulated the environment guidelines for development of beaches in July 1983. Before selecting the site at Kudankulam, a detailed study was conducted as to the suitability of the site, safety, radiological impact and its assessment, external natural events, foundation conditions, water availability and various other factors. Following that, an application was submitted in the year 1988 by the NPCIL before the State of Tamil Nadu for location of NPP at Kudankulam. The application was considered by the Committee on conservation of seashore of Government of Tamil Nadu since the plant had to be set up at the sea shore. The committee after considering the proposal accorded clearance for the location of the plant at Kudankulam which is reflected in the letter dated 25.02.1988 sent by the Secretary to the Government, State of Tamil Nadu.131. MoEF in exercise of powers conferred under Section 3(i) and 3(2)(v) of the Environmental (Protection) Act, 1986 and Rule 5(3)(d) of the Environmental (Protection) Rules, 1986 issued a Notification dated 19.2.1991 declaring coastal stretches as Coastal stretches of seas, backwaters, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 Mtrs. from the HTL and the land between the low tide line (LTL) and the HTL are called coastal Regulation zone and regulating activities in the CRZ, both prohibited and permitted activities. However, it did not prohibit the project already in operation and granted clearance prior to the date of the issue of notification. Later by an amendment dated 12.4.2001 S.O. 329(C) amended paragraph 2 on prohibited activities and the notification dated 19.2.1991 by substituting Clause (1) to the following effect setting up of new industries and expansion of existing industries except (a) those directly related to water front or directly needing foreshore facilities (b) projects of Department of Atomic Energy.132. We find with regard to the location of KKNPP within the prescribed 500 mtr. within the CRZ an exemption had already granted as per the then existing norms even prior to 1991 by the then Prime Minister of India by the communication dated 19.4.1989. Over and above, paragraph 2(1) of 1991 CRZ Notification as amended by Notification dated 12.4.2011, exempted projects of Department of Atomic Energy. A cumulative reading of the permission dated 19.04.1989 accorded by the then existing norms read with paragraph 2(1) of 1991 Notification, as amended by Notification dated 12.4.2011, we are of the view the KKNPP Units 1 and 2 have not violated the 1991 CRZ Notification.139. We are of the view that the EIA Notification of 1994 would not apply to KKNPP Units 1 and 2 for which environmental clearance was granted on 19.5.1989. 1994 notification, in our view, would be operative only prospectively except in the case of expansion and modernization of any activity (if the pollution load is to exceed the existing one) as on the date of publication of that notification or a new project listed in Schedule 1 for which environmental clearance is necessary as per the notification dated 27.01.1994. So far as KKNPP units 1 and 2 are concerned, they had the relevant clearance from the State Government including the NOC from the State Pollution Control Board. Facts stated above would indicate that the land acquisition process for the plant site and township had commenced during the year 1990-1991 and awards were pronounced during the period 1991-1993 by the Land Acquisition Officer and Special Tehsildars (Land Acquisition) Government of Tamil Nadu. Annexure R-15 produced along with the affidavit filed by the MoEF dated 18.10.2012 indicates the details of total land acquired, the awards pronounced and the details of the compensation paid. Further sites surveys, infrastructure design, construction of boundary wall, roads and some buildings etc. had been completed between 1989 to 1994. The Committee on Conservation of Seashore of Government of Tamil Nadu had also granted clearance on 25.2.1988 and the TNSEC had also granted clearance on 15.12.1988, modified on 13.2.1989. Above facts clearly indicate that the EIA Notification dated 27.1.1994 would not apply to KKNPP Unites 1 and 2 since these units stood exempted from the Notification and the Explanatory Note 8 to the Notification and also the Circular issued by the MoEF on 23.7.1998 make it more explicit.Plant capacity, we have noticed, always remained 1000 MWs X2, and the plant model V-412 remained to be as envisaged in 1988 Agreement and 1998 supplementary agreement of 1988. Further, for the purpose of cooling the steam generated in the steam generator sea water is required which goes through the steam turbine which runs the electrical generator to produce electricity. Sea water consumption is 2,40,000 m3/Hr and the water is to be drawn from the sea and pass through the condenser for both Units 1 and 2 and once the cooling process is over, it is to be released to the sea, a process, which has undergone no change from what was envisaged before obtaining clearance from MoEF in 9th May, 1989 till date and hence we find no necessity for a fresh clearance.We have already indicated that prior environmental clearance is required only for those activities which are listed in Schedule 1 to the EIA Notification dated 27.1.1994 or the subsequent Notification dated 14.9.2006 which superseded earlier Notification dated 27.1.1994. Desalination plant is not seen listed under the above-mentioned notifications. The decision to establish desalination plant for the purpose of domestic water requirement was taken by the NPCIL in the year 2004. Earlier when environmental clearance was granted on 9.5.1989 the proposal was to take fresh water from the Pachipari Dam, situated at about 65 KM away from the plant site. The same had to be given up in view of the involvement of forest land as well as the apprehensions expressed by the local villagers that the withdrawal of water from the Dam would deplete the scarce natural resource, especially at the time of drought. Desalination plant functions on distillation (Mechanical Vapour Compression) principle. Sea water would be drawn and would be fed to the plant which consists of four streams each having capacity of 106.66 cubic mtr. p.h. Cumulative feed flow of all three operating streams is 670 cubic. mtr. p.h. and cumulative reject flow is 350 cubic mtr. ph., balance 320 cubic mtr. p.h. is purified water. Facts would indicate that there is no generation of air emission, solid waste and effluent are flowing from the desalination process except rejects (which also called brine) which is nothing but concentrated sea water which remains after desalination process and does not contains external elements. The rejects will have concentration of 69000 parts per million which would be mixed with the sea water 1,20,000 cubic mtr. p.h. and discharged through the outlet channel into the sea which would give dilution 343 times and reduce the reject to the ambient sea water concentration of 35000 parts per million. Experts say the process would not cause any increase in pollution load due to desalination.142. CRZ Notification of 1991, though prohibited, the setting up of new industries as well as expansion within CRZ, it had permitted the laying of pipeline and conveying system. 1991 Notification was amended on 21.05.2002 and it was provided that the desalination plants could be established in the notified special economic zone, for non-polluting industries within CRZ. On 19.10.2002, it was again amended and it was provided that the desalination plants could be established within CRZ except CRZ - 1(i) - i.e. eco-sensitive areas viz. mangroves, sand dunes, reserve forests etc. MoEF later issued another notification dated 06.01.2011 superseding 1991 notification, as per that para 3(i)(c) and as per para 4(ii)(h) (of 06.01.2011 notification) makes provisions for the establishment of desalination plants within CRZ area except CRZ - 1(i).143. NPCIL informed TNPCB for the inclusion of desalination facility which was not earlier included in the original application for Consent to Operate. TNPCB considered the request and accorded Consent to Operate on 20.08.2012 which included desalination plant. The establishment of desalination plant, therefore, would not require any fresh environmental clearance, especially when the same has not been included in the Schedule 1 to the EIA Notification dated 27.1.1994 or in the subsequent Notifications dated 14.9.2006, 06.01.2011 etc. except within CRZ - 1(i).145. Rule 84, of course, deals with the Thermal Power Plant, which states that the resultant rise in temperature of receiving water shall not exceed 7°C over and above the ambient temperature of the receiving water body. Facts indicate that the limit prescribed under Rule 84 will equally be applicable to Nuclear Power Plant as well since the technology for condenser cooling in both, thermal as well as Nuclear Power Plant is the same. In both systems condenser is cooled by using water, therefore, the limit on temperature of discharged water will have to be the same.Environmental Impact was analysed in desalination and the experts are unanimous in their views, that there would be no impact on the marine ecosystem. Reports were also considered by the MoEF through the EAC before giving environmental clearance for the units 3 to 6 on 23.09.2008 and 31.12.2009 and the CRZ clearance on 25.07.2012. TNPCB has also accorded consent to operate on 28.08.2012 for KKNPP Units 1 and 2 by stipulating that condenser cooling water discharge limit as 7°C as per the amended Environmental Protection Rules. Therefore, the contention raised by the Appellants that the rise in temperature of receiving water due to rise in temperature of condenser cooling water would affect marine eco-system and cannot be sustained.148. We are of the view that the environmental clearance or No Objection Certificate cannot be equated to consent to establish under Section 25 of the Air Act and consent to operate under Section 21 of the Water Act, which were granted on 25.2.2004 and 28.8.2012 respectively. NPCIL had undertaken various activities with respect to KKNPP subsequent to the environment clearance granted by TNSEC on 26.12.1988, subsequently modified on 13.2.1989.149. TNSEC had on 15.12.1988 had already cleared the project, which tantamount to No Object Certificate (NOC). Only after clearance or NOC, the question of establishing or operating a plant arises. Environmental clearance or NOC was granted to KKNPP units 1 and 2 as early as 26.12.1988 though the TNPCB had granted consent to establish under Section 25 of the Air Act on 25.02.2004 and consent to operate under the Water Act on 28.08.2012. Explanatory Note 8 to the Environment Notification dated 27.01.1994 speaks of exemption for projects already initiated that is land has been acquired and clearance of the State Government including NOC, from Pollution Control Board had been obtained before 27th January 1994, for which no fresh environmental clearance would be required from Impact Assessment Agency (IAA). KKNPP units 1 and 2 is, therefore, entitled to get the benefit of the Explanatory Note 8 to EIA notification dated 27.01.1994.150. We also notice that there has been no expansion or modernization of units 1 and 2, which has resulted in increase of pollution load. Plant capacity remained the same i.e. 1000 MWs X2, till date and there is no substantial difference in plant model and the specifications envisaged in the 1988 agreement and 1998 supplement agreement. Plant model remains as V-412, consequently the 1994 EIA notification will not apply qua KKNPP units 1 and 2.157. It was discussed in the meeting that sea water intake structure would be located at a depth of 10 mtr. from the Main Sea Level (MSL) and at a distance of 1.2 Kms. off shore from the shore line. The temperature differential of cooling water at the discharge point would be limited to 7°C with respect to the ambient temperature. Discharge of all units, including the existing two units will be let off into a common discharge channel parallel to the shore bound and release at the two extreme ends of the channel. Gates will be provided on East and West side of the channel, which will be operated depending upon the ocean current direction in different season. The modeling was done for all the units of 1000 MW each taking into consideration the futuristic plan of expansion at the proposed site. The impact zone was shown to be 5 KM.158. The Environmental Appraisal Committee (EAC) after holding the public meeting on 02.06.2007 again met on 22.8.2008 and made its recommendations for environmental clearance for Units 3 and 4 subject to their obtaining CRZ clearance. We have already indicated that the proposal of EAC was approved by the MoEF on 23.9.2008 with respect to Units 3 and 4. Later after getting the administrative approval from the Competent Authority for Units 5 and 6, the same was also reported by NPCIL to the MoEF and MoEF vide its letter accorded clearance on 31.12.2009 for Units 5 and 6 as well.159. Appellants, therefore, cannot contend that the procedure laid down under the 1994 and 2006 Notifications had not been followed. In our view, the EIA for the expansion of KKNPP i.e. for setting up Units 3 to 6 included the environment impact on Units 1 and 2 and the cumulative effect of all the six units definitely formed the base line for the clearance granted by the MoEF on 23.9.2008 and 31.12.2009. The concern of the public regarding safety, livelihood, radiation, impact on marine life, rehabilitation, impact on the sea shore etc. were also considered and following that necessary clearance was granted.160. KKNPP 3 to 6, after having got environmental clearance from MoEF in September 2008 and December 2009 entrusted the task of updation of EIA study to M/s. Engineers India Ltd. (EIL), Gurgaon (a Govt. of India Undertaking). EIL, accordingly carried out the study along with the Central Marine Fisheries Research Institute (CHFRI) for the expansion of projects on air, water, land, noise, biological and socio-economic aspects within a radius of 10 km from the proposed location. Detailed study was conducted on the Reactor system of KKNPP 3 to 6, impact on environment existing environmental status, its prediction and on environmental management plan report was submitted in August 2011. The report has also analysed the environmental impact on the marine ecosystem due to +7°C CCW water and concluded that it will have no impact on the marine ecosystem. EIA was considered EAC, while granting CRZ clearance for the additional reactors 3 to 6 at KKNPP along with sea water intake and outfall facilities for cooling purpose. CRZ clearance was granted by MoEF on 25.07.2012 after following the procedure laid down in the CRZ notification of 2011. TNPCB, as already indicated, has also accorded consent to operate vide proceeding dated 28.08.2012 incorporating stringent standard of 7°C over and above the ambient temperature of sea for the discharge of effluents, through the cooling water and trade effluent and included permission for discharge of effluents from desalination plant.Sustainable Development and impact on eco-system161. The Government of India, as already stated, constituted a fifteen member experts group covering all fields technical, scientific, environment etc. to provide clarifications on the various issues raised by group of general public. Efforts were made by the group to have interaction with the agitators but met with little success. Group elaborately discussed apart from safety features of the plant, its ecological effects on environment and marine life and a Report was submitted to the Government of India on December 2011. The Government of Tamil Nadu also appointed an Expert Committee headed by the former President of AEC Prof. R. Srinivasan along with three other experts to review the safety features. There has been consensus among all the expert committee on safety and security of the plant as well as on the effect on marine ecology, high protection, impact on land, agriculture, livestock, food, impact on flora and fauna, biosphere, environmental clearance, CRZ clearance, fresh water supply, desalination plants, emergency preparedness etc. Detailed studies have been conducted on various occasions of the effect of the NPP on air, water, noise, land, environment and also on biological, marine and socio-economic environment; to allay the apprehension voiced by a section of the people and its worth.174. We have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles.While balancing the benefit of establishing KKNPP Units 1 to 6, with right to life and property and the protection of environment including marine life, we have to strike a balance, since the production of nuclear energy is of extreme importance for the economic growth of our country, alleviate poverty, generate employment etc. While setting up a project of this nature, we have to have an overall view of larger public interest rather than smaller violation of right to life guaranteed under Article 21 of the Constitution.178. Much hue and cry has been raised by some sections of the people about the possible impact of radiation from KKNPP Units 1 and 2, a point which has been addressed by the AERB, NPCIL, MoEF and all the Expert Committees constituted to go into the impact and effect of radiation from the units not only on humans but also on ecology. Experts Committees are of the unanimous opinion that there will not be any deleterious effects due to radiation from the operation of KKNPP, and that adequate safety measures have already been taken. We cannot forget that there are many potential areas of radiation reflected in many uses of radioactive materials.are used in hospitals, surgeries and so on. Mobile phone use, though minor, also causes radiation. In a report of the Department of Telecommunication Mobile Communication - Radio Wave and Safety released in October 2012, it has been stated that a human body is exposed to more electromagnetic field radiation in case of a call from mobile phone in comparison to the radiation from a mobile tower.179. We have, therefore, to balance economic scientific benefits with that of minor radiological detriments on the touchstone of our national nuclear policy. Economic benefit, we have already indicated has to be viewed on a larger canvas which not only augment our economic growth but alleviate poverty and generate more employment. NPCIL, while setting up the NPP at Kudankulam, have satisfied the environmental principle like sustainable development, corporate social responsibility, precautionary principle, inter - intra generational equity and so on to implement our National Policy to develop, control and use of atomic energy for the welfare of the people and for economic growth of the country. Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21.180. Public money running into crores and crores rupees have already been spent for the development, control and use of atomic energy for the welfare of the people and hence, we have to put up with such minor inconveniences, minor radiological detriments and minor environmental detriments in our lives because the benefits we reap from KKNPP are enormous since Nuclear energy remains as an important element in Indias energy mix which can replace a significant part of fossil fuels like coal, gas oil etc.181. The necessity of establishing KKNPP at Kudankulam has elaborately been discussed in the earlier part of the judgment, hence not repeated. Justification for establishing KKNPP at Kudankulam, therefore has been vindicated and all safety and security measures have already been taken, necessary permissions and clearances have been obtained from all statutory authorities. Apprehension expressed by some sections of the public that if the units are commissioned or put into operation, it will have far reaching consequences, not only on the present generation, but also on the future generation, of the possible radioactive effects of the units, in our view has no basis. Few of them raised the apprehension that it might repeat accidents like the one that had happened at Three Miles Island, Chernobyl, Union Carbide and Fukushima etc. Apprehension, however, legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.182. Power generation through a nuclear plant set up after following all safety standards, rules and Regulations, is for the welfare of the people and for the economic growth of the country, which is the object and purpose of the Atomic Energy Act. Nuclear energy assumes as an important element in Indias energy mix for sustaining economic growth of natural and domestic use which in future has to replace a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life meant not for the rich and famous alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector and also have to invite foreign investment. Generation of electricity is of extreme importance for their establishment and functioning and also for domestic consumption. Power generation with the traditional means, through hydro, thermal electric project, coal etc. are not effective substitution to the power generation through Nuclear Plant. India has a mammoth population unlike developed countries, and the consumption of electricity in domestic, industries, agricultural sector etc. is going up day-by-day. Most of the States are in the grip of power cut; day and night, for a number of hours, which has adverse effect on their economic and industrial growth. To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also increasing, nuclear power in the long run will be much cheaper than other forms of energy.183. This Court in Chameli Singh and Ors. v. State of U.P. and Anr. (1996) 2 SCC 549 held that an organized society right to live as a human being is not ensured by meeting only the animal needs of man, but secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and civil amenities like road etc. so as to have easy access to his daily avocation.184. Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The Petitioners contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution, is therefore has no basis. On the other hand it will only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act.EXPERTS VIEWS-TECHNICAL AND SCIENTIFIC185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already taken at KKNPP which are to be given due weight that they deserve. Further, as already indicated NPCIL Task Force Report on Security of all NPPs including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert Opinion on Design Committee Safety dated 31.8.2011, 15 Member Expert Team Committee Report (post Fukishama) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, report submitted by Sri R. Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP.186. MoEF, EAC, TNPCB, Report of IOM, Anna University dated July 2008 on Impact of NPP on Marine Eco-system, Committee on Conservation of Sea-Shore of the State of Tamil Nadu, Report of Engineers India Limited with CHFRI dated August 2011, NEERI dated May 2002 and January 2003 on the Impact on Air, Water, Land, Eco-system etc. are all unanimous that the radiation as well as the discharge of water from NPP to the sea shore will not have serious impact on the marine ecology or on marine life.188. We have noticed that, so far as this case is concerned, from the safety and security point of view of life and property, on environment and all that related aspects, all the Expert Bodies are unanimous in their opinion that KKNPP has fully satisfied all safety norms to safeguard the human life, property and environment which, we are sure, will allay the fears and apprehensions expressed by the people living in and around Kudankulam. The Court, in our view, cannot sit in judgment on the views expressed by the Technical and Scientific Bodies in setting up of KKNPP plant at Kudankulam and on its safety and security. | 1 | 40,463 | 11,846 | ### 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:
a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life meant not for the rich and famous alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector and also have to invite foreign investment. Generation of electricity is of extreme importance for their establishment and functioning and also for domestic consumption. Power generation with the traditional means, through hydro, thermal electric project, coal etc. are not effective substitution to the power generation through Nuclear Plant. India has a mammoth population unlike developed countries, and the consumption of electricity in domestic, industries, agricultural sector etc. is going up day-by-day. Most of the States are in the grip of power cut; day and night, for a number of hours, which has adverse effect on their economic and industrial growth. To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also increasing, nuclear power in the long run will be much cheaper than other forms of energy. 183. This Court in Chameli Singh and Ors. v. State of U.P. and Anr. (1996) 2 SCC 549 held that an organized society right to live as a human being is not ensured by meeting only the animal needs of man, but secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and civil amenities like road etc. so as to have easy access to his daily avocation. 184. Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The Petitioners contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution, is therefore has no basis. On the other hand it will only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act. EXPERTS VIEWS-TECHNICAL AND SCIENTIFIC 185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already taken at KKNPP which are to be given due weight that they deserve. Further, as already indicated NPCIL Task Force Report on Security of all NPPs including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert Opinion on Design Committee Safety dated 31.8.2011, 15 Member Expert Team Committee Report (post Fukishama) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, report submitted by Sri R. Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP. 186. MoEF, EAC, TNPCB, Report of IOM, Anna University dated July 2008 on Impact of NPP on Marine Eco-system, Committee on Conservation of Sea-Shore of the State of Tamil Nadu, Report of Engineers India Limited with CHFRI dated August 2011, NEERI dated May 2002 and January 2003 on the Impact on Air, Water, Land, Eco-system etc. are all unanimous that the radiation as well as the discharge of water from NPP to the sea shore will not have serious impact on the marine ecology or on marine life. 187. A Constitution Bench of this Court in University of Mysore v. C.D. Govinda Rao AIR 1965 SC 491 , held that, normally, Court should be slow to interfere with the opinion expressed by the Experts and it would normally be wise and safe for the courts to leave the decisions to experts who are more familiar with the problems which they face than the courts generally can be which has been the consistent view taken by this Court. Reference may be made to the judgments of this Court in State of Bihar v. Asis Kumar Mukherjee (Dr.) (1975) 3 SCC 602 , Dalpat Abasaheb Solunke v. B.S. Mahajan (1990) 1 SCC 305 , Central Areca Nut and Cocoa Marketing and Processing Coop. Ltd. v. State of Karnataka (1997) 8 SCC 31 , Dental Council of India v. Subharti K.K.B. Charitable Trust and Anr. (2001) 5 SCC 486 , Basavaiah (Dr.) v. Dr. H.L. Ramesh (2010) 8 SCC 372 and Avishek Goenka v. Union of India (2012) 5 SCC 275. In Woon Tankan and Seven Others v. Asian Rare Earth Sdn. Ehd. CLJ (1992) 2 207, the Supreme Court of Malaysia vide its judgment dated 23.12.1993 examined the effect of low-level radioactive waste on the health of the population. The Supreme Court upheld the plea of the company, placing reliance on the expert opinion expressed by the Atomic Energy Licensing Board (AELB) and took the view that since the company has been operating under license granted by AELB, an expert body, it will be taken that the expert body had the expertise to speak on the radiation level of the radioactive waste, on the health of the population. 188. We have noticed that, so far as this case is concerned, from the safety and security point of view of life and property, on environment and all that related aspects, all the Expert Bodies are unanimous in their opinion that KKNPP has fully satisfied all safety norms to safeguard the human life, property and environment which, we are sure, will allay the fears and apprehensions expressed by the people living in and around Kudankulam. The Court, in our view, cannot sit in judgment on the views expressed by the Technical and Scientific Bodies in setting up of KKNPP plant at Kudankulam and on its safety and security. CONCLUSION
### Response:
1
### Explanation:
Indias energy mix which can replace a significant part of fossil fuels like coal, gas oil etc.181. The necessity of establishing KKNPP at Kudankulam has elaborately been discussed in the earlier part of the judgment, hence not repeated. Justification for establishing KKNPP at Kudankulam, therefore has been vindicated and all safety and security measures have already been taken, necessary permissions and clearances have been obtained from all statutory authorities. Apprehension expressed by some sections of the public that if the units are commissioned or put into operation, it will have far reaching consequences, not only on the present generation, but also on the future generation, of the possible radioactive effects of the units, in our view has no basis. Few of them raised the apprehension that it might repeat accidents like the one that had happened at Three Miles Island, Chernobyl, Union Carbide and Fukushima etc. Apprehension, however, legitimate it may be, cannot override the justification of the project. Nobody on this earth can predict what would happen in future and to a larger extent we have to leave it to the destiny. But once the justification test is satisfied, the apprehension test is bound to fail. Apprehension is something we anticipate with anxiety or fear, a fearful anticipation, which may vary from person to person.182. Power generation through a nuclear plant set up after following all safety standards, rules and Regulations, is for the welfare of the people and for the economic growth of the country, which is the object and purpose of the Atomic Energy Act. Nuclear energy assumes as an important element in Indias energy mix for sustaining economic growth of natural and domestic use which in future has to replace a significant part of fossil fuel like coal, oil, gas etc. Electricity is the heart and soul of modern life, a life meant not for the rich and famous alone but also for the poor and down trodden. They should also have an adequate means of livelihood, job opportunities for which we have to set up Industries and commercial undertakings in the public as well as private sector and also have to invite foreign investment. Generation of electricity is of extreme importance for their establishment and functioning and also for domestic consumption. Power generation with the traditional means, through hydro, thermal electric project, coal etc. are not effective substitution to the power generation through Nuclear Plant. India has a mammoth population unlike developed countries, and the consumption of electricity in domestic, industries, agricultural sector etc. is going up day-by-day. Most of the States are in the grip of power cut; day and night, for a number of hours, which has adverse effect on their economic and industrial growth. To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also increasing, nuclear power in the long run will be much cheaper than other forms of energy.183. This Court in Chameli Singh and Ors. v. State of U.P. and Anr. (1996) 2 SCC 549 held that an organized society right to live as a human being is not ensured by meeting only the animal needs of man, but secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and civil amenities like road etc. so as to have easy access to his daily avocation.184. Nuclear power plant is being established not to negate right to life but to protect the right to life guaranteed under Article 21 of the Constitution. The Petitioners contention that the establishment of nuclear power plant at Kudankulam will make an inroad into the right to live guaranteed under Article 21 of the Constitution, is therefore has no basis. On the other hand it will only protect the right to life guaranteed under Article 21 of the Constitution for achieving a larger public interest and will also achieve the object and purpose of Atomic Energy Act.EXPERTS VIEWS-TECHNICAL AND SCIENTIFIC185. AEC, DAE, BARC, AERB, NPCIL, TNPCB the expert bodies, are all unanimous in their opinions that adequate safety and security measures have already taken at KKNPP which are to be given due weight that they deserve. Further, as already indicated NPCIL Task Force Report on Security of all NPPs including KKNPP dated March 2011, 11.5.2011, AERB-EE Expert Opinion on Design Committee Safety dated 31.8.2011, 15 Member Expert Team Committee Report (post Fukishama) dated December 2011, Supplementary Report dated 31.2.2012 on the Grievances raised by some of the agitators, report submitted by Sri R. Srinivasan, Former President, Atomic Energy Commission appointed by the State of Tamil Nadu are all unanimous in their view on the safety and security of KKNPP.186. MoEF, EAC, TNPCB, Report of IOM, Anna University dated July 2008 on Impact of NPP on Marine Eco-system, Committee on Conservation of Sea-Shore of the State of Tamil Nadu, Report of Engineers India Limited with CHFRI dated August 2011, NEERI dated May 2002 and January 2003 on the Impact on Air, Water, Land, Eco-system etc. are all unanimous that the radiation as well as the discharge of water from NPP to the sea shore will not have serious impact on the marine ecology or on marine life.188. We have noticed that, so far as this case is concerned, from the safety and security point of view of life and property, on environment and all that related aspects, all the Expert Bodies are unanimous in their opinion that KKNPP has fully satisfied all safety norms to safeguard the human life, property and environment which, we are sure, will allay the fears and apprehensions expressed by the people living in and around Kudankulam. The Court, in our view, cannot sit in judgment on the views expressed by the Technical and Scientific Bodies in setting up of KKNPP plant at Kudankulam and on its safety and security.
|
Aneeta Hada & Others Vs. M/s. Godfather Travels & Tours Pvt. Ltd. & Another | has correctly stated that there can be no vicarious liability unless there is a prosecution against the company owning the industrial unit but, regard being had to the factual matrix, namely, the technical fault on the part of the company to furnish the requisite information called for by the Board, directed for making a formal amendment by the applicant and substitute the name of the owning industrial unit. It is worth noting that in the said case, M/s. Modi distilleries was arrayed as a party instead of M/s Modi Industries Limited. Thus, it was a defective complaint which was curable but, a pregnant one, the law laid down as regards the primary liability of the company without which no vicarious liability can be imposed has been appositely stated. 39. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. 40. In this context, we may usefully refer to Section 263 of Francis Bennion’s Statutory Interpretation where it is stated as follows: - “A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention." 41. It will be seemly to quote a passage from Maxwell’s The Interpretation of Statutes (12th Edition) : - “The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.” 42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others ((1987) 1 SCC 424 ) it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others (2007) 10 SCC 528 ) and Sarabjit Rick Singh v. Union of India ((2008) 2 SCC 417 ). Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.44. We will be failing in our duty if we do not state that all the decisions cited by the learned counsel for the respondents relate to service of notice, instructions for stopping of payment and certain other areas covered under Section 138 of the Act. The same really do not render any aid or assistance to the case of the respondents and, therefore, we refrain ourselves from dealing with the said authorities. | 1[ds]arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.44. We will be failing in our duty if we do not state that all the decisions cited by the learned counsel for the respondents relate to service of notice, instructions for stopping of payment and certain other areas covered under Section 138 of the Act. The same really do not render any aid or assistance to the case of the respondents and, therefore, we refrain ourselves from dealing with the saidanalysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the director could not have been held liable for the offence under Section 85 of the 2000 Act. Resultantly, the Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the appellant is quashed. As far as the company is concerned, it was not arraigned as an accused. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the director. | 1 | 11,431 | 231 | ### 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:
has correctly stated that there can be no vicarious liability unless there is a prosecution against the company owning the industrial unit but, regard being had to the factual matrix, namely, the technical fault on the part of the company to furnish the requisite information called for by the Board, directed for making a formal amendment by the applicant and substitute the name of the owning industrial unit. It is worth noting that in the said case, M/s. Modi distilleries was arrayed as a party instead of M/s Modi Industries Limited. Thus, it was a defective complaint which was curable but, a pregnant one, the law laid down as regards the primary liability of the company without which no vicarious liability can be imposed has been appositely stated. 39. It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would be necessitous and, in a way, the warrant. 40. In this context, we may usefully refer to Section 263 of Francis Bennion’s Statutory Interpretation where it is stated as follows: - “A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention." 41. It will be seemly to quote a passage from Maxwell’s The Interpretation of Statutes (12th Edition) : - “The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.” 42. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the Section is of immense significance and, in its tentacle, it brings in the company as well as the director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others ((1987) 1 SCC 424 ) it has been laid down that the entire statute must be first read as a whole, then section by section, clause by clause, phrase by phrase and word by word. The same principle has been reiterated in Deewan Singh and others v. Rajendra Prasad Ardevi and others (2007) 10 SCC 528 ) and Sarabjit Rick Singh v. Union of India ((2008) 2 SCC 417 ). Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a director is indicted. 43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled with the qualifier as stated in paragraph 37. The decision in Modi Distilleries (supra) has to be treated to be restricted to its own facts as has been explained by us hereinabove.44. We will be failing in our duty if we do not state that all the decisions cited by the learned counsel for the respondents relate to service of notice, instructions for stopping of payment and certain other areas covered under Section 138 of the Act. The same really do not render any aid or assistance to the case of the respondents and, therefore, we refrain ourselves from dealing with the said authorities.
### Response:
1
### Explanation:
arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself.44. We will be failing in our duty if we do not state that all the decisions cited by the learned counsel for the respondents relate to service of notice, instructions for stopping of payment and certain other areas covered under Section 138 of the Act. The same really do not render any aid or assistance to the case of the respondents and, therefore, we refrain ourselves from dealing with the saidanalysis pertaining to Section 141 of the Act would squarely apply to the 2000 enactment. Thus adjudged, the director could not have been held liable for the offence under Section 85 of the 2000 Act. Resultantly, the Criminal Appeal No. 1483 of 2009 is allowed and the proceeding against the appellant is quashed. As far as the company is concerned, it was not arraigned as an accused. Ergo, the proceeding as initiated in the existing incarnation is not maintainable either against the company or against the director.
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M/s. K.L. Johar & Co Vs. Deputy Commercial Tax Officer | Re. 1 which is the nominal amount to be paid for the option nor the entire amount which is paid as hire including Re. 1. The value must be something less than the original price, which in the example mentioned by us above was Rs. 5,000. In order to arrive at the value at the time of the second sale to the hirer, the sale tax authorities should take into consideration the depreciation of the vehicle and such other matters as may be relevant in arriving at such price on which the sale can be said to have taken place when the option is exercised, but that price must always be less than the original price (which was Rs. 5,000 in the example given above by us). 23. We may in this connection refer to Darnghvil Coal Co. v. Francis, (1913) 7 Tax Cas 1. That was a case under the (English) Income-tax Act, and the question that directly arose for consideration was with respect to deductions to be allowed from profits in the circumstances of that case. The facts were these : the appellant, a coal company, in order to obtain railway wagons for the conveyance of coal from its collieries to its customers from time to time entered into agreements with a wagon company under which a certain annual sum was paid for a period of years for a certain number of wagons. By the terms of the agreements the coal company during the periods of the payments used the wagons at its own risk and was bound to keep them in repair, and the end of the period it had the option of purchasing the wagons at the nominal price of one shilling for each wagon. It will be seen that the agreement was in the nature of a hire purchase agreement of wagons. The question has arose whether any deductions from profits could be allowed to the coal company in the circumstances. It was held that the annual payments under the agreements were divisible into two, namely, (1) consideration paid for the use of the wagons, and (ii) payments for an option at a future date to purchase the wagons at a nominal price. It was also held that in so far as the payments represented the consideration for the use of the wagons during the period of agreement they were admissible as deduction in the computation of the coal companys profits for the purpose of assessment to income-tax. It was observed that it was perfectly clear that during the course of the period. of years the wagon still was the property of the wagon company and not of the coal company; but the coal company wished to use it and accordingly an extra payment was made in respect of that. No discrimination was made between the two kinds of payment; it was a lump sum that was paid. In such cases two things were going on concurrently - there was a sale and purchase, agreement under certain terms - not a sale at that moment, but an option on certain terms on a future date to have a sale - and on the other hand there was also concurrent with that a hiring agreement. The Court then went on to observe that it had no materials for splitting up that payment showing what was truly hire and what was truly payment towards eventual purchase. Finally the case was remitted to the Commissioners with instructions that they were bound to allow as deduction such portion of the yearly payment made in respect of the wagon agreements as presented the consideration paid for being allowed to use wagons which under the contract were not yet the property of the coal company and that the Commissioners must decide that question for themselves if parties did not agree. 24. This case in our opinion brings out the true nature of the payment made as hire in hire purchase agreement. Part of the amount is towards the hire and part towards the payment of price, and it would be for the sales tax authorities to determine in an appropriate way the price of the vehicle on the date the hirer exercises his option and becomes the owner of the vehicle after fulfilling the terms of the agreement. There is no legislative guidance available as to how this should be done and perhaps it would be better if the legislature gives guidance in such matters. But even in the absence of legislative guidance it would be for the sales tax authorities to decide as best they can the value of the vehicle on the date the option is exercised and the property passes to the hirer. There may be two ways of doing it. The sales tax authorities may split up the hire into two pans, namely, the amount paid as consideration for the use of the vehicle so long as it was the property of the owner, and the payment for the option on a future date to purchase the vehicle at a nominal price. If the first part is determined the rest would be towards the payment of price. The first part may be determined after finding out the proper amount to be paid as hire in the market for a vehicle of the type concerned, or in such other way as may be available to the sales tax authorities. The second method may be to take the original price fixed in the hire purchase agreement and to calculate the depreciation and all other factors that may be relevant in arriving at the price when the second sale takes place to the hirer including the condition of the vehicle at the time of the second sale. It is therefore for the sales tax authorities to find out the price of the vehicle on which tax has to be paid in either of the ways indicated by us above or such other way as may be just and reasonable. 25. | 1[ds]We are of opinion that the view taken by the High Court in this behalf is correct. This will be clear from a consideration of the various terms of the hire-purchased agreement which we have already summarised above. That agreement shows that the whole of the price of the vehicle is paid by the appellant to the dealer. Even where a part of the price is paid by the intending purchaser, the payment is shown as hire for the first month and is made to the appellant. So far as the dealer is concerned the whole price is paid by the appellant. The agreement also shows that the appellant is the owner of the vehicle and the intending purchaser is merely a hirer thereunder. The vehicle has to be registered in the name of the appellant, though the fact of registration by itself in one name or another may not be determinative of the ownership of the vehicle. Clauses 14 and 15 of the agreement clearly show that there was no sale by the dealer to the intending purchaser of the vehicle at the time of the hire-purchase agreement. These clauses give power to the appellant to retake possession of the vehicle and determine the agreement. Now if the property in the vehicle had passed to the intending purchaser at the time of the hire-purchase agreement it would not have been open to the appellant to take possession of the vehicle or to insist on payment of arrears or to become entitled to everything that had been paid up to that day. Under the law all that the appellant would have been entitled to was to realise the loan he had given by filing a suit and then attaching and selling the vehicle. These two clauses are therefore clear indication of the fact that there was no sale by the dealer to the person who wanted to purchase the vehicle at the time of the hire-purchase agreement, and that at that time the sale was by the dealer to the appellant. Then clauses 20 and 31 enforce this conclusion inasmuch as they give an option to the person who wanted to purchase the vehicle to do so by exercising his option under the conditions mentioned therein. If he had already become the owner when the agreement had been entered into, these two clauses could not have been included in the agreement. Then again cl. 23 makes it clear that till the option is exercised the vehicle remains the absolute property of the appellant and the intending purchaser has no right in it except that of a hirer. We therefore agree with the High Court that in cases of this kind there are two sales, one by the dealer to the financier (namely, the appellant in this case) and the other by the financier(namely, the appellant) to the person who wanted to purchase the vehicle. As the Act levied a multipoint sales tax at the relevant time it was open to the State to tax both the sales and the fact that the sale by the dealer to the appellant had been taxed will not affect the liability of the second sale by the financier to the person who wanted to purchase the vehicle. What is the extent of that liability and when is that tax to be levied will be considered by us in connection with the second contention urged on behalf of the appellantIt is clear that if the Explanation is good, the second sale in the present case must be held to have taken place at the time the hire-purchase agreement was made . On the other hand, if the Explanation is beyond the competence of the State legislature and falls, the sale cannot be said to have taken place when the hire purchase agreement was made and can only take place when the option is exercised after all the terms of the agreements have been satisfiedWe have given our earnest consideration to this argument and are of opinion that considering that that view has stood for so many years and has been accepted in later cases, there is no case made out for reconsideration thereof. In this connection our attention was drawn to Entry 92-A of List I of the Seventh Schedule to the Constitution, which refers to taxes on sale of goods where such sale takes place in the course of inter-State trade or commerce and to the provisions of the Central Sales Tax Act No. 74 of 1956, where "sale" has been defined as including "a transfer of goods on the hire purchase or other system of payment by instalments". It is urged that this definition of "sale" under the Central Sales Tax Act shows that the words "sale of goods" used in Entry 92A have a wider meaning. We are of opinion that there is no force in this argument for the Central Sales Tax Act was passed by Parliament and its validity has to be considered not only with reference to Entry 92-A of List I of the Seventh Schedule to the Constitution but also with reference to Art. 248(2) of the Constitution read with Entry 97 of List I of the Seventh Schedule to the Constitution. The fact that the definition of "sale" in the Central Sales Tax Act includes words contained in Explanation I therefore is of no help in construing the meaning of the words "sale of goods", which have been authoritatively pronounced upon by this Court in Gannon Dunkerleys case, 1959 SCR 379 : (AIR 1958 SC 560 ) following Budh Prakashs case, (1955) 1 SCR 243 : (AIR 1954 SC 459 ). It is clear therefore that the State legislature when it proceeds to legislate either under Entry 48 of List II of the Seventh Schedule to the Government India Act1935or under Entry 54 of List II of the Seventh Schedule to the Constitution, can only tax sale within the meaning of that word as defined in the Sale of Goods Act. The essence of sale under the Sale of Goods Act is that the property should pass from the seller to the buyer when a contract of sale is made except in a case of conditional sale. Hire purchase agreements are not conditional sales. Therefore, any legislation by the State legislature making any agreement or transaction in which the property does not pass from the seller to the buyer a sale would be beyond its legislative competence. What Explanation I does is to lay down that a hire purchase agreement shall be deemed to be a sale in spite of the fact that the property does not pass at the time of such agreement from the seller to the buyer.Therefore,Explanation I as it stands is beyond the legislative competence of the State legislature. It is urged however that the property eventually does pass from the seller to the buyer when the option is exercised and other terms of the hire purchase agreement are fulfilled and therefore the Explanation should be read as confined to those cases only where property does eventually pass from the seller to the buyer. We are of opinion that this argument cannot be accepted, for the intention of the Explanation clearly is to provide that the hire purchase agreement shall be deemed to be a sale immediately on the date it is made, even though property has not passed from the seller to the buyer on that day. If this were not the real purpose and intention of Explanation I, its enactment would be entirely unnecessary for the main definition of "sale" under S. 2(h) will apply to a hire purchase agreement at the time when the property passes from the seller to the buyer on the option being exercised and on other terms of the agreement being fulfilled. We cannot therefore agree with the High Court that the Explanation should be confined only to those cases where the property does eventually pass for the obvious intention of the legislature in enacting the Explanation was to provide that the hire purchase agreement shall be deemed to be a sale on the very date on which it is made, even though on property passes from the seller to the buyer on that date. In this view of the matter it must be held taking into account the purpose, the intention and the interpretation of Explanation I that it is beyond the competence of the State legislature. It must therefore be held to be invalid and struck down accordinglyWe have already pointed out that a hire purchase agreement has two elements : (i) element of bailment, and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired. When this sale takes place it will be liable to sales tax under the Act for the taxable event under the Act is the taking place of the sale, the Act providing for a multi-point sales tax at the relevant time. Where however option is not exercised or cannot be exercised because of the inability of the intending purchaser to fulfil the terms of the agreement, there is no sale at all. As the taxable event is the sale of goods, the tax can only be levied when the option is exercised after fulfilling all the terms of the hire-purchase agreement. We cannot agree with the view of the High Court that because in most of such cases the option is exercised, tax is leviable immediately on the making of the hire-purchase agreement and that in a few cases where there is failure to carry out the terms of the agreement or to exercise the option, there can be adjustment by elimination of such portion of the turnover. As we have pointed out that taxable event under the Act is the sale of goods and until that taxable event takes place there can be no liability to pay tax.Therefore,even though eventually most cases of hire-purchase may result in sales by the exercise of the option and the fulfilment of the terms of the agreement, tax is not exigible at the time when the hire-purchase agreement is made, for at that time the taxable event has not taken place; it can only be exigible when the option has been exercised and all the terms of agreement fulfilled and the sale actually takes place. When sale takes place in a particular case will depend upon the terms of the hire-purchase agreement but till the sale takes place there can be no liability to sales tax under the Act. The High Court therefore was in error in holding that transactions of hire-purchase of the kind with which we are dealing having regard to their main intent and purpose might be treated as sales at the time the agreement is entered into; in all hire purchase agreements of the type with which we are dealing sale only takes place when the option is exercised after all the terms of the agreements are fulfilled and it is at that time that the tax is exigibleWe are of opinion that neither of these two contentions is correct. It stands to reason that Re. 1 cannot be the price of a vehicle in these cases for even if the vehicle is treated as secondhand when the option is exercised, the sum of Re. 1 would be an absurd price for a second-hand vehicle of the kind with which we are concerned. The argument in this connection is that the entire amount paid as hire is really for hire and the price is only the sum of Re. 1 which is paid for the option which finally results in sale. This contention overlooks the essence of hire purchase agreement which is that the hire includes not only what would be payable really as hire but also a part of it is towards the price. The contention that the price is only Re. 1 which is paid for the option therefore cannot be acceptedOn the other hand the contention on behalf of the respondent that the price is the entire amount paid as hire including Re. 1 paid for the option also does not seem to be correct. This ignores the fact that at any rate part of what is paid as hire is really towards the hire of the vehicle for the period when the hirer is only a hirer. This will also be clear from the fact that if the entire hire is treated as price, the result would he that the price of what is a second-hand vehicle when the sale eventually takes place would be more than the price of the new vehicle. This will be clear from an example of a hire purchase agreement, which was given to us on behalf of the appellant. In the particular example, the price of the vehicle was Rs. 5000. The hire purchase agreement however provided for payment of Rs. 6,487 / 6/ - by the hirer to the owner in seventeen instalments. The hirer would become the owner on the exercise of the option after he had paid all the instalments. But if all the instalments are to be treated as price the result would be that a vehicle which was priced at Rs. 5,000 when the agreement was made and must have depreciated during the seventeen months when it was on hire would be valued at Rs. 6487/6/- at the time when the option is exercised and the sale in favour of the hirer takes place. This is clearly impossible to accept and therefore the contention of the respondent must also be rejectedThe real position in our opinion as to price of the vehicle when the option is exercised would be this. Its value at that time is neither Re. 1 which is the nominal amount to be paid for the option nor the entire amount which is paid as hire including Re. 1. The value must be something less than the original price, which in the example mentioned by us above was Rs. 5,000. In order to arrive at the value at the time of the second sale to the hirer, the sale tax authorities should take into consideration the depreciation of the vehicle and such other matters as may be relevant in arriving at such price on which the sale can be said to have taken place when the option is exercised, but that price must always be less than the original price (which was Rs. 5,000 in the example given above by us)This case in our opinion brings out the true nature of the payment made as hire in hire purchase agreement. Part of the amount is towards the hire and part towards the payment of price, and it would be for the sales tax authorities to determine in an appropriate way the price of the vehicle on the date the hirer exercises his option and becomes the owner of the vehicle after fulfilling the terms of the agreement. There is no legislative guidance available as to how this should be done and perhaps it would be better if the legislature gives guidance in such matters. But even in the absence of legislative guidance it would be for the sales tax authorities to decide as best they can the value of the vehicle on the date the option is exercised and the property passes to the hirer. There may be two ways of doing it. The sales tax authorities may split up the hire into two pans, namely, the amount paid as consideration for the use of the vehicle so long as it was the property of the owner, and the payment for the option on a future date to purchase the vehicle at a nominal price. If the first part is determined the rest would be towards the payment of price. The first part may be determined after finding out the proper amount to be paid as hire in the market for a vehicle of the type concerned, or in such other way as may be available to the sales tax authorities. The second method may be to take the original price fixed in the hire purchase agreement and to calculate the depreciation and all other factors that may be relevant in arriving at the price when the second sale takes place to the hirer including the condition of the vehicle at the time of the second sale. It is therefore for the sales tax authorities to find out the price of the vehicle on which tax has to be paid in either of the ways indicated by us above or such other way as may be just and reasonable. | 1 | 7,785 | 3,010 | ### Instruction:
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Re. 1 which is the nominal amount to be paid for the option nor the entire amount which is paid as hire including Re. 1. The value must be something less than the original price, which in the example mentioned by us above was Rs. 5,000. In order to arrive at the value at the time of the second sale to the hirer, the sale tax authorities should take into consideration the depreciation of the vehicle and such other matters as may be relevant in arriving at such price on which the sale can be said to have taken place when the option is exercised, but that price must always be less than the original price (which was Rs. 5,000 in the example given above by us). 23. We may in this connection refer to Darnghvil Coal Co. v. Francis, (1913) 7 Tax Cas 1. That was a case under the (English) Income-tax Act, and the question that directly arose for consideration was with respect to deductions to be allowed from profits in the circumstances of that case. The facts were these : the appellant, a coal company, in order to obtain railway wagons for the conveyance of coal from its collieries to its customers from time to time entered into agreements with a wagon company under which a certain annual sum was paid for a period of years for a certain number of wagons. By the terms of the agreements the coal company during the periods of the payments used the wagons at its own risk and was bound to keep them in repair, and the end of the period it had the option of purchasing the wagons at the nominal price of one shilling for each wagon. It will be seen that the agreement was in the nature of a hire purchase agreement of wagons. The question has arose whether any deductions from profits could be allowed to the coal company in the circumstances. It was held that the annual payments under the agreements were divisible into two, namely, (1) consideration paid for the use of the wagons, and (ii) payments for an option at a future date to purchase the wagons at a nominal price. It was also held that in so far as the payments represented the consideration for the use of the wagons during the period of agreement they were admissible as deduction in the computation of the coal companys profits for the purpose of assessment to income-tax. It was observed that it was perfectly clear that during the course of the period. of years the wagon still was the property of the wagon company and not of the coal company; but the coal company wished to use it and accordingly an extra payment was made in respect of that. No discrimination was made between the two kinds of payment; it was a lump sum that was paid. In such cases two things were going on concurrently - there was a sale and purchase, agreement under certain terms - not a sale at that moment, but an option on certain terms on a future date to have a sale - and on the other hand there was also concurrent with that a hiring agreement. The Court then went on to observe that it had no materials for splitting up that payment showing what was truly hire and what was truly payment towards eventual purchase. Finally the case was remitted to the Commissioners with instructions that they were bound to allow as deduction such portion of the yearly payment made in respect of the wagon agreements as presented the consideration paid for being allowed to use wagons which under the contract were not yet the property of the coal company and that the Commissioners must decide that question for themselves if parties did not agree. 24. This case in our opinion brings out the true nature of the payment made as hire in hire purchase agreement. Part of the amount is towards the hire and part towards the payment of price, and it would be for the sales tax authorities to determine in an appropriate way the price of the vehicle on the date the hirer exercises his option and becomes the owner of the vehicle after fulfilling the terms of the agreement. There is no legislative guidance available as to how this should be done and perhaps it would be better if the legislature gives guidance in such matters. But even in the absence of legislative guidance it would be for the sales tax authorities to decide as best they can the value of the vehicle on the date the option is exercised and the property passes to the hirer. There may be two ways of doing it. The sales tax authorities may split up the hire into two pans, namely, the amount paid as consideration for the use of the vehicle so long as it was the property of the owner, and the payment for the option on a future date to purchase the vehicle at a nominal price. If the first part is determined the rest would be towards the payment of price. The first part may be determined after finding out the proper amount to be paid as hire in the market for a vehicle of the type concerned, or in such other way as may be available to the sales tax authorities. The second method may be to take the original price fixed in the hire purchase agreement and to calculate the depreciation and all other factors that may be relevant in arriving at the price when the second sale takes place to the hirer including the condition of the vehicle at the time of the second sale. It is therefore for the sales tax authorities to find out the price of the vehicle on which tax has to be paid in either of the ways indicated by us above or such other way as may be just and reasonable. 25.
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regard to their main intent and purpose might be treated as sales at the time the agreement is entered into; in all hire purchase agreements of the type with which we are dealing sale only takes place when the option is exercised after all the terms of the agreements are fulfilled and it is at that time that the tax is exigibleWe are of opinion that neither of these two contentions is correct. It stands to reason that Re. 1 cannot be the price of a vehicle in these cases for even if the vehicle is treated as secondhand when the option is exercised, the sum of Re. 1 would be an absurd price for a second-hand vehicle of the kind with which we are concerned. The argument in this connection is that the entire amount paid as hire is really for hire and the price is only the sum of Re. 1 which is paid for the option which finally results in sale. This contention overlooks the essence of hire purchase agreement which is that the hire includes not only what would be payable really as hire but also a part of it is towards the price. The contention that the price is only Re. 1 which is paid for the option therefore cannot be acceptedOn the other hand the contention on behalf of the respondent that the price is the entire amount paid as hire including Re. 1 paid for the option also does not seem to be correct. This ignores the fact that at any rate part of what is paid as hire is really towards the hire of the vehicle for the period when the hirer is only a hirer. This will also be clear from the fact that if the entire hire is treated as price, the result would he that the price of what is a second-hand vehicle when the sale eventually takes place would be more than the price of the new vehicle. This will be clear from an example of a hire purchase agreement, which was given to us on behalf of the appellant. In the particular example, the price of the vehicle was Rs. 5000. The hire purchase agreement however provided for payment of Rs. 6,487 / 6/ - by the hirer to the owner in seventeen instalments. The hirer would become the owner on the exercise of the option after he had paid all the instalments. But if all the instalments are to be treated as price the result would be that a vehicle which was priced at Rs. 5,000 when the agreement was made and must have depreciated during the seventeen months when it was on hire would be valued at Rs. 6487/6/- at the time when the option is exercised and the sale in favour of the hirer takes place. This is clearly impossible to accept and therefore the contention of the respondent must also be rejectedThe real position in our opinion as to price of the vehicle when the option is exercised would be this. Its value at that time is neither Re. 1 which is the nominal amount to be paid for the option nor the entire amount which is paid as hire including Re. 1. The value must be something less than the original price, which in the example mentioned by us above was Rs. 5,000. In order to arrive at the value at the time of the second sale to the hirer, the sale tax authorities should take into consideration the depreciation of the vehicle and such other matters as may be relevant in arriving at such price on which the sale can be said to have taken place when the option is exercised, but that price must always be less than the original price (which was Rs. 5,000 in the example given above by us)This case in our opinion brings out the true nature of the payment made as hire in hire purchase agreement. Part of the amount is towards the hire and part towards the payment of price, and it would be for the sales tax authorities to determine in an appropriate way the price of the vehicle on the date the hirer exercises his option and becomes the owner of the vehicle after fulfilling the terms of the agreement. There is no legislative guidance available as to how this should be done and perhaps it would be better if the legislature gives guidance in such matters. But even in the absence of legislative guidance it would be for the sales tax authorities to decide as best they can the value of the vehicle on the date the option is exercised and the property passes to the hirer. There may be two ways of doing it. The sales tax authorities may split up the hire into two pans, namely, the amount paid as consideration for the use of the vehicle so long as it was the property of the owner, and the payment for the option on a future date to purchase the vehicle at a nominal price. If the first part is determined the rest would be towards the payment of price. The first part may be determined after finding out the proper amount to be paid as hire in the market for a vehicle of the type concerned, or in such other way as may be available to the sales tax authorities. The second method may be to take the original price fixed in the hire purchase agreement and to calculate the depreciation and all other factors that may be relevant in arriving at the price when the second sale takes place to the hirer including the condition of the vehicle at the time of the second sale. It is therefore for the sales tax authorities to find out the price of the vehicle on which tax has to be paid in either of the ways indicated by us above or such other way as may be just and reasonable.
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THE STATE OF RAJASTHAN AND ORS Vs. LORD NOTHBOOK AND ORS | claim of agnates was also rejected by the District Collector on the ground that they had withdrawn their objections in the probate proceedings and are thus estopped from making any further claim. 50. Challenging the order passed by the District Collector, appeal has been preferred before the Board of Revenue and the same is pending. The Board of Revenue stayed the order of the District Collector by the order dated 12.04.2016. It was thereafter, the High Court had taken up the Writ Petition No.2713 of 1987 and passed the impugned order quashing the three communication/orders. When the appeals were pending before the Delhi High Court and before the Board of Revenue involving disputed questions, the High Court, in my view, ought to have directed the parties to avail efficacious alternative remedy. The High Court, in my view, ignoring the subsequent events that the respondents-agnates have withdrawn their objections in the probate petition and dismissal of the probate petition and the appeals pending before the Delhi High Court and appeal pending before the Board of Revenue erred in quashing the three communications/orders and directing the State to hand over the possession of the properties to the respondents. 51. Under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions; one of which is an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in three instances:- (i) where writ petition is filed for enforcement of any of the fundamental rights; (ii) where there is a violation of the fundamental right or principles of natural justice; and (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged; [vide Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107 ]. 52. Notwithstanding the availability of alternative remedy, having regard to the facts of the case, the High Court has a discretion to entertain or not to entertain a writ petition. But in the present case, while considering correctness of the communications/orders issued way back in 1987, the High Court should have taken into consideration the subsequent events viz., the judgment passed by the High Court of Delhi in Testamentary Case and the order passed by the District Collector under Section 6 of the Act and the pendency of appeals before the High Court and Board of Revenue. Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. The impugned order takes away the very foundation of the order passed by the District Collector which is subject matter of the appeal pending before the Board of Revenue. There are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The High Court, in my considered view, ought to have directed the parties to work out the remedy before the competent court/authority. 53. I summarise my conclusion as under:- (i) Since the Testamentary Case No.26 of 1987 then pending before the High Court of Delhi for grant of probate of the Will, has been dismissed and the testamentary appeal is pending before the High Court, there is no rightful owner as per the Will. (ii) Having withdrawn their objections in the probate proceedings, respondent Nos.5 to 9 are estopped from making any claim in the properties of Sh. Raja Sardar Singh till they establish their right in a court of law. (iii) The provisions of the Escheats Act, 1956 was initiated only after enquiring about the legal heirs of Sh. Raja Sardar Singh and before initiation of proceedings under the Escheats Act, the authorities satisfied itself as to ?failure of heirs? of Sh. Raja Sardar Singh and that the properties are bona vacantia. (iv) The persons claiming as agnates have not established their status in a court of law recognising them as rightful owners. (v) There was issuance of public notice and also to private individuals, before the State of Rajasthan took over the estate of Sh. Raja Sardar Singh by escheat. The provisions of the Rajasthan Escheats Regulation Act, 1956 have been substantially complied with. (vi) The State of Rajasthan was right in treating the property as ‘bona vacantia? and right in initiating the proceedings under the Rajasthan Escheats Regulation Act, 1956. (vii) Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. (viii) There are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. | 1[ds]No doubt, the provisions of the Rajasthan Escheats Regulation Act, 1956 will be applicable only when the person dies intestate and/or is not succeeded by any of the person under Section 8 of the Hindu Succession Act or other succession laws.There are two claims to the properties of the deceased Sh. Raja SardarKhetri Trust said to have been created by virtue of Will executed by Sh. Raja Sardar Singh dated 30.10.1985; andIn the said Writ Petition being WP No.2713 of 1987, the Trust challenged three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 basing its claim upon the Will and that they had filed the probate case before the High Court of Delhi which was dismissed. Once the decision of the High Court of Delhi in the probate case has gone against the Trust, the Trust has no semblance of right, title and interest in the property, unless the Trust succeeds in the pending testamentary appeal, the Trust has no right to lay claim in the properties under escheat. The Trust having no right in the property, appears to have now taken up the cause of agnates, which the High Court, in my considered view, did not keep in view.In the Writ Petition No.2713 of 1987, the Trustees of Khetri Trust having challenged three communication/orders initiating the proceedings under the Escheats Act, 1956 represented to the High Court that they had filed a probate case before the High Court of Delhi and requested the matter be adjourned. Upon consideration of the representation made by the Trustees of Khetri Trust that a probate case is pending, the High Court of Rajasthan by its order dated 19.11.2001 adjourned the Writ Petition sine-die awaiting the decision of the Delhi High Court. The Trust thus, chose to seek an adjournment in the Writ Petition challenging the initiation of the proceedings under the Act till the final decision of the probate case. Once the decision in the probate case had gone against them, unless they succeed in the appeal, Khetri Trust has no semblance of right to lay a claim over theobserved by thethere were number of objectors to thete in favour of Khetri Trust and all of them have gradually withdrawn their objections and the conduct of the agnates raises suspicion on their bonafide. When the agnates/other persons claiming right in the estate of Sh. Raja Sardar Singh have withdrawn their objections, naturally the inference is that they have accepted the claim/right of Khetri Trust, which claims through the Will. An inference has to be drawn against the persons that they have no right of claim in the properties of Sh. Raja Sardar Singh. The so called agnates or cognates cannot adopt double stand i.e. one claiming right in themselves and another allowing Khetri Trust to claim through the Will. It is also to be pointed out that the respondents No.8 and 9 and respondent No.6-Late Rajender Singh have not produced any document showing their status as agnates nor initiated any proceeding for declaration of their status.There is no merit in the contention of the respondents that there was no enquiry and satisfaction of the authorities as to ?failure of heirs? before initiating proceedings under the Escheats Act. As pointed out earlier, the Sub-Divisional Officer, Khetri has sent a report dated 16.02.1987 to thenu that Sh. Raja Sardar Singh expired in Mumbai on 28.01.1987 without any legal heir and that he has executed one Will by virtue of which Khetri trust was constituted. The SDO?s report also states about the absence of brother or sister or any child or other legal heirs. The report of the SDO reads asOF THE SUB DIVISIONAL OFFICERct Collector,as per the information received vide letter dated 11.2.1987 of Rajya Sabha, New Delhi, Raja Bahadur Shri Sardar Singh Khetri has expired in Mumbai on 28.1.1987 without any legal heir. He has executed only one will by virtue of this a Khetri Trust was constituted, the trust having four trustees and late Sardar Singh Ji has donated his movable and immoveable property to theSardar Singh has no brother or sister nor any child. He has divorced his wife. His father Amar Singh was adopted from Alsisar as his grandfather Ajit Singh had only one son Jai Singh, who died in minor age. Grandfather Shri Sardar Singh had two daughters one of them was married at Shahpura and other was married at Pratapgarh and both were expired, but there is a possibility of their children be alive.The State Government through Tehsildar, Jaipur issued a notice dated 27.02.1987 to general public at large stating that the estate of Sh. Raja Sardar Singh has been declared as escheat since he died without legal heirs. As seen from the communication of Naib Tehsildar dated 04.03.1987 and 07.03.1987 addressed to Sh. Nirbhay Singh, an enquiry was conducted by Nair Tehsildar as to lawaris property of Sh. Raja Sardar Singh. The letter dated 03.07.1987 from the Deputy Secretary tonu was in reference to the letter dated 15.06.1987 sent by theCollector, Jhunjhunu tothe Deputy Secretary by which thenu had apprised about the factual position of the investigation conducted by him in compliance of the procedure laid down under Section 4 of the Escheats Act. There is no merit in the contention of the respondents that the initiation of the proceedings under the Escheats Act was done without following the procedure laid down by the law and without enquiry and the finding as to ?failure of heirs?. The report of the SDO dated 16.02.1987 and the letter of thenu dated 15.06.1987 addressed to thean shows that in compliance of the provisions of the Escheats Act, an enquiry was conducted and the authorities satisfied themselves as to ?failure of heirs? before initiating action under Escheats Act. The materials on record show that the proceedings under the provisions of Escheats Act has been initiated only after making proper enquiry about possible legal heirs of Sh. Raja Sardar Singh and on finding about the absence of legal heirs, the authorities satisfied themselves that the properties are bona vacantia. In my view, due procedure was followed by the concerned officials as per the Escheats Act following the provisions of Section 4 of the Escheats Act and only after ascertaining that there was ?failure of heirs?, the inventories of the properties were prepared and possession was taken over on all the vacant properties and mangers were appointed for the requisite purposes.Deceased died way back in the year 1987. Till this date, the agnates have not instituted any suit or proceedings to establish their status nor obtained any declaration from the competent authorities. In the absence of any document declaring status of respondents No.4 to 8 as cognates/agnates of Sh. Raja Sardar Singh, State of Rajasthan cannot be faulted for initiating action under the Escheats Act, 1956 treating the properties of Sh. Raja Sardar Singh as lawaris forir or successor or as bona vacantia. Moreover, it is not the case of the respondents No.4 to 8 that they represent all the agnates. As discussed earlier, no claimant came forward before the Tehsildar; only Nirbhay Singh who claimed as Manager of the Khetri Trust appeared before the Tehsildar. Considering the facts and circumstances of the case, initiation of proceedings under the Escheats Act cannot be said to be erroneous warranting interference.As pointed out earlier, as against the order passed by the Collector (dated 02.02.2016), the Trust has preferred the appeal before the Board of Revenue and the same is pending, all the questions including the compliance of the provisions of the Escheat Act, 1956 are raised in the said appeal. We would not have ventured to go into the merits of the contention as to the compliance or otherwise of the provisions of the Escheats Act, 1956; since the High Court has quashed the communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 passed by the Deputy Secretary, Revenue, District Collector and the Tahsildar respectively holding that the provisions of the Escheats Act, 1956 has not been complied with, we are called upon to examine the merits of the contentions raised and examine whether there was proper compliance of the provisions of the Escheats Act, 1956 for initiation of the proceedings of the Act. If we do not examine the merits of the contention raised in this appeal, the findings of the High Court would stand and the appropriate forum will not be in a position to consider the matter on merits. I have to therefore necessarily proceed to examine the merits of the contention advanced by the parties as to the compliance or otherwise of the provisions of Escheats Act, 1956.As discussed infra, the provisions of Section 4 of the Rajasthan Escheats Regulation Act have been substantially complied with. As pointed out earlier in para (4), a public notice was issued inviting the interested persons to present themselves before the Tehsildar and produce materials to prove their right. The Naib Tehsildar thereafter issued notice dated 07.03.1987 to Nirbhay Singh directing him to produce all documents with proof. From the materials, it is seen that the inquiry which was conducted by the Tehsildar is also in compliance of Section 4 of the Act.As elaborated earlier in paras (4) to (6), a public notice was issued on 27.02.1987 by the Tehsildar, Jaipur calling upon persons who claim interest or right in the properties of Sh. Raja Sardar Singh to present himself before his office on 04.03.1987 with entire documents or otherwise, it would be presumed that the Khetri House and other properties of Sh. Raja Sardar Singh are lawaris and the same shall be taken to the custody of the State. Further, it can be seen from the letter dated 04.03.1987 that the Naib Tehsildar, Jaipur was appointed as Inquiry Officer of all properties of Sh. Raja Sardar Singh situated at Jaipur. The Tehsildar issued a notice to Nirbhay Singh/Manager of Hotel Khetri House on 07.03.1987 calling upon him to personally appear and produce the entire records of the properties under his occupation. He was also informed that if he does not appear and produce the documents, it would be presumed that the properties are lawaris. After referring to the letter of the Collector dated 03.07.1987, the Dy. Secretary to the State Government directed appellantJhunjhunu to initiate proceedings under the Actas it was deemed that the deceased died intestate. The letter dated 03.07.1987 from Dy. Secretary toCollector, Jhunjhunu toinitiate proceedings under the Actwas in reference to the letter dated 15.06.1987 sent by theCollector, Jhunjhunu tothe Dy. Secretary by which the District Collector had apprised about the factual position of the investigation conducted by it in view of the procedure laid down under Section 4 of the Act. By letter dated 22.07.1987, the Tehsildar Khetri was directed to initiate proceedings under the Rajasthan Escheats Act with respect to properties situated in Khetri and also to collect details of properties situated outside the State of Rajasthan. By attachment order dated 03.08.1987, immovable properties i.e. agricultural lands and orchards in village Hada Fatehpura was taken over. By cumulative reading of the contents of above various proceedings, it is clear that in accordance with provisions of the Act, the concerned officials first made inquiry to ascertain whether there was any legal heir of Sh. Raja Sardar Singh; issued notices and then prepared the inventories and after the spot inspection, attached the properties and taken over the possession of the vacant properties and submitted report to the Collector. The provisions of the Escheats Act, 1956, in our view, has been substantially complied with.When we consider the scheme of the Act, in particular, Section 4, it provides that when the Tehsildar receives information as to the existence within Tehsil of any property to which this Act applies, whether or not in the possession of any person, the Tehsildar shallascertain whether or not there is any person entitled to suchprepare an inventory thereof showing the prescribedtake over possession of it in the prescribed manner;make a report of theper the proviso to Section 4 of the Act, if the property is in the ‘present possession of any person?, such possession shall not be disturbed.Of course, as per the Spot Inspection Report dated 31.07.1987, the property – Khetri House was found with locks with seal of Khetri Trust was affixed. As per the Spot Inspection Report nobody was found in physical possession of the property at the time of inspection.As against the order passed by the District Collector on 02.02.2016, the appeal is preferred before the Board of Revenue and the same is pending while upholding the invocation of the provisions of Rajasthan Escheats Regulation Act, 1956 in my considered view, the above contentions ought to be raised before the Board of Revenue and the Board of Revenue shall consider the same on its own merits.Challenging the initiation of proceedings under Escheats Act 1956, the Trustees have filed Writ Petition No.2713 of 1987 way back in the year 1987 and the same was pending for about three decades. In 2001, the writ petitioners themselves sought for an adjournment on the ground of pendency of probate case before the Delhi High Court and the High Court also adjourned the writ petition sine-die. Thereafter, the writ petition remained pending for quite some time. As discussed earlier, three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987 and subsequently, number of other orders came to be passed for taking possession of the properties of Sh. Raja Sardar Singh. The Delhi High Court dismissed the probate petition filed by the Khetri Trust by the judgment dated 03.07.2012 and the appeal filed by the Trust against the said judgment has been admitted by the Division Bench of the Delhi High Court and the same is pending. Under Section 6 of the Escheats Act, 1956, the Collector passed the order on 02.02.2016 dismissing the objections of the Trust on the basis of the order passed by the Delhi High Court in probate proceedings. The claim of agnates was also rejected by the District Collector on the ground that they had withdrawn their objections in the probate proceedings and are thus estopped from making any further claim.Challenging the order passed by theal has been preferred before the Board of Revenue and the same is pending. The Board of Revenue stayed the order of the District Collector by the order dated 12.04.2016. It was thereafter, the High Court had taken up the Writ Petition No.2713 of 1987 and passed the impugned order quashing the three communication/orders. When the appeals were pending before the Delhi High Court and before the Board of Revenue involving disputed questions, the High Court, in my view, ought to have directed the parties to avail efficacious alternative remedy. The High Court, in my view, ignoring the subsequent events that the respondents-agnates have withdrawn their objections in the probate petition and dismissal of the probate petition and the appeals pending before the Delhi High Court and appeal pending before the Board of Revenue erred in quashing the three communications/orders and directing the State to hand over the possession of the properties to the respondents.Under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions; one of which is an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in threewhere writ petition is filed forof any of the) where there is a violation of the fundamental right or principles of natural justice;where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged; [vide Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107 ].Notwithstanding the availability of alternative remedy, having regard to the facts of the case, the High Court has a discretion to entertain or not to entertain a writ petition. But in the present case, while considering correctness of the communications/orders issued way back in 1987, the High Court should have taken into consideration the subsequent events viz., the judgment passed by the High Court of Delhi in Testamentary Case and the order passed by the District Collector under Section 6 of the Act and the pendency of appeals before the High Court and Board of Revenue. Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. The impugned order takes away the very foundation of the order passed by the District Collector which is subject matter of the appeal pending before the Board of Revenue. There are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The High Court, in my considered view, ought to have directed the parties to work out the remedy before the competent court/authority.I summarise my conclusion asSince the Testamentary Case No.26 of 1987 then pending before the High Court of Delhi forte of the Will, has been dismissed and the testamentary appeal is pending before the High Court, there is no rightful owner as per theHaving withdrawn their objections in the probate proceedings, respondent Nos.5 to 9 are estopped from making any claim in the properties of Sh. Raja Sardar Singh till they establish their right in a court ofThe provisions of the Escheats Act, 1956 was initiated only after enquiring about the legal heirs of Sh. Raja Sardar Singh and before initiation of proceedings under the Escheats Act, the authorities satisfied itself as to ?failure of heirs? of Sh. Raja Sardar Singh and that the properties are bonaThe persons claiming as agnates have not established their status in a court of law recognising them as rightfulThere was issuance of public notice and also to private individuals, before the State of Rajasthan took over the estate of Sh. Raja Sardar Singh by escheat. The provisions of the Rajasthan Escheats Regulation Act, 1956 have been substantially compliedThe State of Rajasthan was right in treating the property as ‘bona vacantia? and right in initiating the proceedings under the Rajasthan Escheats Regulation Act,Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various finalThere are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. | 1 | 11,548 | 3,540 | ### Instruction:
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claim of agnates was also rejected by the District Collector on the ground that they had withdrawn their objections in the probate proceedings and are thus estopped from making any further claim. 50. Challenging the order passed by the District Collector, appeal has been preferred before the Board of Revenue and the same is pending. The Board of Revenue stayed the order of the District Collector by the order dated 12.04.2016. It was thereafter, the High Court had taken up the Writ Petition No.2713 of 1987 and passed the impugned order quashing the three communication/orders. When the appeals were pending before the Delhi High Court and before the Board of Revenue involving disputed questions, the High Court, in my view, ought to have directed the parties to avail efficacious alternative remedy. The High Court, in my view, ignoring the subsequent events that the respondents-agnates have withdrawn their objections in the probate petition and dismissal of the probate petition and the appeals pending before the Delhi High Court and appeal pending before the Board of Revenue erred in quashing the three communications/orders and directing the State to hand over the possession of the properties to the respondents. 51. Under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions; one of which is an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in three instances:- (i) where writ petition is filed for enforcement of any of the fundamental rights; (ii) where there is a violation of the fundamental right or principles of natural justice; and (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged; [vide Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107 ]. 52. Notwithstanding the availability of alternative remedy, having regard to the facts of the case, the High Court has a discretion to entertain or not to entertain a writ petition. But in the present case, while considering correctness of the communications/orders issued way back in 1987, the High Court should have taken into consideration the subsequent events viz., the judgment passed by the High Court of Delhi in Testamentary Case and the order passed by the District Collector under Section 6 of the Act and the pendency of appeals before the High Court and Board of Revenue. Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. The impugned order takes away the very foundation of the order passed by the District Collector which is subject matter of the appeal pending before the Board of Revenue. There are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The High Court, in my considered view, ought to have directed the parties to work out the remedy before the competent court/authority. 53. I summarise my conclusion as under:- (i) Since the Testamentary Case No.26 of 1987 then pending before the High Court of Delhi for grant of probate of the Will, has been dismissed and the testamentary appeal is pending before the High Court, there is no rightful owner as per the Will. (ii) Having withdrawn their objections in the probate proceedings, respondent Nos.5 to 9 are estopped from making any claim in the properties of Sh. Raja Sardar Singh till they establish their right in a court of law. (iii) The provisions of the Escheats Act, 1956 was initiated only after enquiring about the legal heirs of Sh. Raja Sardar Singh and before initiation of proceedings under the Escheats Act, the authorities satisfied itself as to ?failure of heirs? of Sh. Raja Sardar Singh and that the properties are bona vacantia. (iv) The persons claiming as agnates have not established their status in a court of law recognising them as rightful owners. (v) There was issuance of public notice and also to private individuals, before the State of Rajasthan took over the estate of Sh. Raja Sardar Singh by escheat. The provisions of the Rajasthan Escheats Regulation Act, 1956 have been substantially complied with. (vi) The State of Rajasthan was right in treating the property as ‘bona vacantia? and right in initiating the proceedings under the Rajasthan Escheats Regulation Act, 1956. (vii) Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. (viii) There are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987.
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Division Bench of the Delhi High Court and the same is pending. Under Section 6 of the Escheats Act, 1956, the Collector passed the order on 02.02.2016 dismissing the objections of the Trust on the basis of the order passed by the Delhi High Court in probate proceedings. The claim of agnates was also rejected by the District Collector on the ground that they had withdrawn their objections in the probate proceedings and are thus estopped from making any further claim.Challenging the order passed by theal has been preferred before the Board of Revenue and the same is pending. The Board of Revenue stayed the order of the District Collector by the order dated 12.04.2016. It was thereafter, the High Court had taken up the Writ Petition No.2713 of 1987 and passed the impugned order quashing the three communication/orders. When the appeals were pending before the Delhi High Court and before the Board of Revenue involving disputed questions, the High Court, in my view, ought to have directed the parties to avail efficacious alternative remedy. The High Court, in my view, ignoring the subsequent events that the respondents-agnates have withdrawn their objections in the probate petition and dismissal of the probate petition and the appeals pending before the Delhi High Court and appeal pending before the Board of Revenue erred in quashing the three communications/orders and directing the State to hand over the possession of the properties to the respondents.Under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions; one of which is an effective and efficacious remedy available. When efficacious alternative remedy is available, the High Court would not normally exercise the jurisdiction. However, alternative remedy will not be a bar at least in threewhere writ petition is filed forof any of the) where there is a violation of the fundamental right or principles of natural justice;where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged; [vide Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107 ].Notwithstanding the availability of alternative remedy, having regard to the facts of the case, the High Court has a discretion to entertain or not to entertain a writ petition. But in the present case, while considering correctness of the communications/orders issued way back in 1987, the High Court should have taken into consideration the subsequent events viz., the judgment passed by the High Court of Delhi in Testamentary Case and the order passed by the District Collector under Section 6 of the Act and the pendency of appeals before the High Court and Board of Revenue. Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various final orders. The impugned order takes away the very foundation of the order passed by the District Collector which is subject matter of the appeal pending before the Board of Revenue. There are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987. The High Court, in my considered view, ought to have directed the parties to work out the remedy before the competent court/authority.I summarise my conclusion asSince the Testamentary Case No.26 of 1987 then pending before the High Court of Delhi forte of the Will, has been dismissed and the testamentary appeal is pending before the High Court, there is no rightful owner as per theHaving withdrawn their objections in the probate proceedings, respondent Nos.5 to 9 are estopped from making any claim in the properties of Sh. Raja Sardar Singh till they establish their right in a court ofThe provisions of the Escheats Act, 1956 was initiated only after enquiring about the legal heirs of Sh. Raja Sardar Singh and before initiation of proceedings under the Escheats Act, the authorities satisfied itself as to ?failure of heirs? of Sh. Raja Sardar Singh and that the properties are bonaThe persons claiming as agnates have not established their status in a court of law recognising them as rightfulThere was issuance of public notice and also to private individuals, before the State of Rajasthan took over the estate of Sh. Raja Sardar Singh by escheat. The provisions of the Rajasthan Escheats Regulation Act, 1956 have been substantially compliedThe State of Rajasthan was right in treating the property as ‘bona vacantia? and right in initiating the proceedings under the Rajasthan Escheats Regulation Act,Challenge to the initiation of the proceedings under the Rajasthan Escheats Regulation Act, 1956 is already a subject matter of appeal before the Board of Revenue. Based on the Will, whether the Trust has a right to claim the properties of Sh. Raja Sardar Singh is also a subject matter of appeal before the Delhi High Court. While so, exercising jurisdiction under Article 226 of the Constitution of India, the High Court ought not to have gone into the correctness of three notices issued on 03.07.1987, 22.07.1987 and 03.08.1987 which themselves culminated into various finalThere are serious disputed questions of facts especially whether there was contravention of Proviso to Section 4 and in such view of the matter, the High Court ought not to have gone into the correctness of three communications/orders dated 03.07.1987, 22.07.1987 and 03.08.1987.
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P. C. Purushothama Reddiar Vs. S. Perumal | had incurred an expense of about Rs. 32/- per meeting. This is clearly an underestimate. But even if we accept that to be correct, for the four meetings referred to earlier, he would have incurred an expenditure of Rs. 128/-. If this expense is added to the sum of Rs. 1, 886/9 P. referred to earlier, the total expenditure incurred exceeds the prescribed limit of Rs. 2, 000/-. Hence the respondent is clearly guilty of the corrupt practice mentioned in Section 123(6).19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in this case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility see Bhagat Ram v. Khatu Ram and Another. [AIR 1929 PC 110 : 116 IC 394.]20. It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.21. It was lastly contended that the evidence afforded by the Police reports is not relevant. This again is untenable contention. Reports in question were made by Government officials in the discharge of their official duties. Those officers had been deputed by their superiors to cover the meetings in question. Obviously they were deputed in connection with the maintenance of law and order which is the special responsibility of the police. Hence, the question whether those reports were made in compliance with any particular provision of law is irrelevant.22. The first part of Section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty.23. The issue before the Court is whether the respondent had arranged certain election meetings on certain dates. The police reports in question are extremely relevant to establish that fact. Hence they come within the ambit of the 1st part of Section 35 of the Evidence Act. In this connection we would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar v. Ramaswami Pandia Thelavar. [ILR 40 Mad 871 at 878 amd 879.] Therein the learned Judges observed thus :"As however the cases may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely : (1) the decree of the Zilah Court of Tinnevelly, dated May 31, 1859, in Original Suit No. 4 1859, (2) the Takid of the Collector to the Muzumdar on the death of the Raja in 1850, (3) the reply of the Muzumdar and (4) the Collectors Takid in 1853 on the complaint of the Zamindars widow as to the conduct of Maruthappa Thevar who according to the plaintiffs case was the father of Gananapuranis mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record. The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collectors and Taluk offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. I think, however, that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Periyanayagam Pillai, [(1874) LR 1 IA 209 at p. 238.] they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them."24. We are in agreement with the view taken by the Madras High Court in that case.25. Now coming to the value to be attached to the evidence afforded by those reports, we may usefully refer to the decision of the Judicial Committee in Arjuno Naiko and Others v. Modonomohono Naiko and Others. [AIR 1940 PC 153 : ILR 1940 Kar PC 349 : 1940 ALJ 671.] In that case a person brought a suit for establishing that he was the adopted son of a dismissed Sirdar and as such entitled to succeed to the Siradarship. In evidence documents coming from official sources recording statements as to adoption made to the officials in the locality not merely by the plaintiff himself in the presence of others but also by other member and by the dismissed Sirdar himself were produced. These statements were made at a time when no disputes had arisen and were made in connection with a matter of local interest viz., the appointment of a new Sirdar. The Judicial Committee held that the documents carried greatest possible weight and could not be dismissed as mere self-assertions.26. Similarly in this case, the police reports in question were made by the Government officials who are not shown to be inimically disposed towards the respondent or his party. They were made when there was no dispute and the dispute in question could not have been anticipated.27. In view of the above conclusion, it is not necessary to go to the other contentions advanced on behalf of the appellant. | 1[ds]10. In our opinion, the High Court was wholly wrong in coming to the conclusion that the amendment application moved on behalf of the appellant sought to add new corrupt practice. The incurring or authorising of an expenditure in contravention of Section 77 of the Act is one single corrupt practice. The incurring or authorising of an expenditure in connection with the election is not by itself a corrupt practice. The corrupt practice is the incurring or authorising the expenditure of more than the prescribed limit. Hence the Trial Court erred in thinking that each item of expenditure is a corrupt practice by itself. This position is obvious from the language of the section itself. This Court had occasion to go into that question in D. P. Mishra and Another v. Kamal Narayan Sharma and Another. [(1971) 1 SCR 8 : 1970 (2) SCC 369 : AIR 1970 SC 1477 : (1970) 2 SCJ 639.] In that case this Court came to the conclusion that the particulars of a corrupt practice falling under Section 123(6) may in an appropriate case be introduced by amendment. By doing so, no additional ground of corrupt practice can be said to have been introduced. If it had been necessary for the case, we would have allowed that amendment application and sent back the case for further trial. But for the reasons to be presently stated, we have thought it unnecessary to do so.11. In dealing with the expenditure incurred in connection with the election meetings, the first and the important question that has to be decided is as to when the election campaign of the respondent commenced. According to the appellant; it commenced on February 23, 1969. But according to the respondent it commenced on February 27, 1969. Decision on this question has great bearing on the other points arising for decision. Hence we shall first address ourselves to that question. The learned trial Judge did not give any positive finding on this question. In the course of his judgment he doubted the evidence of the respondent on this point but by taking a facile view of the evidence on record, he just rejected the evidence of the appellant as unacceptable and wholly accepted the evidence of the respondent as regards the number of meetings held though he felt that the respondent has not come forward with a truthful version.12. It is true that in election cases oral evidence has to be examined with great deal of care because of the partisan atmosphere continuing even after the election. But it will be wrong on the part of courts to just brush aside the oral evidence even when the evidence is highly probable and the same is corroborated by unimpeachable documentary evidence. As mentioned earlier, according to the appellant, the respondent started his election campaign with a well attended meeting on February 23, 1969 at Ariyankuppam. In support of that version he examined P.Ws. 3, 4, 7, 13, 16 and 19. Their evidence was corroborated by Exts. P-15 and P-35. But the learned trial Judge rejected this evidence without examining them. He came to the conclusion that the witnesses examined are partisan witnesses. Therefore much reliance cannot be placed on their testimony. But he failed to attach sufficient importance to the tell-tale evidence afforded by Exts. P-17 and P-35. Ex. P-15 is an application made by the respondent to the Inspector of Police, C Circle, Pondicherry. Therein the respondent stated :"Please grant me permission to hold a public meeting at Ariyankuppam Cuddalore Road in front of market, on the occasion of inaugration of my electoral office on February 23, 1969, from 9 to 12 a.m. and to make use of loud-speakers."13. The permission sought for was granted by the Inspector. The Inspector, P.W. 24 deposed that he deputed a Head Constable to cover that meeting and report about the same. It is gathered from the evidence of P.W. 24, that in Pondicherry, before holding a meeting, permission of the police will have to be obtained and it is the usual practice there to depute a police officer to cover the meetings and report about the speeches made by the speakers. P.W. 24, further says that he deputed a Head Constable to cover the meeting to be held in connection with the inauguration of the election campaign of the respondent and in that connection the Head Constable in question submitted to him the report Ex.P. 35. The report in question was proved through the Inspector without any objection. The report says that the election campaign of the respondent was inaugurated by holding a public meeting on February 23, 1969 and that meeting was addressed by as many as eight persons in addition to the respondent. This report was received by the Inspector on February 25. Despite this clinching evidence afforded by Exts. P-15 and P-35, the respondent made bold to deny the factum of having held a meeting on the 23rd. In view of this documentary evidence, the learned trial judge was unable to accept the evidence of the respondent. All the same he opined that it was immaterial whether the election campaign was inaugurated on the 23rd or on the 27th, since he was inclined to accept the evidence of the respondent that he had held only seven meetings and not more. This, in our opinion, is an erroneous approach. As seen earlier, the respondent has denied having held any meeting on February 23. But this denial cannot be accepted as true. For the reasons already mentioned we feel satisfied that the respondents election campaign commenced on February 23, 1969 and in that connection a meeting was held in Ariyankuppam on that date.For the reasons mentioned above, we are satisfied that in addition to the seven election meetings which the respondent admitted having arranged, the appellant has been able to satisfactorily prove that the respondent had arranged at least four more meetings.Now coming to the question as to the expenditure incurred in connection with those meetings, it is no doubt for the appellant to prove the same.According to the respondent he had not maintained any accounts in connection with his election. The expenditure incurred for his election is specially within the knowledge of the respondent. He has not adduced any evidence in that connection. He has totally denied having held those meetings. That denial for the reasons already mentioned cannot be accepted. Therefore we have now to find our what would have been the reasonable expenditure incurred in connection with those meetings. Even according to the respondent for the seven meetings held by him, he incurred an expenditure of more than Rs. 225/-. That means on an average he had incurred an expense of about Rs. 32/- per meeting. This is clearly an underestimate. But even if we accept that to be correct, for the four meetings referred to earlier, he would have incurred an expenditure of Rs. 128/-. If this expense is added to the sum of Rs. 1, 886/9 P. referred to earlier, the total expenditure incurred exceeds the prescribed limit of Rs. 2, 000/-. Hence the respondent is clearly guilty of the corrupt practice mentioned in Sectionpolice reports in question are extremely relevant to establish that fact. Hence they come within the ambit of the 1st part of Section 35 of the Evidence Act. In this connection we would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar v. Ramaswami Pandia Thelavar. [ILR 40 Mad 871 at 878 amd 879.] Therein the learned Judges observed thus :"As however the cases may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely : (1) the decree of the Zilah Court of Tinnevelly, dated May 31, 1859, in Original Suit No. 4 1859, (2) the Takid of the Collector to the Muzumdar on the death of the Raja in 1850, (3) the reply of the Muzumdar and (4) the Collectors Takid in 1853 on the complaint of the Zamindars widow as to the conduct of Maruthappa Thevar who according to the plaintiffs case was the father of Gananapuranis mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record. The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collectors and Taluk offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. I think, however, that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Periyanayagam Pillai, [(1874) LR 1 IA 209 at p. 238.] they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them."24. We are in agreement with the view taken by the Madras High Court in that case.25. Now coming to the value to be attached to the evidence afforded by those reports, we may usefully refer to the decision of the Judicial Committee in Arjuno Naiko and Others v. Modonomohono Naiko and Others. [AIR 1940 PC 153 : ILR 1940 Kar PC 349 : 1940 ALJ 671.] In that case a person brought a suit for establishing that he was the adopted son of a dismissed Sirdar and as such entitled to succeed to the Siradarship. In evidence documents coming from official sources recording statements as to adoption made to the officials in the locality not merely by the plaintiff himself in the presence of others but also by other member and by the dismissed Sirdar himself were produced. These statements were made at a time when no disputes had arisen and were made in connection with a matter of local interest viz., the appointment of a new Sirdar. The Judicial Committee held that the documents carried greatest possible weight and could not be dismissed as mere self-assertions.26. Similarly in this case, the police reports in question were made by the Government officials who are not shown to be inimically disposed towards the respondent or his party. They were made when there was no dispute and the dispute in question could not have been anticipated.27. In view of the above conclusion, it is not necessary to go to the other contentions advanced on behalf of the appellant.This is a general denial. The respondent did not deal with the various facts stated in the election petition. From those averments, it is clear that the respondent denied having arranged any of the meeting mentioned in the election petition. | 1 | 4,251 | 2,043 | ### 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:
had incurred an expense of about Rs. 32/- per meeting. This is clearly an underestimate. But even if we accept that to be correct, for the four meetings referred to earlier, he would have incurred an expenditure of Rs. 128/-. If this expense is added to the sum of Rs. 1, 886/9 P. referred to earlier, the total expenditure incurred exceeds the prescribed limit of Rs. 2, 000/-. Hence the respondent is clearly guilty of the corrupt practice mentioned in Section 123(6).19. Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head Constables who covered those meetings have not been examined in this case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility see Bhagat Ram v. Khatu Ram and Another. [AIR 1929 PC 110 : 116 IC 394.]20. It was next urged that even if the reports in question are admissible, we cannot look into the contents of those documents. This contention is again unacceptable. Once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.21. It was lastly contended that the evidence afforded by the Police reports is not relevant. This again is untenable contention. Reports in question were made by Government officials in the discharge of their official duties. Those officers had been deputed by their superiors to cover the meetings in question. Obviously they were deputed in connection with the maintenance of law and order which is the special responsibility of the police. Hence, the question whether those reports were made in compliance with any particular provision of law is irrelevant.22. The first part of Section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty.23. The issue before the Court is whether the respondent had arranged certain election meetings on certain dates. The police reports in question are extremely relevant to establish that fact. Hence they come within the ambit of the 1st part of Section 35 of the Evidence Act. In this connection we would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar v. Ramaswami Pandia Thelavar. [ILR 40 Mad 871 at 878 amd 879.] Therein the learned Judges observed thus :"As however the cases may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely : (1) the decree of the Zilah Court of Tinnevelly, dated May 31, 1859, in Original Suit No. 4 1859, (2) the Takid of the Collector to the Muzumdar on the death of the Raja in 1850, (3) the reply of the Muzumdar and (4) the Collectors Takid in 1853 on the complaint of the Zamindars widow as to the conduct of Maruthappa Thevar who according to the plaintiffs case was the father of Gananapuranis mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record. The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collectors and Taluk offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. I think, however, that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Periyanayagam Pillai, [(1874) LR 1 IA 209 at p. 238.] they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them."24. We are in agreement with the view taken by the Madras High Court in that case.25. Now coming to the value to be attached to the evidence afforded by those reports, we may usefully refer to the decision of the Judicial Committee in Arjuno Naiko and Others v. Modonomohono Naiko and Others. [AIR 1940 PC 153 : ILR 1940 Kar PC 349 : 1940 ALJ 671.] In that case a person brought a suit for establishing that he was the adopted son of a dismissed Sirdar and as such entitled to succeed to the Siradarship. In evidence documents coming from official sources recording statements as to adoption made to the officials in the locality not merely by the plaintiff himself in the presence of others but also by other member and by the dismissed Sirdar himself were produced. These statements were made at a time when no disputes had arisen and were made in connection with a matter of local interest viz., the appointment of a new Sirdar. The Judicial Committee held that the documents carried greatest possible weight and could not be dismissed as mere self-assertions.26. Similarly in this case, the police reports in question were made by the Government officials who are not shown to be inimically disposed towards the respondent or his party. They were made when there was no dispute and the dispute in question could not have been anticipated.27. In view of the above conclusion, it is not necessary to go to the other contentions advanced on behalf of the appellant.
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was immaterial whether the election campaign was inaugurated on the 23rd or on the 27th, since he was inclined to accept the evidence of the respondent that he had held only seven meetings and not more. This, in our opinion, is an erroneous approach. As seen earlier, the respondent has denied having held any meeting on February 23. But this denial cannot be accepted as true. For the reasons already mentioned we feel satisfied that the respondents election campaign commenced on February 23, 1969 and in that connection a meeting was held in Ariyankuppam on that date.For the reasons mentioned above, we are satisfied that in addition to the seven election meetings which the respondent admitted having arranged, the appellant has been able to satisfactorily prove that the respondent had arranged at least four more meetings.Now coming to the question as to the expenditure incurred in connection with those meetings, it is no doubt for the appellant to prove the same.According to the respondent he had not maintained any accounts in connection with his election. The expenditure incurred for his election is specially within the knowledge of the respondent. He has not adduced any evidence in that connection. He has totally denied having held those meetings. That denial for the reasons already mentioned cannot be accepted. Therefore we have now to find our what would have been the reasonable expenditure incurred in connection with those meetings. Even according to the respondent for the seven meetings held by him, he incurred an expenditure of more than Rs. 225/-. That means on an average he had incurred an expense of about Rs. 32/- per meeting. This is clearly an underestimate. But even if we accept that to be correct, for the four meetings referred to earlier, he would have incurred an expenditure of Rs. 128/-. If this expense is added to the sum of Rs. 1, 886/9 P. referred to earlier, the total expenditure incurred exceeds the prescribed limit of Rs. 2, 000/-. Hence the respondent is clearly guilty of the corrupt practice mentioned in Sectionpolice reports in question are extremely relevant to establish that fact. Hence they come within the ambit of the 1st part of Section 35 of the Evidence Act. In this connection we would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar v. Ramaswami Pandia Thelavar. [ILR 40 Mad 871 at 878 amd 879.] Therein the learned Judges observed thus :"As however the cases may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely : (1) the decree of the Zilah Court of Tinnevelly, dated May 31, 1859, in Original Suit No. 4 1859, (2) the Takid of the Collector to the Muzumdar on the death of the Raja in 1850, (3) the reply of the Muzumdar and (4) the Collectors Takid in 1853 on the complaint of the Zamindars widow as to the conduct of Maruthappa Thevar who according to the plaintiffs case was the father of Gananapuranis mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record. The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collectors and Taluk offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. I think, however, that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Periyanayagam Pillai, [(1874) LR 1 IA 209 at p. 238.] they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them."24. We are in agreement with the view taken by the Madras High Court in that case.25. Now coming to the value to be attached to the evidence afforded by those reports, we may usefully refer to the decision of the Judicial Committee in Arjuno Naiko and Others v. Modonomohono Naiko and Others. [AIR 1940 PC 153 : ILR 1940 Kar PC 349 : 1940 ALJ 671.] In that case a person brought a suit for establishing that he was the adopted son of a dismissed Sirdar and as such entitled to succeed to the Siradarship. In evidence documents coming from official sources recording statements as to adoption made to the officials in the locality not merely by the plaintiff himself in the presence of others but also by other member and by the dismissed Sirdar himself were produced. These statements were made at a time when no disputes had arisen and were made in connection with a matter of local interest viz., the appointment of a new Sirdar. The Judicial Committee held that the documents carried greatest possible weight and could not be dismissed as mere self-assertions.26. Similarly in this case, the police reports in question were made by the Government officials who are not shown to be inimically disposed towards the respondent or his party. They were made when there was no dispute and the dispute in question could not have been anticipated.27. In view of the above conclusion, it is not necessary to go to the other contentions advanced on behalf of the appellant.This is a general denial. The respondent did not deal with the various facts stated in the election petition. From those averments, it is clear that the respondent denied having arranged any of the meeting mentioned in the election petition.
|
State of Punjab & Another Vs. Suraj Prakash & Another | destroy the corpus of the offence.(xi) The testimony of P.W. 4 Rajender Kumar, testifying about the disclosures made by accused Dharminder to him about the conspiracy and the execution thereof to murder Gurdip.(xii) A failed attempt on the part of Bhalla Ram to show that he was on duty that night from 9:00p.m. to 5:00a.m in the face of his presence at the time of Inquest that was conducted after 3:30a.m. by the Police and his signature on the Inquest report. 21. True it is, that a conviction on the basis of circumstantial evidence alone would demand that the circumstances be such so as to form a complete chain so much so that every possible hypothesis of the innocence of the accused person(s) is ruled out. The test would depend on the facts of each case and the circumstances presented thereby. On an assessment of the evidence adduced by the prosecution and the incriminating circumstances noted hereinabove, we are of the unhesitant opinion that the same unmistakably establish the culpability of all the accused persons in the charges framed against them. To start with, not only accused Nos. 1, 2, 3 and 4 are members of the same family and were fully aware that accused No. 1 Dharminder was uncontrollably enamoured by Ranju and that Gurdip was also a contender for her, which in our opinion is a motive for the perpetration of the crime for which they have been charged with, the materials on record establish that in order to facilitate the commission of the offence they took along with them accused No. 4 Nazar Singh so that the deceased could be trapped in their design, taken to the temple, first injured in the leg so as to maim him and then over power him to be doused with kerosene and put on fire and ensure that he was dead by the time, the report was made to the Police posing as if their brother accused No. 1 Dharminder had committed suicide. The criminal intent of the accused persons, according to us is writ large and the circumstances enumerated hereinabove do not permit any other view. The circumstances fit in with the version of the witnesses and present a complete and a clear picture of the incident and the manner of commission of the offence. Had the accused persons not conspired to commit the offence, the family members would have endeavored at first to procure medical help than letting the body lie in the temple and take enough time to inform the Police to be sure that death had taken place. The very fact that after having participated in the crime and also having ensured that Gurdip had died, a false information was lodged with the Police to the effect that it was accused No. 1 Dharminder, who had committed suicide demonstrates the mens rea of the accused persons beyond any reasonable doubt. There was a criminal intent to mislead the Police and cover up the incident of murder of Gurdip to be that of suicide of Dharminder and had not Jagjit met this accused at the railway station, the episode might have ended in this fashion.22. Though an attempt has been made to contend that the witnesses are all relatives of the deceased and, therefore, partisan having regard to the substance and the coherence of their testimony, we are of the view that this factor perse cannot discredit them or adversely affect the probative worth of their statements on oath. The recovery of the personal belongings of Gurdip from the place as shown by Dharminder and that of the blood stained shirt of Suraj worn by him at the time of commission of the offence, at their instance, also in our opinion furnishes a fool proof evidence of nexus between the accused persons and the crime. There is no dispute with regard to the identity of the dead body as well. Not only the post mortem indicates that the body was identifiable as the face was not burnt which is also a fact supported by the findings recorded in the Inquest Report, the witnesses as referred to hereinabove on being shown the photographs of the dead body have identified the same to be that of Gurdip. There is no plea on behalf of the defence and rightly so, that accused No. 1 Dharminder is not alive. In that view of the matter on a consideration of the evidence as a whole, we are of the opinion that there is no room for any reasonable doubt about the culpability of the accused persons in a body to have conspired to murder Gurdip by first assaulting him with an iron reti in the leg and then set him ablaze alive by over powering him in the temple in the dead of light. The situs of the occurrence, being a temple of which accused No. 4 Rani was the Priestess, in our opinion, overwhelmingly prove her knowledge, collaboration and participation in the same.23. In all, therefore, the incriminating circumstances established by the prosecution form a complete chain of events which do not permit any confusion or doubt with regard to the involvement of all the accused persons in this heinous crime of murder. What makes this offence abhorrent is the fact that not only the murder was committed in a deceitful manner, the same was designed to be a case of suicide by one of their sons, thereby trying to mislead the investigating agency and abuse the process of law. In the above view of the matter, we are constrained to hold that the learned appellate Court grossly erred in assessing the evidence on record in acquitting accused Nos. 2 and 3 Suraj and Bhalla Ram. We, therefore, reverse the order of acquittal of these two accused persons into one of conviction under Sections 302, 419, 404, 201, 120B of the I.P.C.24. Further, we find no persuasive reason to differ from or interfere with the findings recorded by the trial Court. | 1[ds]Though an attempt was made by the learned counsel to rely on a letter dated 1st July, 2000 addressed on behalf of the accused person to the concerned police authority to plead that their association was only with regard to the identification of the dead body which was wrongly done to be that of accused Dharminder, as the said document does not form a part of the record of the trial, we are not inclined to either refer thereto or rely thereon.The evidence on record when analysed provides the following incriminating circumstances(i) On 22nd June, 2000, at about 6/7 p.m., the evening before the discovery of the dead body of the deceased later that night, accused Dharminder and Nazar Singh had visited the house of Gurdip and had taken him along with them whereafter the deceased did not return.(ii) The fact that Gurdip was in the company of Dharminder and Nazar Singh was confirmed by accused No. 2 Suraj, accused no. 3 Bhalla Ram, accused No. 4 Rani and accused No. 5 Nazar to the informant along with Harbhajan had gone to their house to enquire about the whereabouts of Gurdip Singh, the very same evening.(iii) On 23rd June, 2000, when P.W. 6 Harbhajan Singh had visited the house of Rani, accused No. 4 she disclosed to her that her son Dharminder, accused No. 1 had committed suicide and had also requested him to search for Gurdip Singh whose whereabouts were not known till then.(iv) On the basis of disclosures made by accused No. 5 Nazar Singh, hisshirt which he was wearing at the time of offence and also the gold kara belonging Gurdip was recovered. The gold kara was identified to be that of Gurdip by P.W. 7.(v) No explanation has been provided by accused No. 4 as to how his shirt got stained with blood.(vi) Acting on the disclosures of Dharminder, accused No. 1, the personal belongings of the deceased were recovered from the place which he had indicated. There was no explanation from the side of the accused Dharmender as to how these personal belongings came into his possession or got recovered from the place shown by him.(vii) Theconfession made by accused Dharminder to Jagjit Singh who conveyed it to Gurmeet, the informant that he (Dharminder) along with his brothers, mother and friend Nazar Singh had conspired and murdered Gurdip in the temple and had endeavoured to pass on the incident as one of suicide by Dharminder.(viii) Suraj, accused No.2 had informed the Police between 1:15A.M. and 3:30A.M. on 23rd June, 2000, that his brother accused No. 1 Dharminder had committed suicide by immolating himself in the temple and expressing at the same time that no legal action was called for.(ix) The dead body was found about 1:15a.m inside the temple and Suraj and his mother Rani had gone to the place of occurrence. They seemed to be certain about the death of the person concerned and did not attempt to provide any medical attention and had waited for a sufficient long time to inform the Police only to apprise them of the incident and not for any legal action in connection therewith. Such a conduct is incomprehensible if the body was really that of Dharminder.(x) The visible haste on the part of the accused persons to get the Inquest anddone and have the dead body cremated before the real identification would surface so as to destroy the corpus of the offence.(xi) The testimony of P.W. 4 Rajender Kumar, testifying about the disclosures made by accused Dharminder to him about the conspiracy and the execution thereof to murder Gurdip.(xii) A failed attempt on the part of Bhalla Ram to show that he was on duty that night from 9:00p.m. to 5:00a.m in the face of his presence at the time of Inquest that was conducted after 3:30a.m. by the Police and his signature on the Inquest report.True it is, that a conviction on the basis of circumstantial evidence alone would demand that the circumstances be such so as to form a complete chain so much so that every possible hypothesis of the innocence of the accused person(s) is ruled out. The test would depend on the facts of each case and the circumstances presented thereby. On an assessment of the evidence adduced by the prosecution and the incriminating circumstances noted hereinabove, we are of the unhesitant opinion that the same unmistakably establish the culpability of all the accused persons in the charges framed against them. To start with, not only accused Nos. 1, 2, 3 and 4 are members of the same family and were fully aware that accused No. 1 Dharminder was uncontrollably enamoured by Ranju and that Gurdip was also a contender for her, which in our opinion is a motive for the perpetration of the crime for which they have been charged with, the materials on record establish that in order to facilitate the commission of the offence they took along with them accused No. 4 Nazar Singh so that the deceased could be trapped in their design, taken to the temple, first injured in the leg so as to maim him and then over power him to be doused with kerosene and put on fire and ensure that he was dead by the time, the report was made to the Police posing as if their brother accused No. 1 Dharminder had committed suicide. The criminal intent of the accused persons, according to us is writ large and the circumstances enumerated hereinabove do not permit any other view. The circumstances fit in with the version of the witnesses and present a complete and a clear picture of the incident and the manner of commission of the offence. Had the accused persons not conspired to commit the offence, the family members would have endeavored at first to procure medical help than letting the body lie in the temple and take enough time to inform the Police to be sure that death had taken place. The very fact that after having participated in the crime and also having ensured that Gurdip had died, a false information was lodged with the Police to the effect that it was accused No. 1 Dharminder, who had committed suicide demonstrates the mens rea of the accused persons beyond any reasonable doubt. There was a criminal intent to mislead the Police and cover up the incident of murder of Gurdip to be that of suicide of Dharminder and had not Jagjit met this accused at the railway station, the episode might have ended in this fashion.22. Though an attempt has been made to contend that the witnesses are all relatives of the deceased and, therefore, partisan having regard to the substance and the coherence of their testimony, we are of the view that this factor perse cannot discredit them or adversely affect the probative worth of their statements on oath. The recovery of the personal belongings of Gurdip from the place as shown by Dharminder and that of the blood stained shirt of Suraj worn by him at the time of commission of the offence, at their instance, also in our opinion furnishes a fool proof evidence of nexus between the accused persons and the crime. There is no dispute with regard to the identity of the dead body as well. Not only the post mortem indicates that the body was identifiable as the face was not burnt which is also a fact supported by the findings recorded in the Inquest Report, the witnesses as referred to hereinabove on being shown the photographs of the dead body have identified the same to be that of Gurdip. There is no plea on behalf of the defence and rightly so, that accused No. 1 Dharminder is not alive. In that view of the matter on a consideration of the evidence as a whole, we are of the opinion that there is no room for any reasonable doubt about the culpability of the accused persons in a body to have conspired to murder Gurdip by first assaulting him with an iron reti in the leg and then set him ablaze alive by over powering him in the temple in the dead of light. The situs of the occurrence, being a temple of which accused No. 4 Rani was the Priestess, in our opinion, overwhelmingly prove her knowledge, collaboration and participation in the same.23. In all, therefore, the incriminating circumstances established by the prosecution form a complete chain of events which do not permit any confusion or doubt with regard to the involvement of all the accused persons in this heinous crime of murder. What makes this offence abhorrent is the fact that not only the murder was committed in a deceitful manner, the same was designed to be a case of suicide by one of their sons, thereby trying to mislead the investigating agency and abuse the process of law. In the above view of the matter, we are constrained to hold that the learned appellate Court grossly erred in assessing the evidence on record in acquitting accused Nos. 2 and 3 Suraj and Bhalla Ram. We, therefore, reverse the order of acquittal of these two accused persons into one of conviction under Sections 302, 419, 404, 201, 120B of the I.P.C.24. Further, we find no persuasive reason to differ from or interfere with the findings recorded by the trial Court. | 1 | 6,484 | 1,736 | ### 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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destroy the corpus of the offence.(xi) The testimony of P.W. 4 Rajender Kumar, testifying about the disclosures made by accused Dharminder to him about the conspiracy and the execution thereof to murder Gurdip.(xii) A failed attempt on the part of Bhalla Ram to show that he was on duty that night from 9:00p.m. to 5:00a.m in the face of his presence at the time of Inquest that was conducted after 3:30a.m. by the Police and his signature on the Inquest report. 21. True it is, that a conviction on the basis of circumstantial evidence alone would demand that the circumstances be such so as to form a complete chain so much so that every possible hypothesis of the innocence of the accused person(s) is ruled out. The test would depend on the facts of each case and the circumstances presented thereby. On an assessment of the evidence adduced by the prosecution and the incriminating circumstances noted hereinabove, we are of the unhesitant opinion that the same unmistakably establish the culpability of all the accused persons in the charges framed against them. To start with, not only accused Nos. 1, 2, 3 and 4 are members of the same family and were fully aware that accused No. 1 Dharminder was uncontrollably enamoured by Ranju and that Gurdip was also a contender for her, which in our opinion is a motive for the perpetration of the crime for which they have been charged with, the materials on record establish that in order to facilitate the commission of the offence they took along with them accused No. 4 Nazar Singh so that the deceased could be trapped in their design, taken to the temple, first injured in the leg so as to maim him and then over power him to be doused with kerosene and put on fire and ensure that he was dead by the time, the report was made to the Police posing as if their brother accused No. 1 Dharminder had committed suicide. The criminal intent of the accused persons, according to us is writ large and the circumstances enumerated hereinabove do not permit any other view. The circumstances fit in with the version of the witnesses and present a complete and a clear picture of the incident and the manner of commission of the offence. Had the accused persons not conspired to commit the offence, the family members would have endeavored at first to procure medical help than letting the body lie in the temple and take enough time to inform the Police to be sure that death had taken place. The very fact that after having participated in the crime and also having ensured that Gurdip had died, a false information was lodged with the Police to the effect that it was accused No. 1 Dharminder, who had committed suicide demonstrates the mens rea of the accused persons beyond any reasonable doubt. There was a criminal intent to mislead the Police and cover up the incident of murder of Gurdip to be that of suicide of Dharminder and had not Jagjit met this accused at the railway station, the episode might have ended in this fashion.22. Though an attempt has been made to contend that the witnesses are all relatives of the deceased and, therefore, partisan having regard to the substance and the coherence of their testimony, we are of the view that this factor perse cannot discredit them or adversely affect the probative worth of their statements on oath. The recovery of the personal belongings of Gurdip from the place as shown by Dharminder and that of the blood stained shirt of Suraj worn by him at the time of commission of the offence, at their instance, also in our opinion furnishes a fool proof evidence of nexus between the accused persons and the crime. There is no dispute with regard to the identity of the dead body as well. Not only the post mortem indicates that the body was identifiable as the face was not burnt which is also a fact supported by the findings recorded in the Inquest Report, the witnesses as referred to hereinabove on being shown the photographs of the dead body have identified the same to be that of Gurdip. There is no plea on behalf of the defence and rightly so, that accused No. 1 Dharminder is not alive. In that view of the matter on a consideration of the evidence as a whole, we are of the opinion that there is no room for any reasonable doubt about the culpability of the accused persons in a body to have conspired to murder Gurdip by first assaulting him with an iron reti in the leg and then set him ablaze alive by over powering him in the temple in the dead of light. The situs of the occurrence, being a temple of which accused No. 4 Rani was the Priestess, in our opinion, overwhelmingly prove her knowledge, collaboration and participation in the same.23. In all, therefore, the incriminating circumstances established by the prosecution form a complete chain of events which do not permit any confusion or doubt with regard to the involvement of all the accused persons in this heinous crime of murder. What makes this offence abhorrent is the fact that not only the murder was committed in a deceitful manner, the same was designed to be a case of suicide by one of their sons, thereby trying to mislead the investigating agency and abuse the process of law. In the above view of the matter, we are constrained to hold that the learned appellate Court grossly erred in assessing the evidence on record in acquitting accused Nos. 2 and 3 Suraj and Bhalla Ram. We, therefore, reverse the order of acquittal of these two accused persons into one of conviction under Sections 302, 419, 404, 201, 120B of the I.P.C.24. Further, we find no persuasive reason to differ from or interfere with the findings recorded by the trial Court.
### Response:
1
### Explanation:
as to destroy the corpus of the offence.(xi) The testimony of P.W. 4 Rajender Kumar, testifying about the disclosures made by accused Dharminder to him about the conspiracy and the execution thereof to murder Gurdip.(xii) A failed attempt on the part of Bhalla Ram to show that he was on duty that night from 9:00p.m. to 5:00a.m in the face of his presence at the time of Inquest that was conducted after 3:30a.m. by the Police and his signature on the Inquest report.True it is, that a conviction on the basis of circumstantial evidence alone would demand that the circumstances be such so as to form a complete chain so much so that every possible hypothesis of the innocence of the accused person(s) is ruled out. The test would depend on the facts of each case and the circumstances presented thereby. On an assessment of the evidence adduced by the prosecution and the incriminating circumstances noted hereinabove, we are of the unhesitant opinion that the same unmistakably establish the culpability of all the accused persons in the charges framed against them. To start with, not only accused Nos. 1, 2, 3 and 4 are members of the same family and were fully aware that accused No. 1 Dharminder was uncontrollably enamoured by Ranju and that Gurdip was also a contender for her, which in our opinion is a motive for the perpetration of the crime for which they have been charged with, the materials on record establish that in order to facilitate the commission of the offence they took along with them accused No. 4 Nazar Singh so that the deceased could be trapped in their design, taken to the temple, first injured in the leg so as to maim him and then over power him to be doused with kerosene and put on fire and ensure that he was dead by the time, the report was made to the Police posing as if their brother accused No. 1 Dharminder had committed suicide. The criminal intent of the accused persons, according to us is writ large and the circumstances enumerated hereinabove do not permit any other view. The circumstances fit in with the version of the witnesses and present a complete and a clear picture of the incident and the manner of commission of the offence. Had the accused persons not conspired to commit the offence, the family members would have endeavored at first to procure medical help than letting the body lie in the temple and take enough time to inform the Police to be sure that death had taken place. The very fact that after having participated in the crime and also having ensured that Gurdip had died, a false information was lodged with the Police to the effect that it was accused No. 1 Dharminder, who had committed suicide demonstrates the mens rea of the accused persons beyond any reasonable doubt. There was a criminal intent to mislead the Police and cover up the incident of murder of Gurdip to be that of suicide of Dharminder and had not Jagjit met this accused at the railway station, the episode might have ended in this fashion.22. Though an attempt has been made to contend that the witnesses are all relatives of the deceased and, therefore, partisan having regard to the substance and the coherence of their testimony, we are of the view that this factor perse cannot discredit them or adversely affect the probative worth of their statements on oath. The recovery of the personal belongings of Gurdip from the place as shown by Dharminder and that of the blood stained shirt of Suraj worn by him at the time of commission of the offence, at their instance, also in our opinion furnishes a fool proof evidence of nexus between the accused persons and the crime. There is no dispute with regard to the identity of the dead body as well. Not only the post mortem indicates that the body was identifiable as the face was not burnt which is also a fact supported by the findings recorded in the Inquest Report, the witnesses as referred to hereinabove on being shown the photographs of the dead body have identified the same to be that of Gurdip. There is no plea on behalf of the defence and rightly so, that accused No. 1 Dharminder is not alive. In that view of the matter on a consideration of the evidence as a whole, we are of the opinion that there is no room for any reasonable doubt about the culpability of the accused persons in a body to have conspired to murder Gurdip by first assaulting him with an iron reti in the leg and then set him ablaze alive by over powering him in the temple in the dead of light. The situs of the occurrence, being a temple of which accused No. 4 Rani was the Priestess, in our opinion, overwhelmingly prove her knowledge, collaboration and participation in the same.23. In all, therefore, the incriminating circumstances established by the prosecution form a complete chain of events which do not permit any confusion or doubt with regard to the involvement of all the accused persons in this heinous crime of murder. What makes this offence abhorrent is the fact that not only the murder was committed in a deceitful manner, the same was designed to be a case of suicide by one of their sons, thereby trying to mislead the investigating agency and abuse the process of law. In the above view of the matter, we are constrained to hold that the learned appellate Court grossly erred in assessing the evidence on record in acquitting accused Nos. 2 and 3 Suraj and Bhalla Ram. We, therefore, reverse the order of acquittal of these two accused persons into one of conviction under Sections 302, 419, 404, 201, 120B of the I.P.C.24. Further, we find no persuasive reason to differ from or interfere with the findings recorded by the trial Court.
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Commissioner Of Wealth-Tax, Madras Vs. Smt. Muthukrishna Ammal | lessee shall continue to enjoy the leased land undisturbed for a said term of twenty-five years. In case, however, there is any breach of any of the above conditions or the lessee delays payment of any sum due to the lessor for over two months from the date of its falling due or in case the licence granted under clause 9 above is cancelled or forfeited for breach of any condition of such licence the lessor may determine the lease forthwith. Each lease was liable to be determined by notice on either side at the close of any manufacturing season. The interest of the lessee under each lease was precarious; it was liable to be determined by notice by the Government at the expiry of any manufacturing season. The leasehold interest in the salt pans was therefore not available to the assessee for a period exceeding six years from the valuation dateA lesses interest in land is undoubtedly an interest in immovable property and would normally be an asset unless within the meaning of Section 2 (e) (v) of the Act, the interest in the property is available to the assessee for a period not exceeding six years. 6. It was urged by counsel, for the Revenue that since the respondent had enjoyed the rights under one lease for 16 years and in the other lease for 14 years, and on the valuation date both the leases were outstanding, the rights were assets within the meaning of the Wealth-tax Act.Counsel submitted that the expression is available to an assessee for a period not exceeding six years in clause (v) of Section 2 (e) means is and has been available to an assessee for the period of six years before the date of valuation.Counsel says that if interest in property though revocable has remained unrevoked for more than six years before the valuation date the interest would be an asset within the meaning of Section 2 (e). We are unable to agree with that contention. The expression used by the Parliament is is available to an assessee for a period not exceeding six years, andit must mean that thought the assessee has interest in property at the valuation ate the interest will remain available for a period not exceeding six years, or for a shorter period the interest will fall within the exception; if it is to remain available for a period exceeding six years it will fall within the definition of assets and its value will be liable to be included in the net wealth of the assessee. 7. The terms of Section 4 of the Wealth-tax Act also throw some light on the problem. That section prescribes certain classes of assets which are liable to be included in the net wealth of an assessee. The section, before it was amended by the Wealth-tax (Amendment) Act, 1954, provided: (1) In computing the net wealth of an individual there shall be included, as belonging to him- * * * * * (5) The value of any assets transferred under an irrevocable transfer shall be liable to be included in computing the net wealth of the transferor as and when the power to revoke arises to him. Explanation-For the purposes of this section the expression transfer includes any disposition, trust, covenant, agreement of arrangement and an irrevocable transfer includes a transfer of assets which, by the terms of the instrument effecting it , is not revocable for a period exceeding six years or during the lifetime of the transferee. If any assets are held under an irrevocable transfer, i.e., under a transfer which is not revocable for a period exceeding six years or during the lifetime of the transferee, the assets are liable to be included in the net wealth of the transferor.It is implicit in sub-section (5) of Section 4 that if an asset is held under a transfer which is revocable before the expiry of six years, the interest of the holder in the asset shall (sic (not?)) be included in the wealth of the transferor. If the transaction of lease in the present case was between a private individual and the respondent evidently by virtue of Section 4 (5) the interest of the assessee under the lease would have been liable to the included in the net wealth of the transferor. We see no reason to hold that because the transferor is the Government any different rule will apply. 8. Counsel for the Revenue invited our attention to the amendment made in the Act by the Wealth Tax (Amendment) Act 1964, in the definition of the word assets in Section 2 (e) of the Act. Relying upon the clause added by the Amending Act from the date the interest vests in the assessee after the expression six years in Clause 2 (e) (v), counsel, contended that this was intended to be a parliamentary exposition of the meaning of the original clause. We do not think that any such intention appears from the terms of that clause. Assuming that the exception in respect of interest in property which is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee is only to apply after the date of the amendment by the Wealth Tax (Amendment) Act 1964, that clause has no application and the terms of the section must be interpreted as they stood at the valuation date which crystallized the charge of Wealth-tax for the appropriate assessment year. It is unnecessary to refer to the amendment made by the same Amending Act in the Explanation to Section 4 of the Act.We are of the view that interest in property which is available to the tax-payer for a period not exceeding six years from the valuation date is not an asset within the meaning of Section 2 (e) and the lalue thereof cannot be included in the net wealth of the assessee for the financial year relevant to the valuation date. | 0[ds]We are unable to agree with that contention. The expression used by the Parliament is is available to an assessee for a period not exceeding six years, andit must mean that thought the assessee has interest in property at the valuation ate the interest will remain available for a period not exceeding six years, or for a shorter period the interest will fall within the exception; if it is to remain available for a period exceeding six years it will fall within the definition of assets and its value will be liable to be included in the net wealth of the assesseeIf any assets are held under an irrevocable transfer, i.e., under a transfer which is not revocable for a period exceeding six years or during the lifetime of the transferee, the assets are liable to be included in the net wealth of the transferor.It is implicit in sub-section (5) of Section 4 that if an asset is held under a transfer which is revocable before the expiry of six years, the interest of the holder in the asset shall (sic (not?)) be included in the wealth of the transferor. If the transaction of lease in the present case was between a private individual and the respondent evidently by virtue of Section 4 (5) the interest of the assessee under the lease would have been liable to the included in the net wealth of the transferor. We see no reason to hold that because the transferor is the Government any different rule will applyWe do not think that any such intention appears from the terms of that clause. Assuming that the exception in respect of interest in property which is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee is only to apply after the date of the amendment by the Wealth Tax (Amendment) Act 1964, that clause has no application and the terms of the section must be interpreted as they stood at the valuation date which crystallized the charge of Wealth-tax for the appropriate assessment year. It is unnecessary to refer to the amendment made by the same Amending Act in the Explanation to Section 4 of the Act.We are of the view that interest in property which is available to the tax-payer for a period not exceeding six years from the valuation date is not an asset within the meaning of Section 2 (e) and the lalue thereof cannot be included in the net wealth of the assessee for the financial year relevant to the valuation date. | 0 | 2,002 | 463 | ### 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:
lessee shall continue to enjoy the leased land undisturbed for a said term of twenty-five years. In case, however, there is any breach of any of the above conditions or the lessee delays payment of any sum due to the lessor for over two months from the date of its falling due or in case the licence granted under clause 9 above is cancelled or forfeited for breach of any condition of such licence the lessor may determine the lease forthwith. Each lease was liable to be determined by notice on either side at the close of any manufacturing season. The interest of the lessee under each lease was precarious; it was liable to be determined by notice by the Government at the expiry of any manufacturing season. The leasehold interest in the salt pans was therefore not available to the assessee for a period exceeding six years from the valuation dateA lesses interest in land is undoubtedly an interest in immovable property and would normally be an asset unless within the meaning of Section 2 (e) (v) of the Act, the interest in the property is available to the assessee for a period not exceeding six years. 6. It was urged by counsel, for the Revenue that since the respondent had enjoyed the rights under one lease for 16 years and in the other lease for 14 years, and on the valuation date both the leases were outstanding, the rights were assets within the meaning of the Wealth-tax Act.Counsel submitted that the expression is available to an assessee for a period not exceeding six years in clause (v) of Section 2 (e) means is and has been available to an assessee for the period of six years before the date of valuation.Counsel says that if interest in property though revocable has remained unrevoked for more than six years before the valuation date the interest would be an asset within the meaning of Section 2 (e). We are unable to agree with that contention. The expression used by the Parliament is is available to an assessee for a period not exceeding six years, andit must mean that thought the assessee has interest in property at the valuation ate the interest will remain available for a period not exceeding six years, or for a shorter period the interest will fall within the exception; if it is to remain available for a period exceeding six years it will fall within the definition of assets and its value will be liable to be included in the net wealth of the assessee. 7. The terms of Section 4 of the Wealth-tax Act also throw some light on the problem. That section prescribes certain classes of assets which are liable to be included in the net wealth of an assessee. The section, before it was amended by the Wealth-tax (Amendment) Act, 1954, provided: (1) In computing the net wealth of an individual there shall be included, as belonging to him- * * * * * (5) The value of any assets transferred under an irrevocable transfer shall be liable to be included in computing the net wealth of the transferor as and when the power to revoke arises to him. Explanation-For the purposes of this section the expression transfer includes any disposition, trust, covenant, agreement of arrangement and an irrevocable transfer includes a transfer of assets which, by the terms of the instrument effecting it , is not revocable for a period exceeding six years or during the lifetime of the transferee. If any assets are held under an irrevocable transfer, i.e., under a transfer which is not revocable for a period exceeding six years or during the lifetime of the transferee, the assets are liable to be included in the net wealth of the transferor.It is implicit in sub-section (5) of Section 4 that if an asset is held under a transfer which is revocable before the expiry of six years, the interest of the holder in the asset shall (sic (not?)) be included in the wealth of the transferor. If the transaction of lease in the present case was between a private individual and the respondent evidently by virtue of Section 4 (5) the interest of the assessee under the lease would have been liable to the included in the net wealth of the transferor. We see no reason to hold that because the transferor is the Government any different rule will apply. 8. Counsel for the Revenue invited our attention to the amendment made in the Act by the Wealth Tax (Amendment) Act 1964, in the definition of the word assets in Section 2 (e) of the Act. Relying upon the clause added by the Amending Act from the date the interest vests in the assessee after the expression six years in Clause 2 (e) (v), counsel, contended that this was intended to be a parliamentary exposition of the meaning of the original clause. We do not think that any such intention appears from the terms of that clause. Assuming that the exception in respect of interest in property which is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee is only to apply after the date of the amendment by the Wealth Tax (Amendment) Act 1964, that clause has no application and the terms of the section must be interpreted as they stood at the valuation date which crystallized the charge of Wealth-tax for the appropriate assessment year. It is unnecessary to refer to the amendment made by the same Amending Act in the Explanation to Section 4 of the Act.We are of the view that interest in property which is available to the tax-payer for a period not exceeding six years from the valuation date is not an asset within the meaning of Section 2 (e) and the lalue thereof cannot be included in the net wealth of the assessee for the financial year relevant to the valuation date.
### Response:
0
### Explanation:
We are unable to agree with that contention. The expression used by the Parliament is is available to an assessee for a period not exceeding six years, andit must mean that thought the assessee has interest in property at the valuation ate the interest will remain available for a period not exceeding six years, or for a shorter period the interest will fall within the exception; if it is to remain available for a period exceeding six years it will fall within the definition of assets and its value will be liable to be included in the net wealth of the assesseeIf any assets are held under an irrevocable transfer, i.e., under a transfer which is not revocable for a period exceeding six years or during the lifetime of the transferee, the assets are liable to be included in the net wealth of the transferor.It is implicit in sub-section (5) of Section 4 that if an asset is held under a transfer which is revocable before the expiry of six years, the interest of the holder in the asset shall (sic (not?)) be included in the wealth of the transferor. If the transaction of lease in the present case was between a private individual and the respondent evidently by virtue of Section 4 (5) the interest of the assessee under the lease would have been liable to the included in the net wealth of the transferor. We see no reason to hold that because the transferor is the Government any different rule will applyWe do not think that any such intention appears from the terms of that clause. Assuming that the exception in respect of interest in property which is available to an assessee for a period not exceeding six years from the date the interest vests in the assessee is only to apply after the date of the amendment by the Wealth Tax (Amendment) Act 1964, that clause has no application and the terms of the section must be interpreted as they stood at the valuation date which crystallized the charge of Wealth-tax for the appropriate assessment year. It is unnecessary to refer to the amendment made by the same Amending Act in the Explanation to Section 4 of the Act.We are of the view that interest in property which is available to the tax-payer for a period not exceeding six years from the valuation date is not an asset within the meaning of Section 2 (e) and the lalue thereof cannot be included in the net wealth of the assessee for the financial year relevant to the valuation date.
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Mahad Coop. Urban Bank Ltd Vs. Oriental Insurance Co. Ltd. & Another | 1. All these appeals can be disposed of by this common order as all these appeals are against the order passed by the National Consumer Disputes Redressal Commission dated 9-11-1998. 2. Briefly stated, the facts are as follows:The appellant in Civil Appeals Nos. 5155-5235 of 1999 (hereinafter called "the Bank") is a cooperative bank operating in Raigad district. The appellant in Civil Appeals Nos. 5236-5316 of 1999 is a nationalised insurance company (hereinafter called "the Insurance Company"). The Bank gave loans to the fishermen in that district. As per the normal practice the Bank got the stock of fish, in this case dry fish, insured with the Insurance Company. As per the normal practice, the Bank would debit insurance premium from the account of the fishermen and forward the same to the Insurance Company who then issued the insurance policy.3. It is admitted that in respect of the period concerned, the Bank had forwarded the premium as in the past to the Insurance Company. Admittedly, the same had been received by the Insurance Company.4. On 24-7-1989 a cyclone took place in this area. Heavy rains caused damage to the stock of dry fish. The result was that the entire stock of dry fish putrefied and as per the orders of the local authority the stock had to be destroyed as otherwise it could cause a health hazard.5. In 1992 claims were filed by various fishermen before various forums. We are concerned with the claims filed before the State Consumer Disputes Redressal Commission. The defence taken up before the State Consumer Forum, by the Insurance Company, was that the policy for this particular period did not cover risk for damage by flood but covered risk against spontaneous combustion. In support of this they relied upon cover notes and the insurance policies issued by them.6. The State Consumer Forum recorded evidence. On the basis of evidence, both oral and documentary, the State Consumer Forum arrived at a finding of fact that the cover notes and the policies had been manipulated, after the event, in order to get out of liability. The State Consumer Forum also held, and in our view correctly, that it was a well known fact that this area was prone to heavy rains and flood. The State Consumer Forum noted that in all the previous years the policies were of A type and covered the risk of floods. It was noted that there were no proposals, during this year, that the policy should not cover the risk of flood. It was held that the Insurance Company could not on its own delete the risk covering flood. It was found as a fact that no intimation was given of this alleged change to the Bank or the fishermen. It was also found that in case of dry fish there was hardly any necessity to cover risk of spontaneous combustion. It was held that if any clause had to be dropped, the clause covering risk by spontaneous combustion should have been dropped. On these findings the State Consumer Forum directed the Insurance Company to pay the claims of the fishermen. It must be mentioned that having found that there was manipulation the State Consumer Forum directed that the matter be placed before the Chairman, General Insurance Corporation of India so that remedial action could be taken by him.7. The Insurance Company appealed before the National Consumer Forum. By the impugned order, the findings of fact have been upheld. However, the National Consumer Forum has concluded that the Bank was also equally negligent inasmuch as: (a) they had not verified the amount of premium required; (b) not insisted on the issuance of cover notes; and (c) not seriously pursued the claims on behalf of the claimants. The National Consumer Forum, therefore, by the impugned judgment held the Bank liable to pay to the fishermen 50% of the amount awarded.8. The Bank has, thus, filed the appeal against the portion of the order whereby it has been directed to pay 50% of the amount. The Insurance Companys appeal is against the portion whereby it has been held liable to pay.9. As findings of fact by the State Consumer Forum have been confirmed by the National Consumer Disputes Redressal Commission, this Court would not interfere on facts. However, in order to satisfy ourselves, we also looked into this aspect and are satisfied that there was manipulation, after the event, to get out of liability. We, thus, see no reason to interfere with the findings against the Insurance Company. The appeals of the Insurance Company accordingly stand dismissed. We would also like to express our anguish at the manner in which a nationalised insurance company has behaved. We hope that the Chairman of Oriental Insurance Company will look into the matter and take remedial measures to see that this is not repeated. Hopefully, the Chairman will also take action against the delinquent officers if they are still available. | 1[ds]9. As findings of fact by the State Consumer Forum have been confirmed by the National Consumer Disputes Redressal Commission, this Court would not interfere on facts. However, in order to satisfy ourselves, we also looked into this aspect and are satisfied that there was manipulation, after the event, to get out of liability. We, thus, see no reason to interfere with the findings against the Insurance Company. The appeals of the Insurance Company accordingly stand dismissed. We would also like to express our anguish at the manner in which a nationalised insurance company has behaved. We hope that the Chairman of Oriental Insurance Company will look into the matter and take remedial measures to see that this is not repeated. Hopefully, the Chairman will also take action against the delinquent officers if they are still available. | 1 | 919 | 157 | ### 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:
1. All these appeals can be disposed of by this common order as all these appeals are against the order passed by the National Consumer Disputes Redressal Commission dated 9-11-1998. 2. Briefly stated, the facts are as follows:The appellant in Civil Appeals Nos. 5155-5235 of 1999 (hereinafter called "the Bank") is a cooperative bank operating in Raigad district. The appellant in Civil Appeals Nos. 5236-5316 of 1999 is a nationalised insurance company (hereinafter called "the Insurance Company"). The Bank gave loans to the fishermen in that district. As per the normal practice the Bank got the stock of fish, in this case dry fish, insured with the Insurance Company. As per the normal practice, the Bank would debit insurance premium from the account of the fishermen and forward the same to the Insurance Company who then issued the insurance policy.3. It is admitted that in respect of the period concerned, the Bank had forwarded the premium as in the past to the Insurance Company. Admittedly, the same had been received by the Insurance Company.4. On 24-7-1989 a cyclone took place in this area. Heavy rains caused damage to the stock of dry fish. The result was that the entire stock of dry fish putrefied and as per the orders of the local authority the stock had to be destroyed as otherwise it could cause a health hazard.5. In 1992 claims were filed by various fishermen before various forums. We are concerned with the claims filed before the State Consumer Disputes Redressal Commission. The defence taken up before the State Consumer Forum, by the Insurance Company, was that the policy for this particular period did not cover risk for damage by flood but covered risk against spontaneous combustion. In support of this they relied upon cover notes and the insurance policies issued by them.6. The State Consumer Forum recorded evidence. On the basis of evidence, both oral and documentary, the State Consumer Forum arrived at a finding of fact that the cover notes and the policies had been manipulated, after the event, in order to get out of liability. The State Consumer Forum also held, and in our view correctly, that it was a well known fact that this area was prone to heavy rains and flood. The State Consumer Forum noted that in all the previous years the policies were of A type and covered the risk of floods. It was noted that there were no proposals, during this year, that the policy should not cover the risk of flood. It was held that the Insurance Company could not on its own delete the risk covering flood. It was found as a fact that no intimation was given of this alleged change to the Bank or the fishermen. It was also found that in case of dry fish there was hardly any necessity to cover risk of spontaneous combustion. It was held that if any clause had to be dropped, the clause covering risk by spontaneous combustion should have been dropped. On these findings the State Consumer Forum directed the Insurance Company to pay the claims of the fishermen. It must be mentioned that having found that there was manipulation the State Consumer Forum directed that the matter be placed before the Chairman, General Insurance Corporation of India so that remedial action could be taken by him.7. The Insurance Company appealed before the National Consumer Forum. By the impugned order, the findings of fact have been upheld. However, the National Consumer Forum has concluded that the Bank was also equally negligent inasmuch as: (a) they had not verified the amount of premium required; (b) not insisted on the issuance of cover notes; and (c) not seriously pursued the claims on behalf of the claimants. The National Consumer Forum, therefore, by the impugned judgment held the Bank liable to pay to the fishermen 50% of the amount awarded.8. The Bank has, thus, filed the appeal against the portion of the order whereby it has been directed to pay 50% of the amount. The Insurance Companys appeal is against the portion whereby it has been held liable to pay.9. As findings of fact by the State Consumer Forum have been confirmed by the National Consumer Disputes Redressal Commission, this Court would not interfere on facts. However, in order to satisfy ourselves, we also looked into this aspect and are satisfied that there was manipulation, after the event, to get out of liability. We, thus, see no reason to interfere with the findings against the Insurance Company. The appeals of the Insurance Company accordingly stand dismissed. We would also like to express our anguish at the manner in which a nationalised insurance company has behaved. We hope that the Chairman of Oriental Insurance Company will look into the matter and take remedial measures to see that this is not repeated. Hopefully, the Chairman will also take action against the delinquent officers if they are still available.
### Response:
1
### Explanation:
9. As findings of fact by the State Consumer Forum have been confirmed by the National Consumer Disputes Redressal Commission, this Court would not interfere on facts. However, in order to satisfy ourselves, we also looked into this aspect and are satisfied that there was manipulation, after the event, to get out of liability. We, thus, see no reason to interfere with the findings against the Insurance Company. The appeals of the Insurance Company accordingly stand dismissed. We would also like to express our anguish at the manner in which a nationalised insurance company has behaved. We hope that the Chairman of Oriental Insurance Company will look into the matter and take remedial measures to see that this is not repeated. Hopefully, the Chairman will also take action against the delinquent officers if they are still available.
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Delhi Administration Vs. S. N. Khosla | Prevention of Corruption Act, 1947 (hereinafter referred to as the Act). The respondent has been acquitted by the High Court (Dulat, J.)2. The relevant facts are as follows. The respondent was an Income-tax Officer for about ten years from December, 1950 to September, 1960. While he was posted at Amritsar during the year 1954-55 he obtained on credit petrol from a petrol pump and the bill came to Rs. 151/-. It is stated that the respondent did not pay this bill. Later, he was posted at Delhi from 1955 to 1958 and at Delhi he obtained goods on credit from M/s. Empire Stores and during the period of about three years he purchased goods worth Rs. 2876.20. These bills the respondent has also not paid. He also purchased goods on credit from M/s. Sylco, who are cloth merchants as well as tailors. To them he owed Rs. 1853.10 and he also has not paid this bill. He owed Rs. 71.75 to M/s Electronics Limited. He purchased a refrigerator from M/s Oriental Radio Corporation at a concession of Rs. 150/-. The respondent admitted his liability. According to the prosecution all this amounted to obtaining valuable things without consideration or for consideration which the respondent knew to be inadequate.3. The learned Special Judge found that the respondent had means to pay during the relevant period and he did not deliberately pay. From this he drew the inference that the respondent never intended to make the payment. He relied on the fact that the period of limitation to recover these amounts had expired. According to the Special Judge these contracts were per se illegal and void under Section 23 of the Contract Act.4. It was urged before the High Court that when a person obtained goods on credit he did not obtain them without consideration and assuming that he did not really intend to pay, even when he promised to pay, he might be cheating the creditor but the transaction was not without consideration for there was a dear promise to pay. The High Court held that Clause (b) of sub-section (1) of Section 5 of the Prevention of Corruption Act did not contemplate the case of a purchase on credit accepted as a valid promise by the giver or the creditor. The High Court was accordingly unable to agree with the learned Special Judge that the obtaining of these goods was without consideration within the meaning of S. 5 (1) (b) of the Act.5. The High Court next considered Clause (d) of Section 5 (1) of the Act. The High Court differed from the learned Special Judge and held that the credit sales were not illegal transactions. It was urged before the High Court that if the respondent never intended to pay for the goods he purchased from the various shops then the respondent obviously cheated those shopkeepers, and since cheating was certainly illegal it must be held that the respondent obtained goods by illegal means and that would be an offence under Section 5 (1) (d) of the Act. The High Court, however, felt convinced that Clause (d) of Section 5 (1), although it did literally seem to cover the transactions, was not designed or intended to cover such cases.6. In our opinion the High Court was quite right in holding that no offence had been committed under Section 5 (1) (b) of the Act. It seems to us that there was consideration for the obtaining of goods on credit and it cannot be said that an officer, if he obtains goods on credit even if he does not intend to pay, is obtaining a valuable thing without consideration. The case may be different if it is proved that there was an agreement with the trader that the trader would not demand the money and the officer would not pay, and the bill and the reminders sent would be merely a formality. There is no evidence to sustain such an inference in this particular case.7. Coming to Section 5(1) (d), the question arises whether the respondent had obtained any pecuniary advantage. There is no doubt that the words "pecuniary advantage" are of wide amplitude but even so in the context of Section 5 (1) (d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage. As we have said, if there is an agreement between the officer and the trader that the officer is not expected to pay for the goods then there is no doubt that this would amount to obtaining pecuniary advantage, but if there is no such agreement and the officer does not pay it cannot be said that he has obtained any pecuniary advantage. He does not act in any manner different from a non-official who obtains things on credit and then refuses to pay. In this case P. W. 13 Mukand Lal, partner of M/s. Empire Stores, who appeared as a prosecution witness, stated that the firm allowed the respondent credit sales in his capacity as a known customer and all their customers got credit facilities. He further said that the firm allowed customers fairly long terms of credit. They usually avoided going to Court for the recovery of their dues and they got payment from their customer of dues whose recovery had become barred by time. He also added that the firm still expected that the amount standing against the respondent would be paid by him. It does not appear that there was any suggestion that the respondent obtained this credit only because be was an Income-tax Officer. Firms give credit to officers not because they are officers but because they know that they are persons with fixed salaries from which the bills could be realised. If we were to hold otherwise it would be impossible for any officer to go to a shop and obtain credit for if he did not pay within a reasonable time a charge could be levied against him under Section 5 (1) (d) of the Act. | 0[ds]6. In our opinion the High Court was quite right in holding that no offence had been committed under Section 5 (1) (b) of the Act. It seems to us that there was consideration for the obtaining of goods on credit and it cannot be said that an officer, if he obtains goods on credit even if he does not intend to pay, is obtaining a valuable thing without consideration. The case may be different if it is proved that there was an agreement with the trader that the trader would not demand the money and the officer would not pay, and the bill and the reminders sent would be merely a formality. There is no evidence to sustain such an inference in this particularis no doubt that the words "pecuniary advantage" are of wide amplitude but even so in the context of Section 5 (1) (d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage. As we have said, if there is an agreement between the officer and the trader that the officer is not expected to pay for the goods then there is no doubt that this would amount to obtaining pecuniary advantage, but if there is no such agreement and the officer does not pay it cannot be said that he has obtained any pecuniary advantage. He does not act in any manner different from a non-official who obtains things on credit and then refuses to pay. In this case P. W. 13 Mukand Lal, partner of M/s. Empire Stores, who appeared as a prosecution witness, stated that the firm allowed the respondent credit sales in his capacity as a known customer and all their customers got credit facilities. He further said that the firm allowed customers fairly long terms of credit. They usually avoided going to Court for the recovery of their dues and they got payment from their customer of dues whose recovery had become barred by time. He also added that the firm still expected that the amount standing against the respondent would be paid by him. It does not appear that there was any suggestion that the respondent obtained this credit only because be was an Income-tax Officer. Firms give credit to officers not because they are officers but because they know that they are persons with fixed salaries from which the bills could be realised. If we were to hold otherwise it would be impossible for any officer to go to a shop and obtain credit for if he did not pay within a reasonable time a charge could be levied against him under Section 5 (1) (d) of the Act. | 0 | 1,163 | 487 | ### 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:
Prevention of Corruption Act, 1947 (hereinafter referred to as the Act). The respondent has been acquitted by the High Court (Dulat, J.)2. The relevant facts are as follows. The respondent was an Income-tax Officer for about ten years from December, 1950 to September, 1960. While he was posted at Amritsar during the year 1954-55 he obtained on credit petrol from a petrol pump and the bill came to Rs. 151/-. It is stated that the respondent did not pay this bill. Later, he was posted at Delhi from 1955 to 1958 and at Delhi he obtained goods on credit from M/s. Empire Stores and during the period of about three years he purchased goods worth Rs. 2876.20. These bills the respondent has also not paid. He also purchased goods on credit from M/s. Sylco, who are cloth merchants as well as tailors. To them he owed Rs. 1853.10 and he also has not paid this bill. He owed Rs. 71.75 to M/s Electronics Limited. He purchased a refrigerator from M/s Oriental Radio Corporation at a concession of Rs. 150/-. The respondent admitted his liability. According to the prosecution all this amounted to obtaining valuable things without consideration or for consideration which the respondent knew to be inadequate.3. The learned Special Judge found that the respondent had means to pay during the relevant period and he did not deliberately pay. From this he drew the inference that the respondent never intended to make the payment. He relied on the fact that the period of limitation to recover these amounts had expired. According to the Special Judge these contracts were per se illegal and void under Section 23 of the Contract Act.4. It was urged before the High Court that when a person obtained goods on credit he did not obtain them without consideration and assuming that he did not really intend to pay, even when he promised to pay, he might be cheating the creditor but the transaction was not without consideration for there was a dear promise to pay. The High Court held that Clause (b) of sub-section (1) of Section 5 of the Prevention of Corruption Act did not contemplate the case of a purchase on credit accepted as a valid promise by the giver or the creditor. The High Court was accordingly unable to agree with the learned Special Judge that the obtaining of these goods was without consideration within the meaning of S. 5 (1) (b) of the Act.5. The High Court next considered Clause (d) of Section 5 (1) of the Act. The High Court differed from the learned Special Judge and held that the credit sales were not illegal transactions. It was urged before the High Court that if the respondent never intended to pay for the goods he purchased from the various shops then the respondent obviously cheated those shopkeepers, and since cheating was certainly illegal it must be held that the respondent obtained goods by illegal means and that would be an offence under Section 5 (1) (d) of the Act. The High Court, however, felt convinced that Clause (d) of Section 5 (1), although it did literally seem to cover the transactions, was not designed or intended to cover such cases.6. In our opinion the High Court was quite right in holding that no offence had been committed under Section 5 (1) (b) of the Act. It seems to us that there was consideration for the obtaining of goods on credit and it cannot be said that an officer, if he obtains goods on credit even if he does not intend to pay, is obtaining a valuable thing without consideration. The case may be different if it is proved that there was an agreement with the trader that the trader would not demand the money and the officer would not pay, and the bill and the reminders sent would be merely a formality. There is no evidence to sustain such an inference in this particular case.7. Coming to Section 5(1) (d), the question arises whether the respondent had obtained any pecuniary advantage. There is no doubt that the words "pecuniary advantage" are of wide amplitude but even so in the context of Section 5 (1) (d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage. As we have said, if there is an agreement between the officer and the trader that the officer is not expected to pay for the goods then there is no doubt that this would amount to obtaining pecuniary advantage, but if there is no such agreement and the officer does not pay it cannot be said that he has obtained any pecuniary advantage. He does not act in any manner different from a non-official who obtains things on credit and then refuses to pay. In this case P. W. 13 Mukand Lal, partner of M/s. Empire Stores, who appeared as a prosecution witness, stated that the firm allowed the respondent credit sales in his capacity as a known customer and all their customers got credit facilities. He further said that the firm allowed customers fairly long terms of credit. They usually avoided going to Court for the recovery of their dues and they got payment from their customer of dues whose recovery had become barred by time. He also added that the firm still expected that the amount standing against the respondent would be paid by him. It does not appear that there was any suggestion that the respondent obtained this credit only because be was an Income-tax Officer. Firms give credit to officers not because they are officers but because they know that they are persons with fixed salaries from which the bills could be realised. If we were to hold otherwise it would be impossible for any officer to go to a shop and obtain credit for if he did not pay within a reasonable time a charge could be levied against him under Section 5 (1) (d) of the Act.
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6. In our opinion the High Court was quite right in holding that no offence had been committed under Section 5 (1) (b) of the Act. It seems to us that there was consideration for the obtaining of goods on credit and it cannot be said that an officer, if he obtains goods on credit even if he does not intend to pay, is obtaining a valuable thing without consideration. The case may be different if it is proved that there was an agreement with the trader that the trader would not demand the money and the officer would not pay, and the bill and the reminders sent would be merely a formality. There is no evidence to sustain such an inference in this particularis no doubt that the words "pecuniary advantage" are of wide amplitude but even so in the context of Section 5 (1) (d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage. As we have said, if there is an agreement between the officer and the trader that the officer is not expected to pay for the goods then there is no doubt that this would amount to obtaining pecuniary advantage, but if there is no such agreement and the officer does not pay it cannot be said that he has obtained any pecuniary advantage. He does not act in any manner different from a non-official who obtains things on credit and then refuses to pay. In this case P. W. 13 Mukand Lal, partner of M/s. Empire Stores, who appeared as a prosecution witness, stated that the firm allowed the respondent credit sales in his capacity as a known customer and all their customers got credit facilities. He further said that the firm allowed customers fairly long terms of credit. They usually avoided going to Court for the recovery of their dues and they got payment from their customer of dues whose recovery had become barred by time. He also added that the firm still expected that the amount standing against the respondent would be paid by him. It does not appear that there was any suggestion that the respondent obtained this credit only because be was an Income-tax Officer. Firms give credit to officers not because they are officers but because they know that they are persons with fixed salaries from which the bills could be realised. If we were to hold otherwise it would be impossible for any officer to go to a shop and obtain credit for if he did not pay within a reasonable time a charge could be levied against him under Section 5 (1) (d) of the Act.
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Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narainsingh And Others | I.A.all that the son can claim in such cases is that not being made party to the sale or execution proceeding, he ought not to be barred from trying the nature of the debt or his liability to pay the same in any suit or proceeding started by him or to which he might be made a party. He could raise the point either by way of objection in the execution proceeding itself or he could himself file a suit for a declaration that the debt was not binding on him. He could also raise it by way of defence when the auction purchaser seeks to have his rights defined and demarcated in a partition suit.23. In the case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them. Unfor- tunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all. A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised. But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it. They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindu law.24. It may be further noted that although the trial courts decision was against the sons, they did not choose to challenge the decree by way of an appeal. The appeal was filed only by their father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category of appellants.25. The learned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasins case 13 I.A 1.or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding. But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well. This does not seem to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the fathers capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family.26. It has been observed in a Madras case Vide Sudarsaram v. Narasimhulu, I.L.R. 25 Mad.149, 155, and we think rightly that so long as the family remains joint, all the members of a branch or a sub-branch of the family can form a distinct and separate corporate unit within the larger unit. Of such a smaller unit consisting of the father and his sons, the father would undoubtedly be the head and legal representative, although he is not the head of the larger unit. In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time. The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have costs of this court as well as of the court below.Civil Appeals Nos. 54 and 55 of 1951.27. Coming now to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase. | 0[ds]We do not find any warrant for the view that to saddle the sons with this pious obligation to pay the debts of their father, it is necessary that the father should be the manager or karta of the joint family, or that the family must be composed of the father and his sons only and no other male member. No such limitation is deducible either from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted thelearned Judges of the High Court laid great stress on the fact that the defendant No. 1 in the present case was a junior member and not the karta of the family and consequently had no rights of disposal over his own interest or the interest of his sons in the joint property. The idea seems to be that if the father was incompetent to alienate the coparcenary rights of his sons for satisfaction of his own debts, the creditor of the father could not claim to occupy a better position. This way of approach does not seem to us to be correct. It cannot be laid down as a pro- position of law that the creditors power of proceeding against the sons share in the joint estate for recovery of the debt due by the father is co-extensive with the fathers power of disposal over suchthe case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them. Unfor- tunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all. A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised. But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it. They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindumay be further noted that although the trial courts decision was against the sons, they did not choose to challenge the decree by way of an appeal. The appeal was filed only by their father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category oflearned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasins case 13 I.A 1.or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding. But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well. This does not seem to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the fathers capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family.In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time. The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have costs of this court as well as of the court below.Civil Appeals Nos. 54 and 55 ofnow to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase. | 0 | 4,261 | 1,141 | ### 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:
I.A.all that the son can claim in such cases is that not being made party to the sale or execution proceeding, he ought not to be barred from trying the nature of the debt or his liability to pay the same in any suit or proceeding started by him or to which he might be made a party. He could raise the point either by way of objection in the execution proceeding itself or he could himself file a suit for a declaration that the debt was not binding on him. He could also raise it by way of defence when the auction purchaser seeks to have his rights defined and demarcated in a partition suit.23. In the case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them. Unfor- tunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all. A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised. But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it. They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindu law.24. It may be further noted that although the trial courts decision was against the sons, they did not choose to challenge the decree by way of an appeal. The appeal was filed only by their father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category of appellants.25. The learned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasins case 13 I.A 1.or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding. But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well. This does not seem to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the fathers capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family.26. It has been observed in a Madras case Vide Sudarsaram v. Narasimhulu, I.L.R. 25 Mad.149, 155, and we think rightly that so long as the family remains joint, all the members of a branch or a sub-branch of the family can form a distinct and separate corporate unit within the larger unit. Of such a smaller unit consisting of the father and his sons, the father would undoubtedly be the head and legal representative, although he is not the head of the larger unit. In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time. The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have costs of this court as well as of the court below.Civil Appeals Nos. 54 and 55 of 1951.27. Coming now to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase.
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### Explanation:
from the original texts or the principles which have been engrafted upon the doctrine by judicial decisions. Where a debt is incurred for necessity or benefit of the family, the manager, whether he be the father or not, has the undoubted power to alienate any portion of the coparcenary property for the satisfaction of such debts, irrespective of the fact as to who actually contracted thelearned Judges of the High Court laid great stress on the fact that the defendant No. 1 in the present case was a junior member and not the karta of the family and consequently had no rights of disposal over his own interest or the interest of his sons in the joint property. The idea seems to be that if the father was incompetent to alienate the coparcenary rights of his sons for satisfaction of his own debts, the creditor of the father could not claim to occupy a better position. This way of approach does not seem to us to be correct. It cannot be laid down as a pro- position of law that the creditors power of proceeding against the sons share in the joint estate for recovery of the debt due by the father is co-extensive with the fathers power of disposal over suchthe case before us, the sons, who were made defendants to the partition suit, had that opportunity given to them. Unfor- tunately, however, they did not choose to avail themselves of this opportunity. Defendant No. 2, the major son of defendant No. 1, did not file any written statement or contest the suit at all. A written statement was indeed filed on behalf of the minor sons, defendants 3 and 4, who were represented by a pleader guardian and there this point was specifically raised. But it appears from the records that they did not invite the court to frame any issue on the point, nor did they lead any evidence upon it. They failed to show, therefore, that the debt was one which they were not obliged to pay under the rule of Hindumay be further noted that although the trial courts decision was against the sons, they did not choose to challenge the decree by way of an appeal. The appeal was filed only by their father and they were made respondents; and it was only at a very late stage that the appellate court transferred them to the category oflearned Judges of the High Court seem to be of the opinion that the principle enunciated by the Judicial Committee in Nanomi Babuasins case 13 I.A 1.or the other cases that followed it could apply only when the father was the head of the family and in that capacity could represent his sons in the suit or the execution proceeding. But if the father was not the karta, this principle, it is said, would not apply and the purchaser could only acquire the right, title and interest of the father alone even though the court purported to sell the interest of the sons as well. This does not seem to us to be a sound view to take. It is true that in all the cases referred to above, the father was actually the head of the family but that does not make any difference in principle. If the difference is sought to be made on the basis of the fathers capacity to represent the sons in any litigation, it may be said that, subject to the rights of the sons to assert and prove that the debt contracted by their father was not such as would be binding on them under the rule of Hindu law, the father even if he was not a karta, could represent the sons as effectively in the sale or execution proceedings as he could do if he was the karta himself. Without being a karta he could, as a father, completely represent his branch of the coparceners consisting of himself and his sons; and vis-a-vis his sons his position would not improve in any way by his being a karta of the family.In our opinion, therefore, the High Court was not right in holding that the plaintiff could not claim 4 annas share in the property on the strength of the purchase by his predecessor in the execution sale simply because the father was not the manager or karta of the joint family at that time. The result is that this appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored. The plaintiff will have costs of this court as well as of the court below.Civil Appeals Nos. 54 and 55 ofnow to the money appeals, the point for consideration is a short one. The suits out of which these appeals arise were instituted by the plaintiff in the partition suit against the first party defendants for recovery of his 4 annas share of the income or profits of the properties specified in the schedules to the plaints and which were included admittedly in his purchase, on the allegation that the defendants first party appropriated the entire profits to themselves and refused to give the plaintiff his legitimate share. The High Court has held that this claim of the plaintiff must fail. All that he purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. In our opinion, this is the right view to take and Mr. Daphtary, who appeared in support of the appeals, could not satisfy us that in law his client was entitled to joint possession on and from the date of his purchase.
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Ramalingam & Co Vs. The State Of Madras | and by the arrangements made by opening the letter of credit, price is paid to the vendor in his own country against the bill of Lading endorsed in blank.14. It is necessary to appreciate the true nature of the commercial letter of credit extensively used in foreign trade. During the last few decades, expansion of international trade involving overseas transactions has raised problems of peculiar difficulty. The parties to a contract to supply goods are generally unknown to each other and the contract is the result of correspondence between the parties. Often neither the seller nor the buyer is prepared to trust the other. Again, between the delivery of the goods in such trade on board the ship and its ultimate delivery at the destination, the seller is reluctant to tie up his funds. The seller himself in generally a purchaser of goods from the local market and has invested funds in purchasing the goods. The buyer is also unwilling to make payment in advance. To tide over the problem created by this reluctance of the seller and the buyer, bankers of international repute and credit interpose. They for a small commission undertake by opinion letters of credit to honour the Bill of Exchange drawn by the seller accompanied by the insurance policy and the invoice relating to the goods forming the subject matter of the contract. At the instance of the buyer the banker issues a letter of credit which is addressed to the world at large or more frequently to specified person or persons: thereby the banker undertakes to honour the Bills of Exchange drawn on the faith of that letter. Invariably, the Bills are payable in future but the exporters as the beneficiaries under the contract, have the guarantee of the banker that payment will be forthcoming and are also entitled to discount the bills with any party cognisant of the undertaking of the original banker. There are generally four parties to such a transaction-the buyer, the seller, the banker who issues the letter of credit, called the issuing banker and the intermediary or the negotiating banker who allows credit to the seller on the bills lodged with him. Between the buyer and the issuing banker, the contract is that he will pay bills drawn by the seller of the goods against delivery of the Bill of Lading, insurance certificate and invoice. The buyer undertakes to put the banker in funds to enable him to make payment if the documents are presented. The relation between the buyer and the banker is not of pricipal and agent. The contract between the issuing banker and the negotiating banker may be of a dual character. Where the issuing bankers instructions are merely to advise the credit, and the credit calls for bills to be drawn either on the issuing banker or on the buyer, the intermediary banker may negotiate the beneficiarys bills. In such a case he stands qua the issuing banker as principal to principal, for either he succeeds to the rights of the beneficiary under the credit or, if he negotiates relying on the credit alone, as acceptor of the offer it contains. If the instructions call upon the intermediary banker to pay or to negotiate the beneficiarys bills, the intermediary banker is the issuing bankers agent.Under the terms of the contract between the assessees and the foreign buyer the price was to be paid "by draft after 90 days under bank credit to be opened by the buyer for 95% of the net invoice amount." By the letter of credit the foreign banker guaranteed to pay the amount in London. The issuing bank intimated the opening of the letter of credit, but there is no evidence of any express directions to its agent in India to pay or negotiate the draft. The letter of credit was general; and it was open to any bank on the faith thereof to negotiate the bill issued by the assessees. The payment made by the intermediary bank was not and could not therefore be on behalf of the issuing bank much less on behalf of the buyer. By negotiating the bill, the banker of the assessees became the acceptor of the offer contained in the letter of credit of the issuing bank, and as such acceptor obtained the Bill of Lading, the invoice and the Bill of Exchange and presented them for payment. This arrangement was not an arrangement for payment of price on behalf of the buyer.15. It appears clear from the two letters dated April 4, 1945, and May 28, 1945, that the banks accepted no liability by intimating the opening of the letter of credit and the liability attaching to the assessees by drawing Bills of Exchange was not discharged. If the liability of the assessees, as drawers of the Bills of Exchange continued, the arrangement made by the buyer could not be regarded as one to pay the price through his banker in India. As stated hereinbefore, the relation between the buyer and his issuing banker was not of principal and agent, nor was the relation between the issuing bankar and the intermediary banker that of principal and agent. The two bankers were interposed for the protection of the seller as well as the buyer. The issuing banker did not purport to act as agent of the buyer and the intermediary banker accepted the general offer of the issuing banker by negotiating the draft. By so accepting the offer and by taking over the Bill of Lading, the insurance certificate and the invoice which represented title to the goods the intermediary banker did not act as an agent of the seller.The price in respect of the goods was not received in the Province of Madras, and the property in the goods also did not pass to the buyer within the Province. Tax in respect of the sale of fibre by the assessees under the disputed transactions was therefore not exigible under the Madras General Sales Tax Act.16. | 1[ds]It is clear from the terms of the two letters dated April 16, 1945, and May 28, 1945, that the foreign buyers had opened letters of credit for the benefit of the assessees, for the amounts set out therein. These, it appears, were general credits and intimation thereof was given by the local bankers in India who were agents of the foreign bankers. The local bankers, however, did not undertake any liability by intimating the opening of the letter of credit and the assessees were expressly informed that they (the assessees) would not be released from their liability under the Bills of Exchange drawn by them. The assesses negotiated the Bills through their bankers after receiving an intimation of the opening ofis necessary to appreciate the true nature of the commercial letter of credit extensively used in foreign trade. During the last few decades, expansion of international trade involving overseas transactions has raised problems of peculiar difficulty. The parties to a contract to supply goods are generally unknown to each other and the contract is the result of correspondence between the parties. Often neither the seller nor the buyer is prepared to trust the other. Again, between the delivery of the goods in such trade on board the ship and its ultimate delivery at the destination, the seller is reluctant to tie up his funds. The seller himself in generally a purchaser of goods from the local market and has invested funds in purchasing the goods. The buyer is also unwilling to make payment in advance. To tide over the problem created by this reluctance of the seller and the buyer, bankers of international repute and credit interpose. They for a small commission undertake by opinion letters of credit to honour the Bill of Exchange drawn by the seller accompanied by the insurance policy and the invoice relating to the goods forming the subject matter of the contract. At the instance of the buyer the banker issues a letter of credit which is addressed to the world at large or more frequently to specified person or persons: thereby the banker undertakes to honour the Bills of Exchange drawn on the faith of that letter. Invariably, the Bills are payable in future but the exporters as the beneficiaries under the contract, have the guarantee of the banker that payment will be forthcoming and are also entitled to discount the bills with any party cognisant of the undertaking of the original banker. There are generally four parties to such a transaction-the buyer, the seller, the banker who issues the letter of credit, called the issuing banker and the intermediary or the negotiating banker who allows credit to the seller on the bills lodged with him. Between the buyer and the issuing banker, the contract is that he will pay bills drawn by the seller of the goods against delivery of the Bill of Lading, insurance certificate and invoice. The buyer undertakes to put the banker in funds to enable him to make payment if the documents are presented. The relation between the buyer and the banker is not of pricipal and agent. The contract between the issuing banker and the negotiating banker may be of a dual character. Where the issuing bankers instructions are merely to advise the credit, and the credit calls for bills to be drawn either on the issuing banker or on the buyer, the intermediary banker may negotiate the beneficiarys bills. In such a case he stands qua the issuing banker as principal to principal, for either he succeeds to the rights of the beneficiary under the credit or, if he negotiates relying on the credit alone, as acceptor of the offer it contains. If the instructions call upon the intermediary banker to pay or to negotiate the beneficiarys bills, the intermediary banker is the issuing bankers agent.Under the terms of the contract between the assessees and the foreign buyer the price was to be paid "by draft after 90 days under bank credit to be opened by the buyer for 95% of the net invoice amount." By the letter of credit the foreign banker guaranteed to pay the amount in London. The issuing bank intimated the opening of the letter of credit, but there is no evidence of any express directions to its agent in India to pay or negotiate the draft. The letter of credit was general; and it was open to any bank on the faith thereof to negotiate the bill issued by the assessees. The payment made by the intermediary bank was not and could not therefore be on behalf of the issuing bank much less on behalf of the buyer. By negotiating the bill, the banker of the assessees became the acceptor of the offer contained in the letter of credit of the issuing bank, and as such acceptor obtained the Bill of Lading, the invoice and the Bill of Exchange and presented them for payment. This arrangement was not an arrangement for payment of price on behalf of theappears clear from the two letters dated April 4, 1945, and May 28, 1945, that the banks accepted no liability by intimating the opening of the letter of credit and the liability attaching to the assessees by drawing Bills of Exchange was not discharged. If the liability of the assessees, as drawers of the Bills of Exchange continued, the arrangement made by the buyer could not be regarded as one to pay the price through his banker in India. As stated hereinbefore, the relation between the buyer and his issuing banker was not of principal and agent, nor was the relation between the issuing bankar and the intermediary banker that of principal and agent. The two bankers were interposed for the protection of the seller as well as the buyer. The issuing banker did not purport to act as agent of the buyer and the intermediary banker accepted the general offer of the issuing banker by negotiating the draft. By so accepting the offer and by taking over the Bill of Lading, the insurance certificate and the invoice which represented title to the goods the intermediary banker did not act as an agent of the seller.The price in respect of the goods was not received in the Province of Madras, and the property in the goods also did not pass to the buyer within the Province. Tax in respect of the sale of fibre by the assessees under the disputed transactions was therefore not exigible under the Madras General Sales Tax Act. | 1 | 3,295 | 1,173 | ### 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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and by the arrangements made by opening the letter of credit, price is paid to the vendor in his own country against the bill of Lading endorsed in blank.14. It is necessary to appreciate the true nature of the commercial letter of credit extensively used in foreign trade. During the last few decades, expansion of international trade involving overseas transactions has raised problems of peculiar difficulty. The parties to a contract to supply goods are generally unknown to each other and the contract is the result of correspondence between the parties. Often neither the seller nor the buyer is prepared to trust the other. Again, between the delivery of the goods in such trade on board the ship and its ultimate delivery at the destination, the seller is reluctant to tie up his funds. The seller himself in generally a purchaser of goods from the local market and has invested funds in purchasing the goods. The buyer is also unwilling to make payment in advance. To tide over the problem created by this reluctance of the seller and the buyer, bankers of international repute and credit interpose. They for a small commission undertake by opinion letters of credit to honour the Bill of Exchange drawn by the seller accompanied by the insurance policy and the invoice relating to the goods forming the subject matter of the contract. At the instance of the buyer the banker issues a letter of credit which is addressed to the world at large or more frequently to specified person or persons: thereby the banker undertakes to honour the Bills of Exchange drawn on the faith of that letter. Invariably, the Bills are payable in future but the exporters as the beneficiaries under the contract, have the guarantee of the banker that payment will be forthcoming and are also entitled to discount the bills with any party cognisant of the undertaking of the original banker. There are generally four parties to such a transaction-the buyer, the seller, the banker who issues the letter of credit, called the issuing banker and the intermediary or the negotiating banker who allows credit to the seller on the bills lodged with him. Between the buyer and the issuing banker, the contract is that he will pay bills drawn by the seller of the goods against delivery of the Bill of Lading, insurance certificate and invoice. The buyer undertakes to put the banker in funds to enable him to make payment if the documents are presented. The relation between the buyer and the banker is not of pricipal and agent. The contract between the issuing banker and the negotiating banker may be of a dual character. Where the issuing bankers instructions are merely to advise the credit, and the credit calls for bills to be drawn either on the issuing banker or on the buyer, the intermediary banker may negotiate the beneficiarys bills. In such a case he stands qua the issuing banker as principal to principal, for either he succeeds to the rights of the beneficiary under the credit or, if he negotiates relying on the credit alone, as acceptor of the offer it contains. If the instructions call upon the intermediary banker to pay or to negotiate the beneficiarys bills, the intermediary banker is the issuing bankers agent.Under the terms of the contract between the assessees and the foreign buyer the price was to be paid "by draft after 90 days under bank credit to be opened by the buyer for 95% of the net invoice amount." By the letter of credit the foreign banker guaranteed to pay the amount in London. The issuing bank intimated the opening of the letter of credit, but there is no evidence of any express directions to its agent in India to pay or negotiate the draft. The letter of credit was general; and it was open to any bank on the faith thereof to negotiate the bill issued by the assessees. The payment made by the intermediary bank was not and could not therefore be on behalf of the issuing bank much less on behalf of the buyer. By negotiating the bill, the banker of the assessees became the acceptor of the offer contained in the letter of credit of the issuing bank, and as such acceptor obtained the Bill of Lading, the invoice and the Bill of Exchange and presented them for payment. This arrangement was not an arrangement for payment of price on behalf of the buyer.15. It appears clear from the two letters dated April 4, 1945, and May 28, 1945, that the banks accepted no liability by intimating the opening of the letter of credit and the liability attaching to the assessees by drawing Bills of Exchange was not discharged. If the liability of the assessees, as drawers of the Bills of Exchange continued, the arrangement made by the buyer could not be regarded as one to pay the price through his banker in India. As stated hereinbefore, the relation between the buyer and his issuing banker was not of principal and agent, nor was the relation between the issuing bankar and the intermediary banker that of principal and agent. The two bankers were interposed for the protection of the seller as well as the buyer. The issuing banker did not purport to act as agent of the buyer and the intermediary banker accepted the general offer of the issuing banker by negotiating the draft. By so accepting the offer and by taking over the Bill of Lading, the insurance certificate and the invoice which represented title to the goods the intermediary banker did not act as an agent of the seller.The price in respect of the goods was not received in the Province of Madras, and the property in the goods also did not pass to the buyer within the Province. Tax in respect of the sale of fibre by the assessees under the disputed transactions was therefore not exigible under the Madras General Sales Tax Act.16.
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they (the assessees) would not be released from their liability under the Bills of Exchange drawn by them. The assesses negotiated the Bills through their bankers after receiving an intimation of the opening ofis necessary to appreciate the true nature of the commercial letter of credit extensively used in foreign trade. During the last few decades, expansion of international trade involving overseas transactions has raised problems of peculiar difficulty. The parties to a contract to supply goods are generally unknown to each other and the contract is the result of correspondence between the parties. Often neither the seller nor the buyer is prepared to trust the other. Again, between the delivery of the goods in such trade on board the ship and its ultimate delivery at the destination, the seller is reluctant to tie up his funds. The seller himself in generally a purchaser of goods from the local market and has invested funds in purchasing the goods. The buyer is also unwilling to make payment in advance. To tide over the problem created by this reluctance of the seller and the buyer, bankers of international repute and credit interpose. They for a small commission undertake by opinion letters of credit to honour the Bill of Exchange drawn by the seller accompanied by the insurance policy and the invoice relating to the goods forming the subject matter of the contract. At the instance of the buyer the banker issues a letter of credit which is addressed to the world at large or more frequently to specified person or persons: thereby the banker undertakes to honour the Bills of Exchange drawn on the faith of that letter. Invariably, the Bills are payable in future but the exporters as the beneficiaries under the contract, have the guarantee of the banker that payment will be forthcoming and are also entitled to discount the bills with any party cognisant of the undertaking of the original banker. There are generally four parties to such a transaction-the buyer, the seller, the banker who issues the letter of credit, called the issuing banker and the intermediary or the negotiating banker who allows credit to the seller on the bills lodged with him. Between the buyer and the issuing banker, the contract is that he will pay bills drawn by the seller of the goods against delivery of the Bill of Lading, insurance certificate and invoice. The buyer undertakes to put the banker in funds to enable him to make payment if the documents are presented. The relation between the buyer and the banker is not of pricipal and agent. The contract between the issuing banker and the negotiating banker may be of a dual character. Where the issuing bankers instructions are merely to advise the credit, and the credit calls for bills to be drawn either on the issuing banker or on the buyer, the intermediary banker may negotiate the beneficiarys bills. In such a case he stands qua the issuing banker as principal to principal, for either he succeeds to the rights of the beneficiary under the credit or, if he negotiates relying on the credit alone, as acceptor of the offer it contains. If the instructions call upon the intermediary banker to pay or to negotiate the beneficiarys bills, the intermediary banker is the issuing bankers agent.Under the terms of the contract between the assessees and the foreign buyer the price was to be paid "by draft after 90 days under bank credit to be opened by the buyer for 95% of the net invoice amount." By the letter of credit the foreign banker guaranteed to pay the amount in London. The issuing bank intimated the opening of the letter of credit, but there is no evidence of any express directions to its agent in India to pay or negotiate the draft. The letter of credit was general; and it was open to any bank on the faith thereof to negotiate the bill issued by the assessees. The payment made by the intermediary bank was not and could not therefore be on behalf of the issuing bank much less on behalf of the buyer. By negotiating the bill, the banker of the assessees became the acceptor of the offer contained in the letter of credit of the issuing bank, and as such acceptor obtained the Bill of Lading, the invoice and the Bill of Exchange and presented them for payment. This arrangement was not an arrangement for payment of price on behalf of theappears clear from the two letters dated April 4, 1945, and May 28, 1945, that the banks accepted no liability by intimating the opening of the letter of credit and the liability attaching to the assessees by drawing Bills of Exchange was not discharged. If the liability of the assessees, as drawers of the Bills of Exchange continued, the arrangement made by the buyer could not be regarded as one to pay the price through his banker in India. As stated hereinbefore, the relation between the buyer and his issuing banker was not of principal and agent, nor was the relation between the issuing bankar and the intermediary banker that of principal and agent. The two bankers were interposed for the protection of the seller as well as the buyer. The issuing banker did not purport to act as agent of the buyer and the intermediary banker accepted the general offer of the issuing banker by negotiating the draft. By so accepting the offer and by taking over the Bill of Lading, the insurance certificate and the invoice which represented title to the goods the intermediary banker did not act as an agent of the seller.The price in respect of the goods was not received in the Province of Madras, and the property in the goods also did not pass to the buyer within the Province. Tax in respect of the sale of fibre by the assessees under the disputed transactions was therefore not exigible under the Madras General Sales Tax Act.
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Dhananjoy Das Vs. District Magistrate & Anr | grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the exact date or it may not be convenient to set out all the facts in the first communication. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the fats on which the first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows sometime after the first communication."33. Next reliance was placed on Bidya Deb Barma v. District Magistrate, Tripura, Agartala, 1969 1 SCR 562 : (AIR 1969 SC 323 ). In that case also the impugned order was challenged on the ground of vagueness inasmuch as the ground did not give any details since no particulars of time, place and circumstances had been mentioned and relevant and irrelevant matters had also been included. In the circumstances of the case this Court negatived the contention and observed:"The grounds begin by stating generally what the activities were. They consisted of instigation of tribal people to practise jhuming and preventing the authorities from delivering paddy to Government under the procurement schemes. This instigation it is said was through mass and secret meetings and resulted in violent resistance to Government. Having said this the grounds then specify the places where and the dates on which the meetings were held and the date on which and place at which the resistance took place. In our judgment more detailed information was not necessary to give the detenus an opportunity to make their representations."34. In Vakil Singh v. State of J. & K. AIR 1974 SC 2337 this Court observed:"Grounds within the contemplation of S. 8(1) of the Act means materials on which the order of detention is primarily based. Apart from conclusions of facts grounds have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. This requirement as to the communication of all essential constituents of grounds was complied with in the present case. The basic facts, as distinguished from factual details, were incorporated in the material communicated to the detenu. He was told the name of the notorious PAK agent and courier ..... through whom he was supplying the information about the Indian Army. He was informed about the places in Pakistan which he was visiting. He was further told that in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts and their non-disclosure did not affect the petitioners right of making a representation."35. After analysing the various cases cited on either side we are of the view that the question whether a particular ground is vague will depend on the facts and circumstances of each case because vagueness is a relative term. What may be vague in one case may not be so in similar circumstances of the other case. If the basic facts have been given in a particular case constituting the grounds of detention which enable the detenu to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention. We have meticulously examined paragraphs 2 and 3 of the grounds of detention and we are satisfied that basic facts have been given to enable the appellant to make an effective representation. Of course, it would have been better if other minute details had also been given36. Lastly we take up the plea raised on behalf of the appellant that the facts alleged in the grounds of detention only make out a case for maintenance of law and order and not of public order. The difference between the expressions law and order and public order has been the subject matter of consideration by this Court on various occasions. In Dr. Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740 ) (supra) this Court observed:"What was meant by the maintenance of public order was the prevention of disorder of a grave nature, a disorder which the authority was necessary to prevent in view of the emergent situation created by external aggression : whereas the expression maintenance of law and order may mean prevention of disorder of comparatively lesser gravity and of local significance only."Again, the distinction was brought out in Ashoke Kumar v. Delhi Administration, AIR 1982 SC 1143 , to which one of us was a party. This Court observed:"The true distinction between the areas of "public order" and "law and order" lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of "law and order" and "public order" is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order."37. The situation in Assam is a grave one and the agitation on the issue of foreigners has been going on for years and it has taken an ugly and serious turn, and the statements of facts made in paragraphs 2 and 3 of the grounds of detention in the prevalent circumstances in Assam relate to the maintenance of public order in view of the law laid down in the above case | 0[ds]5. There is no doubt that if the first paragraph of the grounds constitute the grounds of detention, it is vague and the order of detention must be quashed on the ground of vagueness with regard to the statement contained therein. Therefore,the main question for consideration in this case is whether the first paragraph of the grounds is merely introductory or a preamble or aprelude. Shri Rangarajan contends that there could be no prelude or preamble to the grounds. Article 22(5) of the Constitution provides for supplying the grounds of detention.Be that as it may, the observations referred to above do not indicate that there can be no preamble or introductory para in the grounds of detention. There is no bar to have introductory paragraphs in the grounds. The observations only mean all allegations of facts which have led to the passing of the order of detention will form part of the grounds of detention. It is, therefore, difficult to accept the contention that there could be no introductory para in theThe grounds of detention read as a whole leave no room for doubt that paragraph 1 of the grounds of detention was only by way of introduction or as a preamble. In substance, it only indicates the modus operandi adopted by the various organisations to the current agitation on foreigners issue in Assam. The 2nd and 3rd paragraphs of the grounds of detention allege a specific part played by the appellant in that agitation. On a perusal of grounds of detention as a whole we are satisfied that the view taken by the High Court that the 1st paragraph of the grounds of detention was only a preamble, prelude, or introductory para is correct. If this be the position them the vagueness in the 1st paragraph cannot be made a ground of attack on the impugned order14. The Advocate General feebly sought to contend that assuming that 1st paragraph of the grounds also constituted the grounds for detention there was no vagueness inasmuch as the material facts detailed in paragraphs 2 and 3 were sufficient to enable the appellant to make an effective representation. For example, bundh referred to in paragraph 1 has been detailed in the 2nd paragraph, non-co-operation referred to in paragraph 1 has also been clarified by necessary implication in para 2 inasmuch as Rasta Roko programme or creating obstacles in the roads necessarily helped the non-co-operation by preventing people from attending their offices or performing their statutory duties15. In the view that we have taken that the 1st paragraph of the grounds is only introductory it is not necessary to deal with this aspect of the matter at length16. This takes us to the vagueness in paragraphs 2 and 3 of the grounds of detention which specifically refer to the part played by the appellant in the agitation on specificIt must, however, be kept in mind that it is not what a party chose to put a gloss on the grounds of detention but it is the document itself which will be taken to be the proof of what weighed with the detaining authority while passing the order of detention and it is for the Court to decide whether certain paragraphs of the grounds of detention were only by way of introduction or preamble or constitute the grounds of detention itself. As observed earlier, we have meticulously perused the grounds of detention and the tenor of the document read as a whole indicates that the 1st paragraph of the grounds of detention is only by way of introduction orAfter analysing the various cases cited on either side we are of the view that the question whether a particular ground is vague will depend on the facts and circumstances of each case because vagueness is a relative term. What may be vague in one case may not be so in similar circumstances of the other case. If the basic facts have been given in a particular case constituting the grounds of detention which enable the detenu to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention. We have meticulously examined paragraphs 2 and 3 of the grounds of detention and we are satisfied that basic facts have been given to enable the appellant to make an effective representation. Of course, it would have been better if other minute details had also been given36. Lastly we take up the plea raised on behalf of the appellant that the facts alleged in the grounds of detention only make out a case for maintenance of law and order and not of public order. The difference between the expressions law and order and public order has been the subject matter of consideration by this Court on various occasions. | 0 | 7,354 | 846 | ### 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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grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the exact date or it may not be convenient to set out all the facts in the first communication. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the fats on which the first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows sometime after the first communication."33. Next reliance was placed on Bidya Deb Barma v. District Magistrate, Tripura, Agartala, 1969 1 SCR 562 : (AIR 1969 SC 323 ). In that case also the impugned order was challenged on the ground of vagueness inasmuch as the ground did not give any details since no particulars of time, place and circumstances had been mentioned and relevant and irrelevant matters had also been included. In the circumstances of the case this Court negatived the contention and observed:"The grounds begin by stating generally what the activities were. They consisted of instigation of tribal people to practise jhuming and preventing the authorities from delivering paddy to Government under the procurement schemes. This instigation it is said was through mass and secret meetings and resulted in violent resistance to Government. Having said this the grounds then specify the places where and the dates on which the meetings were held and the date on which and place at which the resistance took place. In our judgment more detailed information was not necessary to give the detenus an opportunity to make their representations."34. In Vakil Singh v. State of J. & K. AIR 1974 SC 2337 this Court observed:"Grounds within the contemplation of S. 8(1) of the Act means materials on which the order of detention is primarily based. Apart from conclusions of facts grounds have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. This requirement as to the communication of all essential constituents of grounds was complied with in the present case. The basic facts, as distinguished from factual details, were incorporated in the material communicated to the detenu. He was told the name of the notorious PAK agent and courier ..... through whom he was supplying the information about the Indian Army. He was informed about the places in Pakistan which he was visiting. He was further told that in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts and their non-disclosure did not affect the petitioners right of making a representation."35. After analysing the various cases cited on either side we are of the view that the question whether a particular ground is vague will depend on the facts and circumstances of each case because vagueness is a relative term. What may be vague in one case may not be so in similar circumstances of the other case. If the basic facts have been given in a particular case constituting the grounds of detention which enable the detenu to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention. We have meticulously examined paragraphs 2 and 3 of the grounds of detention and we are satisfied that basic facts have been given to enable the appellant to make an effective representation. Of course, it would have been better if other minute details had also been given36. Lastly we take up the plea raised on behalf of the appellant that the facts alleged in the grounds of detention only make out a case for maintenance of law and order and not of public order. The difference between the expressions law and order and public order has been the subject matter of consideration by this Court on various occasions. In Dr. Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740 ) (supra) this Court observed:"What was meant by the maintenance of public order was the prevention of disorder of a grave nature, a disorder which the authority was necessary to prevent in view of the emergent situation created by external aggression : whereas the expression maintenance of law and order may mean prevention of disorder of comparatively lesser gravity and of local significance only."Again, the distinction was brought out in Ashoke Kumar v. Delhi Administration, AIR 1982 SC 1143 , to which one of us was a party. This Court observed:"The true distinction between the areas of "public order" and "law and order" lies not in the nature or quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of "law and order" and "public order" is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order."37. The situation in Assam is a grave one and the agitation on the issue of foreigners has been going on for years and it has taken an ugly and serious turn, and the statements of facts made in paragraphs 2 and 3 of the grounds of detention in the prevalent circumstances in Assam relate to the maintenance of public order in view of the law laid down in the above case
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5. There is no doubt that if the first paragraph of the grounds constitute the grounds of detention, it is vague and the order of detention must be quashed on the ground of vagueness with regard to the statement contained therein. Therefore,the main question for consideration in this case is whether the first paragraph of the grounds is merely introductory or a preamble or aprelude. Shri Rangarajan contends that there could be no prelude or preamble to the grounds. Article 22(5) of the Constitution provides for supplying the grounds of detention.Be that as it may, the observations referred to above do not indicate that there can be no preamble or introductory para in the grounds of detention. There is no bar to have introductory paragraphs in the grounds. The observations only mean all allegations of facts which have led to the passing of the order of detention will form part of the grounds of detention. It is, therefore, difficult to accept the contention that there could be no introductory para in theThe grounds of detention read as a whole leave no room for doubt that paragraph 1 of the grounds of detention was only by way of introduction or as a preamble. In substance, it only indicates the modus operandi adopted by the various organisations to the current agitation on foreigners issue in Assam. The 2nd and 3rd paragraphs of the grounds of detention allege a specific part played by the appellant in that agitation. On a perusal of grounds of detention as a whole we are satisfied that the view taken by the High Court that the 1st paragraph of the grounds of detention was only a preamble, prelude, or introductory para is correct. If this be the position them the vagueness in the 1st paragraph cannot be made a ground of attack on the impugned order14. The Advocate General feebly sought to contend that assuming that 1st paragraph of the grounds also constituted the grounds for detention there was no vagueness inasmuch as the material facts detailed in paragraphs 2 and 3 were sufficient to enable the appellant to make an effective representation. For example, bundh referred to in paragraph 1 has been detailed in the 2nd paragraph, non-co-operation referred to in paragraph 1 has also been clarified by necessary implication in para 2 inasmuch as Rasta Roko programme or creating obstacles in the roads necessarily helped the non-co-operation by preventing people from attending their offices or performing their statutory duties15. In the view that we have taken that the 1st paragraph of the grounds is only introductory it is not necessary to deal with this aspect of the matter at length16. This takes us to the vagueness in paragraphs 2 and 3 of the grounds of detention which specifically refer to the part played by the appellant in the agitation on specificIt must, however, be kept in mind that it is not what a party chose to put a gloss on the grounds of detention but it is the document itself which will be taken to be the proof of what weighed with the detaining authority while passing the order of detention and it is for the Court to decide whether certain paragraphs of the grounds of detention were only by way of introduction or preamble or constitute the grounds of detention itself. As observed earlier, we have meticulously perused the grounds of detention and the tenor of the document read as a whole indicates that the 1st paragraph of the grounds of detention is only by way of introduction orAfter analysing the various cases cited on either side we are of the view that the question whether a particular ground is vague will depend on the facts and circumstances of each case because vagueness is a relative term. What may be vague in one case may not be so in similar circumstances of the other case. If the basic facts have been given in a particular case constituting the grounds of detention which enable the detenu to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention. We have meticulously examined paragraphs 2 and 3 of the grounds of detention and we are satisfied that basic facts have been given to enable the appellant to make an effective representation. Of course, it would have been better if other minute details had also been given36. Lastly we take up the plea raised on behalf of the appellant that the facts alleged in the grounds of detention only make out a case for maintenance of law and order and not of public order. The difference between the expressions law and order and public order has been the subject matter of consideration by this Court on various occasions.
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Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deband Another | by six months notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of tenancy."16. The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between that parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary, as contemplated by section 106 of the Transfer of Property Act, need not be an express contract; it maybe implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy made only by registered instrument, as laid down in Kabuliyat in the case before us is undoubtedly a registered instrument but ex concessis it is not an operative document at all and cannot consequently fulfill the requirements of section 107 of the Transfer of Property Act.17. This position in fact is not seriously controverted by Mr. Setalvad; but what he argues is that a lease for one year certain might fairly be inferred from the payment of annual rent, and a stipulation like that would not come within the mischief of section 107 of the Transfer of Property Act. His contention is that the payment of an annual rent, as was made in the present case, is totally inconsistent with a monthly lease. We are not unmindful of the fact that in certain reported cases, such inference has been drawn. On such case has been referred to by Mr. Justice Reuben in his judgment, where reliance was placed upon an earlier decision of the Calcutta High Court. A similar view seems to have been taken also in Matilal v. Darjeeling Municipality.18. But one serious objection to this view seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended to create a lease for one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case.19. It would be pertinent to point out in this connection that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendants tenancy was one from month to month under section 106, Transfer of Property Act, and the only question left was whether payment to the Receiver amounted to payment to the plaintiff himself. In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment too and acceptance of rent by the Receiver, the defendant become a monthly tenant under section 106, Transfer of Property Act. In his appeal before the District Judge which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the decision of the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one years rent was paid a tenancy for one year was brought into existence. We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception in 9124. This view finds support from a number of reported cases (1), and in all these cases the rent payable was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour. | 0[ds]So far as the first point is concerned, the courts below have proceeded on the view that a registered instrument signed by the landlord was necessary to create a valid lease for ten year. That view was not questioned before us and we express no opinion on this point. Proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative lease came into existence, the only facts admitted are that the defend ant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiffs estate, and paid rent to thesection lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between that parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary, as contemplated by section 106 of the Transfer of Property Act, need not be an express contract; it maybe implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy made only by registered instrument, as laid down in Kabuliyat in the case before us is undoubtedly a registered instrument but ex concessis it is not an operative document at all and cannot consequently fulfill the requirements of section 107 of the Transfer of Propertywould be pertinent to point out in this connection that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendants tenancy was one from month to month under section 106, Transfer of Property Act, and the only question left was whether payment to the Receiver amounted to payment to the plaintiff himself. In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment too and acceptance of rent by the Receiver, the defendant become a monthly tenant under section 106, Transfer of Property Act. In his appeal before the District Judge which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the decision of the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one years rent was paid a tenancy for one year was brought into existence. We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception inThis view finds support from a number of reported cases (1), and in all these cases the rent payable was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour. | 0 | 4,751 | 840 | ### 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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by six months notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of tenancy."16. The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between that parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary, as contemplated by section 106 of the Transfer of Property Act, need not be an express contract; it maybe implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy made only by registered instrument, as laid down in Kabuliyat in the case before us is undoubtedly a registered instrument but ex concessis it is not an operative document at all and cannot consequently fulfill the requirements of section 107 of the Transfer of Property Act.17. This position in fact is not seriously controverted by Mr. Setalvad; but what he argues is that a lease for one year certain might fairly be inferred from the payment of annual rent, and a stipulation like that would not come within the mischief of section 107 of the Transfer of Property Act. His contention is that the payment of an annual rent, as was made in the present case, is totally inconsistent with a monthly lease. We are not unmindful of the fact that in certain reported cases, such inference has been drawn. On such case has been referred to by Mr. Justice Reuben in his judgment, where reliance was placed upon an earlier decision of the Calcutta High Court. A similar view seems to have been taken also in Matilal v. Darjeeling Municipality.18. But one serious objection to this view seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended to create a lease for one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in the same manner as if no agreement existed at all; it is quite another thing to substitute a new agreement for the parties which is palpably contradicted by the admitted facts of the case.19. It would be pertinent to point out in this connection that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendants tenancy was one from month to month under section 106, Transfer of Property Act, and the only question left was whether payment to the Receiver amounted to payment to the plaintiff himself. In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment too and acceptance of rent by the Receiver, the defendant become a monthly tenant under section 106, Transfer of Property Act. In his appeal before the District Judge which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the decision of the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one years rent was paid a tenancy for one year was brought into existence. We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception in 9124. This view finds support from a number of reported cases (1), and in all these cases the rent payable was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour.
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So far as the first point is concerned, the courts below have proceeded on the view that a registered instrument signed by the landlord was necessary to create a valid lease for ten year. That view was not questioned before us and we express no opinion on this point. Proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative lease came into existence, the only facts admitted are that the defend ant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiffs estate, and paid rent to thesection lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the contrary. The question now is, whether there was a contract to the contrary in the present case ? Mr. Setalvad relies very strongly upon the fact that the rent paid here was an annual rent and he argues that from this fact it can fairly be inferred that the agreement between that parties was certainly not to create a monthly tenancy. It is not disputed that the contract to the contrary, as contemplated by section 106 of the Transfer of Property Act, need not be an express contract; it maybe implied, but it certainly should be a valid contract. If it is no contract in law, the section will be operative and regulate the duration of the lease. It has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when there is something to rebut the presumption. But the difficulty in applying this rule to the present case arises from the fact that a tenancy made only by registered instrument, as laid down in Kabuliyat in the case before us is undoubtedly a registered instrument but ex concessis it is not an operative document at all and cannot consequently fulfill the requirements of section 107 of the Transfer of Propertywould be pertinent to point out in this connection that in the Second Appeal preferred by the plaintiff against the dismissal of his earlier suit by the lower appellate court, the High Court definitely held that the defendants tenancy was one from month to month under section 106, Transfer of Property Act, and the only question left was whether payment to the Receiver amounted to payment to the plaintiff himself. In this suit the defendant admitted in his written statement that payment to the Receiver had the same effect as payment to the plaintiff, and the trial judge took the same view as was taken by the High Court on the previous occasion, that by payment too and acceptance of rent by the Receiver, the defendant become a monthly tenant under section 106, Transfer of Property Act. In his appeal before the District Judge which was the last court of facts, the only ground upon which the defendant sought to challenge this finding of the trial judge was that the Receiver was an unauthorised person because of the decision of the Judicial Committee which set aside his appointment and consequently acceptance of rent by such person could not create a monthly tenancy. This shows that it was not the case of the defendant at any stage of this suit that because one years rent was paid a tenancy for one year was brought into existence. We think, therefore, that on the facts of this case it would be quite proper to hold that the tenancy of the defendant was one from month to month since its inception inThis view finds support from a number of reported cases (1), and in all these cases the rent payable was a yearly rental. On this finding no other question would arise and as the validity of the notice has not been questioned before us, the plaintiff would be entitled to a decree in his favour.
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The Life Insurance Corporation of India Vs. Sri Kalappa M. Sankad (D) | 1. Leave granted.Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.10.12 15:50:40 IST Reason:2. This appeal is filed against the impugned final judgment and order dated 13.02.2015 passed by the High Court of Karnataka at Bengaluru in Writ Appeal No. 3120 of 2014(S-RES) whereby the High Court dismissed the appeal filed by the appellant.3. The issue involved in the appeal is short. It would be clear from the facts mentioned herein below.4. Mr. Kalappa M. Sankad was the original respondent herein. He died pending appeal and, therefore, represented by his legal representatives as respondents to continue the lis.5. Mr. Kalappa was working with the appellant ¬ Life Insurance Corporation (LIC) since 1988. He joined as an Apprentice Development Officer at Gulbarga office and then at Bijapur office. 6. The appellant (LIC) terminated the services of Mr. Kalappa by order dated 10.4.2013. Mr. Kalappa felt aggrieved and filed departmental appeal against his termination. It was dismissed. He then filed writ petition in the High Court of Karnataka challenging his termination order on several grounds.7. By order dated 21.11.2014, the learned Single Judge allowed the writ petition and set aside the termination order. The LIC (appellant herein) felt aggrieved and filed intra court appeal before the Division Bench. 8. By impugned order, the Division Bench dismissed the appeal and upheld the order of learned Single Judge, which gives rise to filing of the present appeal by way of special leave to appeal in this Court.9. Heard Mr. Guru Krishna Kumar, learned senior counsel for the appellant and Mr. R. Basant, learned senior counsel for the respondent(s).10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere in the impugned order and dispose of the appeal as indicated below for ensuring its compliance by the appellant.11. We have perused the order of the learned Single Judge and the impugned order, which resulted in quashing Mr. Kalappas termination order resulting in directing his reinstatement in service. 12. Having gone through the orders, in the facts of this case, we do not find any good ground to uphold the termination order and set aside the impugned order. 13. In our view, the two courts below rightly set aside the termination order, which does not call for any interference in this appeal.14. Since Mr. Kalappa expired during pendency of this litigation, the question of his reinstatement in the services of LIC does not arise. It is not now possible. 15. The only question, which now survives for consideration, is in relation to payment of back wages payable to the present respondents (legal representatives of Mr. Kalappa) as a result of setting aside of the termination order of Mr. Kalappa.16. On this issue, we have heard both the learned counsels who gave their respective calculations. We have perused their statements. We may consider it apposite to mention that this matter did not arise from Labour Tribunal but arose from the writ petition filed in the High Court. 17. It is for this reason, the parties did not adduce any evidence on the question as to whether Mr. Kalappa, after termination of his services from LIC, was gainfully employed anywhere or not. There was neither any pleading, nor evidence much less finding either way on this issue in these proceedings. 18. It is for this reason and keeping in view all facts and circumstances of the case, we have examined the question of total payment of back wages payable to the respondents.19. Mr. Kalappa was entitled for gross arrears of salary and CMD/TR GR/PLE DIFF for the period from - April 2013 to August 2016. Keeping in view his last drawn salary which was calculated by the appellant in their statement on the basis of his revised basic pay scale, the total arrears towards salary is worked out to Rs.20,21,250.18 plus Rs. 35,857 i.e. Rs. 20,57,107. 18. 20. It is not in dispute that there were certain recoveries also which were to be made from Mr. Kalappa under specific heads by the appellant such as (1) Provident Fund contribution¬Rs.1,69,771.00 (2) Income Tax-Rs.4,00,000.00 and (3) recovery against loans & advances availed of by Mr. Kalappa while he was in service-Rs. 2,28,023.00 totalling to Rs.12,59,313.18. | 1[ds]10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere in the impugned order and dispose of the appeal as indicated below for ensuring its compliance by the appellant11. We have perused the order of the learned Single Judge and the impugned order, which resulted in quashing Mr. Kalappas termination order resulting in directing his reinstatement in service12. Having gone through the orders, in the facts of this case, we do not find any good ground to uphold the termination order and set aside the impugned order13. In our view, the two courts below rightly set aside the termination order, which does not call for any interference in this appeal14. Since Mr. Kalappa expired during pendency of this litigation, the question of his reinstatement in the services of LIC does not arise. It is not now possible16. On this issue, we have heard both the learned counsels who gave their respective calculations. We have perused their statements. We may consider it apposite to mention that this matter did not arise from Labour Tribunal but arose from the writ petition filed in the High Court17. It is for this reason, the parties did not adduce any evidence on the question as to whether Mr. Kalappa, after termination of his services from LIC,was gainfully employed anywhere or not. There was neither any pleading, nor evidence much less finding either way on this issue in these proceedings18. It is for this reason and keeping in view all facts and circumstances of the case, we have examined the question of total payment of back wages payable to the respondents19. Mr. Kalappa was entitled for gross arrears of salary and CMD/TR GR/PLE DIFF for the period from - April 2013 to August 2016. Keeping in view his last drawn salary which was calculated by the appellant in their statement on the basis of his revised basic pay scale, the total arrears towards salary is worked out to Rs.20,21,250.18 plus Rs. 35,857 i.e. Rs. 20,57,107. 1820. It is not in dispute that there were certain recoveries also which were to be made from Mr. Kalappa under specific heads by the appellant such as (1) Provident Fund contribution¬Rs.1,69,771.00 (2) Income Tax-Rs.4,00,000.00 and (3) recovery against loans & advances availed of by Mr. Kalappa while he was in service-Rs. 2,28,023.00 totalling to Rs.12,59,313.18. | 1 | 801 | 445 | ### 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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1. Leave granted.Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2018.10.12 15:50:40 IST Reason:2. This appeal is filed against the impugned final judgment and order dated 13.02.2015 passed by the High Court of Karnataka at Bengaluru in Writ Appeal No. 3120 of 2014(S-RES) whereby the High Court dismissed the appeal filed by the appellant.3. The issue involved in the appeal is short. It would be clear from the facts mentioned herein below.4. Mr. Kalappa M. Sankad was the original respondent herein. He died pending appeal and, therefore, represented by his legal representatives as respondents to continue the lis.5. Mr. Kalappa was working with the appellant ¬ Life Insurance Corporation (LIC) since 1988. He joined as an Apprentice Development Officer at Gulbarga office and then at Bijapur office. 6. The appellant (LIC) terminated the services of Mr. Kalappa by order dated 10.4.2013. Mr. Kalappa felt aggrieved and filed departmental appeal against his termination. It was dismissed. He then filed writ petition in the High Court of Karnataka challenging his termination order on several grounds.7. By order dated 21.11.2014, the learned Single Judge allowed the writ petition and set aside the termination order. The LIC (appellant herein) felt aggrieved and filed intra court appeal before the Division Bench. 8. By impugned order, the Division Bench dismissed the appeal and upheld the order of learned Single Judge, which gives rise to filing of the present appeal by way of special leave to appeal in this Court.9. Heard Mr. Guru Krishna Kumar, learned senior counsel for the appellant and Mr. R. Basant, learned senior counsel for the respondent(s).10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere in the impugned order and dispose of the appeal as indicated below for ensuring its compliance by the appellant.11. We have perused the order of the learned Single Judge and the impugned order, which resulted in quashing Mr. Kalappas termination order resulting in directing his reinstatement in service. 12. Having gone through the orders, in the facts of this case, we do not find any good ground to uphold the termination order and set aside the impugned order. 13. In our view, the two courts below rightly set aside the termination order, which does not call for any interference in this appeal.14. Since Mr. Kalappa expired during pendency of this litigation, the question of his reinstatement in the services of LIC does not arise. It is not now possible. 15. The only question, which now survives for consideration, is in relation to payment of back wages payable to the present respondents (legal representatives of Mr. Kalappa) as a result of setting aside of the termination order of Mr. Kalappa.16. On this issue, we have heard both the learned counsels who gave their respective calculations. We have perused their statements. We may consider it apposite to mention that this matter did not arise from Labour Tribunal but arose from the writ petition filed in the High Court. 17. It is for this reason, the parties did not adduce any evidence on the question as to whether Mr. Kalappa, after termination of his services from LIC, was gainfully employed anywhere or not. There was neither any pleading, nor evidence much less finding either way on this issue in these proceedings. 18. It is for this reason and keeping in view all facts and circumstances of the case, we have examined the question of total payment of back wages payable to the respondents.19. Mr. Kalappa was entitled for gross arrears of salary and CMD/TR GR/PLE DIFF for the period from - April 2013 to August 2016. Keeping in view his last drawn salary which was calculated by the appellant in their statement on the basis of his revised basic pay scale, the total arrears towards salary is worked out to Rs.20,21,250.18 plus Rs. 35,857 i.e. Rs. 20,57,107. 18. 20. It is not in dispute that there were certain recoveries also which were to be made from Mr. Kalappa under specific heads by the appellant such as (1) Provident Fund contribution¬Rs.1,69,771.00 (2) Income Tax-Rs.4,00,000.00 and (3) recovery against loans & advances availed of by Mr. Kalappa while he was in service-Rs. 2,28,023.00 totalling to Rs.12,59,313.18.
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1
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10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are not inclined to interfere in the impugned order and dispose of the appeal as indicated below for ensuring its compliance by the appellant11. We have perused the order of the learned Single Judge and the impugned order, which resulted in quashing Mr. Kalappas termination order resulting in directing his reinstatement in service12. Having gone through the orders, in the facts of this case, we do not find any good ground to uphold the termination order and set aside the impugned order13. In our view, the two courts below rightly set aside the termination order, which does not call for any interference in this appeal14. Since Mr. Kalappa expired during pendency of this litigation, the question of his reinstatement in the services of LIC does not arise. It is not now possible16. On this issue, we have heard both the learned counsels who gave their respective calculations. We have perused their statements. We may consider it apposite to mention that this matter did not arise from Labour Tribunal but arose from the writ petition filed in the High Court17. It is for this reason, the parties did not adduce any evidence on the question as to whether Mr. Kalappa, after termination of his services from LIC,was gainfully employed anywhere or not. There was neither any pleading, nor evidence much less finding either way on this issue in these proceedings18. It is for this reason and keeping in view all facts and circumstances of the case, we have examined the question of total payment of back wages payable to the respondents19. Mr. Kalappa was entitled for gross arrears of salary and CMD/TR GR/PLE DIFF for the period from - April 2013 to August 2016. Keeping in view his last drawn salary which was calculated by the appellant in their statement on the basis of his revised basic pay scale, the total arrears towards salary is worked out to Rs.20,21,250.18 plus Rs. 35,857 i.e. Rs. 20,57,107. 1820. It is not in dispute that there were certain recoveries also which were to be made from Mr. Kalappa under specific heads by the appellant such as (1) Provident Fund contribution¬Rs.1,69,771.00 (2) Income Tax-Rs.4,00,000.00 and (3) recovery against loans & advances availed of by Mr. Kalappa while he was in service-Rs. 2,28,023.00 totalling to Rs.12,59,313.18.
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Sangam Press Limited Vs. Workmen | Hence this appeal.2. Even according to the Tribunal the total additional financial burden of the company (appellant herein) in accordance with the award will come to Rs. 1, 16.687.18. The company owns a press employing 150 workers. The State Government prescribed minimum wages with a special allowance under the Minimum Wages Act for press employees. It is not disputed before us that the companys wages scale is not lower than the prescribed minimum wages. The company pleaded before the Tribunal its inability to bear any more financial burden. The company produced the accounts and showed that it was incurring losses in several years (1968-69, 1970-71 and 1971-72).3. We are dealing with a case of a company whose employees are in receipt of some kind of a fair wage, not bare minimum wage at subsistence level. It is well-settled that while the question of capacity to pay is irrelevent in the case of stands on a different footings. In case of a fair wage, besides the principle of industry-cum-region, the companys capacity to bear the financial burden must receive due consideration. The past performances of the company and the future prospects with a totality of the picture must be present in the mind of the adjudicator in deciding a dispute of this nature.4. The Tribunal was conscious of its duty to ascertain the financial capacity of the company but in doing so adopted an absolutely wrong approach resulting in erroneous conclusion. The Tribunal seems to have computed the profits of the appellant for each year on the assumption that the capital expenditure incurred in a particular year must have come out of the profits of that year and, therefore, to arrive at the correct trading result, the amount of the capital expenditure must be added back. This assumption, with great respect, betrays ignorance of the true function of the profit and loss account and fails to take note of the basic principle of accountancy that capital expenditure does not go into the profit and loss account. There can, therefore, be no question of adding back the amount of the capital expenditure to the profit and loss appearing in the profit and loss account for the purpose of arriving at the correct trading result. Equally patent is another error committed by the Tribunal, namely, of adding back the carried forward loss of the previous years - on the footing that is not genuine - to the profit or loss appearing at the foot of the profit and loss account in order to determine the true profit or loss of the particular accounting year. This exercise on the part of the Tribunal is based on the assumption that the carried forward loss of the previous years is taken into account in arriving at the profit or loss appearing in the profit and loss account of the particular accounting years, and, therefore, it must be excluded in computing the profit or loss of the particular accounting year and to that extent, the real profit or loss would stand enhanced. But this assumption is clearly wrong. The profit and loss account of a particular accounting year never includes the carried forward loss of the previous years. It merely reflects the trading result of the year in question. In any particular item debited in the profit and loss account is wrong, it may be added back, but the carried forward loss of the previous year not being an item of debit in the profit and loss account, it is impossible to see how it can be added back to arrive at the true profit or loss. The Tribunal was, therefore, clearly in error in taking the view that the gross profit of the appellant for nine years from 1962-63 to 1971-72 was Rs. 10, 55, 361.75, or that the average annual gross profit was Rs. 1, 33, 928.83 and basing its award on these erroneous figures.5. We also note that the Tribunal drew an inference against the company from the Directors report of 1971-72 evidencing a slight optimum for future in view of the reduction of expenditure. The inference, however, is not in accord with the reality of the situation reflected in the accounts of the company. Some-times observations of the like nature in the annual reports are made to strike a note of hope to dispel doubts and mis-givings in the minds of the shareholders and these cannot be substituted for actual audited figures.6. The learned counsel appearing on behalf of the workmen, however, tried to support the ultimate conclusions in the award on the basis of other material on record. He relied on an award made by the Industrial Tribunal in Reference (II), No. 37 of 1969 and published in Maharashtra Government Gazette, Part I.L., dated February 8, 1972 at page 1411. This award related to about 12 presses in the Poona region and the contention urged on behalf of the workmen was that some of these presses were comparable concerns and if the wage scales awarded in respect of these presses were taken into account on industry-cum-region principle, the increase of 25 per cent in the consolidated wages given by the Tribunal in the present case clearly appeared to be justified. The learned counsel also attempted to refer to certain other material on record to show that what was in fact awarded by the Tribunal was fair and just and there was no reason to interfere with it.7. Whether the Poona presses in the aforesaid award are comparable concerns may require investigation into facts. We, therefore, declined to permit the learned counsel to sustain the award on other grounds in this appeal. But while so doing we would like to make it clear that ordinarily a party to a reference should be entitled to justify the award of the tribunal on other grounds, so long as he does not travel outside the material or record.8. We are clearly of opinion that there was no proper adjudication of the dispute referred to the Tribunal. | 1[ds]4. The Tribunal was conscious of its duty to ascertain the financial capacity of the company but in doing so adopted an absolutely wrong approach resulting in erroneous conclusion. The Tribunal seems to have computed the profits of the appellant for each year on the assumption that the capital expenditure incurred in a particular year must have come out of the profits of that year and, therefore, to arrive at the correct trading result, the amount of the capital expenditure must be added back. This assumption, with great respect, betrays ignorance of the true function of the profit and loss account and fails to take note of the basic principle of accountancy that capital expenditure does not go into the profit and loss account. There can, therefore, be no question of adding back the amount of the capital expenditure to the profit and loss appearing in the profit and loss account for the purpose of arriving at the correct trading result. Equally patent is another error committed by the Tribunal, namely, of adding back the carried forward loss of the previous yearson the footing that is not genuineto the profit or loss appearing at the foot of the profit and loss account in order to determine the true profit or loss of the particular accounting year. This exercise on the part of the Tribunal is based on the assumption that the carried forward loss of the previous years is taken into account in arriving at the profit or loss appearing in the profit and loss account of the particular accounting years, and, therefore, it must be excluded in computing the profit or loss of the particular accounting year and to that extent, the real profit or loss would stand enhanced. But this assumption is clearly wrong. The profit and loss account of a particular accounting year never includes the carried forward loss of the previous years. It merely reflects the trading result of the year in question. In any particular item debited in the profit and loss account is wrong, it may be added back, but the carried forward loss of the previous year not being an item of debit in the profit and loss account, it is impossible to see how it can be added back to arrive at the true profit or loss. The Tribunal was, therefore, clearly in error in taking the view that the gross profit of the appellant for nine years from72 was Rs. 10, 55, 361.75, or that the average annual gross profit was Rs. 1, 33, 928.83 and basing its award on these erroneous figures.We, therefore, declined to permit the learned counsel to sustain the award on other grounds in this appeal. But while so doing we would like to make it clear that ordinarily a party to a reference should be entitled to justify the award of the tribunal on other grounds, so long as he does not travel outside the material or record.8. We are clearly of opinion that there was no proper adjudication of the dispute referred to the Tribunal. | 1 | 1,152 | 556 | ### 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:
Hence this appeal.2. Even according to the Tribunal the total additional financial burden of the company (appellant herein) in accordance with the award will come to Rs. 1, 16.687.18. The company owns a press employing 150 workers. The State Government prescribed minimum wages with a special allowance under the Minimum Wages Act for press employees. It is not disputed before us that the companys wages scale is not lower than the prescribed minimum wages. The company pleaded before the Tribunal its inability to bear any more financial burden. The company produced the accounts and showed that it was incurring losses in several years (1968-69, 1970-71 and 1971-72).3. We are dealing with a case of a company whose employees are in receipt of some kind of a fair wage, not bare minimum wage at subsistence level. It is well-settled that while the question of capacity to pay is irrelevent in the case of stands on a different footings. In case of a fair wage, besides the principle of industry-cum-region, the companys capacity to bear the financial burden must receive due consideration. The past performances of the company and the future prospects with a totality of the picture must be present in the mind of the adjudicator in deciding a dispute of this nature.4. The Tribunal was conscious of its duty to ascertain the financial capacity of the company but in doing so adopted an absolutely wrong approach resulting in erroneous conclusion. The Tribunal seems to have computed the profits of the appellant for each year on the assumption that the capital expenditure incurred in a particular year must have come out of the profits of that year and, therefore, to arrive at the correct trading result, the amount of the capital expenditure must be added back. This assumption, with great respect, betrays ignorance of the true function of the profit and loss account and fails to take note of the basic principle of accountancy that capital expenditure does not go into the profit and loss account. There can, therefore, be no question of adding back the amount of the capital expenditure to the profit and loss appearing in the profit and loss account for the purpose of arriving at the correct trading result. Equally patent is another error committed by the Tribunal, namely, of adding back the carried forward loss of the previous years - on the footing that is not genuine - to the profit or loss appearing at the foot of the profit and loss account in order to determine the true profit or loss of the particular accounting year. This exercise on the part of the Tribunal is based on the assumption that the carried forward loss of the previous years is taken into account in arriving at the profit or loss appearing in the profit and loss account of the particular accounting years, and, therefore, it must be excluded in computing the profit or loss of the particular accounting year and to that extent, the real profit or loss would stand enhanced. But this assumption is clearly wrong. The profit and loss account of a particular accounting year never includes the carried forward loss of the previous years. It merely reflects the trading result of the year in question. In any particular item debited in the profit and loss account is wrong, it may be added back, but the carried forward loss of the previous year not being an item of debit in the profit and loss account, it is impossible to see how it can be added back to arrive at the true profit or loss. The Tribunal was, therefore, clearly in error in taking the view that the gross profit of the appellant for nine years from 1962-63 to 1971-72 was Rs. 10, 55, 361.75, or that the average annual gross profit was Rs. 1, 33, 928.83 and basing its award on these erroneous figures.5. We also note that the Tribunal drew an inference against the company from the Directors report of 1971-72 evidencing a slight optimum for future in view of the reduction of expenditure. The inference, however, is not in accord with the reality of the situation reflected in the accounts of the company. Some-times observations of the like nature in the annual reports are made to strike a note of hope to dispel doubts and mis-givings in the minds of the shareholders and these cannot be substituted for actual audited figures.6. The learned counsel appearing on behalf of the workmen, however, tried to support the ultimate conclusions in the award on the basis of other material on record. He relied on an award made by the Industrial Tribunal in Reference (II), No. 37 of 1969 and published in Maharashtra Government Gazette, Part I.L., dated February 8, 1972 at page 1411. This award related to about 12 presses in the Poona region and the contention urged on behalf of the workmen was that some of these presses were comparable concerns and if the wage scales awarded in respect of these presses were taken into account on industry-cum-region principle, the increase of 25 per cent in the consolidated wages given by the Tribunal in the present case clearly appeared to be justified. The learned counsel also attempted to refer to certain other material on record to show that what was in fact awarded by the Tribunal was fair and just and there was no reason to interfere with it.7. Whether the Poona presses in the aforesaid award are comparable concerns may require investigation into facts. We, therefore, declined to permit the learned counsel to sustain the award on other grounds in this appeal. But while so doing we would like to make it clear that ordinarily a party to a reference should be entitled to justify the award of the tribunal on other grounds, so long as he does not travel outside the material or record.8. We are clearly of opinion that there was no proper adjudication of the dispute referred to the Tribunal.
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### Explanation:
4. The Tribunal was conscious of its duty to ascertain the financial capacity of the company but in doing so adopted an absolutely wrong approach resulting in erroneous conclusion. The Tribunal seems to have computed the profits of the appellant for each year on the assumption that the capital expenditure incurred in a particular year must have come out of the profits of that year and, therefore, to arrive at the correct trading result, the amount of the capital expenditure must be added back. This assumption, with great respect, betrays ignorance of the true function of the profit and loss account and fails to take note of the basic principle of accountancy that capital expenditure does not go into the profit and loss account. There can, therefore, be no question of adding back the amount of the capital expenditure to the profit and loss appearing in the profit and loss account for the purpose of arriving at the correct trading result. Equally patent is another error committed by the Tribunal, namely, of adding back the carried forward loss of the previous yearson the footing that is not genuineto the profit or loss appearing at the foot of the profit and loss account in order to determine the true profit or loss of the particular accounting year. This exercise on the part of the Tribunal is based on the assumption that the carried forward loss of the previous years is taken into account in arriving at the profit or loss appearing in the profit and loss account of the particular accounting years, and, therefore, it must be excluded in computing the profit or loss of the particular accounting year and to that extent, the real profit or loss would stand enhanced. But this assumption is clearly wrong. The profit and loss account of a particular accounting year never includes the carried forward loss of the previous years. It merely reflects the trading result of the year in question. In any particular item debited in the profit and loss account is wrong, it may be added back, but the carried forward loss of the previous year not being an item of debit in the profit and loss account, it is impossible to see how it can be added back to arrive at the true profit or loss. The Tribunal was, therefore, clearly in error in taking the view that the gross profit of the appellant for nine years from72 was Rs. 10, 55, 361.75, or that the average annual gross profit was Rs. 1, 33, 928.83 and basing its award on these erroneous figures.We, therefore, declined to permit the learned counsel to sustain the award on other grounds in this appeal. But while so doing we would like to make it clear that ordinarily a party to a reference should be entitled to justify the award of the tribunal on other grounds, so long as he does not travel outside the material or record.8. We are clearly of opinion that there was no proper adjudication of the dispute referred to the Tribunal.
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PATTALI MAKKAL KATCHI Vs. A. MAYILERUMPERUMAL & ORS | educationally backward. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservation of appointments and posts for them to secure adequate representation. These provisions are intended to bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). However, it is to be noted that equality under Articles 15 and 16 could not have a different content from equality under Article 14 State of Kerala v. N.M Thomas (1976) 2 SCC 310 . Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682 . 73. As stated supra, the object of the 2021 Act is to achieve equitable distribution of the benefit of 20 per cent reservation provided to MBCs and DNCs. At the cost of repetition, at the time of enactment of the 2021 Act, 116 castes were to be found in the cumulative lists of MBCs and DNCs. Choosing a particular caste and providing a special reservation of 10.5 per cent out of the 20 per cent to such caste is discriminatory, in the absence of any sound differentiation from communities who are similarly situated and were, therefore, grouped together for the purposes of receiving the benefits of 20 per cent reservation. While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different section from the rest of the communities within the MBCs and DNCs, on grounds which cannot be superficial or illusory. 74. The justification on behalf of the State is that sufficient material was gathered by the Tamil Nadu Backward Classes Commission to show that there was inadequate representation, disproportionate to the population of the Vanniakula Kshatriyas, thereby culminating in the 2021 Act, which aimed to achieve equitable distribution of reservation amongst MBCs and DNCs. A perusal of the discussion in the earlier paragraphs would disclose that the letter from the Chairman, Backward Classes Commission is on the basis of antiquated data, without any assessment of the relative backwardness and representation of the Vanniakula Kshatriyas and their ability to compete with the remaining 115 communities within the MBCs and DNCs. Additionally, recommendations therein are solely based on population. To differentiate a particular class / category from others, there should be a substantial distinction which clearly demarcates that class / category. In the instant case, we see no justification for how the Vanniakula Kshatriyas can be treated as a different class and meted out preferential treatment, being one amongst the 116 communities, who have all been considered on the same footing till the enactment of the 2021 Act and were, therefore, eligible to claim the benefit of undivided 20 per cent reservation. Population being cited as the sole factor to support this classification is in the teeth of the judgments of this Court in Indra Sawhney (supra) and Jarnail Singh (supra). Accordingly, we hold that the classification sought to be made under the 2021 Act is unreasonable and, therefore, the 2021 Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the Vanniakula Kshatriyas and granting them separate reservation. VI. Non-compliance with Article 338-B(9) of the Constitution 75. Mr. Sankaranarayanan argued that providing internal reservation is a major policy matter, which should have been undertaken by the State only with the consultation of the National Commission for Backward Classes. As, admittedly, there was no consultation, the 2021 Act is void. Article 338- B(9) provides that the Union and the State Government shall consult the Commission on all major policy matters affecting the SEBCs. A proviso was inserted by the 105th Amendment Act, by which it was specified that clause (9) of Article 338-B would not be applicable to lists of SEBCs that are prepared and maintained by the States. However, the 2021 Act was brought into force prior to the 105th Amendment Act. Having concluded that the 105th Amendment Act was prospective in its operation, it necessarily follows that the State was required to have consulted the Commission on major policy matters prior to the 105th Amendment Act. There cannot be any dispute regarding internal reservation being provided to a specific community qualifying as a major policy decision. The point that falls for consideration is the consequence of non-consultation by the State Government with the National Commission for Backward Classes before providing internal reservation. Given the language of the provision and its interpretation in Dr Jaishri Laxmanrao Patil (supra), there need not be a detailed discussion about Article 338-B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non-consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers Association v. State of M. P. (2004) 2 SCC 249 and Article 338- B(9) does not stop the State from enacting a legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters. 76. The consequence of disregarding a mandatory consultation provision would normally render the legislation void as it is in breach of an obligatory requirement to consult an expert constitutional body. However, we refrain from going into this issue in view of our earlier conclusion that the 2021 Act does not withstand scrutiny under Articles 14, 15 and 16 of the Constitution. VII. Conclusion | 1[ds]18. The vires of Rule 3 of the Indian Passport Rules, 1950 and Section 3 of the Indian Passport Act (34 of 1920) fell for consideration before this Court in Abdul Rahim Ismail C. Rahimtoola (supra). An argument was advanced in that case that the matter should be referred to a Bench of five Judges as a constitutional question was raised. While referring to an earlier judgment of this Court in Ebrahim Vazir Mavat v. State of Bombay 1954 SCR 933, this Court held that the question of the impugned provision and rule being in violation of Articles 19(1)(d) and 19(1)(e) had already been decided by this Court and therefore, it cannot be said that any substantial question of law arises on the interpretation of a constitutional provision. The request for reference, was therefore, rejected.19. In Shrimanth Balasaheb Patil (supra), this Court refused to refer the dispute therein to a Constitution Bench on the ground that there was no substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case. This Court was of the opinion that the existence of substantial question of law does not weigh on the stakes involved in the case, rather, it is determined by the impact that the question would have on the final determination of the case.20. Article 145(3) of the Constitution provides that any case involving substantial question of law as to the interpretation of the Constitution should be heard by a minimum number of five Judges. However, we are not in agreement with the submission of Dr. Singhvi that the question of whether the 105th Amendment Act is clarificatory involves interpretation of the 105th Amendment Act.Article 31-B has been construed by this Court in The Godavari Sugar Mills Ltd. v. S. B. Kamble (1975) 1 SCC 696, Shri Ram Ram Narain Medhi v. State of Bombay 1959 Supp (1) SCR 489, Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933 , Ramanlal Gulab Chand Shah v. State of Gujarat (1969) 1 SCR 42 , State of Orissa v. Chandrasekhar Singh Bhoi (1969) 2 SCC 334 and State of Maharashtra v. Madhavrao Damodar Patil (1968) 3 SCR 712. In view of the above judgments, which are discussed later, it is not necessary for this Court to refer these appeals to a larger Bench.23. The High Court observed that the majority opinion of this Court in Dr Jaishri Laxmanrao Patil v. Chief Minister (2021) 8 SCC 1 concluded that the powers of the State Legislatures to identify backward classes have been ousted and the power to modify the list of socially and educationally backward classes (SEBCs) stood vested in the Parliament, after insertion of Article 342-A in the Constitution by the 102nd Amendment Act. The High Court rejected the contention on behalf of the State that the 105th Amendment Act restored the power of the States to identify and notify backward classes. The High Court was of the view that the 2021 Act came into existence on 26.02.2021, whereas the 105th Amendment Act was enacted on 19.08.2021. Thus, according to the High Court, the impugned legislation, which was brought into effect prior to the enactment of the 105th Amendment Act, was unconstitutional in view of the majority opinion in Dr Jaishri Laxmanrao Patil (supra).28. On the issue of the 105th Amendment Act, we are unable to agree with the contention of the Appellants that the said amendment is clarificatory and dates back to the introduction of Article 342-A. The Respondents were right in submitting that the Parliament had expressly specified the retrospectivity of an amendment, whenever it intended to give any amendment retrospective effect. As such we do not intend to scrutinize the Statement of Objects and Reasons of and the parliamentary debates on the Constitution (One Hundredth and Twenty-seventh Amendment) Bill, 2021, as it is well established and also reiterated in the majority decision in Dr Jaishri Laxmanrao Patil that where provisions of a statute are ambiguous, the first attempt should be to find meaning in the statute itself, failing which the court may turn to external aids. We have not been called upon to interpret the 105th Amendment Act and nor do we find any vagueness as regards when the 105th Amendment Act has come into effect. The 105th Amendment Act cannot be said to be a validating amendment, as admittedly the 102nd Amendment Act has not been invalidated by this Court. We do not find it necessary to deal with the judgments cited by the Respondents on the impermissibility of clarification of a judgment of this Court by the Parliament, as even the Appellants do not contend that the 105th Amendment Act was made to clarify the judgment of this Court in Dr Jaishri Laxmanrao Patil (supra).29. Rule 350-A of the Rules framed by the Broach Borough Municipality, by which a rate on land was fixed at a percentage of the valuation based upon capital value, was declared ultra vires Section 73 of the Bombay Municipal Boroughs Act, 1925 in Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad (1964) 2 SCR 608. The Legislature of Gujarat passed the Gujarat Imposition of Taxes by Municipalities (Validation) Act, 1963, validating the rates so imposed. The said validating legislation was challenged before this Court in Shri Prithvi Cotton Mills Ltd. (supra). This Court was of the opinion that the defect pointed out by the judgment in Patel Gordhandas Hargovindas (supra), being that Section 73 had not authorised the levy of a tax but that of a rate, which had acquired a special meaning in legislative practice as held by this Court, was cured by the validating legislation. The Court upheld the validating statute on the ground that a new meaning to the expression rate was legislatively ascribed, thus putting out of action the effect of the decisions of the courts to the contrary. The Appellants cannot take aid of this judgment to argue that the 105th Amendment Act has to be given retrospective effect, since the 105th Amendment Act cannot be treated as a validating amendment as no part of the 102nd Amendment Act has been invalidated. The contention of the Appellants that the 105th Amendment Act, being an amendment relating to procedure, has to be construed as retrospective along the lines of K.S. Paripoornan (supra), is misconceived. Identifying certain communities which are to be deemed as SEBCs for the purposes of the Central Government and the States, respectively, cannot be said to be a matter of procedure. The procedural aspect of the 102nd Amendment Act and the 105th Amendment Act is only the manner of publication of the lists of SEBCs, whereas the substantive element of the said amendments is identifying and recognising certain communities as SEBCs. Thus, we see no force in the submission of the Appellants that the 105th Amendment Act is clarificatory in nature and has to be given retrospective effect from the date on which the 102nd Amendment Act came into effect.30. At the time of enactment of the 2021 Act, there is no doubt therefore, that the 102nd Amendment Act held force. The majority in Dr Jaishri Laxmanrao Patil (supra) was of the view that identification of SEBCs and their inclusion in a list to be published under Article 342-A can be done only by the President, after the insertion of Articles 366(26C) and 342-A. The list of SEBCs to be notified by the President under Article 342-A shall be the only list for the purposes of the Constitution. It was concluded in the said judgment that the change brought about by the 102nd Amendment Act, especially under Article 342-A, was only with respect to the process of identification of SEBCs and their list. It was categorically held that the power to frame policies and legislation with regard to all other matters, i.e., the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservation and special provisions under Articles 15(4), 15(5) and 16(4) are entirely with the State Government in relation to its institutions and its public services. It was further clarified that the extent of reservation, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficial or welfare scheme conceivable under Article 15(4) can all be achieved by the State through its legislative and executive powers. Recognising that the President was yet to prepare and publish a list under Article 342-A(1), the Court held that a comprehensive list should be published expeditiously and in exercise of its powers under Article 142 of the Constitution, the Court directed till the time of the publication of such list, the SEBC lists prepared by the States would continue to be operative.31. Backward Classes, MBCs and DNCs have been identified for reservation in educational institutions and for public employment by G.O. Ms. No. 28 dated 19.07.1994 under the 1994 Act. 30 per cent reservation was provided for Backward Classes and 20 per cent for MBCs and DNCs together. The Vanniakula Kshatriya community has consistently featured in the list of MBCs since 1957 and was also included in the list of MBCs in G.O. Ms. No. 28 dated 19.07.1994, pursuant to the 1994 Act. By the 2021 Act, 10.5 per cent out of 20 per cent reservation for MBCs and DNCs was earmarked for the Vanniakula Kshatriya community. Identification of the Vanniakula Kshatriyas as a community within the MBCs was not the subject-matter of the 2021 Act, as this exercise had already been completed pursuant to the 1994 Act. Under the 2021 Act, sub-classification of the MBCs and DNCs and apportionment of a particular percentage of reservation is for the purpose of determining the extent of reservation for communities within the MBCs and DNCs, which is a permissible exercise of power by the State Government, according to the majority judgment in Dr. Jaishri Laxmanrao Patil (supra). What the 102nd Amendment prohibits the State from undertaking is identifying a caste as SEBC or including or excluding a community from the list notified by the President. We are not in agreement with the contention of the Respondents that determining the extent of reservation for a community amongst the list of Most Backward Classes amounts to identification. In view thereof, the High Court has committed an error in holding that the 2021 Act is violative of Article 342-A.32. Placing reliance on the judgment of this Court in E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394, the High Court held that all castes including the sub-castes, races, tribes mentioned in the list are to be members of one group for the purpose of the Constitution and cannot be further sub-divided so as to give more preference to a miniscule portion thereof. The High Court also observed that as per E.V. Chinnaiah (supra), all the castes included in the Schedule under Article 341 of the Constitution would be deemed to be one class of persons.35. The Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 was challenged before the High Court of Andhra Pradesh. 57 castes enumerated in the Presidential list of Scheduled Castes were categorised into four groups based on inter se backwardness and separate quotas were fixed in reservation for each of these groups by the State of Andhra Pradesh. A five-Judge Bench of the High Court by a majority of 4:1 dismissed the writ petitions. In E.V. Chinnaiah (supra), the main contention of the appellants therein before this Court was that the State lacked legislative competence in enacting the said legislation which, according to the appellants, was solely meant for subdividing or subgrouping the castes enumerated in the Presidential list, as under Article 341(2) bifurcation of the Presidential list can be done only by the Parliament. Alternatively, it was submitted that this subgrouping amounted to micro-classification of the Scheduled Castes, in violation of Article 14 of the Constitution. Three questions were framed by this Court in E.V. Chinnaiah (supra), as listed below:(1) Whether the impugned Act is violative of Article 341(2) of the Constitution of India?(2) Whether the impugned enactment is constitutionally invalid for lack of legislative competence?(3) Whether the impugned enactment creates subclassification or micro-classification of Scheduled Castes so as to violate Article 14 of the Constitution of India?36. In E.V. Chinnaiah (supra), this Court was of the opinion that Article 341 made it clear that the State, either by legislative or executive action, had no power of disturbing the Presidential list of Scheduled Castes and therefore, any executive or legislative act of the State which interferes, disturbs, rearranges, regroups or reclassifies various castes in the Presidential list is violative of Article 341 and the scheme of the Constitution. Further, it was held that castes identified by the President under Article 341 formed a class in themselves and any division of these classes based on any consideration would amount to tinkering with the Presidential list. As the primary object of the impugned enactment in that case was to create groups of sub-castes in the list of Scheduled Castes, this Court concluded that the State does not have legislative competence to divide the Scheduled Castes, by tracing its claim to Entry 41 of List II and Entry 25 of List III. Insofar as the contention of sub-classification of Scheduled Castes is concerned, this Court rejected the contention of the respondents therein that the ratio of Indra Sawhney (supra) applied to the facts of E.V. Chinnaiah (supra). It was pointed out that sub- classification dealt with by Indra Sawhney (supra) related only to Other Backward Classes and not Scheduled Castes as the judgment in Indra Sawhney (supra) itself had expressly held that subdivision of Other Backward Classes is not applicable to Scheduled Castes and Scheduled Tribes, the reason for which, according to this Court in E.V. Chinnaiah (supra), was that the Constitution itself had kept the Lists of Scheduled Castes and Scheduled Tribes out of interference by the State Governments.37. A close scrutiny of E.V. Chinnaiah (supra) would make it clear that the High Court was wrong in relying upon the said judgment to hold that sub-classification of backward classes is beyond the legislative competence of the State. E.V. Chinnaiah (supra) primarily relates to the power of the State legislature in categorising the Scheduled Castes identified under Article 341 into four groups, the effect of which was held to be modification of the Presidential list, which Article 341 precluded the States from doing. As was clearly expressed by this Court in E.V. Chinnaiah (supra), the issue of sub-classification of backward classes was dealt with in Indra Sawhney (supra) and it is pertinent for us to refer to the following paragraphs authored by Jeevan Reddy, J., after referring to observations of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka 1985 Supp SCC 714:802. We are of the opinion that there is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. We are not saying that it ought to be done. We are concerned with the question if a State makes such a categorisation, whether it would be invalid? We think not. Let us take the criteria evolved by Mandal Commission. Any caste, group or class which scored eleven or more points was treated as a backward class. Now, it is not as if all the several thousands of castes/groups/classes scored identical points. There may be some castes/groups/classes which have scored points between 20 to 22 and there may be some who have scored points between eleven and thirteen. It cannot reasonably be denied that there is no difference between these two sets of castes/groups/classes. To give an illustration, take two occupational groups viz., goldsmiths and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both of them are grouped together and reservation provided, the inevitable result would be that goldsmiths would take away all the reserved posts leaving none for vaddes. In such a situation, a State may think it advisable to make a categorisation even among other backward classes so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub- classification is, however, a matter for the Commission and the State — and so long as it is reasonably done, the Court may not intervene. In this connection, reference may be made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories. Group A comprises Aboriginal tribes, Vimukta jatis, nomadic and semi- nomadic tribes etc. Group B comprises professional group like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group C pertains to Scheduled Castes converts to Christianity and their progeny, while Group D comprises all other classes/communities/groups, which are not included in Groups A, B and C. The 25% vacancies reserved for backward classes are sub-divided between them in proportion to their respective population. This categorisation was justified in Balram [(1972) 1 SCC 660 : (1972) 3 SCR 247 ] . This is merely to show that even among backward classes, there can be a sub- classification on a reasonable basis.803. There is another way of looking at this issue. Article 16(4) recognises only one class viz., backward class of citizens. It does not speak separately of Scheduled Castes and Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled Castes and Scheduled Tribes are also included in the expression backward class of citizens and that separate reservations can be provided in their favour. It is a well-accepted phenomenon throughout the country. What is the logic behind it? It is that if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The same logic also warrants categorisation as between more backward and backward. We do not mean to say — we may reiterate — that this should be done. We are only saying that if a State chooses to do it, it is not impermissible in law.Sawant, J. was also of the opinion that sub-classification of backward and more backward classes would be permissible, provided that separate quotas are provided for each of them. It is crystal clear from the judgment of Indra Sawhney (supra) that backward classes can be sub-classified. Whether the sub- classification under the 2021 Act is reasonable will be addressed subsequently but no doubt can be entertained about the permissibility of sub-classification amongst backward classes.38. By drawing strength from E.V. Chinnaiah (supra), the High Court was of the firm view that there cannot be any sub- division of castes including sub-castes, races and tribes mentioned in the Presidential list. In E.V. Chinnaiah (supra), it was held that castes once included in the Presidential list form a class by themselves and any division of these classes or persons based on any consideration would amount to tinkering with the Presidential list. According to the plural opinion in Dr Jaishri Laxmanrao Patil (supra), the list of SEBCs with respect to States was to be notified by the President, after due consultation with the National Commission for Backward Classes under Article 342-A. Admittedly, this was not done till the time of enactment of the 2021 Act. As stated earlier, exercising powers under Article 142 of the Constitution, this Court in Dr Jaishri Laxmanrao Patil (supra) directed that till the publication of the list of SEBCs by the President, the SEBC lists prepared by the States would continue to hold the field. Thus, even on consideration of the law laid down in E.V. Chinnaiah (supra), it is clear from the above that a Presidential list for SEBCs did not come into existence and the question of sub-division of the said list by way of the 2021 Act does not arise. Therefore, the finding of the High Court in this regard is erroneous.39. The constitutionality of the 2021 Act was assessed by the High Court under Article 31-B of the Constitution. The High Court observed that a statute placed in the Ninth Schedule shall continue to be in force, till it is amended or repealed. In the present set of facts, the High Court was of the view that without amending the 1994 Act, which provides for undivided 20 per cent reservation to MBCs and DNCs together, the State lacked the legislative competence to provide internal reservation to one community from amongst that group of communities by way of a separate but similar legislation. Reference was drawn to amendments made by the State of Tamil Nadu to statutes placed in the Ninth Schedule, which were also included in the Ninth Schedule.43. Article 31-B prescribes that no statute placed in the Ninth Schedule shall be void on the ground that it is inconsistent with, takes away or abridges any right conferred under Part III of the Constitution. The statute placed in the Ninth Schedule shall continue in force, subject to the powers of the competent Legislature to repeal or amend it. According to this Court in Godavari Sugar Mills Ltd. (supra), the object of Article 31-B, which was inserted by the Constitution (First Amendment) Act, 1951, is to give a blanket protection to the acts and regulations specified in the Ninth Schedule and the provisions of those acts and regulations against any challenge to those acts, regulations or the provisions thereof on the ground that they are inconsistent with or take away or abridge any of the rights conferred by Part III of the Constitution. The result is that howsoever violative of the fundamental rights may be the provisions of an act or regulation, once the act or regulation is specified in the Ninth Schedule it would not be liable to be struck down on that score. This immunity against the above challenge would be available notwithstanding any judgment, decree or order of any court or tribunal to the contrary. The effect of Article 31-B, however, is not to prevent challenge, to an enactment on the ground that it is beyond the legislative competence of the Legislature which enacted it. It is also plain from the language of the Article that the specification of an act or regulation would not prevent the competent legislature to repeal or amend it. This Court was of the further opinion that:16. The protection of Article 31B can also not be extended to a new provision inserted as a result of amendment on the ground that it is ancillary or incidental to the provisions to which protection has already been afforded by including them in the Ninth Schedule. Article 31B carves out a protected zone. It has inserted Ninth Schedule in the Constitution and gives immunity to the Acts, Regulations and provisions specified in the said schedule from being struck down on the ground of infringement of Fundamental Rights even though they are violative of such rights. Article 31B thus excludes the operation of Fundamental Rights in matters dealt with by those Acts, Regulations and provisions. Any provision which has the effect of making an inroad into the guarantee of Fundamental Rights in the very nature of things should be construed very strictly, and it would not, in our opinion, be permissible to widen the scope of such a provision or to extend the frontiers of the protected zone beyond what is warranted by the language of the provision. No Act, Regulation or provision would enjoy immunity and protection of Article 31B unless it is expressly made a part of the Ninth Schedule. The entitlement to protection being confined only to the Acts, Regulations and provisions mentioned in the Ninth Schedule, it cannot be extended to provisions which were not included in that schedule. This principle would hold good irrespective of the fact whether the provision to which entitlement to protection is sought to be extended deals with new substantive matters or whether it deals with matters which are incidental or ancillary to those already protected.While dealing with the findings of the High Court in the impugned judgment therein, made on the basis of an earlier decision of this Court in Ramanlal Gulab Chand Shah (supra), this Court in Godavari Sugar Mills (supra) observed that a legislation, which is incidental or ancillary to a statute protected under Article 31-B, can be assailed on the ground of inconsistency with Part III of the Constitution.44. In our view, the 2021 Act cannot be said to be suffering from the vice of lack of legislative competence, merely because it deals with matters associated with or ancillary to the 1994 Act. Classification of backward classes has been made by the 1994 Act, which was placed under the Ninth Schedule. It is clear from the judgments referred to above that the State has the power to amend or repeal a statute which has been placed under the Ninth Schedule. It is settled law that any amendment made to a statute placed under the Ninth Schedule does not get protection under Article 31-B, unless the said amendment is also included in the Ninth Schedule. Having scrutinised the above judgments on the objective of Article 31-B, we are unable to see how Article 31-B operates as a hurdle for the State to enact statutes on matters ancillary to the 1994 Act. Article 31-B does not place any fetter on the power of the State to legislate on such matters nor does it prescribe any mandatory requirement for such legislations to be included within the Ninth Schedule, as has been understood by the High Court. The consequence of the 2021 Act not being placed in the Ninth Schedule is that it can be assailed as being violative of the fundamental rights enshrined under Part III of the Constitution, which the Appellants have fairly admitted. It is worthwhile for us to reiterate the authoritative pronouncement of a five-Judge Bench of this Court in Maharaj Umeg Singh v. State of Bombay (1955) 2 SCR 164 , relevant portion of which is reproduced below:13. … The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution. It was conceded on behalf of the petitioners that the topic of legislation which was covered by the impugned Act was well within List 2 of the said schedule and the vires of the impugned Act could not be challenged on that ground…As no express prohibition stems from Article 31-B on the powers of the State Legislature to legislate on matters incidental to statutes placed within the Ninth Schedule, we are not in agreement with the finding of the High Court that the State Legislature lacked legislative competence to enact the 2021 Act on account of Article 31-B.45. The 2021 Act determined the extent of reservation for communities which had already been identified and categorised by the 1994 Act. Assuming that the State Legislature carried out an amendment to the 1994 Act, the said amendment would not have received the protection under Article 31-B. The question that remains to be answered is whether the determination of internal reservation for already identified communities by a separate legislation can be said to be in conflict with the 1994 Act. This Court is of the considered view that detailing the extent of reservation for communities which have already been identified as MBCs and DNCs cannot be said to be contrary to the 1994 Act. The preamble of the 1994 Act states that in view of requests from various political parties and social forums representing backward classes to consider the ramifications of the judgment of this Court in Indra Sawhney, the State Government had decided that the existing level of 69 per cent reservation in admission to educational institutions in the State and services under the State shall be continued. Determination of extent of reservation for specific communities within the Backward Classes of citizens was not the subject matter of the 1994 Act.46. The conclusion of the High Court that determining the extent of reservation amongst the Backward Classes of citizens can be done only by amending the 1994 Act in view of Article 31-B is unsustainable. It is made clear that it was open to the State to have amended the 1994 Act. At the same time, it cannot be said that the State Legislature lacked competence to enact a legislation for determining the extent of reservation amongst the MBCs and DNCs.49. Laws giving effect to the policy of the State towards securing principles laid down in clauses (b) and (c) of Article 39 of the Constitution are saved from challenge as being inconsistent with Articles 14 and 19 of the Constitution, as per Article 31-C. Where such law is made by the State Legislature, it shall not receive the benefit under Article 31-C unless it receives the assent of the President. The 1994 Act received the assent of the President as it was made for securing the Directive Principles under Article 38, clauses (b) and (c) of Article 39 and Article 46. The High Court proceeded to hold that the 2021 Act has varied the provisions of the 1994 Act, which could not have been done by the Governor.50. As already stated, the 2021 Act deals with matters which are incidental or ancillary to those contained in the 1994 Act and the State is competent to legislate on such matters. It is for the State to decide whether a legislation, which is not repugnant to any law made by the Parliament on the same subject matter, should receive the assent of the President or not. If the assent of the President is not sought, the consequence is that the statute made by the State is susceptible to challenge as being violative of Article 14 or Article 19. However, it cannot be said that the State cannot legislate on subject matters, ancillary to that of an earlier statute which has received the assent of the President, or that it is mandatory for the State Government to seek the assent of the President for a legislation which the State is otherwise competent to enact. In Indra Sawhney (supra), Jeevan Reddy, J., writing for himself and three other judges, conclusively clarified that Article 16(1) is a facet of Article 14 and just as Article 14 permits reasonable classification, so does Article 16(1), which means that appointment and / or posts can be reserved in favour of a class under clause (1) of Article 16. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. It was further noted that Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. Where the State finds it necessary – for the purpose of giving full effect to the provision of reservation to provide certain exemptions, concessions or preferences to members of backward classes, it can extend the same under clause (4) itself. Pandian, J. while tracing the legislative history of Article 15(4), observed that the object of Article 15(4), introduced by the Constitution (First Amendment) Act, 1951, was to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to make it constitutionally valid for the State to reserve seats for backward class of citizens, Scheduled Castes and Scheduled Tribes in public educational institutions as well as to make other special provisions as may be necessary for their advancement. From these observations and findings, it is clear that States are empowered to make reservation for backward classes under Articles 15(4) and 16(4). We see no force in the submissions of Mr. Vijayan, who attempted to convince this Court that the State Legislatures source of power for enacting the 2021 Act cannot be traced to any Entry in the Lists under the Seventh Schedule of the Constitution.51. As referenced while dealing with the competence of the State to enact the 2021 Act vis-à-vis Article 31-B, this Court in Maharaj Umeg Singh (supra) has unequivocally clarified that no fetter can be implied on the power of the State to legislate, unless it is expressly prohibited under the Constitution. Without any such express bar under Article 31-C, the States competence to enact the 2021 Act with the Governors assent cannot be faulted with nor can the State be compelled by the courts to reserve the 2021 Act for assent of the President. In view of our conclusion, we do not deem it necessary to deal with the judgments relied upon by the Appellants.52. Internal reservation of 10.5 per cent for the Vanniakula Kshatriyas was challenged by the writ petitioners before the High Court as being violative of Articles 14, 15 and 16 of the Constitution. Their contention, that internal reservation was only on the basis of caste which amounted to discrimination to the other communities, was accepted by the High Court.This Court in K.C. Vasanth Kumar (supra) defined and described caste as below:What then is a caste? Though caste has been discussed by scholars and jurists, no precise definition of the expression has emerged. A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste-system which differentiates it from other social systems. The concept of purity and impurity conceptualises the caste system…. There are four essential features of the caste-system which maintained its homo hierarchicus character: (1) hierarchy; (2) commensality; (3) restrictions on marriage; and (4) hereditary occupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But Pratilom marriages are not wholly known.In Indra Sawhney (supra), Jeevan Reddy, J. observed that caste is nothing but a social class — a socially homogeneous class. Jeevan Reddy, J. then proceeded to answer the question relating to identification of backward classes. He was of the considered view that there is no recognised method for identification of backward classes. He held that caste can be the starting point for identifying backward classes, and wherever they are found, the criteria evolved for determining backwardness can be applied to see whether they satisfy the criteria.54. It is clear from the above that caste can be the basis for providing reservation, but it cannot be the sole basis. At present we are concerned with sub-classification. As stated, it has been held in Indra Sawhney (supra) that there is no constitutional or legal bar to a State categorising backward classes as backward and more backward. In the present case, sub-classification for providing internal reservation to a particular community, i.e., the Vanniakula Kshatriyas, will also be governed by the same principle, namely, while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the sub- classification and demonstrate that caste has not been the only basis. We are not at present dealing with the inquiry of other factors relied on by the State Government to justify internal reservation for the Vanniakula Kshatriyas. We propose to deal with that point subsequently. At present, we have answered the question relating to caste being the starting basis for providing reservation and for sub-classification of backward classes so as to provide for internal reservation.55. According to the High Court, there was no quantifiable data available with the State of Tamil Nadu as on the date of enactment of the 2021 Act, which would support their exercise of enabling powers under Articles 15(4) and 16(4) of the Constitution. The High Court was of the view that sub- classification of MBCs and DNCs into three categories for apportionment of reservation under the 2021 Act has been done without any objective criteria and aside from the population figures of 1983, no data was available on (i) the degree of backwardness of the classes for sub-classification; (ii) inadequate representation of these sub-classes; and (iii) efficiency of the administration. Additionally, the High Court has relied on the judgments of this Court in Indra Sawhney (supra), Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396 and Dr Jaishri Laxmanrao Patil (supra) to hold that the 2021 Act, being an attempt to provide proportionate representation, is against the law laid down by this Court, as it is settled law that adequate representation is not proportionate representation. It was concluded by the High Court that sub-classification would be permissible only on the ground that a class is far far backward than the advanced sections of that class, however, the classification under the 2021 Act was not based on any intelligible differentia as there was nothing on record to show that the other 115 communities were more advanced than the Vanniakula Kshatriyas using any yardstick. Therefore, the classification was made only on the basis of caste, which is unsustainable in law.To appreciate the submissions on whether the findings of the various Reports are supported by data, it is necessary to deal with the recommendations of the Tamil Nadu Backward Classes Commission, headed by Justice Janarthanam and the letter of Justice Thanikachalam. Given that the Sattanathan Commission and the Ambasankar Commission were not requested to address the issue of provision of internal reservation to specific communities within the MBCs and DNCs, the reports of these Commissions are not relevant for our discussion.As identification of backward classes and grant of reservation are measures under Articles 15(4) and 16(4) of the Constitution, such measures have to pass constitutional scrutiny. While the report of a Commission has to be looked into with deference, it cannot be said that evaluation pertaining to violation of any constitutional principle or non-consideration of any constitutional requirement is beyond the reach of judicial oversight. This Court in State of A.P. v. U.S.V. Balram (1972) 1 SCC 660 categorially laid down that judicial scrutiny is permissible to enquire into whether the conclusions arrived at by the Commission are supported by the data and materials referred to in its report. In Indra Sawhney (supra), the test laid down in Barium Chemicals (supra) was endorsed with respect to judicial review of the subjective opinion of the State in matters relating to reservation. Subsequently, this Court has cautioned against the re-evaluation of the factual material on record B.K. Pavitra v. Union of India (2019) 16 SCC 129 . Having considered the above judgments, we say with certainty that it is within the domain of the courts to scrutinise the factual material and data collected by a Commission and assess whether the conclusions of the Commission are justified by such material.63. As contested by Mr. Nagamuthu and Mr. Balasubramanian, it is clear that the report of Justice Janarthanam, relied upon by Justice Thanikachalam, is a minority view. The views of the plurality, i.e., the remaining six members of the Tamil Nadu Backward Classes Commission were contrary to the views expressed by Justice Janarthanam. The majority opinion clearly mentioned that the data that was available before them was outdated. They highlighted the importance of collection of caste-wise data to enable them to give an opinion on internal reservation. That apart, the majority members expressed the inappropriateness of submitting the report in haste, just before the ensuing parliamentary elections in 2012. Justice Thanikachalam committed an error in brushing aside the opinion of the majority members on the ground that it was riddled with extraneous reasons. Without justifying the lack of updated data cited by the majority as a ground for being unable to comment on grant of internal reservation, Justice Thanikachalam blindly followed the recommendation of Justice Janarthanam, by stating that his view is unassailable. It is to be noted that the recommendation of internal reservation for the Vannikula Kshatriyas is by way of a letter signed only by Justice Thanikachalam and does not enclose the views of the remaining members of the Tamil Nadu Backward Classes Commission. There is nothing in the said letter to even suggest that Justice Thanikachalam, after due deliberation with the remaining members of the Commission, has put forth recommendations on internal reservation, which have the backing of the remaining members, or at the least, the approval of the majority.64. Providing internal reservation of 10.5 per cent from the 20 per cent made available to MBCs and DNCs would definitely be to the detriment of other communities, in the absence of any exercise undertaken or any findings arrived at to demonstrate that members of the Vanniakula Kshatriya community are unable to compete with the remaining communities within the MBCs and DNCs. No data or material is referred to in the letter by Justice Thanikachalam on the representation of the remaining communities within the MBCs and DNCs in educational institutions or public employment, which could support the severe restriction in the extent of reservation made available to these communities, who had been entitled to avail the benefit of 20 per cent reservation en masse till the enactment of the 2021 Act. The following paragraph from Dr Jaishri Laxmanrao Patil (supra), as relied upon by Mr. V. Prakash, is relevant to the present context:520. The word adequate is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in mainstream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation under Article 16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services.There was no independent evaluation by resorting to known methods for recommending internal reservation by Justice Thanikachalam, who simply approved the minority report submitted by Justice Janarthanam.65. It is relevant to note that Justice Janarthanam in his report relied upon the population figures of the Vanniakula Kshatriyas from the year 1985. His recommendation was on the basis of the figures taken from the report of the Ambasankar Commission, submitted in 1985. Reference made to admissions to engineering colleges and appointment to public posts pertained to the years 2006-07 to 2010-11 and 2010, respectively. A decision taken for providing reservation which would impact the rights of members of as many as 115 communities should be on the basis of contemporaneous inputs and not outdated and antiquated data Ram Singh v. Union of India (2015) 4 SCC 497. Any study by the Commission should be with regard to the present status since the object is to take affirmative actions in present or in future to address the needs of a particular community (Dr Jaishri Laxmanrao Patil (supra)). In this particular case, the data that was relied on for the purpose of recommending internal reservation to the Vanniakula Kshatariyas is from 1985. The State Government, at the time of appointing the Kulasekaran Commission to collect quantifiable data on castes, communities and tribes in the State of Tamil Nadu, including migrants domiciled therein, expressly recognized the need for collection of such data as the data collected by the Ambasankar Commission had become more than three decades old. We are in agreement with the objection of the Respondents, that there was no contemporaneous data available to Justice Thanikachalam or even Justice Janarthanam, on the basis of which recommendations for internal reservation could have been made.66. It is observed that the proportion of the population of the Vanniakula Kshatriyas to the total population of MBCs and DNCs, termed as the feasibility formula, was the sole criterion which was considered by Justice Janarthanam to recommend internal reservation for the Vanniakula Kshatriyas. The representations made by other communities within the MBCs seeking internal reservation were not considered feasible by Justice Janarthanam on the sole basis of the proportion of their population to the total population of the MBCs and DNCs together. This Court is of the opinion that percentage of population of the Vanniakula Kshatriyas proportionate to the total population of the MBCs and DNCs cannot be the sole criterion for providing internal reservation. Adequacy of representation is different from proportionate representation, although proportion of population of the relevant community to the total population may be one of the relevant factors in determining adequacy. In Indra Sawhney, it was held as under: -807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits — and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court inV. Narayana Rao v. State of A.P. [AIR 1987 AP 53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down the enhancement of reservation from 25% to 44% for OBCs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.Accordingly, we accept the contention of Dr. Dhawan that the internal reservation recommended in the report of Justice Janarthanam and approved by Justice Thanikachalam, based only on population, cannot be sustained in view of the law laid down by this Court.68. We have referred to this data only to emphasize that the findings in the letter of Justice Thanikachalam had to be suitably supported by independent studies and assessment of relevant data. We make it clear that the aforesaid observations do not prevent the State, if it so decides, from undertaking suitable exercises for collecting pertinent, contemporaneous data to determine how demands for internal reservation within the Backward Classes can be justly addressed.The preamble of the 2021 Act refers to the representation made by the Vanniakula Kshatriyas for a separate quota of reservation on the ground that they could not compete with the other communities in the list of MBCs and DNCs, which was referred to the Backward Classes Commission. The preamble further refers to the recommendations made by the Chairman of the Backward Classes Commission (Justice Thanikachalam), where to facilitate distributive social justice, apart from the 10.5 per cent reservation for Vanniakula Kshatriyas, the other communities within the MBCs and DNCs were recommended to be grouped into two categories on the proportion of their population. Accepting the suggestions made by the Chairman, Backward Classes Commission, the 2021 Act was promulgated to ensure equitable distribution of the 20 per cent reservation provided to the MBCs and DNCs under the 1994 Act.70. That there is no relevant, contemporaneous material which was examined by the Chairman, Backward Classes Commission before submitting his report in support of the claim of the Vanniakula Kshatriyas, has been dealt with in detail in the preceding paragraphs.71. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284. The whole doctrine of classification is based on discrimination without reason and discrimination with reason and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances Kathi Raning Rawat v. State of Saurashtra 1952 SCR 435.72. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservation of appointments and posts for them to secure adequate representation. These provisions are intended to bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). However, it is to be noted that equality under Articles 15 and 16 could not have a different content from equality under Article 14 State of Kerala v. N.M Thomas (1976) 2 SCC 310 . Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682 .73. As stated supra, the object of the 2021 Act is to achieve equitable distribution of the benefit of 20 per cent reservation provided to MBCs and DNCs. At the cost of repetition, at the time of enactment of the 2021 Act, 116 castes were to be found in the cumulative lists of MBCs and DNCs. Choosing a particular caste and providing a special reservation of 10.5 per cent out of the 20 per cent to such caste is discriminatory, in the absence of any sound differentiation from communities who are similarly situated and were, therefore, grouped together for the purposes of receiving the benefits of 20 per cent reservation. While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different section from the rest of the communities within the MBCs and DNCs, on grounds which cannot be superficial or illusory.A perusal of the discussion in the earlier paragraphs would disclose that the letter from the Chairman, Backward Classes Commission is on the basis of antiquated data, without any assessment of the relative backwardness and representation of the Vanniakula Kshatriyas and their ability to compete with the remaining 115 communities within the MBCs and DNCs. Additionally, recommendations therein are solely based on population. To differentiate a particular class / category from others, there should be a substantial distinction which clearly demarcates that class / category. In the instant case, we see no justification for how the Vanniakula Kshatriyas can be treated as a different class and meted out preferential treatment, being one amongst the 116 communities, who have all been considered on the same footing till the enactment of the 2021 Act and were, therefore, eligible to claim the benefit of undivided 20 per cent reservation. Population being cited as the sole factor to support this classification is in the teeth of the judgments of this Court in Indra Sawhney (supra) and Jarnail Singh (supra). Accordingly, we hold that the classification sought to be made under the 2021 Act is unreasonable and, therefore, the 2021 Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the Vanniakula Kshatriyas and granting them separate reservation.As, admittedly, there was no consultation, the 2021 Act is void. Article 338- B(9) provides that the Union and the State Government shall consult the Commission on all major policy matters affecting the SEBCs. A proviso was inserted by the 105th Amendment Act, by which it was specified that clause (9) of Article 338-B would not be applicable to lists of SEBCs that are prepared and maintained by the States. However, the 2021 Act was brought into force prior to the 105th Amendment Act. Having concluded that the 105th Amendment Act was prospective in its operation, it necessarily follows that the State was required to have consulted the Commission on major policy matters prior to the 105th Amendment Act. There cannot be any dispute regarding internal reservation being provided to a specific community qualifying as a major policy decision. The point that falls for consideration is the consequence of non-consultation by the State Government with the National Commission for Backward Classes before providing internal reservation. Given the language of the provision and its interpretation in Dr Jaishri Laxmanrao Patil (supra), there need not be a detailed discussion about Article 338-B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non-consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers Association v. State of M. P. (2004) 2 SCC 249 and Article 338- B(9) does not stop the State from enacting a legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters.76. The consequence of disregarding a mandatory consultation provision would normally render the legislation void as it is in breach of an obligatory requirement to consult an expert constitutional body. However, we refrain from going into this issue in view of our earlier conclusion that the 2021 Act does not withstand scrutiny under Articles 14, 15 and 16 of the Constitution. | 1 | 19,733 | 10,357 | ### 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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educationally backward. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservation of appointments and posts for them to secure adequate representation. These provisions are intended to bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). However, it is to be noted that equality under Articles 15 and 16 could not have a different content from equality under Article 14 State of Kerala v. N.M Thomas (1976) 2 SCC 310 . Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682 . 73. As stated supra, the object of the 2021 Act is to achieve equitable distribution of the benefit of 20 per cent reservation provided to MBCs and DNCs. At the cost of repetition, at the time of enactment of the 2021 Act, 116 castes were to be found in the cumulative lists of MBCs and DNCs. Choosing a particular caste and providing a special reservation of 10.5 per cent out of the 20 per cent to such caste is discriminatory, in the absence of any sound differentiation from communities who are similarly situated and were, therefore, grouped together for the purposes of receiving the benefits of 20 per cent reservation. While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different section from the rest of the communities within the MBCs and DNCs, on grounds which cannot be superficial or illusory. 74. The justification on behalf of the State is that sufficient material was gathered by the Tamil Nadu Backward Classes Commission to show that there was inadequate representation, disproportionate to the population of the Vanniakula Kshatriyas, thereby culminating in the 2021 Act, which aimed to achieve equitable distribution of reservation amongst MBCs and DNCs. A perusal of the discussion in the earlier paragraphs would disclose that the letter from the Chairman, Backward Classes Commission is on the basis of antiquated data, without any assessment of the relative backwardness and representation of the Vanniakula Kshatriyas and their ability to compete with the remaining 115 communities within the MBCs and DNCs. Additionally, recommendations therein are solely based on population. To differentiate a particular class / category from others, there should be a substantial distinction which clearly demarcates that class / category. In the instant case, we see no justification for how the Vanniakula Kshatriyas can be treated as a different class and meted out preferential treatment, being one amongst the 116 communities, who have all been considered on the same footing till the enactment of the 2021 Act and were, therefore, eligible to claim the benefit of undivided 20 per cent reservation. Population being cited as the sole factor to support this classification is in the teeth of the judgments of this Court in Indra Sawhney (supra) and Jarnail Singh (supra). Accordingly, we hold that the classification sought to be made under the 2021 Act is unreasonable and, therefore, the 2021 Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the Vanniakula Kshatriyas and granting them separate reservation. VI. Non-compliance with Article 338-B(9) of the Constitution 75. Mr. Sankaranarayanan argued that providing internal reservation is a major policy matter, which should have been undertaken by the State only with the consultation of the National Commission for Backward Classes. As, admittedly, there was no consultation, the 2021 Act is void. Article 338- B(9) provides that the Union and the State Government shall consult the Commission on all major policy matters affecting the SEBCs. A proviso was inserted by the 105th Amendment Act, by which it was specified that clause (9) of Article 338-B would not be applicable to lists of SEBCs that are prepared and maintained by the States. However, the 2021 Act was brought into force prior to the 105th Amendment Act. Having concluded that the 105th Amendment Act was prospective in its operation, it necessarily follows that the State was required to have consulted the Commission on major policy matters prior to the 105th Amendment Act. There cannot be any dispute regarding internal reservation being provided to a specific community qualifying as a major policy decision. The point that falls for consideration is the consequence of non-consultation by the State Government with the National Commission for Backward Classes before providing internal reservation. Given the language of the provision and its interpretation in Dr Jaishri Laxmanrao Patil (supra), there need not be a detailed discussion about Article 338-B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non-consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers Association v. State of M. P. (2004) 2 SCC 249 and Article 338- B(9) does not stop the State from enacting a legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters. 76. The consequence of disregarding a mandatory consultation provision would normally render the legislation void as it is in breach of an obligatory requirement to consult an expert constitutional body. However, we refrain from going into this issue in view of our earlier conclusion that the 2021 Act does not withstand scrutiny under Articles 14, 15 and 16 of the Constitution. VII. Conclusion
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1
### Explanation:
Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved. Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. Articles 15(4) and 16(4) bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservation of appointments and posts for them to secure adequate representation. These provisions are intended to bring out the content of equality guaranteed by Articles 14, 15(1) and 16(1). However, it is to be noted that equality under Articles 15 and 16 could not have a different content from equality under Article 14 State of Kerala v. N.M Thomas (1976) 2 SCC 310 . Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial Subramanian Swamy v. Director, Central Bureau of Investigation (2014) 8 SCC 682 .73. As stated supra, the object of the 2021 Act is to achieve equitable distribution of the benefit of 20 per cent reservation provided to MBCs and DNCs. At the cost of repetition, at the time of enactment of the 2021 Act, 116 castes were to be found in the cumulative lists of MBCs and DNCs. Choosing a particular caste and providing a special reservation of 10.5 per cent out of the 20 per cent to such caste is discriminatory, in the absence of any sound differentiation from communities who are similarly situated and were, therefore, grouped together for the purposes of receiving the benefits of 20 per cent reservation. While the State Government has the competence to classify the Vanniakula Kshatriyas or any other community or group of communities within backward classes as a particular class for the grant of special measures, there should be a reasonable basis for categorising such communities into a different section from the rest of the communities within the MBCs and DNCs, on grounds which cannot be superficial or illusory.A perusal of the discussion in the earlier paragraphs would disclose that the letter from the Chairman, Backward Classes Commission is on the basis of antiquated data, without any assessment of the relative backwardness and representation of the Vanniakula Kshatriyas and their ability to compete with the remaining 115 communities within the MBCs and DNCs. Additionally, recommendations therein are solely based on population. To differentiate a particular class / category from others, there should be a substantial distinction which clearly demarcates that class / category. In the instant case, we see no justification for how the Vanniakula Kshatriyas can be treated as a different class and meted out preferential treatment, being one amongst the 116 communities, who have all been considered on the same footing till the enactment of the 2021 Act and were, therefore, eligible to claim the benefit of undivided 20 per cent reservation. Population being cited as the sole factor to support this classification is in the teeth of the judgments of this Court in Indra Sawhney (supra) and Jarnail Singh (supra). Accordingly, we hold that the classification sought to be made under the 2021 Act is unreasonable and, therefore, the 2021 Act is violative of Articles 14, 15 and 16, as there is no substantial basis for differentiating the Vanniakula Kshatriyas and granting them separate reservation.As, admittedly, there was no consultation, the 2021 Act is void. Article 338- B(9) provides that the Union and the State Government shall consult the Commission on all major policy matters affecting the SEBCs. A proviso was inserted by the 105th Amendment Act, by which it was specified that clause (9) of Article 338-B would not be applicable to lists of SEBCs that are prepared and maintained by the States. However, the 2021 Act was brought into force prior to the 105th Amendment Act. Having concluded that the 105th Amendment Act was prospective in its operation, it necessarily follows that the State was required to have consulted the Commission on major policy matters prior to the 105th Amendment Act. There cannot be any dispute regarding internal reservation being provided to a specific community qualifying as a major policy decision. The point that falls for consideration is the consequence of non-consultation by the State Government with the National Commission for Backward Classes before providing internal reservation. Given the language of the provision and its interpretation in Dr Jaishri Laxmanrao Patil (supra), there need not be a detailed discussion about Article 338-B(9) being mandatory. The requirement of consultation with an expert constitutional body is indeed mandatory and it would be fatal to disregard the provision. However, non-consultation by the State Government with the National Commission would not take away the competence of the State Government to enact the 2021 Act. Legislative competence can only be circumscribed by express prohibition contained in the Constitution itself M.P. Cement Manufacturers Association v. State of M. P. (2004) 2 SCC 249 and Article 338- B(9) does not stop the State from enacting a legislation in furtherance of a major policy matter but states that the State Government shall consult the Commission on such matters.76. The consequence of disregarding a mandatory consultation provision would normally render the legislation void as it is in breach of an obligatory requirement to consult an expert constitutional body. However, we refrain from going into this issue in view of our earlier conclusion that the 2021 Act does not withstand scrutiny under Articles 14, 15 and 16 of the Constitution.
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Veerpal Singh Vs. Registrar, Cooperative Societies, U.P. & Ors | the Society withdrawing the delegation of the petitioner to the U. P. Provincial Co-operative Federation. The petitioner denies that alleged fact. In the prayer of the petition for amendment the petitioner asked for quashing the order dated 15 July, 1971.10. In view of the fact that the petitioner did not allege facts to raise any plea of mala fide acts on the part of the respondents this Court did not allow any amendment of the petition.11. The power of suspension of the committee of management is to be found in Section 35 (2) of the Act.12. Section 35 (2) of the Act is as follows :"Where the Registrar, while proceeding to take action under sub-section (1) is of opinion that suspension of the committee of management during the period of proceedings is necessary in the interest of the society, he may suspend the committee of management which shall thereupon cease to function, and make such arrangement as he thinks proper for the management of the affairs of the society till the proceedings are completed:Provided that if the committee of management so suspended is not superseded it shall be reinstated and the period during which it has remained suspended shall count towards its term".12. The Registrar has power under Section 35 (1) of the Act to supersede the committee of management. The circumstances under which he can exercise his powers are when in the opinion of the Registrar the society makes default or is negligent in the performance of duties imposed on it by the Act or the rules or the bye-laws of the society or commits any act which is prejudicial to the interest of the society or its members, or is otherwise not functioning properly, the Registrar after affording the committee of management a reasonable opportunity of being heard and obtaining the opinion of the general body of the society in a general meeting called for the purpose in the manner prescribed may, by order in writing, supersede the committee of management.13. These provisions indicate the circumstances under which the Registrar has power to supersede or suspend the committee of management and to appoint an administrator. Section 35 (2) of the Act confers power on the Registrar to suspend the committee of management during the period of proceedings for supersession. The Registrar has also power under Section 35 (2) of the Act to make arrangement as he thinks proper for the management of the society till the proceedings are completed. The power to suspend the committee of management during the period of proceedings is exercisable when proceedings for supersession have commenced. Section 35 (1) of the Act shows that when the Registrar is of opinion that the committee of a co-operative society makes default or is negligent in the performance of duties or is otherwise not functioning properly the Registrar may supersede the committee of management and has to give an opportunity to the society to be heard in that behalf. The Registrar has also to obtain the opinion of the general body of the society. Therefore, the opinion of the Registrar is to be followed by some definite act which will commence the proceedings for supersession. The provisions in the Act indicate that some definite step like the issue of a notice must be taken under the provisions of Section 35 (1) of the Act with a view to show that proceedings for supersession of the committee are set in motion.14. It is therefore manifest that power exercisable under S. 35 (2) of the Act is confined to the time during the period of supersession proceedings. Unless the proceedings have started as indicated earlier the Registrar cannot call in aid the power exercisable under Section 35 (2) of the Act.15. The second question which has to be decided is whether the Registrar could appoint an administrator in the present case. The Registrar could not appoint an administrator. The reasons are these. The proceedings for supersession of the committee of management have not commenced. The proceeding can commence only when the necessary step to commence it is taken. The interim suspension of the committee of management under Section 35 (2) of the Act is made when in the opinion of the Registrar the suspension of the committee of management during the period of proceedings is necessary in the interest of the society. As no proceedings have been set in motion in accordance with the provisions of the statute, the interim suspension of the committee of management is bad. An appointment of administrator is specifically dealt with in sub-sections (3), (4), (5) and (6) of S. 35 of the Act. The appointment of administrator is normally after the supersession of the committee of management. It is true that there is no specific provision for an appointment of administrator during the interim period. But Section 35 (2) of the Act states that the Registrar may make such arrangement as he thinks proper for the management of the affairs of the society till the proceedings are completed. An appointment of administrator during the interim period is therefore not ruled out of the provisions of Section 35 (2) of the Act, but the prerequisite condition to the appointment of the interim administrator has not been fulfilled in the present case, because no proceedings for the supersession of the committee of management of the society have commenced.16. The administrator appointed by the Registrar withdrew the delegation of the petitioner appellant Veerpal Singh to the Uttar Pradesh Provincial Co-operative Federation. Under Rule 86 of the Uttar Pradesh Co-operative Societies Rules, 1968 a person who is a delegate of a co-operative society shall cease to be such delegate if he is withdrawn by the committee, administrator or administrators appointed by the Registrar under Section 35 of the Act. In the present case the appointment of the administrator is bad as indicated earlier. The act of the Registrar in withdrawing the delegation of Veerpal Singh is also bad because of his infirmity to act as an administrator. | 1[ds]10. In view of the fact that the petitioner did not allege facts to raise any plea of mala fide acts on the part of the respondents this Court did not allow any amendment of the35 (1) of the Act shows that when the Registrar is of opinion that the committee of a co-operative society makes default or is negligent in the performance of duties or is otherwise not functioning properly the Registrar may supersede the committee of management and has to give an opportunity to the society to be heard in that behalf. The Registrar has also to obtain the opinion of the general body of the society. Therefore, the opinion of the Registrar is to be followed by some definite act which will commence the proceedings for supersession. The provisions in the Act indicate that some definite step like the issue of a notice must be taken under the provisions of Section 35 (1) of the Act with a view to show that proceedings for supersession of the committee are set in motion.14. It is therefore manifest that power exercisable under S. 35 (2) of the Act is confined to the time during the period of supersession proceedings. Unless the proceedings have started as indicated earlier the Registrar cannot call in aid the power exercisable under Section 35 (2) of the Act.15. The second question which has to be decided is whether the Registrar could appoint an administrator in the present case. The Registrar could not appoint an administrator. The reasons are these. The proceedings for supersession of the committee of management have not commenced. The proceeding can commence only when the necessary step to commence it is taken. The interim suspension of the committee of management under Section 35 (2) of the Act is made when in the opinion of the Registrar the suspension of the committee of management during the period of proceedings is necessary in the interest of the society. As no proceedings have been set in motion in accordance with the provisions of the statute, the interim suspension of the committee of management is bad. An appointment of administrator is specifically dealt with in sub-sections (3), (4), (5) and (6) of S. 35 of the Act. The appointment of administrator is normally after the supersession of the committee of management. It is true that there is no specific provision for an appointment of administrator during the interim period. But Section 35 (2) of the Act states that the Registrar may make such arrangement as he thinks proper for the management of the affairs of the society till the proceedings are completed. An appointment of administrator during the interim period is therefore not ruled out of the provisions of Section 35 (2) of the Act, but the prerequisite condition to the appointment of the interim administrator has not been fulfilled in the present case, because no proceedings for the supersession of the committee of management of the society have commenced.16. The administrator appointed by the Registrar withdrew the delegation of the petitioner appellant Veerpal Singh to the Uttar Pradesh Provincial Co-operative Federation. Under Rule 86 of the Uttar Pradesh Co-operative Societies Rules, 1968 a person who is a delegate of a co-operative society shall cease to be such delegate if he is withdrawn by the committee, administrator or administrators appointed by the Registrar under Section 35 of the Act. In the present case the appointment of the administrator is bad as indicated earlier. The act of the Registrar in withdrawing the delegation of Veerpal Singh is also bad because of his infirmity to act as an administrator. | 1 | 1,888 | 660 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the Society withdrawing the delegation of the petitioner to the U. P. Provincial Co-operative Federation. The petitioner denies that alleged fact. In the prayer of the petition for amendment the petitioner asked for quashing the order dated 15 July, 1971.10. In view of the fact that the petitioner did not allege facts to raise any plea of mala fide acts on the part of the respondents this Court did not allow any amendment of the petition.11. The power of suspension of the committee of management is to be found in Section 35 (2) of the Act.12. Section 35 (2) of the Act is as follows :"Where the Registrar, while proceeding to take action under sub-section (1) is of opinion that suspension of the committee of management during the period of proceedings is necessary in the interest of the society, he may suspend the committee of management which shall thereupon cease to function, and make such arrangement as he thinks proper for the management of the affairs of the society till the proceedings are completed:Provided that if the committee of management so suspended is not superseded it shall be reinstated and the period during which it has remained suspended shall count towards its term".12. The Registrar has power under Section 35 (1) of the Act to supersede the committee of management. The circumstances under which he can exercise his powers are when in the opinion of the Registrar the society makes default or is negligent in the performance of duties imposed on it by the Act or the rules or the bye-laws of the society or commits any act which is prejudicial to the interest of the society or its members, or is otherwise not functioning properly, the Registrar after affording the committee of management a reasonable opportunity of being heard and obtaining the opinion of the general body of the society in a general meeting called for the purpose in the manner prescribed may, by order in writing, supersede the committee of management.13. These provisions indicate the circumstances under which the Registrar has power to supersede or suspend the committee of management and to appoint an administrator. Section 35 (2) of the Act confers power on the Registrar to suspend the committee of management during the period of proceedings for supersession. The Registrar has also power under Section 35 (2) of the Act to make arrangement as he thinks proper for the management of the society till the proceedings are completed. The power to suspend the committee of management during the period of proceedings is exercisable when proceedings for supersession have commenced. Section 35 (1) of the Act shows that when the Registrar is of opinion that the committee of a co-operative society makes default or is negligent in the performance of duties or is otherwise not functioning properly the Registrar may supersede the committee of management and has to give an opportunity to the society to be heard in that behalf. The Registrar has also to obtain the opinion of the general body of the society. Therefore, the opinion of the Registrar is to be followed by some definite act which will commence the proceedings for supersession. The provisions in the Act indicate that some definite step like the issue of a notice must be taken under the provisions of Section 35 (1) of the Act with a view to show that proceedings for supersession of the committee are set in motion.14. It is therefore manifest that power exercisable under S. 35 (2) of the Act is confined to the time during the period of supersession proceedings. Unless the proceedings have started as indicated earlier the Registrar cannot call in aid the power exercisable under Section 35 (2) of the Act.15. The second question which has to be decided is whether the Registrar could appoint an administrator in the present case. The Registrar could not appoint an administrator. The reasons are these. The proceedings for supersession of the committee of management have not commenced. The proceeding can commence only when the necessary step to commence it is taken. The interim suspension of the committee of management under Section 35 (2) of the Act is made when in the opinion of the Registrar the suspension of the committee of management during the period of proceedings is necessary in the interest of the society. As no proceedings have been set in motion in accordance with the provisions of the statute, the interim suspension of the committee of management is bad. An appointment of administrator is specifically dealt with in sub-sections (3), (4), (5) and (6) of S. 35 of the Act. The appointment of administrator is normally after the supersession of the committee of management. It is true that there is no specific provision for an appointment of administrator during the interim period. But Section 35 (2) of the Act states that the Registrar may make such arrangement as he thinks proper for the management of the affairs of the society till the proceedings are completed. An appointment of administrator during the interim period is therefore not ruled out of the provisions of Section 35 (2) of the Act, but the prerequisite condition to the appointment of the interim administrator has not been fulfilled in the present case, because no proceedings for the supersession of the committee of management of the society have commenced.16. The administrator appointed by the Registrar withdrew the delegation of the petitioner appellant Veerpal Singh to the Uttar Pradesh Provincial Co-operative Federation. Under Rule 86 of the Uttar Pradesh Co-operative Societies Rules, 1968 a person who is a delegate of a co-operative society shall cease to be such delegate if he is withdrawn by the committee, administrator or administrators appointed by the Registrar under Section 35 of the Act. In the present case the appointment of the administrator is bad as indicated earlier. The act of the Registrar in withdrawing the delegation of Veerpal Singh is also bad because of his infirmity to act as an administrator.
### Response:
1
### Explanation:
10. In view of the fact that the petitioner did not allege facts to raise any plea of mala fide acts on the part of the respondents this Court did not allow any amendment of the35 (1) of the Act shows that when the Registrar is of opinion that the committee of a co-operative society makes default or is negligent in the performance of duties or is otherwise not functioning properly the Registrar may supersede the committee of management and has to give an opportunity to the society to be heard in that behalf. The Registrar has also to obtain the opinion of the general body of the society. Therefore, the opinion of the Registrar is to be followed by some definite act which will commence the proceedings for supersession. The provisions in the Act indicate that some definite step like the issue of a notice must be taken under the provisions of Section 35 (1) of the Act with a view to show that proceedings for supersession of the committee are set in motion.14. It is therefore manifest that power exercisable under S. 35 (2) of the Act is confined to the time during the period of supersession proceedings. Unless the proceedings have started as indicated earlier the Registrar cannot call in aid the power exercisable under Section 35 (2) of the Act.15. The second question which has to be decided is whether the Registrar could appoint an administrator in the present case. The Registrar could not appoint an administrator. The reasons are these. The proceedings for supersession of the committee of management have not commenced. The proceeding can commence only when the necessary step to commence it is taken. The interim suspension of the committee of management under Section 35 (2) of the Act is made when in the opinion of the Registrar the suspension of the committee of management during the period of proceedings is necessary in the interest of the society. As no proceedings have been set in motion in accordance with the provisions of the statute, the interim suspension of the committee of management is bad. An appointment of administrator is specifically dealt with in sub-sections (3), (4), (5) and (6) of S. 35 of the Act. The appointment of administrator is normally after the supersession of the committee of management. It is true that there is no specific provision for an appointment of administrator during the interim period. But Section 35 (2) of the Act states that the Registrar may make such arrangement as he thinks proper for the management of the affairs of the society till the proceedings are completed. An appointment of administrator during the interim period is therefore not ruled out of the provisions of Section 35 (2) of the Act, but the prerequisite condition to the appointment of the interim administrator has not been fulfilled in the present case, because no proceedings for the supersession of the committee of management of the society have commenced.16. The administrator appointed by the Registrar withdrew the delegation of the petitioner appellant Veerpal Singh to the Uttar Pradesh Provincial Co-operative Federation. Under Rule 86 of the Uttar Pradesh Co-operative Societies Rules, 1968 a person who is a delegate of a co-operative society shall cease to be such delegate if he is withdrawn by the committee, administrator or administrators appointed by the Registrar under Section 35 of the Act. In the present case the appointment of the administrator is bad as indicated earlier. The act of the Registrar in withdrawing the delegation of Veerpal Singh is also bad because of his infirmity to act as an administrator.
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M/s. Dr. Reddy?s Laboratories Vs. Commissioner of Customs | it allows the customer the flexibility to adapt the system to his own needs.” 6. Finally, he ordered:- “ORDER(i) Under Section 111(m) of the Customs Act, 1962 I order confiscation of goods valued at Rs. 26,97,741/- seized on 8.6.99. However under Section 125 of the Customs Act, 1962 I give M/s. Dr. Reddys Laboratories Ltd., the option to redeem the said goods by paying a fine of Rs. 1,00,000/- (Rupees one lakh only). Since the goods have already been provisionally released to the importer I order that the fine amount of rupees one lakh only be recovered by enforcing the bank guarantee furnished by the importer at the time of provisional release.(ii) Goods valued at Rs. 3,31,55,908/- already cleared and sold by M/s. Dr. Reddys Laboratories Ltd. are also liable for confiscation under Section 111(m) of Customs Act, 1962. But as the said goods were neither seized nor available now for seizure it is not possible for ordering its confiscation at this point of time.(iii) Under Section 112(a) of the Customs Act, 1962 I impose a penalty of Rs. 50,000/- (rupees fifty thousand only) on M/s Dr. Reddys Laboratories Ltd. This amount of penalty is also ordered to be recovered by enforcing the bank guarantee furnished at the time of provisional release of the seized goods.(iv) Under Section 112(a) of the Customs Act, 1962, I impose a penalty of Rs. 5,000/- (rupees five thousand only) on Dr. Jayaram Chigurupati, Sr. Vice-President, M/s Dr. Reddys Laboratories Ltd.(v) I drop further proceedings in respect of rest of the actions proposed in the show cause notice.” 7. Against the said order of the learned Commissioner, revenue filed an appeal under Section 129D(4) of the Customs Act on 12th April, 2002. The assessee filed a reply-cum-cross objection dated 8th June, 2002 in which the assessee specifically stated:- “In all cases, closed or open the in-built software contains programs for analysis and interpretation. The only inputs which are entered in an open system is volume of reagents to be used for each test, time of incubation, temperature for incubation etc. Reagents from each manufacturer have variation in this regard. Even though the Respondents engineers program the machines, for DRL manufactured reagents (nor for reagents manufactured for Bio-systems), the customers can themselves change these programs over a period of time if they choose to purchase reagents from other manufacturers. It is always in customers best interest to have an open system.” 8. By the impugned order, the CESTAT allowed revenue’s appeal. It found fault with the book quoted by the assessee which found favour with the learned Commissioner, and stated “Instead of appreciating the evidence unearthed by the investigating officer with reference to the goods imported, the adjudicating authority has embarked himself on a detour deviating from the main issue”. 9. We are at loss to understand what is meant by this statement. The evidence analysed by the investigating officer in the form of statements made by six persons affiliated to the assessee led to confiscation of the goods and imposition of penalty. Without any analysis of whether the imported equipments were, in fact, auto analysers or were only photometers, the CESTAT went on to conclude that one can never come to a conclusion that a photometer is the same as an auto analyser. The learned Commissioner had held that a photometer is a generic expression and auto analysers are photometers with software installed in them which could then perform various operations. The CESTAT in finding this logic faulty has not given any reason for disregarding the same. It then goes on to say that the whole of paragraph 46 of the Commissioner’s order is irrelevant. In this paragraph the learned Commissioner referred to the Commissioners’ Conference to arrive at the conclusion that since he process of analysis is automatic, though mixing of samples may be done manually, yet since analysis has to be done automatically, an analyser would fall under the expression “auto analysers” for enzymes, drug levels and biochemical investigations. This finding of the learned Commissioner was important in that the model BTS 370 which mixed both samples automatically and did the analysis automatically, was found by the customs authorities to fit the description of auto analyser. In holding that this paragraph is not at all relevant, the CESTAT does not seem to have come to grips with the real issue at all. 10. This is a peculiar case in which it is clear that what has, in fact, been imported is an equipment which is to be used in a pathological lab for the automatic analysis of blood samples. It is an admitted fact that models BTS 310 and BTS 320 were imported with inbuilt software that contained programmes for analysis and interpretation. It is equally an admitted fact that an importer can change such programmes to suit its own convenience. From this it does not follow that what has been imported is only a photometer. Learned senior advocate appearing for the revenue had to admit that a photometer is an instrument which measures intensity of light. There is no necessity for any inbuilt software in such photometer unless such instrument is, in fact, to be used for the automatic analysis of blood samples. This being the case, it is clear that oral statements made by persons affiliated to the assessee to the effect that the description of the imported goods was changed from photometers to auto analysers to avail the benefit of the exemption under notification No. 20/1999, and that the foreign supplier was requested to alter the description of the goods from photometer to auto analysers in order so to do, would not change the position in law. As correctly held by the learned Commissioner, these statements would be material in deciding whether Section 111(m) of the Customs Act read with Section 125 are attracted as to amount to mis-declaration of description of goods resulting in confiscation of the said goods, fine, and penalty under Section 112(a) of the Customs Act. | 1[ds]10. This is a peculiar case in which it is clear that what has, in fact, been imported is an equipment which is to be used in a pathological lab for the automatic analysis of blood samples. It is an admitted fact that models BTS 310 and BTS 320 were imported with inbuilt software that contained programmes for analysis and interpretation. It is equally an admitted fact that an importer can change such programmes to suit its own convenience. From this it does not follow that what has been imported is only ais no necessity for any inbuilt software in such photometer unless such instrument is, in fact, to be used for the automatic analysis of blood samples. This being the case, it is clear that oral statements made by persons affiliated to the assessee to the effect that the description of the imported goods was changed from photometers to auto analysers to avail the benefit of the exemption under notification No. 20/1999, and that the foreign supplier was requested to alter the description of the goods from photometer to auto analysers in order so to do, would not change the position in law. As correctly held by the learned Commissioner, these statements would be material in deciding whether Section 111(m) of the Customs Act read with Section 125 are attracted as to amount tomisdeclaration of descriptionof goods resulting in confiscation of the said goods, fine, and penalty under Section 112(a) of the Customs Act.We are at loss to understand what is meant by this statement. The evidence analysed by the investigating officer in the form of statements made by six persons affiliated to the assessee led to confiscation of the goods and imposition of penalty. Without any analysis of whether the imported equipments were, in fact, auto analysers or were only photometers, the CESTAT went on to conclude that one can never come to a conclusion that a photometer is the same as an auto analyser. The learned Commissioner had held that a photometer is a generic expression and auto analysers are photometers with software installed in them which could then perform various operations. The CESTAT in finding this logic faulty has not given any reason for disregarding the same. It then goes on to say that the whole of paragraph 46 of theorder is irrelevant. In this paragraph the learned Commissioner referred to theConference to arrive at the conclusion that since he process of analysis is automatic, though mixing of samples may be done manually, yet since analysis has to be done automatically, an analyser would fall under the expressionor enzymes, drug levels and biochemical investigations. This finding of the learned Commissioner was important in that the model BTS 370 which mixed both samples automatically and did the analysis automatically, was found by the customs authorities to fit the description of auto analyser. In holding that this paragraph is not at all relevant, the CESTAT does not seem to have come to grips with the real issue at all. | 1 | 3,097 | 546 | ### 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:
it allows the customer the flexibility to adapt the system to his own needs.” 6. Finally, he ordered:- “ORDER(i) Under Section 111(m) of the Customs Act, 1962 I order confiscation of goods valued at Rs. 26,97,741/- seized on 8.6.99. However under Section 125 of the Customs Act, 1962 I give M/s. Dr. Reddys Laboratories Ltd., the option to redeem the said goods by paying a fine of Rs. 1,00,000/- (Rupees one lakh only). Since the goods have already been provisionally released to the importer I order that the fine amount of rupees one lakh only be recovered by enforcing the bank guarantee furnished by the importer at the time of provisional release.(ii) Goods valued at Rs. 3,31,55,908/- already cleared and sold by M/s. Dr. Reddys Laboratories Ltd. are also liable for confiscation under Section 111(m) of Customs Act, 1962. But as the said goods were neither seized nor available now for seizure it is not possible for ordering its confiscation at this point of time.(iii) Under Section 112(a) of the Customs Act, 1962 I impose a penalty of Rs. 50,000/- (rupees fifty thousand only) on M/s Dr. Reddys Laboratories Ltd. This amount of penalty is also ordered to be recovered by enforcing the bank guarantee furnished at the time of provisional release of the seized goods.(iv) Under Section 112(a) of the Customs Act, 1962, I impose a penalty of Rs. 5,000/- (rupees five thousand only) on Dr. Jayaram Chigurupati, Sr. Vice-President, M/s Dr. Reddys Laboratories Ltd.(v) I drop further proceedings in respect of rest of the actions proposed in the show cause notice.” 7. Against the said order of the learned Commissioner, revenue filed an appeal under Section 129D(4) of the Customs Act on 12th April, 2002. The assessee filed a reply-cum-cross objection dated 8th June, 2002 in which the assessee specifically stated:- “In all cases, closed or open the in-built software contains programs for analysis and interpretation. The only inputs which are entered in an open system is volume of reagents to be used for each test, time of incubation, temperature for incubation etc. Reagents from each manufacturer have variation in this regard. Even though the Respondents engineers program the machines, for DRL manufactured reagents (nor for reagents manufactured for Bio-systems), the customers can themselves change these programs over a period of time if they choose to purchase reagents from other manufacturers. It is always in customers best interest to have an open system.” 8. By the impugned order, the CESTAT allowed revenue’s appeal. It found fault with the book quoted by the assessee which found favour with the learned Commissioner, and stated “Instead of appreciating the evidence unearthed by the investigating officer with reference to the goods imported, the adjudicating authority has embarked himself on a detour deviating from the main issue”. 9. We are at loss to understand what is meant by this statement. The evidence analysed by the investigating officer in the form of statements made by six persons affiliated to the assessee led to confiscation of the goods and imposition of penalty. Without any analysis of whether the imported equipments were, in fact, auto analysers or were only photometers, the CESTAT went on to conclude that one can never come to a conclusion that a photometer is the same as an auto analyser. The learned Commissioner had held that a photometer is a generic expression and auto analysers are photometers with software installed in them which could then perform various operations. The CESTAT in finding this logic faulty has not given any reason for disregarding the same. It then goes on to say that the whole of paragraph 46 of the Commissioner’s order is irrelevant. In this paragraph the learned Commissioner referred to the Commissioners’ Conference to arrive at the conclusion that since he process of analysis is automatic, though mixing of samples may be done manually, yet since analysis has to be done automatically, an analyser would fall under the expression “auto analysers” for enzymes, drug levels and biochemical investigations. This finding of the learned Commissioner was important in that the model BTS 370 which mixed both samples automatically and did the analysis automatically, was found by the customs authorities to fit the description of auto analyser. In holding that this paragraph is not at all relevant, the CESTAT does not seem to have come to grips with the real issue at all. 10. This is a peculiar case in which it is clear that what has, in fact, been imported is an equipment which is to be used in a pathological lab for the automatic analysis of blood samples. It is an admitted fact that models BTS 310 and BTS 320 were imported with inbuilt software that contained programmes for analysis and interpretation. It is equally an admitted fact that an importer can change such programmes to suit its own convenience. From this it does not follow that what has been imported is only a photometer. Learned senior advocate appearing for the revenue had to admit that a photometer is an instrument which measures intensity of light. There is no necessity for any inbuilt software in such photometer unless such instrument is, in fact, to be used for the automatic analysis of blood samples. This being the case, it is clear that oral statements made by persons affiliated to the assessee to the effect that the description of the imported goods was changed from photometers to auto analysers to avail the benefit of the exemption under notification No. 20/1999, and that the foreign supplier was requested to alter the description of the goods from photometer to auto analysers in order so to do, would not change the position in law. As correctly held by the learned Commissioner, these statements would be material in deciding whether Section 111(m) of the Customs Act read with Section 125 are attracted as to amount to mis-declaration of description of goods resulting in confiscation of the said goods, fine, and penalty under Section 112(a) of the Customs Act.
### Response:
1
### Explanation:
10. This is a peculiar case in which it is clear that what has, in fact, been imported is an equipment which is to be used in a pathological lab for the automatic analysis of blood samples. It is an admitted fact that models BTS 310 and BTS 320 were imported with inbuilt software that contained programmes for analysis and interpretation. It is equally an admitted fact that an importer can change such programmes to suit its own convenience. From this it does not follow that what has been imported is only ais no necessity for any inbuilt software in such photometer unless such instrument is, in fact, to be used for the automatic analysis of blood samples. This being the case, it is clear that oral statements made by persons affiliated to the assessee to the effect that the description of the imported goods was changed from photometers to auto analysers to avail the benefit of the exemption under notification No. 20/1999, and that the foreign supplier was requested to alter the description of the goods from photometer to auto analysers in order so to do, would not change the position in law. As correctly held by the learned Commissioner, these statements would be material in deciding whether Section 111(m) of the Customs Act read with Section 125 are attracted as to amount tomisdeclaration of descriptionof goods resulting in confiscation of the said goods, fine, and penalty under Section 112(a) of the Customs Act.We are at loss to understand what is meant by this statement. The evidence analysed by the investigating officer in the form of statements made by six persons affiliated to the assessee led to confiscation of the goods and imposition of penalty. Without any analysis of whether the imported equipments were, in fact, auto analysers or were only photometers, the CESTAT went on to conclude that one can never come to a conclusion that a photometer is the same as an auto analyser. The learned Commissioner had held that a photometer is a generic expression and auto analysers are photometers with software installed in them which could then perform various operations. The CESTAT in finding this logic faulty has not given any reason for disregarding the same. It then goes on to say that the whole of paragraph 46 of theorder is irrelevant. In this paragraph the learned Commissioner referred to theConference to arrive at the conclusion that since he process of analysis is automatic, though mixing of samples may be done manually, yet since analysis has to be done automatically, an analyser would fall under the expressionor enzymes, drug levels and biochemical investigations. This finding of the learned Commissioner was important in that the model BTS 370 which mixed both samples automatically and did the analysis automatically, was found by the customs authorities to fit the description of auto analyser. In holding that this paragraph is not at all relevant, the CESTAT does not seem to have come to grips with the real issue at all.
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Dr. Muneeb Ul Rehman Haroon and Others Vs. Government of Jammu and Kashmir State and Others | CHANDRACHUD, J. 1. These Writ Petitions are not maintainable under article 32 of the Constitution because they do not involve the violation of any fundamental right of the petitioners. The petitioners applied for admission to the Medical College, Srinagar, for the Post-graduate Course of the Kashmir University for t he semester beginning in July 1980. They appeared for an entrance test but the result of that test was not declared officially. The petitioners seem to possess information to the effect, and they have so alleged in their petitions, that they have passed the test. No admissions were made either to the July, 1980 semester or to the two following semesters beginning in November, 1980 and July 1981. An entrance test was held for admission to the semester beginning in November 1981 and the resu lt of the test has been announced. We are informed that 16 out of 17 petitioners in these two Writ Petitions appeared for that test. 2. There is a vague averment in the petitions that the refusal of the Government to admit any student at all for the July, 1980 semester is violative of the petitioners fundamental rights under articles 14 and 19 of the Constitution and is also mala fide. We are unable to see how. The petitioners have not been picked and chosen for hostile treatment as compared with other candidates similarly circumstanced. They are also not deprived of their right to practise any profession, or to carry on any occupation. They are all qualified doctors, they have passed their M.B.B.S. examinati on, almost all of them have appeared for the entrance test held for the November, 1981 semester and they are all serving and practising as doctors. 3. Shri T.U. Mehta, who appears on behalf of the petitioners, says that the wholesale no n-admission of students to the Postgraduate Course for the three semesters which commenced in July 1980, November, 1980 and July 1981 is an arbitrary act which offends against the guarantee of fairness implicit in article 14. The answer of the St ate Government is that the rules which were in operation in July 1980, governing admission to the Post-graduate Medical Course, were prejudicial to the interests of the students of the Jammu Medical College and were, to an extent, discriminatory. That is why, no admissions were made to the July 1980 semester.There is apparently no reason for doubting the veracity of this explanation though, we do not know why the amendment of the rules of admission, so as to bring them in conformity with the requirements of the Constitution, took as long as 18 months. The red-tape correspondence between the Health Department Commissioner, the Principal of the Srinagar Medical College, the Vice-Chancellor of the Kashmir University and the Ministry of Health consumed a long time. 4. Until the year 1973, there was only one Medical College in the State of Jammu &Kashmir, which was at Srinagar. The Medical College at Jammu was started in 1973. The Jammu Medical College is affiliated to the Jammu University while the Srinagar Medical College is affiliated to the Kashmir University. The statutes of Jammu University did not correspond to the statutes of the Kashmir University for admission to the post-graduate course, thereby causing discrimination in favour of those fulfilling the requirements under statutes of the Kashmir University as against those eligible under the statutes of the Jammu University. With more and more candidates from the Jammu Medical College becoming eligible for selection to the post-graduate medical course, the discriminatory procedure prescribed by the statutes of the Kashmir University became conspicuous. That is why the State Government had to take action for curing the defects which were inherent in the prevailing procedure for selection to the post-graduate medical course in the two medical colleges. The Kashmir University statute was amended so as to introduce uniformity in the rules of admission. According to clause 3 of the 1980 Notice of Admission, it was necessary for the candidates to have completed one years Compulsory House Job in the concerned speciality, as provided in the statutes of the Kashmir University. Under the amended provision which came into force in 1981, candidates have to complete one years House Job in a recognised institution in the concerned subject or six months House Job in the concerned subject and six months House Job in an allied subject. The amended rule conforms to the rule which prevails in other parts of the country and is in accordance with the recommendations of the Medical Council of India.In so far as the allegation of mala fides is concerned, no specific facts have been alleged on the basis of which we can record a finding that the decision not to admit any students at all for three consecutive semesters was actuated by a mala fide intention on the part of the State Government. There is a bald ass ertion in the Writ Petitions that a total ban was placed on admission to the three consecutive semesters in order to favour some persons. Who those persons are we do not know. How they stood to gain by a tota ban on admissions to the post- graduate course for a year and half is not clear. And, we cannot assume which dealing with a question which has such far reaching consequences as the question of mala fides, that the State Government had some particular persons in mind, to favour whom, every one of the students was denied the benefit of post-graduate education. How, by denying admission to all, favour was shown to a few is difficult to understand, especially when those few favourites are in obscurity and remain unidentified. | 0[ds]According to clause 3 of the 1980 Notice of Admission, it was necessary for the candidates to have completed one years Compulsory House Job in the concerned speciality, as provided in the statutes of the Kashmir University. Under the amended provision which came into force in 1981, candidates have to complete one years House Job in a recognised institution in the concerned subject or six months House Job in the concerned subject and six months House Job in an allied subject. The amended rule conforms to the rule which prevails in other parts of the country and is in accordance with the recommendations of the Medical Council of India.In so far as the allegation of mala fides is concerned, no specific facts have been alleged on the basis of which we can record a finding that the decision not to admit any students at all for three consecutive semesters was actuated by a mala fide intention on the part of the State Government. There is a bald ass ertion in the Writ Petitions that a total ban was placed on admission to the three consecutive semesters in order to favour some persons. Who those persons are we do not know. How they stood to gain by a tota ban on admissions to the post- graduate course for a year and half is not clear. And, we cannot assume which dealing with a question which has such far reaching consequences as the question of mala fides, that the State Government had some particular persons in mind, to favour whom, every one of the students was denied the benefit of post-graduate education. How, by denying admission to all, favour was shown to a few is difficult to understand, especially when those few favourites are in obscurity and remain unidentified. | 0 | 1,023 | 321 | ### 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:
CHANDRACHUD, J. 1. These Writ Petitions are not maintainable under article 32 of the Constitution because they do not involve the violation of any fundamental right of the petitioners. The petitioners applied for admission to the Medical College, Srinagar, for the Post-graduate Course of the Kashmir University for t he semester beginning in July 1980. They appeared for an entrance test but the result of that test was not declared officially. The petitioners seem to possess information to the effect, and they have so alleged in their petitions, that they have passed the test. No admissions were made either to the July, 1980 semester or to the two following semesters beginning in November, 1980 and July 1981. An entrance test was held for admission to the semester beginning in November 1981 and the resu lt of the test has been announced. We are informed that 16 out of 17 petitioners in these two Writ Petitions appeared for that test. 2. There is a vague averment in the petitions that the refusal of the Government to admit any student at all for the July, 1980 semester is violative of the petitioners fundamental rights under articles 14 and 19 of the Constitution and is also mala fide. We are unable to see how. The petitioners have not been picked and chosen for hostile treatment as compared with other candidates similarly circumstanced. They are also not deprived of their right to practise any profession, or to carry on any occupation. They are all qualified doctors, they have passed their M.B.B.S. examinati on, almost all of them have appeared for the entrance test held for the November, 1981 semester and they are all serving and practising as doctors. 3. Shri T.U. Mehta, who appears on behalf of the petitioners, says that the wholesale no n-admission of students to the Postgraduate Course for the three semesters which commenced in July 1980, November, 1980 and July 1981 is an arbitrary act which offends against the guarantee of fairness implicit in article 14. The answer of the St ate Government is that the rules which were in operation in July 1980, governing admission to the Post-graduate Medical Course, were prejudicial to the interests of the students of the Jammu Medical College and were, to an extent, discriminatory. That is why, no admissions were made to the July 1980 semester.There is apparently no reason for doubting the veracity of this explanation though, we do not know why the amendment of the rules of admission, so as to bring them in conformity with the requirements of the Constitution, took as long as 18 months. The red-tape correspondence between the Health Department Commissioner, the Principal of the Srinagar Medical College, the Vice-Chancellor of the Kashmir University and the Ministry of Health consumed a long time. 4. Until the year 1973, there was only one Medical College in the State of Jammu &Kashmir, which was at Srinagar. The Medical College at Jammu was started in 1973. The Jammu Medical College is affiliated to the Jammu University while the Srinagar Medical College is affiliated to the Kashmir University. The statutes of Jammu University did not correspond to the statutes of the Kashmir University for admission to the post-graduate course, thereby causing discrimination in favour of those fulfilling the requirements under statutes of the Kashmir University as against those eligible under the statutes of the Jammu University. With more and more candidates from the Jammu Medical College becoming eligible for selection to the post-graduate medical course, the discriminatory procedure prescribed by the statutes of the Kashmir University became conspicuous. That is why the State Government had to take action for curing the defects which were inherent in the prevailing procedure for selection to the post-graduate medical course in the two medical colleges. The Kashmir University statute was amended so as to introduce uniformity in the rules of admission. According to clause 3 of the 1980 Notice of Admission, it was necessary for the candidates to have completed one years Compulsory House Job in the concerned speciality, as provided in the statutes of the Kashmir University. Under the amended provision which came into force in 1981, candidates have to complete one years House Job in a recognised institution in the concerned subject or six months House Job in the concerned subject and six months House Job in an allied subject. The amended rule conforms to the rule which prevails in other parts of the country and is in accordance with the recommendations of the Medical Council of India.In so far as the allegation of mala fides is concerned, no specific facts have been alleged on the basis of which we can record a finding that the decision not to admit any students at all for three consecutive semesters was actuated by a mala fide intention on the part of the State Government. There is a bald ass ertion in the Writ Petitions that a total ban was placed on admission to the three consecutive semesters in order to favour some persons. Who those persons are we do not know. How they stood to gain by a tota ban on admissions to the post- graduate course for a year and half is not clear. And, we cannot assume which dealing with a question which has such far reaching consequences as the question of mala fides, that the State Government had some particular persons in mind, to favour whom, every one of the students was denied the benefit of post-graduate education. How, by denying admission to all, favour was shown to a few is difficult to understand, especially when those few favourites are in obscurity and remain unidentified.
### Response:
0
### Explanation:
According to clause 3 of the 1980 Notice of Admission, it was necessary for the candidates to have completed one years Compulsory House Job in the concerned speciality, as provided in the statutes of the Kashmir University. Under the amended provision which came into force in 1981, candidates have to complete one years House Job in a recognised institution in the concerned subject or six months House Job in the concerned subject and six months House Job in an allied subject. The amended rule conforms to the rule which prevails in other parts of the country and is in accordance with the recommendations of the Medical Council of India.In so far as the allegation of mala fides is concerned, no specific facts have been alleged on the basis of which we can record a finding that the decision not to admit any students at all for three consecutive semesters was actuated by a mala fide intention on the part of the State Government. There is a bald ass ertion in the Writ Petitions that a total ban was placed on admission to the three consecutive semesters in order to favour some persons. Who those persons are we do not know. How they stood to gain by a tota ban on admissions to the post- graduate course for a year and half is not clear. And, we cannot assume which dealing with a question which has such far reaching consequences as the question of mala fides, that the State Government had some particular persons in mind, to favour whom, every one of the students was denied the benefit of post-graduate education. How, by denying admission to all, favour was shown to a few is difficult to understand, especially when those few favourites are in obscurity and remain unidentified.
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New India Assurance Company Limited Vs. Shiv Singh & Another | Leave granted. Respondent No. 2 has been served by publication, but has not put in appearance. Service on Respondent No. 1 has been dispensed with at the request of the appellant.Respondent No. 1 Shiv Singh is the driver of truck No. HYL-765 owned by Respondent No. 2 which was insured with the appellant, Respondent No. 1 after having fallen down from the insured vehicle, approached the Workmens Compensation Commissioner for damages on account of injury sustained by him in his right leg and other injuries on the body. The Commissioner by his order dated April 30, 1996 allowed the claim and held the insurance company liable to pay the compensation. The Commissioner also held that the insurance company was liable to pay interest as also penalty over and above the principal amount of compensation. The appeal filed thereafter by the insurance company under Section 30 of the Workmens Compensation Act in the High Court of Punjab and Haryana was dismissed on August 28, 1997. It is in these circumstances, the present appeal has been filed. The only question raised before us by learned counsel for the appellant is that the Workmens Compensation Commissioner could not have held the insurance company liable for payment of the amount of penalty under Section 4-A(3) of the Workmens Compensation Act. This question was considered by this Court in Ved Prakash Garg v. Premi Devi & Ors. (1998-I-LLJ-363) and it was held :"24. As a result of the aforesaid discussion, it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmens Compensation Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section 4-A sub-section (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmens Compensation Commissioner under Section 4-A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone." * In view of the above, the | 1[ds]This question was considered by this Court in Ved Prakash Garg v. Premi Devi & Ors.and it was held :"24. As a result of the aforesaid discussion, it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmens Compensation Commissioner under the Compensation Act on the conjoint operation of Section 3 and Sectionn (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmens Compensation Commissioner under Sectionis concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone." * | 1 | 422 | 165 | ### 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:
Leave granted. Respondent No. 2 has been served by publication, but has not put in appearance. Service on Respondent No. 1 has been dispensed with at the request of the appellant.Respondent No. 1 Shiv Singh is the driver of truck No. HYL-765 owned by Respondent No. 2 which was insured with the appellant, Respondent No. 1 after having fallen down from the insured vehicle, approached the Workmens Compensation Commissioner for damages on account of injury sustained by him in his right leg and other injuries on the body. The Commissioner by his order dated April 30, 1996 allowed the claim and held the insurance company liable to pay the compensation. The Commissioner also held that the insurance company was liable to pay interest as also penalty over and above the principal amount of compensation. The appeal filed thereafter by the insurance company under Section 30 of the Workmens Compensation Act in the High Court of Punjab and Haryana was dismissed on August 28, 1997. It is in these circumstances, the present appeal has been filed. The only question raised before us by learned counsel for the appellant is that the Workmens Compensation Commissioner could not have held the insurance company liable for payment of the amount of penalty under Section 4-A(3) of the Workmens Compensation Act. This question was considered by this Court in Ved Prakash Garg v. Premi Devi & Ors. (1998-I-LLJ-363) and it was held :"24. As a result of the aforesaid discussion, it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmens Compensation Commissioner under the Compensation Act on the conjoint operation of Section 3 and Section 4-A sub-section (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmens Compensation Commissioner under Section 4-A(3)(b) is concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone." * In view of the above, the
### Response:
1
### Explanation:
This question was considered by this Court in Ved Prakash Garg v. Premi Devi & Ors.and it was held :"24. As a result of the aforesaid discussion, it must be held that the question posed for our consideration must be answered partly in the affirmative and partly in the negative. In other words the insurance company will be liable to meet the claim for compensation along with interest as imposed on the insured employer by the Workmens Compensation Commissioner under the Compensation Act on the conjoint operation of Section 3 and Sectionn (3)(a) of the Compensation Act. So far as additional amount of compensation by way of penalty imposed on the insured employer by the Workmens Compensation Commissioner under Sectionis concerned, however, the insurance company would not remain liable to reimburse the said claim and it would be the liability of the insured employer alone." *
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G.RATNA RAJ (DEAD) BY LRS Vs. SRI MUTHUKUMARASAMY PERMANENT FUND LTD AND ANR | The crucial words in the Explanation areproceed with the case. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not. 9.In Rule 2, the expression used ismake such order as it thinks fit, as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 10. The crucial expression in the Explanation is where the evidence or a substantial portion of the evidence of a party. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee partys stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The courtwhileactingunder the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision. 23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit. 25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence. 26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here. 27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case here. 28.We are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit. 29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants. | 1[ds]23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case hereWe are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants. | 1 | 3,003 | 582 | ### 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:
The crucial words in the Explanation areproceed with the case. Therefore, on the facts it has to be seen in each case as to whether the Explanation was applied by the court or not. 9.In Rule 2, the expression used ismake such order as it thinks fit, as an alternative to adopting one of the modes directed in that behalf by Order 9. Under Order 17 Rule 3(b), the only course open to the court is to proceed under Rule 2, when a party is absent. Explanation thereto gives a discretion to the court to proceed under Rule 3 even if a party is absent. But such a course can be adopted only when the absentee party has already led evidence or a substantial part thereof. If the position is not so, the court has no option but to proceed as provided in Rule 2. Rules 2 and 3 operate in different and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally granted and not for any special purpose. On the other hand, Rule 3 operates where the adjournment has been given for one of the purposes mentioned in the rule. While Rule 2 speaks of disposal of the suit in one of the specified modes, Rule 3 empowers the court to decide the suit forthwith. The basic distinction between the two rules, however, is that in the former, any party has failed to appear at the hearing, while in the latter the party though present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to Rule 2 and Rule 3 is that a discretion has been conferred on the court. The power conferred is permissive and not mandatory. The Explanation is in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present. 10. The crucial expression in the Explanation is where the evidence or a substantial portion of the evidence of a party. There is a positive purpose in this legislative expression. It obviously means that the evidence on record is sufficient to substantiate the absentee partys stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose. The courtwhileactingunder the Explanation may proceed with the case if that prima facie is the position. The court has to be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the court to record its satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of the suit, there is no need for adjourning the suit or deferring the decision. 23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence. 24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit. 25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence. 26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here. 27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case here. 28.We are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit. 29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.
### Response:
1
### Explanation:
23. Now when we examine the facts of the case at hand keeping in view the law laid down in the case ofB Janakiramaiah Chetty(supra), we find that the plaintiffsevidence was recorded and his case was also closed. It is not in dispute that the defendants were placed ex parte on the date when the case was fixed for recording defendants evidence but the same was not recorded due to the defendants absence on the said date. In other words, it was a case where the defendants did not lead any evidence24. In such a situation arising in the case, in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because inordertoattract theExplanation,suchparty which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treatsuch party as present on that day and is accordingly empowered to proceed in the suit25. In this case, the party,who was absent and was proceededex partewas the defendants and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence26. In other words, if the plaintiff had remained absentand wasfoundtohaveledevidence,the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the plaintiff as present for passing appropriate orders. Such is, however,not the case here27. Similarly, in converse situation, if the defendants had remained absent (as has happened in this case) on that date and if it would have noticed that they had adduced the evidence either fully or substantially prior to the date on which they were proceededex parte, the Court could have invoked its powers under Explanation to Order 17 Rule 2 of the Code treating the defendants as present on that day for passing appropriate orders in the suit. Such is, however, again not the case hereWe are,therefore,of the view that since the defendants were proceeded ex parte and were found not to have led any evidence in the suit, the Court could only proceed under Order 17 Rule 3 (b) read with Order 17 Rule 2 of the Code for disposal of the suit by taking recourse to one of the modes directed in that behalf by Order 9 of the Code or could have made any other order as it thinks fit29. As mentioned above, the Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an ex partedecree within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants.
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Trustees of Shri Acharya Mahaprabhu's Bethak of Padra Vs. Kachhia Ishwarbhai Shankarbhai | MATHEW, J.1. The appellants are trustees of a public religious trust registered under the Bombay Public Trusts Act, 1950, called Shri Acharya Mahaprabhus Bethak of Padra. They filed a suit for recovery of possession of the plaint property belonging to the trust from the respondent. He raised various contentions. The suit was decreed by the trial Court. The respondent preferred an appeal against the decree : that was dismissed. The respondent then appealed to the High Court against the decision. The High Court set aside the decision and remanded the case to the trial Court for a finding whether the appellants required the premises for personal cultivation. Its against this order that this appeal by special leave has been filed.2. There was no dispute between the parties before this Court that the respondent was holding over after the expiry of a contractual tenancy created in his favour by the trust for a period of one year and that he tenancy by holding over was terminated by a notice to quit issued on behalf of the trust on August 19, 1962. There can be no dispute that the appellants were entitled to institute the suit for recovery of possession of the property in view of the certificate issued by the Deputy Collector under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short the Act). The only question which falls for consideration in this appeal is whether the High Court was right in holding that Section 4-B of the Act operated as a bar to the termination of the tenancy for the reason that the trustees gave no valid reason for the same.3. Section 4-B provides :No tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired.It seems to us clear that in order that Section 4-B might apply, the tenancy must be one for a definite period. We have already said that the respondent was a tenant holding over after the expiry of the contractual tenancy for a fixed period of one year. In law, therefore, he was a tenant from year to year as the original lease was for agricultural purpose. Section 3 of the Act provides that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act apply to the tenancies and leases of land to which the Act applies. It therefore follows that the appellants could validly terminate the tenancy by giving the proper notice under that Act. And, such a notice was given.4. It is trite learning that tenancy from year to year is not a tenancy for a period certain. Section 4-B can apply only to a tenancy in which a period has been fixed either by agreement or usage and that the period has expired. In the tenancy from year to year under which the respondent was holding over there could be no period fixed by agreement for its duration as that would be inconsistent with the basic hypothesis of a tenancy from year to year. Nor is there any evidence of any usage fixing the duration of the tenancy. It is relevant to note that the tenancy which the appellants terminated by the notice was the tenancy from year to year under which the respondent was holding the land and not any anterior tenancy. To the termination of that tenancy Section 4-B has no application.5. It was, therefore, open to the landlord to terminate the tenancy by issuing the proper notice and thereafter to recover possession of the property without assigning any reason whatsoever. The High Court was wrong in holding that under Section 4-B the tenancy cannot be terminated without a valid reason and remanding the case to the trial Court to find whether the landlord required it for personal cultivation or for any other valid reason. | 1[ds]4. It is trite learning that tenancy from year to year is not a tenancy for a period certain. Sectioncan apply only to a tenancy in which a period has been fixed either by agreement or usage and that the period has expired. In the tenancy from year to year under which the respondent was holding over there could be no period fixed by agreement for its duration as that would be inconsistent with the basic hypothesis of a tenancy from year to year. Nor is there any evidence of any usage fixing the duration of the tenancy. It is relevant to note that the tenancy which the appellants terminated by the notice was the tenancy from year to year under which the respondent was holding the land and not any anterior tenancy. To the termination of that tenancy Sectionhas no application.5. It was, therefore, open to the landlord to terminate the tenancy by issuing the proper notice and thereafter to recover possession of the property without assigning any reason whatsoever. The High Court was wrong in holding that under Sectionthe tenancy cannot be terminated without a valid reason and remanding the case to the trial Court to find whether the landlord required it for personal cultivation or for any other valid reason. | 1 | 702 | 229 | ### 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:
MATHEW, J.1. The appellants are trustees of a public religious trust registered under the Bombay Public Trusts Act, 1950, called Shri Acharya Mahaprabhus Bethak of Padra. They filed a suit for recovery of possession of the plaint property belonging to the trust from the respondent. He raised various contentions. The suit was decreed by the trial Court. The respondent preferred an appeal against the decree : that was dismissed. The respondent then appealed to the High Court against the decision. The High Court set aside the decision and remanded the case to the trial Court for a finding whether the appellants required the premises for personal cultivation. Its against this order that this appeal by special leave has been filed.2. There was no dispute between the parties before this Court that the respondent was holding over after the expiry of a contractual tenancy created in his favour by the trust for a period of one year and that he tenancy by holding over was terminated by a notice to quit issued on behalf of the trust on August 19, 1962. There can be no dispute that the appellants were entitled to institute the suit for recovery of possession of the property in view of the certificate issued by the Deputy Collector under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short the Act). The only question which falls for consideration in this appeal is whether the High Court was right in holding that Section 4-B of the Act operated as a bar to the termination of the tenancy for the reason that the trustees gave no valid reason for the same.3. Section 4-B provides :No tenancy of any land shall be terminated merely on the ground that the period fixed by agreement or usage for its duration has expired.It seems to us clear that in order that Section 4-B might apply, the tenancy must be one for a definite period. We have already said that the respondent was a tenant holding over after the expiry of the contractual tenancy for a fixed period of one year. In law, therefore, he was a tenant from year to year as the original lease was for agricultural purpose. Section 3 of the Act provides that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act apply to the tenancies and leases of land to which the Act applies. It therefore follows that the appellants could validly terminate the tenancy by giving the proper notice under that Act. And, such a notice was given.4. It is trite learning that tenancy from year to year is not a tenancy for a period certain. Section 4-B can apply only to a tenancy in which a period has been fixed either by agreement or usage and that the period has expired. In the tenancy from year to year under which the respondent was holding over there could be no period fixed by agreement for its duration as that would be inconsistent with the basic hypothesis of a tenancy from year to year. Nor is there any evidence of any usage fixing the duration of the tenancy. It is relevant to note that the tenancy which the appellants terminated by the notice was the tenancy from year to year under which the respondent was holding the land and not any anterior tenancy. To the termination of that tenancy Section 4-B has no application.5. It was, therefore, open to the landlord to terminate the tenancy by issuing the proper notice and thereafter to recover possession of the property without assigning any reason whatsoever. The High Court was wrong in holding that under Section 4-B the tenancy cannot be terminated without a valid reason and remanding the case to the trial Court to find whether the landlord required it for personal cultivation or for any other valid reason.
### Response:
1
### Explanation:
4. It is trite learning that tenancy from year to year is not a tenancy for a period certain. Sectioncan apply only to a tenancy in which a period has been fixed either by agreement or usage and that the period has expired. In the tenancy from year to year under which the respondent was holding over there could be no period fixed by agreement for its duration as that would be inconsistent with the basic hypothesis of a tenancy from year to year. Nor is there any evidence of any usage fixing the duration of the tenancy. It is relevant to note that the tenancy which the appellants terminated by the notice was the tenancy from year to year under which the respondent was holding the land and not any anterior tenancy. To the termination of that tenancy Sectionhas no application.5. It was, therefore, open to the landlord to terminate the tenancy by issuing the proper notice and thereafter to recover possession of the property without assigning any reason whatsoever. The High Court was wrong in holding that under Sectionthe tenancy cannot be terminated without a valid reason and remanding the case to the trial Court to find whether the landlord required it for personal cultivation or for any other valid reason.
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SHASHI PRAKASH KHEMKA (DEAD) THROUGH LRS Vs. NEPC MICON (NOW CALLED NEPC INDIA LTD.) | 1. Heard Mr. Nikhil Nayyar, learned counsel for the appellants. The respondents have been served, but from the inception of the special leave petition in the year 2007, none has been appearing for the respondents. 2. The subject matter of dispute before us is the exercise of power under Section 111-A of the Companies Act, 1956 (as amended in 1988) and the Depositories Related Laws (Amendment) Act, 1997. In terms of the impugned order of the Madras High Court, on an appeal filed against the order of the Company Law Board, the view taken by the Company Law Board has been reversed and thus, in effect, the appellants have been left to a remedy of civil suit. 3. Learned counsel for the appellants says that the issue raised by the appellants qua the transfer of shares, whether done rightly or wrongly, has to be adjudicated by some forum - whether it be a civil suit or the exercise of jurisdiction by the then Company Law Board. 4. Learned counsel for the appellants has drawn our attention to the view expressed in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. and Others (1998) 7 SCC 105 , to canvass the proposition that while examining the scope of Section 155 (the predecessor to Section 111), a view was taken that the power was fairly wide, but in case of a serious dispute as to title, the matter could be relegated to a civil suit. The submission of the learned counsel is that the subsequent legal developments to the impugned order have a direct effect on the present case as the Companies Act, 2013 has been amended which provides for the power of rectification of the Register under Section 59 of the said Act. Learned counsel has also drawn our attention to Section 430 of the Act, which reads as under:- 430. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Acgt or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate. 5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred. 6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded. | 1[ds]5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded. | 1 | 596 | 145 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1. Heard Mr. Nikhil Nayyar, learned counsel for the appellants. The respondents have been served, but from the inception of the special leave petition in the year 2007, none has been appearing for the respondents. 2. The subject matter of dispute before us is the exercise of power under Section 111-A of the Companies Act, 1956 (as amended in 1988) and the Depositories Related Laws (Amendment) Act, 1997. In terms of the impugned order of the Madras High Court, on an appeal filed against the order of the Company Law Board, the view taken by the Company Law Board has been reversed and thus, in effect, the appellants have been left to a remedy of civil suit. 3. Learned counsel for the appellants says that the issue raised by the appellants qua the transfer of shares, whether done rightly or wrongly, has to be adjudicated by some forum - whether it be a civil suit or the exercise of jurisdiction by the then Company Law Board. 4. Learned counsel for the appellants has drawn our attention to the view expressed in Ammonia Supplies Corporation (P) Ltd. v. Modern Plastic Containers Pvt. Ltd. and Others (1998) 7 SCC 105 , to canvass the proposition that while examining the scope of Section 155 (the predecessor to Section 111), a view was taken that the power was fairly wide, but in case of a serious dispute as to title, the matter could be relegated to a civil suit. The submission of the learned counsel is that the subsequent legal developments to the impugned order have a direct effect on the present case as the Companies Act, 2013 has been amended which provides for the power of rectification of the Register under Section 59 of the said Act. Learned counsel has also drawn our attention to Section 430 of the Act, which reads as under:- 430. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Acgt or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate. 5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred. 6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded.
### Response:
1
### Explanation:
5. The effect of the aforesaid provision is that in matters in respect of which power has been conferred on the NCLT, the jurisdiction of the civil court is completely barred.6. It is not in dispute that were a dispute to arise today, the civil suit remedy would be completely barred and the power would be vested with the National Company Law Tribunal (NCLT) under Section 39 of the said Act. We are conscious of the fact that in the present case, the cause of action has arisen at a stage prior to this enactment. However, we are of the view that relegating the parties to civil suit now would not be the appropriate remedy, especially considering the manner in which Section 430 of the Act is widely worded.
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VIMLA DEVI Vs. THE NATIONAL INSURANCE COMPANY LIMITED | Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is filed by the claimants against the final judgment and order dated 23.03.2015 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in SBCMA No. 1739 of 2007 whereby the High Court dismissed the appeal filed by the claimants and affirmed the award dated 05.12.2005 passed by the MACT Chomu (Jaipur) in MAC Case No. 48/2005. 3. In order to appreciate the issues arising in the case, it is necessary to set out the relevant facts hereinbelow. 4. The appellants are the claimants/plaintiffs whereas the respondents are the non- applicants/defendants in the claim petition out of which this appeal arises. 5. One Rajendra Prasad aged around 25 years was travelling in the passenger Bus bearing No.RJ- 07-P-2151 as its bona fide passenger on 03.06.2003 for going to a place called Chomu. When the Bus reached near Police Station, Chomu, a Truck bearing No. HR-55A-7729, which was going towards Jaipur from Chomu came on a high speed and dashed against Bus. The impact of dash against the Bus was so violent that Rajendra Prasad, who was sitting inside the Bus, sustained grievous injuries resulting in his instant death. This led to filing of the FIR No. 214/2003 in Police Station, Chomu. 6. It is this incident, which gave rise to initiation of two legal proceedings, namely, criminal and civil. So far as the criminal proceedings are concerned, a charge sheet (1/2003) was filed by the State against the driver of the offending Truck in the Court of Magistrate under Section 304-A of the Indian Penal Code, 1860 (in short, IPC). 7. So far as the civil proceedings are concerned with which we are concerned in this appeal were filed by the appellants herein (claimants), who are the wife and the two minor children of the deceased, against the Insurance Company (respondent No. 1), driver (respondent No. 2) and the owner (respondent No. 3) of the offending Truck under Section 166 of the Motor Vehicles Act (hereinafter referred to as the Act) before the Motor Accident Compensation Tribunal, Chomu claiming therein to award reasonable compensation to them for the loss sustained on account of untimely death of Rajendra Prasad-their only bread earner in the family. 8. The appellants along with their claim petition filed all those documents, which were filed by the State in the criminal proceedings against the driver, such as FIR, charge sheet, site plan, post mortem report of the deceased, registration of Truck No. HR -A-7729, insurance coverage, mechanical inspection report, copy of notice issued to the owner under Section 133 of the Act etc. 9. So far as the driver and owner of the offending Truck are concerned, since inception both remained ex parte in the proceedings. So far as the Insurance Company (insurer) is concerned, they alone entered appearance and filed the written statement. The Insurance Company, however, contended inter alia in their written statement that firstly, the owner of the Truck did not give any intimation to the Insurance Company; Secondly, the owner and the driver of the bus were not impleaded as party in the proceedings; and Thirdly, the owner of the offending Truck did not send a copy of the driving license of the driver to the Insurance Company to enable them to make an inquiry about its genuineness (see Para 3 of the award). 10. The claimants examined three witnesses in support of their case. The Insurance Company did not examine any witness. By award dated 05.12.2005, the Tribunal dismissed the appellants claim petition. It was held that the claimants failed to prove the accident including involvement of offending Truck, which caused death of Rajendra Prasad. It was held that though the claimants filed the documents but since those documents were not exhibited, the Insurance Company could not cross- examine the claimants witnesses on the documents. In short, the Tribunal held that the claimants failed to prove the accident for want of evidence and the one adduced was not exhibited and hence was of no use. These were basically the two findings on which the claim petition was dismissed. 11. The claimants felt aggrieved and filed appeal in the High Court for Rajasthan Bench at Jaipur. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the claimants in this Court. 12. Heard Mr. Maruf Khan, learned counsel for the appellants and Ms. Meenakshi Midha, learned senior counsel for respondent No.1. 13. | 1[ds]In our considered opinion, the approach, reasoning and the conclusion of the Tribunal and the High Court for dismissing the appellants claim petition/appeal was not in accordance with law inasmuch as both did not deal with any issue arising in the case. The High Court while dismissing the appeal simply affirmed the award of the Tribunal without assigning any reason.16. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.17. Section 158 of the Act casts a duty on a person driving a motor vehicle to produce certain certificates, driving licence and permit on being required by a police officer to do so in relation to the use of the vehicle. Sub-section (6), which was added by way of amendment in 1994 to Section 158 casts a duty on the officer in-charge of the police station to forward a copy of the information (FIR)/report regarding any accident involving death or bodily injury to any person within 30 days from the date of information to the Claim Tribunal having jurisdiction and also send one copy to the concerned insurer. This sub-section also casts a duty on the owner of the offending vehicle, if a copy of the information is made available to him, to forward the same to the Claims Tribunal and the insurer of the vehicle.25. Keeping in view the aforementioned principle of law when we examine the facts of the case at hand, we are of the considered opinion that the Claims Tribunal and the High Court were not justified in dismissing the appellants claim petition. In our view, the appellants claim petition ought to have been allowed for awarding reasonable compensation to the appellants in accordance with law. This we say for the following reasons.26. First, the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending vehicle, which resulted in death of Rajendra Prasad.27. Second, the appellants filed material documents to prove the factum of the accident and the persons involved therein.28. Third, the documents clearly established the identity of the Truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending Truck, the period of coverage of insurance of the Truck, the details of the lodging of FIR in the concerned police station in relation to the accident.29. In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein.30. Fourth, so far as the driver and owner of the Truck were concerned, both remained ex parte since inception and, therefore, neither contested the appellants claim petition nor entered into the witness box to rebut the allegations of the appellants made in the claim petition and the evidence. An adverse inference against both could be drawn.31. Fifth, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants evidence. The Insurance Company could have adduced evidence by examining the driver of the offending Truck as their witness but it was not done.32. Sixth, on the other hand, the appellants examined three witnesses and thereby discharged their initial burden to prove the case.33. Seventh, if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence then in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.34. In the light of the aforementioned seven reasons, we are of the considered opinion that the appellants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that the offending Truck was insured with respondent No. 1 at the time of accident and was owned by respondent No. 3.35. This takes us to consider the next question as to how much compensation the appellants are entitled to claim for the death of their bread earner- Rajendra Prasad.36. It has come in the evidence that the deceased was around 25 years of age and left behind him his wife and two minor children. It has also come in evidence that he was earning around Rs.10,000/- per month. | 1 | 868 | 925 | ### 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:
Abhay Manohar Sapre, J. 1. Leave granted. 2. This appeal is filed by the claimants against the final judgment and order dated 23.03.2015 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in SBCMA No. 1739 of 2007 whereby the High Court dismissed the appeal filed by the claimants and affirmed the award dated 05.12.2005 passed by the MACT Chomu (Jaipur) in MAC Case No. 48/2005. 3. In order to appreciate the issues arising in the case, it is necessary to set out the relevant facts hereinbelow. 4. The appellants are the claimants/plaintiffs whereas the respondents are the non- applicants/defendants in the claim petition out of which this appeal arises. 5. One Rajendra Prasad aged around 25 years was travelling in the passenger Bus bearing No.RJ- 07-P-2151 as its bona fide passenger on 03.06.2003 for going to a place called Chomu. When the Bus reached near Police Station, Chomu, a Truck bearing No. HR-55A-7729, which was going towards Jaipur from Chomu came on a high speed and dashed against Bus. The impact of dash against the Bus was so violent that Rajendra Prasad, who was sitting inside the Bus, sustained grievous injuries resulting in his instant death. This led to filing of the FIR No. 214/2003 in Police Station, Chomu. 6. It is this incident, which gave rise to initiation of two legal proceedings, namely, criminal and civil. So far as the criminal proceedings are concerned, a charge sheet (1/2003) was filed by the State against the driver of the offending Truck in the Court of Magistrate under Section 304-A of the Indian Penal Code, 1860 (in short, IPC). 7. So far as the civil proceedings are concerned with which we are concerned in this appeal were filed by the appellants herein (claimants), who are the wife and the two minor children of the deceased, against the Insurance Company (respondent No. 1), driver (respondent No. 2) and the owner (respondent No. 3) of the offending Truck under Section 166 of the Motor Vehicles Act (hereinafter referred to as the Act) before the Motor Accident Compensation Tribunal, Chomu claiming therein to award reasonable compensation to them for the loss sustained on account of untimely death of Rajendra Prasad-their only bread earner in the family. 8. The appellants along with their claim petition filed all those documents, which were filed by the State in the criminal proceedings against the driver, such as FIR, charge sheet, site plan, post mortem report of the deceased, registration of Truck No. HR -A-7729, insurance coverage, mechanical inspection report, copy of notice issued to the owner under Section 133 of the Act etc. 9. So far as the driver and owner of the offending Truck are concerned, since inception both remained ex parte in the proceedings. So far as the Insurance Company (insurer) is concerned, they alone entered appearance and filed the written statement. The Insurance Company, however, contended inter alia in their written statement that firstly, the owner of the Truck did not give any intimation to the Insurance Company; Secondly, the owner and the driver of the bus were not impleaded as party in the proceedings; and Thirdly, the owner of the offending Truck did not send a copy of the driving license of the driver to the Insurance Company to enable them to make an inquiry about its genuineness (see Para 3 of the award). 10. The claimants examined three witnesses in support of their case. The Insurance Company did not examine any witness. By award dated 05.12.2005, the Tribunal dismissed the appellants claim petition. It was held that the claimants failed to prove the accident including involvement of offending Truck, which caused death of Rajendra Prasad. It was held that though the claimants filed the documents but since those documents were not exhibited, the Insurance Company could not cross- examine the claimants witnesses on the documents. In short, the Tribunal held that the claimants failed to prove the accident for want of evidence and the one adduced was not exhibited and hence was of no use. These were basically the two findings on which the claim petition was dismissed. 11. The claimants felt aggrieved and filed appeal in the High Court for Rajasthan Bench at Jaipur. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the claimants in this Court. 12. Heard Mr. Maruf Khan, learned counsel for the appellants and Ms. Meenakshi Midha, learned senior counsel for respondent No.1. 13.
### Response:
1
### Explanation:
In our considered opinion, the approach, reasoning and the conclusion of the Tribunal and the High Court for dismissing the appellants claim petition/appeal was not in accordance with law inasmuch as both did not deal with any issue arising in the case. The High Court while dismissing the appeal simply affirmed the award of the Tribunal without assigning any reason.16. At the outset, we may reiterate as has been consistently said by this Court in a series of cases that the Act is a beneficial piece of legislation enacted to give solace to the victims of the motor accident who suffer bodily injury or die untimely. The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident.17. Section 158 of the Act casts a duty on a person driving a motor vehicle to produce certain certificates, driving licence and permit on being required by a police officer to do so in relation to the use of the vehicle. Sub-section (6), which was added by way of amendment in 1994 to Section 158 casts a duty on the officer in-charge of the police station to forward a copy of the information (FIR)/report regarding any accident involving death or bodily injury to any person within 30 days from the date of information to the Claim Tribunal having jurisdiction and also send one copy to the concerned insurer. This sub-section also casts a duty on the owner of the offending vehicle, if a copy of the information is made available to him, to forward the same to the Claims Tribunal and the insurer of the vehicle.25. Keeping in view the aforementioned principle of law when we examine the facts of the case at hand, we are of the considered opinion that the Claims Tribunal and the High Court were not justified in dismissing the appellants claim petition. In our view, the appellants claim petition ought to have been allowed for awarding reasonable compensation to the appellants in accordance with law. This we say for the following reasons.26. First, the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending vehicle, which resulted in death of Rajendra Prasad.27. Second, the appellants filed material documents to prove the factum of the accident and the persons involved therein.28. Third, the documents clearly established the identity of the Truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending Truck, the period of coverage of insurance of the Truck, the details of the lodging of FIR in the concerned police station in relation to the accident.29. In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein.30. Fourth, so far as the driver and owner of the Truck were concerned, both remained ex parte since inception and, therefore, neither contested the appellants claim petition nor entered into the witness box to rebut the allegations of the appellants made in the claim petition and the evidence. An adverse inference against both could be drawn.31. Fifth, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants evidence. The Insurance Company could have adduced evidence by examining the driver of the offending Truck as their witness but it was not done.32. Sixth, on the other hand, the appellants examined three witnesses and thereby discharged their initial burden to prove the case.33. Seventh, if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence then in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.34. In the light of the aforementioned seven reasons, we are of the considered opinion that the appellants were able to prove the factum of the accident so also the factum of rash and negligent act of the driver causing the accident. It is also proved that the offending Truck was insured with respondent No. 1 at the time of accident and was owned by respondent No. 3.35. This takes us to consider the next question as to how much compensation the appellants are entitled to claim for the death of their bread earner- Rajendra Prasad.36. It has come in the evidence that the deceased was around 25 years of age and left behind him his wife and two minor children. It has also come in evidence that he was earning around Rs.10,000/- per month.
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M/S CHEM SOLAR ENERGY SYSTEM PRIVATE LIMITED Vs. KARNATAKA STATE FINANCIAL CORPORATION & ORS | an amendment of the writ petition to challenge the said actions of the Corporation which was allowed. Pursuant to the auction notice which was issued, several bidders participated and an offer of Rs.1.06 crore was received as the highest offer. 3. The learned single judge of the High Court dismissed the writ petition primarily on the ground that the matter pertained to the realm of contract and exercise of the discretionary jurisdiction under Article 226 of the Constitution of India would not be proper. Aggrieved, the third respondent moved the High Court by way of a Writ Appeal which having been answered in its favour, the borrower and the Corporation have instituted the present proceedings before this Court. 4. We have heard the learned counsels for all the contesting parties. 5. Notwithstanding the voluminous record and the elaborate arguments, the matter would lie within a short compass. The legality and correctness of the sale made in favour of the third respondent and the actions of the Corporation in this regard including the price offered and received has to be judged in the context of the facts that had occurred in the year 2005 and not by subsequent events or the price of the property or its potential as on date. We have indicated in a previous part of the order that three earlier attempts to sell the property by auction had failed and, in fact, the fourth attempt of auction had also failed. In the fourth attempt it is not in the bidding process but in the negotiations held subsequently with all the parties that one of the bidders i.e. Sanjay Goel had offered the sum of Rs. 50,00,000 (Rupees Fifty lakh). He, however, did not follow up the said offer by making actual payment. It is in such a situation that the third respondent appeared in the field and as the letter dated 31st March,2005 would indicate it was brought to the field at the instance of the borrower (appellant in Civil Appeal No. 9593 of 2010). The third respondent offered and the Corporation accepted the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments. There is a finding of the High Court in this regard that out of the first instalment of Rs. 27.60 lakhs the loan account was adjusted and the balance amount was credited to a separate account (ARPA). It is also clear from the impugned order of the High Court that the subsequent amount of Rs. 22.40 lakhs was also kept in the aforesaid separate account (ARPA-8008). The Managing Director of the Corporation though had earlier suggested a fresh auction (which was held but the offers/bids were not opened) had subsequently thought that the offer of the third respondent could be accepted subject to obtaining the necessary legal opinion. The legal opinion favoured acceptance. It is in these circumstances that the letter dated 28th May, 2005 (signed by the Dy. General Manager of the Corporation) was issued to the third respondent intimating the decision of the Corporation to accept the offer of the said respondent and requiring it to pay the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments within a particular time frame. All such stipulations were complied with by the third respondent. The cancellation of the sale made in favour of the third respondent and the notice of fresh auction was at a point of time subsequent to the institution of the writ proceedings by the third respondent for a direction from the High Court to the Corporation for execution of the sale deed in its favour. Such cancellation was also not preceded by any notice or opportunity to the third respondent despite the fact that it had paid a sum of Rs. 50,00,000/- (Rupees Fifty lakh) to the Corporation. In the auction held after the purported cancellation was made by the Managing Director, though an offer of Rs.1.06 crore was received from one M/s H.M. Estate & Properties no payment by the said offerer or even part payment had been made. The aforesaid offer of Rs. 1.06 crore was made in the year 2005 and whether such an offer is still open is not known to the Court. Though suo motu notice was issued by the Court to M/s H.M. Estate & Properties in the present proceedings, the said party has chosen not to come to Court in spite of due service of notice. In contrast, one M/s Pinacle Enterprises who had participated in one of the earlier auctions has been impleaded as a respondent on the basis of an application filed before the Court. It also would require to be noticed that the price offered by the third respondent (Rs. 50 lakhs) was commensurate with the valuation of the property done in the year 2004 at Rs. 53.60 lakhs (approximately). It is taking into account all the aforesaid facts that the High Court had thought it proper to reverse the order of the learned single judge and issue the impugned directions for handing over the possession of the property to the third respondent and for execution of the sale deed. 6. Having considered the matter and having taken into account all the aforesaid facts we are of the view that the action of the Corporation in accepting the offer of the third respondent was just, fair and reasonable. Even in the fact situation as on date we do not find any room to take a contrary view. The third respondent has paid the agreed amount as far back as in the year 2005. It is yet to get possession of the property which has remained with the Corporation. There is no viable alternative offer on record to persuade us to reexamine the matter. Even though the borrower himself had, at one stage, offered an amount of Rs. 6,11,00,000/- (Rupees Six crore and eleven lakh) no deposit of any amount, as ordered by the Court, had been made by the borrower (appellant in Civil Appeal No. 9593 of 2010). | 0[ds]5. Notwithstanding the voluminous record and the elaborate arguments, the matter would lie within a short compass. The legality and correctness of the sale made in favour of the third respondent and the actions of the Corporation in this regard including the price offered and received has to be judged in the context of the facts that had occurred in the year 2005 and not by subsequent events or the price of the property or its potential as on date. We have indicated in a previous part of the order that three earlier attempts to sell the property by auction had failed and, in fact, the fourth attempt of auction had also failed. In the fourth attempt it is not in the bidding process but in the negotiations held subsequently with all the parties that one of the bidders i.e. Sanjay Goel had offered the sum of Rs. 50,00,000 (Rupees Fifty lakh). He, however, did not follow up the said offer by making actual payment. It is in such a situation that the third respondent appeared in the field and as the letter dated 31st March,2005 would indicate it was brought to the field at the instance of the borrower (appellant in Civil Appeal No. 9593 of 2010). The third respondent offered and the Corporation accepted the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments. There is a finding of the High Court in this regard that out of the first instalment of Rs. 27.60 lakhs the loan account was adjusted and the balance amount was credited to a separate account (ARPA). It is also clear from the impugned order of the High Court that the subsequent amount of Rs. 22.40 lakhs was also kept in the aforesaid separate account (ARPA-8008). The Managing Director of the Corporation though had earlier suggested a fresh auction (which was held but the offers/bids were not opened) had subsequently thought that the offer of the third respondent could be accepted subject to obtaining the necessary legal opinion. The legal opinion favoured acceptance. It is in these circumstances that the letter dated 28th May, 2005 (signed by the Dy. General Manager of the Corporation) was issued to the third respondent intimating the decision of the Corporation to accept the offer of the said respondent and requiring it to pay the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments within a particular time frame. All such stipulations were complied with by the third respondent. The cancellation of the sale made in favour of the third respondent and the notice of fresh auction was at a point of time subsequent to the institution of the writ proceedings by the third respondent for a direction from the High Court to the Corporation for execution of the sale deed in its favour. Such cancellation was also not preceded by any notice or opportunity to the third respondent despite the fact that it had paid a sum of Rs. 50,00,000/- (Rupees Fifty lakh) to the Corporation. In the auction held after the purported cancellation was made by the Managing Director, though an offer of Rs.1.06 crore was received from one M/s H.M. Estate & Properties no payment by the said offerer or even part payment had been made. The aforesaid offer of Rs. 1.06 crore was made in the year 2005 and whether such an offer is still open is not known to the Court. Though suo motu notice was issued by the Court to M/s H.M. Estate & Properties in the present proceedings, the said party has chosen not to come to Court in spite of due service of notice. In contrast, one M/s Pinacle Enterprises who had participated in one of the earlier auctions has been impleaded as a respondent on the basis of an application filed before the Court. It also would require to be noticed that the price offered by the third respondent (Rs. 50 lakhs) was commensurate with the valuation of the property done in the year 2004 at Rs. 53.60 lakhs (approximately). It is taking into account all the aforesaid facts that the High Court had thought it proper to reverse the order of the learned single judge and issue the impugned directions for handing over the possession of the property to the third respondent and for execution of the sale deed.6. Having considered the matter and having taken into account all the aforesaid facts we are of the view that the action of the Corporation in accepting the offer of the third respondent was just, fair and reasonable. Even in the fact situation as on date we do not find any room to take a contrary view. The third respondent has paid the agreed amount as far back as in the year 2005. It is yet to get possession of the property which has remained with the Corporation. There is no viable alternative offer on record to persuade us to reexamine the matter. Even though the borrower himself had, at one stage, offered an amount of Rs. 6,11,00,000/- (Rupees Six crore and eleven lakh) no deposit of any amount, as ordered by the Court, had been made by the borrower (appellant in Civil Appeal No. 9593 of 2010).It will not be necessary for the Court to enter into the aforesaid area of contentions and arguments as what cannot be overlooked is the fact that a period of over 10 years have elapsed in the meantime and none of the higher offers including the one made by the borrower (appellant in Civil Appeal No. 9593 of 2010 before this Court) have been followed up by actual payment so as to inspire the confidence of the Court. In fact, as we have already indicated that on date we do not have before us any other viable counter or higher offer.We are afraid we cannot go into the said issue as not only the said question is disputed but the same is beyond the scope of the dispute entertained and decided by the High Court. If the borrower (appellant in Civil Appeal No. 9593 of 2010 before this Court) has any claim in this regard, it will naturally be open to it to approach the competent forum for the enforcement thereof. | 0 | 1,723 | 1,138 | ### Instruction:
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an amendment of the writ petition to challenge the said actions of the Corporation which was allowed. Pursuant to the auction notice which was issued, several bidders participated and an offer of Rs.1.06 crore was received as the highest offer. 3. The learned single judge of the High Court dismissed the writ petition primarily on the ground that the matter pertained to the realm of contract and exercise of the discretionary jurisdiction under Article 226 of the Constitution of India would not be proper. Aggrieved, the third respondent moved the High Court by way of a Writ Appeal which having been answered in its favour, the borrower and the Corporation have instituted the present proceedings before this Court. 4. We have heard the learned counsels for all the contesting parties. 5. Notwithstanding the voluminous record and the elaborate arguments, the matter would lie within a short compass. The legality and correctness of the sale made in favour of the third respondent and the actions of the Corporation in this regard including the price offered and received has to be judged in the context of the facts that had occurred in the year 2005 and not by subsequent events or the price of the property or its potential as on date. We have indicated in a previous part of the order that three earlier attempts to sell the property by auction had failed and, in fact, the fourth attempt of auction had also failed. In the fourth attempt it is not in the bidding process but in the negotiations held subsequently with all the parties that one of the bidders i.e. Sanjay Goel had offered the sum of Rs. 50,00,000 (Rupees Fifty lakh). He, however, did not follow up the said offer by making actual payment. It is in such a situation that the third respondent appeared in the field and as the letter dated 31st March,2005 would indicate it was brought to the field at the instance of the borrower (appellant in Civil Appeal No. 9593 of 2010). The third respondent offered and the Corporation accepted the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments. There is a finding of the High Court in this regard that out of the first instalment of Rs. 27.60 lakhs the loan account was adjusted and the balance amount was credited to a separate account (ARPA). It is also clear from the impugned order of the High Court that the subsequent amount of Rs. 22.40 lakhs was also kept in the aforesaid separate account (ARPA-8008). The Managing Director of the Corporation though had earlier suggested a fresh auction (which was held but the offers/bids were not opened) had subsequently thought that the offer of the third respondent could be accepted subject to obtaining the necessary legal opinion. The legal opinion favoured acceptance. It is in these circumstances that the letter dated 28th May, 2005 (signed by the Dy. General Manager of the Corporation) was issued to the third respondent intimating the decision of the Corporation to accept the offer of the said respondent and requiring it to pay the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments within a particular time frame. All such stipulations were complied with by the third respondent. The cancellation of the sale made in favour of the third respondent and the notice of fresh auction was at a point of time subsequent to the institution of the writ proceedings by the third respondent for a direction from the High Court to the Corporation for execution of the sale deed in its favour. Such cancellation was also not preceded by any notice or opportunity to the third respondent despite the fact that it had paid a sum of Rs. 50,00,000/- (Rupees Fifty lakh) to the Corporation. In the auction held after the purported cancellation was made by the Managing Director, though an offer of Rs.1.06 crore was received from one M/s H.M. Estate & Properties no payment by the said offerer or even part payment had been made. The aforesaid offer of Rs. 1.06 crore was made in the year 2005 and whether such an offer is still open is not known to the Court. Though suo motu notice was issued by the Court to M/s H.M. Estate & Properties in the present proceedings, the said party has chosen not to come to Court in spite of due service of notice. In contrast, one M/s Pinacle Enterprises who had participated in one of the earlier auctions has been impleaded as a respondent on the basis of an application filed before the Court. It also would require to be noticed that the price offered by the third respondent (Rs. 50 lakhs) was commensurate with the valuation of the property done in the year 2004 at Rs. 53.60 lakhs (approximately). It is taking into account all the aforesaid facts that the High Court had thought it proper to reverse the order of the learned single judge and issue the impugned directions for handing over the possession of the property to the third respondent and for execution of the sale deed. 6. Having considered the matter and having taken into account all the aforesaid facts we are of the view that the action of the Corporation in accepting the offer of the third respondent was just, fair and reasonable. Even in the fact situation as on date we do not find any room to take a contrary view. The third respondent has paid the agreed amount as far back as in the year 2005. It is yet to get possession of the property which has remained with the Corporation. There is no viable alternative offer on record to persuade us to reexamine the matter. Even though the borrower himself had, at one stage, offered an amount of Rs. 6,11,00,000/- (Rupees Six crore and eleven lakh) no deposit of any amount, as ordered by the Court, had been made by the borrower (appellant in Civil Appeal No. 9593 of 2010).
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regard including the price offered and received has to be judged in the context of the facts that had occurred in the year 2005 and not by subsequent events or the price of the property or its potential as on date. We have indicated in a previous part of the order that three earlier attempts to sell the property by auction had failed and, in fact, the fourth attempt of auction had also failed. In the fourth attempt it is not in the bidding process but in the negotiations held subsequently with all the parties that one of the bidders i.e. Sanjay Goel had offered the sum of Rs. 50,00,000 (Rupees Fifty lakh). He, however, did not follow up the said offer by making actual payment. It is in such a situation that the third respondent appeared in the field and as the letter dated 31st March,2005 would indicate it was brought to the field at the instance of the borrower (appellant in Civil Appeal No. 9593 of 2010). The third respondent offered and the Corporation accepted the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments. There is a finding of the High Court in this regard that out of the first instalment of Rs. 27.60 lakhs the loan account was adjusted and the balance amount was credited to a separate account (ARPA). It is also clear from the impugned order of the High Court that the subsequent amount of Rs. 22.40 lakhs was also kept in the aforesaid separate account (ARPA-8008). The Managing Director of the Corporation though had earlier suggested a fresh auction (which was held but the offers/bids were not opened) had subsequently thought that the offer of the third respondent could be accepted subject to obtaining the necessary legal opinion. The legal opinion favoured acceptance. It is in these circumstances that the letter dated 28th May, 2005 (signed by the Dy. General Manager of the Corporation) was issued to the third respondent intimating the decision of the Corporation to accept the offer of the said respondent and requiring it to pay the sum of Rs. 50,00,000/- (Rupees Fifty lakh) in two instalments within a particular time frame. All such stipulations were complied with by the third respondent. The cancellation of the sale made in favour of the third respondent and the notice of fresh auction was at a point of time subsequent to the institution of the writ proceedings by the third respondent for a direction from the High Court to the Corporation for execution of the sale deed in its favour. Such cancellation was also not preceded by any notice or opportunity to the third respondent despite the fact that it had paid a sum of Rs. 50,00,000/- (Rupees Fifty lakh) to the Corporation. In the auction held after the purported cancellation was made by the Managing Director, though an offer of Rs.1.06 crore was received from one M/s H.M. Estate & Properties no payment by the said offerer or even part payment had been made. The aforesaid offer of Rs. 1.06 crore was made in the year 2005 and whether such an offer is still open is not known to the Court. Though suo motu notice was issued by the Court to M/s H.M. Estate & Properties in the present proceedings, the said party has chosen not to come to Court in spite of due service of notice. In contrast, one M/s Pinacle Enterprises who had participated in one of the earlier auctions has been impleaded as a respondent on the basis of an application filed before the Court. It also would require to be noticed that the price offered by the third respondent (Rs. 50 lakhs) was commensurate with the valuation of the property done in the year 2004 at Rs. 53.60 lakhs (approximately). It is taking into account all the aforesaid facts that the High Court had thought it proper to reverse the order of the learned single judge and issue the impugned directions for handing over the possession of the property to the third respondent and for execution of the sale deed.6. Having considered the matter and having taken into account all the aforesaid facts we are of the view that the action of the Corporation in accepting the offer of the third respondent was just, fair and reasonable. Even in the fact situation as on date we do not find any room to take a contrary view. The third respondent has paid the agreed amount as far back as in the year 2005. It is yet to get possession of the property which has remained with the Corporation. There is no viable alternative offer on record to persuade us to reexamine the matter. Even though the borrower himself had, at one stage, offered an amount of Rs. 6,11,00,000/- (Rupees Six crore and eleven lakh) no deposit of any amount, as ordered by the Court, had been made by the borrower (appellant in Civil Appeal No. 9593 of 2010).It will not be necessary for the Court to enter into the aforesaid area of contentions and arguments as what cannot be overlooked is the fact that a period of over 10 years have elapsed in the meantime and none of the higher offers including the one made by the borrower (appellant in Civil Appeal No. 9593 of 2010 before this Court) have been followed up by actual payment so as to inspire the confidence of the Court. In fact, as we have already indicated that on date we do not have before us any other viable counter or higher offer.We are afraid we cannot go into the said issue as not only the said question is disputed but the same is beyond the scope of the dispute entertained and decided by the High Court. If the borrower (appellant in Civil Appeal No. 9593 of 2010 before this Court) has any claim in this regard, it will naturally be open to it to approach the competent forum for the enforcement thereof.
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Haryana Public Service Commission Vs. Harinder Singh | S.P. Bharucha, J. The respondent applied for employment with the State of Haryana on the basis that he was the dependant of an ex-serviceman. The Haryana Public Service Commission (the appellant) rejected the claim on the ground that he was not dependant upon his exserviceman father or his mother. The respondent filed a writ petition in the High Court at Chandigarh for a direction that he should be considered for selection against the reservation quota meant for dependants of ex-servicemen. The High Courts decision upon the writ petition reads, in its entirety, thus : "HPSC is directed to consider the petitioner eligible for the post he has applied for, as he falls in the expression `dependant, as his father was killed in INS Khukri during Indo-Pak War of 1971. The writ petition stands disposed of accordingly." Since this order could not be complied with because all the posts had been filled, the respondent moved an application before the High Court in regard to future selections and the High Court directed that the respondent should be considered for the same. 2. The appellants are in appeal by special leave against the order on the writ petition and it has been stayed pending the disposal of the appeal. 3. There is a reservation in regard to recruitment for the State Government for dependants of service personnel killed or disabled. Dependants are defined to include, besides the wife and widow, "dependant sons/daughters". After categorising certain persons, it is stated in the reservation policy : "None of the persons mentioned at Sr. Nos. (i), (ii), (v) and (vi) falls within the definition of the word `dependant because each of them appears to have some independent source of livelihood and therefore, none of these can be said to be dependant on his father or mother." 4. Learned counsel for the appellant submitted, therefore, that one who is gainfully employed cannot be termed a dependant of an ex-serviceman. Our attention was invited by learned counsel to the writ petition dated 12.7.1992 in the High Court to show that the respondent was gainfully employed at the relevant times. Paragraph 3 thereof reads thus : "That the petitioner passed his Bachelor of Engineering in Civil in 1988 from the Engineering College, Chandigarh affiliated with Punjab University, Chandigarh. After passing the said examination, the petitioner worked in Astra Construction Company, Chandigarh for one year i.e. November, 1988 to November, 1989 as Civil Engineer. Thereafter, the petitioner joined the services of V.S. Construction Company as Civil Engineer in November, 1989 and has been working as such in the said Company." In this Court the respondent has stated on affidavit that he was employed between November, 1988 to 1989 as a Civil Engineer with the Astra Construction Company. The appointment was temporary and on contract basis. Thereafter he joined the service of V.S. Construction Company as Civil Engineer in November, 1989 on contract basis for a period of two years, which period had expired. He was, when he made the said affidavit on 7.4.1993, working in Jai Parabolic Springs Ltd. for 18 months on contract basis. 5. Learned counsel for the respondent drew our attention to a certificate which was issued on 18.7.1989 by the Zila Sainik Welfare Officer, Union Territory, Chandigarh. It certifies, "Master Harinder Singh" to be the dependant of his late ex-serviceman father and his mother. Learned counsel submitted that the fact that the respondent had accepted some temporary job with a private company did not mean that he had lost the entitlement given by the certificate to be treated as a dependent of his ex-serviceman father and that, therefore, he was entitled to be considered under the reservation available to dependants of ex-servicemen. 6. The said certificate was issued on 18.7.1989. According to his own showing, an affidavit filed in this Court, the respondent was a Civil Engineer working with Astra Construction Company on that day. He was not then or thereafter "dependent" on anyone. 7. The whole idea of the reservation is that those who are dependent for their survival on men who have lost their lives or became disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed. There is no justification for construing the words "dependants of ex-serviceman" in any manner other than that in which the appellant has construed them. This is in accord with the reservation policy itself, as shown by the quotation therefrom aforestated. | 1[ds]7. The whole idea of the reservation is that those who are dependent for their survival on men who have lost their lives or became disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed. There is no justification for construing the words "dependants ofin any manner other than that in which the appellant has construed them. This is in accord with the reservation policy itself, as shown by the quotation therefrom aforestated. | 1 | 859 | 107 | ### 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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S.P. Bharucha, J. The respondent applied for employment with the State of Haryana on the basis that he was the dependant of an ex-serviceman. The Haryana Public Service Commission (the appellant) rejected the claim on the ground that he was not dependant upon his exserviceman father or his mother. The respondent filed a writ petition in the High Court at Chandigarh for a direction that he should be considered for selection against the reservation quota meant for dependants of ex-servicemen. The High Courts decision upon the writ petition reads, in its entirety, thus : "HPSC is directed to consider the petitioner eligible for the post he has applied for, as he falls in the expression `dependant, as his father was killed in INS Khukri during Indo-Pak War of 1971. The writ petition stands disposed of accordingly." Since this order could not be complied with because all the posts had been filled, the respondent moved an application before the High Court in regard to future selections and the High Court directed that the respondent should be considered for the same. 2. The appellants are in appeal by special leave against the order on the writ petition and it has been stayed pending the disposal of the appeal. 3. There is a reservation in regard to recruitment for the State Government for dependants of service personnel killed or disabled. Dependants are defined to include, besides the wife and widow, "dependant sons/daughters". After categorising certain persons, it is stated in the reservation policy : "None of the persons mentioned at Sr. Nos. (i), (ii), (v) and (vi) falls within the definition of the word `dependant because each of them appears to have some independent source of livelihood and therefore, none of these can be said to be dependant on his father or mother." 4. Learned counsel for the appellant submitted, therefore, that one who is gainfully employed cannot be termed a dependant of an ex-serviceman. Our attention was invited by learned counsel to the writ petition dated 12.7.1992 in the High Court to show that the respondent was gainfully employed at the relevant times. Paragraph 3 thereof reads thus : "That the petitioner passed his Bachelor of Engineering in Civil in 1988 from the Engineering College, Chandigarh affiliated with Punjab University, Chandigarh. After passing the said examination, the petitioner worked in Astra Construction Company, Chandigarh for one year i.e. November, 1988 to November, 1989 as Civil Engineer. Thereafter, the petitioner joined the services of V.S. Construction Company as Civil Engineer in November, 1989 and has been working as such in the said Company." In this Court the respondent has stated on affidavit that he was employed between November, 1988 to 1989 as a Civil Engineer with the Astra Construction Company. The appointment was temporary and on contract basis. Thereafter he joined the service of V.S. Construction Company as Civil Engineer in November, 1989 on contract basis for a period of two years, which period had expired. He was, when he made the said affidavit on 7.4.1993, working in Jai Parabolic Springs Ltd. for 18 months on contract basis. 5. Learned counsel for the respondent drew our attention to a certificate which was issued on 18.7.1989 by the Zila Sainik Welfare Officer, Union Territory, Chandigarh. It certifies, "Master Harinder Singh" to be the dependant of his late ex-serviceman father and his mother. Learned counsel submitted that the fact that the respondent had accepted some temporary job with a private company did not mean that he had lost the entitlement given by the certificate to be treated as a dependent of his ex-serviceman father and that, therefore, he was entitled to be considered under the reservation available to dependants of ex-servicemen. 6. The said certificate was issued on 18.7.1989. According to his own showing, an affidavit filed in this Court, the respondent was a Civil Engineer working with Astra Construction Company on that day. He was not then or thereafter "dependent" on anyone. 7. The whole idea of the reservation is that those who are dependent for their survival on men who have lost their lives or became disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed. There is no justification for construing the words "dependants of ex-serviceman" in any manner other than that in which the appellant has construed them. This is in accord with the reservation policy itself, as shown by the quotation therefrom aforestated.
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7. The whole idea of the reservation is that those who are dependent for their survival on men who have lost their lives or became disabled in the service of the nation should not suffer. The public purpose of such reservation would be totally lost if it were to be made available to those who are gainfully employed. There is no justification for construing the words "dependants ofin any manner other than that in which the appellant has construed them. This is in accord with the reservation policy itself, as shown by the quotation therefrom aforestated.
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Shailesh H. Bajaj Vs. Sesa Goa Limited & Another | Bachao Andolan(supra) and in paragraph 43 of the impugned judgment, paragraph 68 of the judgment in Vodafone International Holdings BV(supra). Learned Judge has observed that the judgment of the Gujarat High Court in the case of Wood Polymers Ltd.(supra) is no longer good law. The learned Company judge has held that it cannot, therefore, be said that the scheme is against the public policy. There is no ground shown to us by the appellant to differ from the findings given as above by the learned Company Judge.47. According to the appellant, the present schemes are of unconscionable nature and the interest of the minority shareholders of SGL has been completely overlooked. He pointed out that as per Clause III(12) of the memorandum of association of SGL, it is entitled to enter into arrangement and/or amalgamation with any other person/concern so as to carry out or engage in any business which would directly/indirectly be beneficial to it. He submitted that the present schemes neither directly nor indirectly benefit the interests of SGL but on the contrary they tremendously deteriorate the financial condition of SGL and turn it into a negative figure apart from inflating its debt to unmanageable levels. The contention of the learned Counsel appearing on behalf of SGL, in this regard, is that the net worth of SGL would, in fact, increase from Rs. 12,910.8 crores to Rs. 36,923.63 crores, post merger, thereby making the minority shareholders of SGL richer by three folds(100%) and hence the schemes could never be termed as unconscionable. Learned Company Judge has observed that the financial position of all the companies as per their audited accounts as of September, 2012 needs to be taken into consideration and from these figures, it can be said that after amalgamation, position of SGL would dramatically increase even after absorbing the so-called loss making companies. The Company Judge has observed that when entrepreneurs take commercial decisions, it is not open for the Court to judge their commercial wisdom. It is observed that when entrepreneurs take a commercial decision, their is always an element of risk and businessmen take such calculated risk after taking into consideration various facts and circumstances and pros and cons of all situations. The company Judge has further observed that it has been consistently held that the court is not expected to dissect and conduct a postmortem of such decisions which are based on business experience and commercial wisdom. The Court has to examine the scheme on well settled parameters. The Court is expected to be an umpire and is not expected to enter into arena and examine the scheme under a microscope. Whenever decisions are taken there is bound to be some kind of variation in the situation in respect of the functioning of both companies. This should not deter the Court from granting sanction to the schemes. The above observations of the learned Company Judge are based on the well settled principles laid down by the Apex Court in various cases. The contention that the schemes are unconscionable has no merit.48. The appellant lastly submitted that the proposed scheme of amalgamation is a ruse to stifle further action required to be taken by the Ministry of Corporate Affairs in terms of report dated 29/4/2011 compiled and filed by the SFIO. According to the appellant, once the present schemes are sanctioned by the Company Court, the Ministry of Corporate Affairs would refrain from initiating any action against the delinquent management of SGL as has been the case in respect of a prior amalgamation of Sesa Industries Ltd. with SGL wherein despite the damning findings against the managements of the said companies in the said SFIO report, the SFIO, in its supplementary report, had refrained from taking any action on the ground that both the said companies have been amalgamated and therefore the action that was required to be taken against the misdeeds of either of them has lost its relevance in the wake of amalgamation. Insofar as the above, contention is concerned, the said provisional SFIO report dated 29/4/2011 had not culminated into prosecution and had to go to the Central Government for approval. SGL had made representations to the Secretary, Ministry of corporate Affairs in response to the said SFIO report. The SFIO then prepared another report after considering said the representations and submissions sent by SGL to the Secretary, Ministry of Corporate Affairs, thereby explaining the stand of SGL on the allegations made in SFIOs report and denying those allegations. In the fresh report, it is stated that had these representations been there prior to the preparation of the first report, then the conclusions in that report would have been different with regard to under invoicing, over invoicing and other aspects and these conclusions would have been in favour of SGL. By letter dated 10/5/2013, the Ministry of Corporate Affairs has stated that they have advised SFIO not to file prosecution against SGL, for alleged violations. There is therefore no force in the submission of the appellant that the schemes are a ruse to stifle the further action that was required to be taken by the Ministry of Corporate Affairs, in terms of the recommendations made in the SFIO report dated 29/4/2011.49. We make it clear that though we have not referred to each and every judgment relied upon by the parties, however, we have considered the principles laid down in each of them.50. Taking over all view of the matter, we are of the considered view that all the statutory requirements were complied with. The schemes do not violate any of the provisions of the Act and also do not violate any principles of natural justice and cannot be termed as against public policy and public interest. We do not find any infirmity in the impugned Judgment. The objections have been rightly rejected by the learned Company Judge and the schemes have been sanctioned by applying the settled principles laid down by the Supreme Court. Therefore, no interference is called for. | 0[ds]In our considered opinion, there is no merit in the submission canvassed by the appellant that the said Writ Petition and the Suit have nowith the issues raised in the presentview of the above, there is force in the submission of Mr. Chagla, learned Senior Counsel, appearing on behalf of SGL that the 38.8% stake of CIL is not the subject matter of the valuation report dated 24/2/2012 prepared by joint valuers and that what has been considered is only the investment infind that there is absolutely no substance in the above objection of the appellant on alleged modification of the schemes. Insofar as, the affidavit filed before the Madras High Court, is concerned, the learned Counsel on behalf of SGL, submitted that the said undertaking given to the Court cannot be held as modification of the scheme. We agree with the learned Counsel, because, admittedly, there is no amendment moved to the Court for modification of the scheme. What is stated in the affidavit is postmerger and about taking over all liabilities post amalgamation. This point has been elaborately considered by the learned Company Judge. The learned Judge has observed that a perusal of the affidavit discloses that in order to give comfort to the Residual VAL which would become subsidiary of the amalgamated Company and to give assurance to its creditors that they would be taken care of, it was stated that after the scheme was sanctioned if the Residual VAL was not in a position to repay the debts of its creditors, in that event the said debts would be paid by the amalgamating company. Even otherwise, as pointed out by the learned Senior Counsel, as per the clause 3.3.1 of the scheme of Residual VAL, all the assets, liabilities and obligations pertaining thereto shall continue to belong to and be vested in and be managed by VAL. Clause 3.3.2 (ii) mentions that if proceedings are taken up against SGL in respect of the matters referred to in1(i) above, it shall defend the same in accordance with the advice of VAL and at the cost of VAL, and the latter shall reimburse and indemnify SGL against all liabilities and obligations incurred by SGL in respect thereof.In view of the discussion supra, the contention of the appellant that there is violation of the provisions of Section 391 of the Act inasmuch as SGL has modified the schemes with regard to CIL and that CIL is considered for valuation therefore there was modification to the proposed schemes before seeking approval of the shareholders of SGL as also before the Company Court and further that the schemes have been modified after filing the petitions before the Company Court in view of affidavit filed in Madras High Court, is without legal sanctity, and liable to be rejected.23. Further, for the same reasons as above, the contention of the appellant that since the scheme had been valued by considering the valuation of CIL and its associated debt though CIL is not part of merger, due to which the scheme is modified and therefore the joint valuation is skewed and predetermined, has no force. Similarly, the submission that since Residual VALs liabilities have been undertaken by SGL, the scheme stands modified and hence the joint valuation is skewed and predetermined, has also nodo not find anything wrong in the above observations made by the Company Court. Be that as it may, the said SFIO report could not have come in the way of amalgamation, since Company remains and the erring directors, officers, etc of SGL would be subject to the consequences that would arise from that report. During the course of arguments, the appellant had fairly conceded that the SFIO report is not relevant and does not come in the way of sanction of the schemes. Hence, there cannot be any need to file the SFIO report along with the Company Petitions for sanction of Schemes. The appellant had himself filed the report along with his reply to the Petition. According to the appellant, though the SFIO report was with him, however, the same was not with any other shareholder. As has been rightly contended by the learned Senior Counsel for SGL, the other equity shareholders had not raised any objection regarding non disclosure of SFIO report.Therefore, there is no merit in the objection raised by the appellant, regarding the alleged suppression of the SFIO report dated 29/4/2011 from the shareholders or the Company Court or about the allegedof the same by the joint valuers. Further, the contention of the appellant that the joint valuation is skewed since the valuers have not considered the alleged siphoning of more than Rs. 1,000/crores disclosed in the SFIO report dated 29/4/2012, has also no merit at all. There is also no substance in the allegation that there is violation of public policy and public interest, since alleged siphoning of huge amount was in respect of national wealth i.e. ironthe appellant cannot be heard to say that the valuation is skewed since the methodology insofar as the valuation for VAL is concerned, has been incorrectlythere is no force in the contention of the appellant that the joint valuers and the merchant bankers have been misled whilst arriving at the valuation. The valuation report cannot be held to be skewed on such ground.the present cases, it is not the case of the appellant that the valuers were notthere is nothing wrong in the observation of the learned Company Court that merely because the date 23/02/2012 has appeared in one of the documents, on the basis of that date it is not possible to arrive at the conclusion that prior to the approval given by the Board of Directors, swap ratio was already known onthe present case, instead of himself producing material in the form of valuation done by some other experts in the field of accountancy, before the Company Court, for understanding as to how the report of joint valuers was unreliable, the appellant wanted the Company Court to appoint fresh valuers at his cost in the event the Court was of the opinion that it could not go into the conclusion reached by the expert valuers. we accept the submission made by Mr. Chagla, learned Senior Counsel for SGL that swap value is for the valuers to evaluate and the same is not an exercise that the Court would embark upon. Valuation cannot be the job of Counsel for the parties or even of the Court as the same requires expertise. It is a complex technical problem which should be left to the consideration of experts in the field of accountancy. It was pointed out by learned Counsel for SGL that the petitioner is not a Chartered Accountant whereas the renowned Chartered Accountants have carried out the valuation and in addition to the said valuation there are fairness reports given by internationally acclaimed groups of Chartered Accountants in accordance with the SEBI regulations. No mala fides have been attributed against these valuers. The method of valuation is not challenged. Nothing had prevented the appellant to engage any expert valuer and to show the discrepancies. Mr. Chagla, learned Counsel, pointed out that even in the present appeals the appellant has not produced any report of the expert valuer and on the contrary the appellant is asking the Court to send the matter for fresh valuation. He further submitted that the said valuers are not here forAlmost all the same contentions on valuation and fairness opinion reports, canvassed before this Court, were raised before the Company Court which has held that the submissions are nothing but conjectures and surmises and the own opinion of the Objector (appellant) in respect of valuation and fairness report and his own analysis as to how the swap ratio which is arrived at by the valuers, is wrong. We do not find any error in the aboveis no merit in the submission of the appellant that the Company Court ought to have appointed a valuer from the panel of valuers to ascertain the correct valuations of the companies involved in the schemes of amalgamation. We do not see any reason to interfere with the valuation arrived at by the jointit is not correct to say that a false and misleading statement was made by SGL in the Explanatory Statement made to the shareholders. Therefore there is no violation of the provisions of Section 393 of the Act, on thiscontention that the schemes are unconscionable has noas the above, contention is concerned, the said provisional SFIO report dated 29/4/2011 had not culminated into prosecution and had to go to the Central Government for approval. SGL had made representations to the Secretary, Ministry of corporate Affairs in response to the said SFIO report. The SFIO then prepared another report after considering said the representations and submissions sent by SGL to the Secretary, Ministry of Corporate Affairs, thereby explaining the stand of SGL on the allegations made in SFIOs report and denying those allegations. In the fresh report, it is stated that had these representations been there prior to the preparation of the first report, then the conclusions in that report would have been different with regard to under invoicing, over invoicing and other aspects and these conclusions would have been in favour of SGL. By letter dated 10/5/2013, the Ministry of Corporate Affairs has stated that they have advised SFIO not to file prosecution against SGL, for alleged violations. There is therefore no force in the submission of the appellant that the schemes are a ruse to stifle the further action that was required to be taken by the Ministry of Corporate Affairs, in terms of the recommendations made in the SFIO report dated 29/4/2011.49. We make it clear that though we have not referred to each and every judgment relied upon by the parties, however, we have considered the principles laid down in each of them.50. Taking over all view of the matter, we are of the considered view that all the statutory requirements were complied with. The schemes do not violate any of the provisions of the Act and also do not violate any principles of natural justice and cannot be termed as against public policy and public interest. We do not find any infirmity in the impugned Judgment. The objections have been rightly rejected by the learned Company Judge and the schemes have been sanctioned by applying the settled principles laid down by the Supreme Court. Therefore, no interference is called for. | 0 | 17,334 | 1,885 | ### Instruction:
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Bachao Andolan(supra) and in paragraph 43 of the impugned judgment, paragraph 68 of the judgment in Vodafone International Holdings BV(supra). Learned Judge has observed that the judgment of the Gujarat High Court in the case of Wood Polymers Ltd.(supra) is no longer good law. The learned Company judge has held that it cannot, therefore, be said that the scheme is against the public policy. There is no ground shown to us by the appellant to differ from the findings given as above by the learned Company Judge.47. According to the appellant, the present schemes are of unconscionable nature and the interest of the minority shareholders of SGL has been completely overlooked. He pointed out that as per Clause III(12) of the memorandum of association of SGL, it is entitled to enter into arrangement and/or amalgamation with any other person/concern so as to carry out or engage in any business which would directly/indirectly be beneficial to it. He submitted that the present schemes neither directly nor indirectly benefit the interests of SGL but on the contrary they tremendously deteriorate the financial condition of SGL and turn it into a negative figure apart from inflating its debt to unmanageable levels. The contention of the learned Counsel appearing on behalf of SGL, in this regard, is that the net worth of SGL would, in fact, increase from Rs. 12,910.8 crores to Rs. 36,923.63 crores, post merger, thereby making the minority shareholders of SGL richer by three folds(100%) and hence the schemes could never be termed as unconscionable. Learned Company Judge has observed that the financial position of all the companies as per their audited accounts as of September, 2012 needs to be taken into consideration and from these figures, it can be said that after amalgamation, position of SGL would dramatically increase even after absorbing the so-called loss making companies. The Company Judge has observed that when entrepreneurs take commercial decisions, it is not open for the Court to judge their commercial wisdom. It is observed that when entrepreneurs take a commercial decision, their is always an element of risk and businessmen take such calculated risk after taking into consideration various facts and circumstances and pros and cons of all situations. The company Judge has further observed that it has been consistently held that the court is not expected to dissect and conduct a postmortem of such decisions which are based on business experience and commercial wisdom. The Court has to examine the scheme on well settled parameters. The Court is expected to be an umpire and is not expected to enter into arena and examine the scheme under a microscope. Whenever decisions are taken there is bound to be some kind of variation in the situation in respect of the functioning of both companies. This should not deter the Court from granting sanction to the schemes. The above observations of the learned Company Judge are based on the well settled principles laid down by the Apex Court in various cases. The contention that the schemes are unconscionable has no merit.48. The appellant lastly submitted that the proposed scheme of amalgamation is a ruse to stifle further action required to be taken by the Ministry of Corporate Affairs in terms of report dated 29/4/2011 compiled and filed by the SFIO. According to the appellant, once the present schemes are sanctioned by the Company Court, the Ministry of Corporate Affairs would refrain from initiating any action against the delinquent management of SGL as has been the case in respect of a prior amalgamation of Sesa Industries Ltd. with SGL wherein despite the damning findings against the managements of the said companies in the said SFIO report, the SFIO, in its supplementary report, had refrained from taking any action on the ground that both the said companies have been amalgamated and therefore the action that was required to be taken against the misdeeds of either of them has lost its relevance in the wake of amalgamation. Insofar as the above, contention is concerned, the said provisional SFIO report dated 29/4/2011 had not culminated into prosecution and had to go to the Central Government for approval. SGL had made representations to the Secretary, Ministry of corporate Affairs in response to the said SFIO report. The SFIO then prepared another report after considering said the representations and submissions sent by SGL to the Secretary, Ministry of Corporate Affairs, thereby explaining the stand of SGL on the allegations made in SFIOs report and denying those allegations. In the fresh report, it is stated that had these representations been there prior to the preparation of the first report, then the conclusions in that report would have been different with regard to under invoicing, over invoicing and other aspects and these conclusions would have been in favour of SGL. By letter dated 10/5/2013, the Ministry of Corporate Affairs has stated that they have advised SFIO not to file prosecution against SGL, for alleged violations. There is therefore no force in the submission of the appellant that the schemes are a ruse to stifle the further action that was required to be taken by the Ministry of Corporate Affairs, in terms of the recommendations made in the SFIO report dated 29/4/2011.49. We make it clear that though we have not referred to each and every judgment relied upon by the parties, however, we have considered the principles laid down in each of them.50. Taking over all view of the matter, we are of the considered view that all the statutory requirements were complied with. The schemes do not violate any of the provisions of the Act and also do not violate any principles of natural justice and cannot be termed as against public policy and public interest. We do not find any infirmity in the impugned Judgment. The objections have been rightly rejected by the learned Company Judge and the schemes have been sanctioned by applying the settled principles laid down by the Supreme Court. Therefore, no interference is called for.
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the joint valuers. Further, the contention of the appellant that the joint valuation is skewed since the valuers have not considered the alleged siphoning of more than Rs. 1,000/crores disclosed in the SFIO report dated 29/4/2012, has also no merit at all. There is also no substance in the allegation that there is violation of public policy and public interest, since alleged siphoning of huge amount was in respect of national wealth i.e. ironthe appellant cannot be heard to say that the valuation is skewed since the methodology insofar as the valuation for VAL is concerned, has been incorrectlythere is no force in the contention of the appellant that the joint valuers and the merchant bankers have been misled whilst arriving at the valuation. The valuation report cannot be held to be skewed on such ground.the present cases, it is not the case of the appellant that the valuers were notthere is nothing wrong in the observation of the learned Company Court that merely because the date 23/02/2012 has appeared in one of the documents, on the basis of that date it is not possible to arrive at the conclusion that prior to the approval given by the Board of Directors, swap ratio was already known onthe present case, instead of himself producing material in the form of valuation done by some other experts in the field of accountancy, before the Company Court, for understanding as to how the report of joint valuers was unreliable, the appellant wanted the Company Court to appoint fresh valuers at his cost in the event the Court was of the opinion that it could not go into the conclusion reached by the expert valuers. we accept the submission made by Mr. Chagla, learned Senior Counsel for SGL that swap value is for the valuers to evaluate and the same is not an exercise that the Court would embark upon. Valuation cannot be the job of Counsel for the parties or even of the Court as the same requires expertise. It is a complex technical problem which should be left to the consideration of experts in the field of accountancy. It was pointed out by learned Counsel for SGL that the petitioner is not a Chartered Accountant whereas the renowned Chartered Accountants have carried out the valuation and in addition to the said valuation there are fairness reports given by internationally acclaimed groups of Chartered Accountants in accordance with the SEBI regulations. No mala fides have been attributed against these valuers. The method of valuation is not challenged. Nothing had prevented the appellant to engage any expert valuer and to show the discrepancies. Mr. Chagla, learned Counsel, pointed out that even in the present appeals the appellant has not produced any report of the expert valuer and on the contrary the appellant is asking the Court to send the matter for fresh valuation. He further submitted that the said valuers are not here forAlmost all the same contentions on valuation and fairness opinion reports, canvassed before this Court, were raised before the Company Court which has held that the submissions are nothing but conjectures and surmises and the own opinion of the Objector (appellant) in respect of valuation and fairness report and his own analysis as to how the swap ratio which is arrived at by the valuers, is wrong. We do not find any error in the aboveis no merit in the submission of the appellant that the Company Court ought to have appointed a valuer from the panel of valuers to ascertain the correct valuations of the companies involved in the schemes of amalgamation. We do not see any reason to interfere with the valuation arrived at by the jointit is not correct to say that a false and misleading statement was made by SGL in the Explanatory Statement made to the shareholders. Therefore there is no violation of the provisions of Section 393 of the Act, on thiscontention that the schemes are unconscionable has noas the above, contention is concerned, the said provisional SFIO report dated 29/4/2011 had not culminated into prosecution and had to go to the Central Government for approval. SGL had made representations to the Secretary, Ministry of corporate Affairs in response to the said SFIO report. The SFIO then prepared another report after considering said the representations and submissions sent by SGL to the Secretary, Ministry of Corporate Affairs, thereby explaining the stand of SGL on the allegations made in SFIOs report and denying those allegations. In the fresh report, it is stated that had these representations been there prior to the preparation of the first report, then the conclusions in that report would have been different with regard to under invoicing, over invoicing and other aspects and these conclusions would have been in favour of SGL. By letter dated 10/5/2013, the Ministry of Corporate Affairs has stated that they have advised SFIO not to file prosecution against SGL, for alleged violations. There is therefore no force in the submission of the appellant that the schemes are a ruse to stifle the further action that was required to be taken by the Ministry of Corporate Affairs, in terms of the recommendations made in the SFIO report dated 29/4/2011.49. We make it clear that though we have not referred to each and every judgment relied upon by the parties, however, we have considered the principles laid down in each of them.50. Taking over all view of the matter, we are of the considered view that all the statutory requirements were complied with. The schemes do not violate any of the provisions of the Act and also do not violate any principles of natural justice and cannot be termed as against public policy and public interest. We do not find any infirmity in the impugned Judgment. The objections have been rightly rejected by the learned Company Judge and the schemes have been sanctioned by applying the settled principles laid down by the Supreme Court. Therefore, no interference is called for.
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The Registrar, Co-Operative Societies Vs. Dharam Chand & Others | considered. So far as the proceedings under the notice are concerned, the only question was whether on the facts found by the investigating auditors the managing committee should as a whole be allowed to act as such and all that the Registrar in that connection did was to decide on the facts found by the investigating auditors that the managing committee should no longer be allowed to manage the affairs of the Bank. That is a very different matter from the dispute in the present proceedings namely, whether the particular members of the managing committee against whom the application under R. 18 has been made are responsible for making good the loss caused to the Bank by the embezzlement, the fact of which is not in dispute. In the present proceedings therefore the Registrar will have to decide the individual responsibility of the various members of the managing committee (including the respondent) in the matter of making good the loss caused to the Bank. We are therefore of opinion that the fact that the Registrar gave that notice for the purpose of the removal of the managing committee is no reason to hold that he would be biased in the investigation of individual responsibility of various members of the managing committee in this matter. We cannot therefore agree with the Judicial Commissioner that there can be any official bias in the Registrar on this ground in connection with the present dispute and that such bias disentitle him to act as a judge or arbitrator under R. 18.5. The next contention is that the Registrar being the administrative head of the Department is in control of all the Co-operative Societies in Ajmer, including the Bank. It is said that because of that administrative control which the Registrar exercises through his subordinates in the Department, he is interested to see that the blame is put on the managing committee and that his Department is freed from all blame. In particular our attention has been drawn to S. 17 which enjoys that the Registrar shall audit or cause to be audited by some person authorised by him the accounts of every registered society once at least in every year. It is said that under this provision the Registrar has been appointing Chartered Accountants to audit the accounts of the Bank and that nothing wrong was discovered in the annual audits till the paid manager Nandlal absconded and the defalcations came to light. We fail to appreciate how this general supervision of the Registrar over all Co-operative Societies can be said to amount to a bias in him so as to disentitle him to act as a judge or arbitrator under R. 18. It is not the respondents case that the Registrar is in any way responsible for the day to day working of the Bank. All that he is concerned with is to see that the accounts of the Bank are audited yearly and if necessary to make inspections of the Bank, if so authorised by the Act and the Rules. That, however does not mean that the Registrar is bound to shield the auditors or his subordinates who might have made so conduct the proceedings as to put the blame on the members of the managing committee. Even if some blame attaches to the auditors appointed by the Registrar or to his subordinates who might have inspected the Bank, their fault would be that they failed to detect the embezzlement till the paid manager absconded. That however, does not mean that the Registrar was at any time a party to the fraud which resulted in the embezzlement. Even the Judicial Commissioner recognises that the Registrar has no personal interest in the matter and that he would but for the bias found by the Judicial Commissioner have been a most proper person to decide the dispute. Therefore even if we hear in mind the fact that the Registrar is the administrative head of the Department, we see nothing inherent in the situation which shows any official bias whatsoever in him so far as adjudication of this dispute in concerned. We have no reason to suppose that if any of his subordinates or the auditors appointed by him are in any way found to be connected with the fraud he would not put the responsibility where it should lie. We are therefore of opinion that the Judicial Commissioner was wrong in the view that there was anything inherent in the situation which made the Registrar a biased person who could not act as a judge or an arbitrator in this case.6. It seems to us, therefore, that the learned Judicial Commissioner was in error in thinking that the Registrar was biased. For the reasons earlier mentioned, we do not think that any such blemish attached to the Registrar. That being so no question of his inability to act as a judge under the rule of natural justice that no man shall be judged in his own cause arises. The judgment of the learned Judicial Commissioner has to be set aside on this ground alone.7. We do not wish however to be understood as having made any pronouncement that if it has been proved that the Registrar was suffering from any bias, then the present would have been a fit case for the issue of a writ of prohibition as asked by the respondent. Before the writ could be issued a further question would have to be decided whether in view of the statute that is R. 18 of the Rules framed under S. 43 of the Act. there was any scope for applying the rule of natural justice on which the contesting respondent relied. A question of this kind was mentioned in G. Nageswara Rao v. State of Andhra Pradesh 1960-1 SCR 580 at p. 587: (AIR 1959 SC 1376 at p. 1379). In the view that we have taken it is unnecessary to go into that question and we do not do so. | 1[ds]4. We are of opinion that there is no force in either of the contentions. Turning to the notice of February 26, 1955, we are of opinion that there can be no inference of bias against the Registrar as such because he gave that notice and afterwards ordered the removal of the managing committee. That notice was based on the report of the investigating auditors and was concerned with the collective responsibility of the managing committee in the discharge their duties. The proceedings under that notice have nothing in common with the proceedings in the present dispute which, as we have already said, are in the nature of misfeasance proceedings against certain members of the managing committee and in which their individual responsibility as members of the managing committee to make good the loss caused by the embezzlement falls to be considered. So far as the proceedings under the notice are concerned, the only question was whether on the facts found by the investigating auditors the managing committee should as a whole be allowed to act as such and all that the Registrar in that connection did was to decide on the facts found by the investigating auditors that the managing committee should no longer be allowed to manage the affairs of the Bank. That is a very different matter from the dispute in the present proceedings namely, whether the particular members of the managing committee against whom the application under R. 18 has been made are responsible for making good the loss caused to the Bank by the embezzlement, the fact of which is not in dispute. In the present proceedings therefore the Registrar will have to decide the individual responsibility of the various members of the managing committee (including the respondent) in the matter of making good the loss caused to the Bank. We are therefore of opinion that the fact that the Registrar gave that notice for the purpose of the removal of the managing committee is no reason to hold that he would be biased in the investigation of individual responsibility of various members of the managing committee in this matter. We cannot therefore agree with the Judicial Commissioner that there can be any official bias in the Registrar on this ground in connection with the present dispute and that such bias disentitle him to act as a judge or arbitrator under R.fail to appreciate how this general supervision of the Registrar over all Co-operative Societies can be said to amount to a bias in him so as to disentitle him to act as a judge or arbitrator under R. 18. It is not the respondents case that the Registrar is in any way responsible for the day to day working of the Bank. All that he is concerned with is to see that the accounts of the Bank are audited yearly and if necessary to make inspections of the Bank, if so authorised by the Act and the Rules. That, however does not mean that the Registrar is bound to shield the auditors or his subordinates who might have made so conduct the proceedings as to put the blame on the members of the managing committee. Even if some blame attaches to the auditors appointed by the Registrar or to his subordinates who might have inspected the Bank, their fault would be that they failed to detect the embezzlement till the paid manager absconded. That however, does not mean that the Registrar was at any time a party to the fraud which resulted in the embezzlement. Even the Judicial Commissioner recognises that the Registrar has no personal interest in the matter and that he would but for the bias found by the Judicial Commissioner have been a most proper person to decide the dispute. Therefore even if we hear in mind the fact that the Registrar is the administrative head of the Department, we see nothing inherent in the situation which shows any official bias whatsoever in him so far as adjudication of this dispute in concerned. We have no reason to suppose that if any of his subordinates or the auditors appointed by him are in any way found to be connected with the fraud he would not put the responsibility where it should lie. We are therefore of opinion that the Judicial Commissioner was wrong in the view that there was anything inherent in the situation which made the Registrar a biased person who could not act as a judge or an arbitrator in this case.6. It seems to us, therefore, that the learned Judicial Commissioner was in error in thinking that the Registrar was biased. For the reasons earlier mentioned, we do not think that any such blemish attached to the Registrar. That being so no question of his inability to act as a judge under the rule of natural justice that no man shall be judged in his own cause arises. The judgment of the learned Judicial Commissioner has to be set aside on this ground alone.7. We do not wish however to be understood as having made any pronouncement that if it has been proved that the Registrar was suffering from any bias, then the present would have been a fit case for the issue of a writ of prohibition as asked by the respondent. Before the writ could be issued a further question would have to be decided whether in view of the statute that is R. 18 of the Rules framed under S. 43 of the Act. there was any scope for applying the rule of natural justice on which the contesting respondent relied. | 1 | 2,290 | 985 | ### Instruction:
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considered. So far as the proceedings under the notice are concerned, the only question was whether on the facts found by the investigating auditors the managing committee should as a whole be allowed to act as such and all that the Registrar in that connection did was to decide on the facts found by the investigating auditors that the managing committee should no longer be allowed to manage the affairs of the Bank. That is a very different matter from the dispute in the present proceedings namely, whether the particular members of the managing committee against whom the application under R. 18 has been made are responsible for making good the loss caused to the Bank by the embezzlement, the fact of which is not in dispute. In the present proceedings therefore the Registrar will have to decide the individual responsibility of the various members of the managing committee (including the respondent) in the matter of making good the loss caused to the Bank. We are therefore of opinion that the fact that the Registrar gave that notice for the purpose of the removal of the managing committee is no reason to hold that he would be biased in the investigation of individual responsibility of various members of the managing committee in this matter. We cannot therefore agree with the Judicial Commissioner that there can be any official bias in the Registrar on this ground in connection with the present dispute and that such bias disentitle him to act as a judge or arbitrator under R. 18.5. The next contention is that the Registrar being the administrative head of the Department is in control of all the Co-operative Societies in Ajmer, including the Bank. It is said that because of that administrative control which the Registrar exercises through his subordinates in the Department, he is interested to see that the blame is put on the managing committee and that his Department is freed from all blame. In particular our attention has been drawn to S. 17 which enjoys that the Registrar shall audit or cause to be audited by some person authorised by him the accounts of every registered society once at least in every year. It is said that under this provision the Registrar has been appointing Chartered Accountants to audit the accounts of the Bank and that nothing wrong was discovered in the annual audits till the paid manager Nandlal absconded and the defalcations came to light. We fail to appreciate how this general supervision of the Registrar over all Co-operative Societies can be said to amount to a bias in him so as to disentitle him to act as a judge or arbitrator under R. 18. It is not the respondents case that the Registrar is in any way responsible for the day to day working of the Bank. All that he is concerned with is to see that the accounts of the Bank are audited yearly and if necessary to make inspections of the Bank, if so authorised by the Act and the Rules. That, however does not mean that the Registrar is bound to shield the auditors or his subordinates who might have made so conduct the proceedings as to put the blame on the members of the managing committee. Even if some blame attaches to the auditors appointed by the Registrar or to his subordinates who might have inspected the Bank, their fault would be that they failed to detect the embezzlement till the paid manager absconded. That however, does not mean that the Registrar was at any time a party to the fraud which resulted in the embezzlement. Even the Judicial Commissioner recognises that the Registrar has no personal interest in the matter and that he would but for the bias found by the Judicial Commissioner have been a most proper person to decide the dispute. Therefore even if we hear in mind the fact that the Registrar is the administrative head of the Department, we see nothing inherent in the situation which shows any official bias whatsoever in him so far as adjudication of this dispute in concerned. We have no reason to suppose that if any of his subordinates or the auditors appointed by him are in any way found to be connected with the fraud he would not put the responsibility where it should lie. We are therefore of opinion that the Judicial Commissioner was wrong in the view that there was anything inherent in the situation which made the Registrar a biased person who could not act as a judge or an arbitrator in this case.6. It seems to us, therefore, that the learned Judicial Commissioner was in error in thinking that the Registrar was biased. For the reasons earlier mentioned, we do not think that any such blemish attached to the Registrar. That being so no question of his inability to act as a judge under the rule of natural justice that no man shall be judged in his own cause arises. The judgment of the learned Judicial Commissioner has to be set aside on this ground alone.7. We do not wish however to be understood as having made any pronouncement that if it has been proved that the Registrar was suffering from any bias, then the present would have been a fit case for the issue of a writ of prohibition as asked by the respondent. Before the writ could be issued a further question would have to be decided whether in view of the statute that is R. 18 of the Rules framed under S. 43 of the Act. there was any scope for applying the rule of natural justice on which the contesting respondent relied. A question of this kind was mentioned in G. Nageswara Rao v. State of Andhra Pradesh 1960-1 SCR 580 at p. 587: (AIR 1959 SC 1376 at p. 1379). In the view that we have taken it is unnecessary to go into that question and we do not do so.
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4. We are of opinion that there is no force in either of the contentions. Turning to the notice of February 26, 1955, we are of opinion that there can be no inference of bias against the Registrar as such because he gave that notice and afterwards ordered the removal of the managing committee. That notice was based on the report of the investigating auditors and was concerned with the collective responsibility of the managing committee in the discharge their duties. The proceedings under that notice have nothing in common with the proceedings in the present dispute which, as we have already said, are in the nature of misfeasance proceedings against certain members of the managing committee and in which their individual responsibility as members of the managing committee to make good the loss caused by the embezzlement falls to be considered. So far as the proceedings under the notice are concerned, the only question was whether on the facts found by the investigating auditors the managing committee should as a whole be allowed to act as such and all that the Registrar in that connection did was to decide on the facts found by the investigating auditors that the managing committee should no longer be allowed to manage the affairs of the Bank. That is a very different matter from the dispute in the present proceedings namely, whether the particular members of the managing committee against whom the application under R. 18 has been made are responsible for making good the loss caused to the Bank by the embezzlement, the fact of which is not in dispute. In the present proceedings therefore the Registrar will have to decide the individual responsibility of the various members of the managing committee (including the respondent) in the matter of making good the loss caused to the Bank. We are therefore of opinion that the fact that the Registrar gave that notice for the purpose of the removal of the managing committee is no reason to hold that he would be biased in the investigation of individual responsibility of various members of the managing committee in this matter. We cannot therefore agree with the Judicial Commissioner that there can be any official bias in the Registrar on this ground in connection with the present dispute and that such bias disentitle him to act as a judge or arbitrator under R.fail to appreciate how this general supervision of the Registrar over all Co-operative Societies can be said to amount to a bias in him so as to disentitle him to act as a judge or arbitrator under R. 18. It is not the respondents case that the Registrar is in any way responsible for the day to day working of the Bank. All that he is concerned with is to see that the accounts of the Bank are audited yearly and if necessary to make inspections of the Bank, if so authorised by the Act and the Rules. That, however does not mean that the Registrar is bound to shield the auditors or his subordinates who might have made so conduct the proceedings as to put the blame on the members of the managing committee. Even if some blame attaches to the auditors appointed by the Registrar or to his subordinates who might have inspected the Bank, their fault would be that they failed to detect the embezzlement till the paid manager absconded. That however, does not mean that the Registrar was at any time a party to the fraud which resulted in the embezzlement. Even the Judicial Commissioner recognises that the Registrar has no personal interest in the matter and that he would but for the bias found by the Judicial Commissioner have been a most proper person to decide the dispute. Therefore even if we hear in mind the fact that the Registrar is the administrative head of the Department, we see nothing inherent in the situation which shows any official bias whatsoever in him so far as adjudication of this dispute in concerned. We have no reason to suppose that if any of his subordinates or the auditors appointed by him are in any way found to be connected with the fraud he would not put the responsibility where it should lie. We are therefore of opinion that the Judicial Commissioner was wrong in the view that there was anything inherent in the situation which made the Registrar a biased person who could not act as a judge or an arbitrator in this case.6. It seems to us, therefore, that the learned Judicial Commissioner was in error in thinking that the Registrar was biased. For the reasons earlier mentioned, we do not think that any such blemish attached to the Registrar. That being so no question of his inability to act as a judge under the rule of natural justice that no man shall be judged in his own cause arises. The judgment of the learned Judicial Commissioner has to be set aside on this ground alone.7. We do not wish however to be understood as having made any pronouncement that if it has been proved that the Registrar was suffering from any bias, then the present would have been a fit case for the issue of a writ of prohibition as asked by the respondent. Before the writ could be issued a further question would have to be decided whether in view of the statute that is R. 18 of the Rules framed under S. 43 of the Act. there was any scope for applying the rule of natural justice on which the contesting respondent relied.
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Management of all Tea Estates in Assam Vs. Indian National Trade Union Congress Dibrugarh & Others | us that the cash compensation had merged in the minimum wages fixed by the Government.10. Reliance was, however, placed upon the Report of the Minimum Wages Committee and it was contended that the Committee provided for diet of 3,000 calories for an adult male worker instead of a diet of 2,746 calories which was being enjoyed by him hithertofore. It was further contended that the diet of 2,746 calories included 5 seers of rice and if that diet of 2,746 calories was thus taken into account while fixing the minimum wage, the minimum wage included the calory value of 5 seers of rice and whatever cash compensation was being paid by the employers before that date for the cut in the rice ration from 5 seers to 3.5 seers was therefore included in the minimum wage which was recommended by the Minimum wages Committee and accepted by the Government. It was also contended that the cut in the rice ration 5 seers to 3.5 seers was offset by the provision made for the workmen in the shape of other non-cereal foodstuffs which went to make up-the revised diet of 3,000 calories and, therefore, the minimum wage recommended by the Committee and fixed by the Government was inclusive of the cash compensation which was being paid by the employers to the workmen for this cut in the rice ration and such compensation therefore merged in the minimum wage which was fixed by the Government.11. There are, however, two fallacies in this argument which was advanced by the learned counsel for the appellant before us. The one is that the very basis of the submission, viz., that the diet of 2,746 calories included the calorie value of, 5 seers of rice appears to be factually wrong. We were not supplied any figures which would go to show that the diet of 2,746 calories which was consumed by an adult male worker included 5 seers of rice and not 3.5 seers of rice which was the only ration purveyed to the worker on the basis of the All India Ration Scale. In the absence of any such figures it is impossible for us to come to the conclusion that the diet of 2,746 calories which was being consumed by an adult male worker included 5 seers of rice. If 2,746 calories had to be made up it would necessarily include besides the calorie value of 3.5 seers of rice which was the only ration obtainable by the worker, the equivalent calorie value of other non- cereal foodstuffs which would go to make up the requirements of his normal diet. All this was taken into account when the Minimum Wages Committee fixed in paragraph 14 A of its Report the quantities of foodstuffs, cereal as well as non-cereal, which would go to make up a total dietary value of 2,600 calories mentioned therein. These calculations go to show that instead of 5 seers of rice having been taken into account in fixing the minimum wages it was only 3.5 seers of rice that were taken into account and there is no basis for the submission which was made by the learned counsel for the appellant that the Committee took into consideration the 5 seers of rice which were being supplied by the employers the workmen and thus merged the cash compensation which was being given to the workmen for the cut in the rice ration in the minimum wage which it recommended.12. The other fallacy lies in this that the Report of the Minimum Wages Committee was considered by the learned counsel for the appellant as the final word on the subject. The Minimum Wages Committee was merely an advisory body and under S.5 of the Minimum Wages Act the function of the Committee was to collect materials, make enquiries and advise the Government in the matter of the fixation or revision of the minimum wages. The Government was not bound to adopt that report. It could accept it either wholly or in part or it could also modify it and in this particular case, be it noted, the notification dated the 11th March, 1952, expressly stated that the minimum wages as fixed by the Government consisted of basic wages and, dearness allowance in terms of S.4(1)(i) but as the workmen were getting essential commodities which included rice at concessional rates, such rights as also other amenities were preserved by paragraph 2 of the notification. If it was thus competent to the Government to accept only a part of the Report and substitute its own decision for such part of it as did not meet with its approval it could not be urged that the report of the Minimum Wages Committee governed the situation.Assuming Wages Committee included within its calculation of minimum wage the cash compensation which was being paid by the employers to the workmen for, the cut in rice ration, it was open to the Government nevertheless to give the go by to it and recommend that the cash compensation be paid by the employers to the workmen as hithertofore in addition to the minimum wage which was fixed by the Committee. The terms of paragraph 2 of the notification make it abundantly clear that whatever may have been at the back of the Committees mind in fixing the minimum wage the Government thought it proper that the employers should make available to the workmen, all concessions enjoyed by them in respect of the supply of foodstuffs and other essential commodities and the other amenities which they used to enjoy. The concession enjoyed by the workmen in respect of the supply of foodstuffs included the supply of 3.5 seers of rice at concession rates as also cash compensation for the non-supply of 1.5 seers of rice by reason of the All India Ration Scale. This was the concession which was being enjoyed by the workmen and that was the concession which was preserved to the workmen under paragraph 2 of the notification. | 1[ds]There is no doubt that the employers used to provide 5 seers of rice to an adult male worker at concession rates before February, 1950. When that quantum of 5 seers of rice was reduced after, February, 1950, byper week, the employers paid to their workmen cash compensation for that cut in the rice ration at the rate of 6 pies per working day. When later on 18th November, 1950, the, Government, by the notification issued the, Food Control Order, fixed the rice quota of the workmen on an All India Ration Scale at 32 seers of rice per week, there was a further cut of another seer of rice per week and the cash compensation payable by the employers to the workmen was increased and fixed at 8 as by the award of the Industrial Tribunal dated the 11th December, 1951. Even though the employers had contended before the Industrial Tribunal that the concession which had been given to the workmen in respect of the sale price of rice wasex gratiaand the workmen had no legal claim thereto, that contention was negatived by the Industrial Tribunal and it was held that the employers were under a legal obligation to pay cash compensation to the workmen for the said cut in the supply of rice. When Appeal No. Cal.27/52 taken by the employers before the Labour Appellate Tribunal was heard, the employers did not reiterate their contention that they were under no legal obligation to pay cash compensation for the rice cut and the finding of the Industrial Tribunal that the workmen had a legal right to get cash compensation for the reduction in the rice quota remained unchallenged. It is clear, therefore, that the employers were, before the 11th March, 1952, when the minimum wages were fixed by the Government of Assam, under a legal obligation to pay cash compensation to the workmen for the reduction in the rice quota.9. This was the concession which was being enjoyed by the workmen in respect of the supply of food stuffs when the minimum wages were fixed by the notification dated the 11th March, 1952. The Industrial Tribunal had already made its award in regard thereto on the 11th December, 1951, which was published in the Assam Gazette on the 2nd February, 1952, and this position was well within the knowledge of the Government of Assam when it published its notification dated the 11th March, 1952, after considering the Report of the Minimum Wages Committee. Whether this cash compensation was a concession enjoyed by the workmen in respect of the supply of foodstuffs or had been translated into an amenity as held by the Labour Appellate Tribunal in its award under appeal before us, it was saved by paragraph 2 of the notification and if the matters had stood thus, there could be no justification for the argument which was strenuously urged before us that the cash compensation had merged in the minimum wages fixed by the Government.There are, however, two fallacies in this argument which was advanced by the learned counsel for the appellant before us. The one is that the very basis of the submission, viz., that the diet of 2,746 calories included the calorie value of, 5 seers of rice appears to be factually wrong. We were not supplied any figures which would go to show that the diet of 2,746 calories which was consumed by an adult male worker included 5 seers of rice and not 3.5 seers of rice which was the only ration purveyed to the worker on the basis of the All India Ration Scale. In the absence of any such figures it is impossible for us to come to the conclusion that the diet of 2,746 calories which was being consumed by an adult male worker included 5 seers of rice. If 2,746 calories had to be made up it would necessarily include besides the calorie value of 3.5 seers of rice which was the only ration obtainable by the worker, the equivalent calorie value of other noncereal foodstuffs which would go to make up the requirements of his normal diet. All this was taken into account when the Minimum Wages Committee fixed in paragraph 14 A of its Report the quantities of foodstuffs, cereal as well aswhich would go to make up a total dietary value of 2,600 calories mentioned therein. These calculations go to show that instead of 5 seers of rice having been taken into account in fixing the minimum wages it was only 3.5 seers of rice that were taken into account and there is no basis for the submission which was made by the learned counsel for the appellant that the Committee took into consideration the 5 seers of rice which were being supplied by the employers the workmen and thus merged the cash compensation which was being given to the workmen for the cut in the rice ration in the minimum wage which it recommended.12. The other fallacy lies in this that the Report of the Minimum Wages Committee was considered by the learned counsel for the appellant as the final word on the subject. The Minimum Wages Committee was merely an advisory body and under S.5 of the Minimum Wages Act the function of the Committee was to collect materials, make enquiries and advise the Government in the matter of the fixation or revision of the minimum wages. The Government was not bound to adopt that report. It could accept it either wholly or in part or it could also modify it and in this particular case, be it noted, the notification dated the 11th March, 1952, expressly stated that the minimum wages as fixed by the Government consisted of basic wages and, dearness allowance in terms of S.4(1)(i) but as the workmen were getting essential commodities which included rice at concessional rates, such rights as also other amenities were preserved by paragraph 2 of the notification. If it was thus competent to the Government to accept only a part of the Report and substitute its own decision for such part of it as did not meet with its approval it could not be urged that the report of the Minimum Wages Committee governed the situation.Assuming Wages Committee included within its calculation of minimum wage the cash compensation which was being paid by the employers to the workmen for, the cut in rice ration, it was open to the Government nevertheless to give the go by to it and recommend that the cash compensation be paid by the employers to the workmen as hithertofore in addition to the minimum wage which was fixed by the Committee. The terms of paragraph 2 of the notification make it abundantly clear that whatever may have been at the back of the Committees mind in fixing the minimum wage the Government thought it proper that the employers should make available to the workmen, all concessions enjoyed by them in respect of the supply of foodstuffs and other essential commodities and the other amenities which they used to enjoy. The concession enjoyed by the workmen in respect of the supply of foodstuffs included the supply of 3.5 seers of rice at concession rates as also cash compensation for theof 1.5 seers of rice by reason of the All India Ration Scale. This was the concession which was being enjoyed by the workmen and that was the concession which was preserved to the workmen under paragraph 2 of the notification. | 1 | 2,954 | 1,329 | ### Instruction:
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us that the cash compensation had merged in the minimum wages fixed by the Government.10. Reliance was, however, placed upon the Report of the Minimum Wages Committee and it was contended that the Committee provided for diet of 3,000 calories for an adult male worker instead of a diet of 2,746 calories which was being enjoyed by him hithertofore. It was further contended that the diet of 2,746 calories included 5 seers of rice and if that diet of 2,746 calories was thus taken into account while fixing the minimum wage, the minimum wage included the calory value of 5 seers of rice and whatever cash compensation was being paid by the employers before that date for the cut in the rice ration from 5 seers to 3.5 seers was therefore included in the minimum wage which was recommended by the Minimum wages Committee and accepted by the Government. It was also contended that the cut in the rice ration 5 seers to 3.5 seers was offset by the provision made for the workmen in the shape of other non-cereal foodstuffs which went to make up-the revised diet of 3,000 calories and, therefore, the minimum wage recommended by the Committee and fixed by the Government was inclusive of the cash compensation which was being paid by the employers to the workmen for this cut in the rice ration and such compensation therefore merged in the minimum wage which was fixed by the Government.11. There are, however, two fallacies in this argument which was advanced by the learned counsel for the appellant before us. The one is that the very basis of the submission, viz., that the diet of 2,746 calories included the calorie value of, 5 seers of rice appears to be factually wrong. We were not supplied any figures which would go to show that the diet of 2,746 calories which was consumed by an adult male worker included 5 seers of rice and not 3.5 seers of rice which was the only ration purveyed to the worker on the basis of the All India Ration Scale. In the absence of any such figures it is impossible for us to come to the conclusion that the diet of 2,746 calories which was being consumed by an adult male worker included 5 seers of rice. If 2,746 calories had to be made up it would necessarily include besides the calorie value of 3.5 seers of rice which was the only ration obtainable by the worker, the equivalent calorie value of other non- cereal foodstuffs which would go to make up the requirements of his normal diet. All this was taken into account when the Minimum Wages Committee fixed in paragraph 14 A of its Report the quantities of foodstuffs, cereal as well as non-cereal, which would go to make up a total dietary value of 2,600 calories mentioned therein. These calculations go to show that instead of 5 seers of rice having been taken into account in fixing the minimum wages it was only 3.5 seers of rice that were taken into account and there is no basis for the submission which was made by the learned counsel for the appellant that the Committee took into consideration the 5 seers of rice which were being supplied by the employers the workmen and thus merged the cash compensation which was being given to the workmen for the cut in the rice ration in the minimum wage which it recommended.12. The other fallacy lies in this that the Report of the Minimum Wages Committee was considered by the learned counsel for the appellant as the final word on the subject. The Minimum Wages Committee was merely an advisory body and under S.5 of the Minimum Wages Act the function of the Committee was to collect materials, make enquiries and advise the Government in the matter of the fixation or revision of the minimum wages. The Government was not bound to adopt that report. It could accept it either wholly or in part or it could also modify it and in this particular case, be it noted, the notification dated the 11th March, 1952, expressly stated that the minimum wages as fixed by the Government consisted of basic wages and, dearness allowance in terms of S.4(1)(i) but as the workmen were getting essential commodities which included rice at concessional rates, such rights as also other amenities were preserved by paragraph 2 of the notification. If it was thus competent to the Government to accept only a part of the Report and substitute its own decision for such part of it as did not meet with its approval it could not be urged that the report of the Minimum Wages Committee governed the situation.Assuming Wages Committee included within its calculation of minimum wage the cash compensation which was being paid by the employers to the workmen for, the cut in rice ration, it was open to the Government nevertheless to give the go by to it and recommend that the cash compensation be paid by the employers to the workmen as hithertofore in addition to the minimum wage which was fixed by the Committee. The terms of paragraph 2 of the notification make it abundantly clear that whatever may have been at the back of the Committees mind in fixing the minimum wage the Government thought it proper that the employers should make available to the workmen, all concessions enjoyed by them in respect of the supply of foodstuffs and other essential commodities and the other amenities which they used to enjoy. The concession enjoyed by the workmen in respect of the supply of foodstuffs included the supply of 3.5 seers of rice at concession rates as also cash compensation for the non-supply of 1.5 seers of rice by reason of the All India Ration Scale. This was the concession which was being enjoyed by the workmen and that was the concession which was preserved to the workmen under paragraph 2 of the notification.
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for the rice cut and the finding of the Industrial Tribunal that the workmen had a legal right to get cash compensation for the reduction in the rice quota remained unchallenged. It is clear, therefore, that the employers were, before the 11th March, 1952, when the minimum wages were fixed by the Government of Assam, under a legal obligation to pay cash compensation to the workmen for the reduction in the rice quota.9. This was the concession which was being enjoyed by the workmen in respect of the supply of food stuffs when the minimum wages were fixed by the notification dated the 11th March, 1952. The Industrial Tribunal had already made its award in regard thereto on the 11th December, 1951, which was published in the Assam Gazette on the 2nd February, 1952, and this position was well within the knowledge of the Government of Assam when it published its notification dated the 11th March, 1952, after considering the Report of the Minimum Wages Committee. Whether this cash compensation was a concession enjoyed by the workmen in respect of the supply of foodstuffs or had been translated into an amenity as held by the Labour Appellate Tribunal in its award under appeal before us, it was saved by paragraph 2 of the notification and if the matters had stood thus, there could be no justification for the argument which was strenuously urged before us that the cash compensation had merged in the minimum wages fixed by the Government.There are, however, two fallacies in this argument which was advanced by the learned counsel for the appellant before us. The one is that the very basis of the submission, viz., that the diet of 2,746 calories included the calorie value of, 5 seers of rice appears to be factually wrong. We were not supplied any figures which would go to show that the diet of 2,746 calories which was consumed by an adult male worker included 5 seers of rice and not 3.5 seers of rice which was the only ration purveyed to the worker on the basis of the All India Ration Scale. In the absence of any such figures it is impossible for us to come to the conclusion that the diet of 2,746 calories which was being consumed by an adult male worker included 5 seers of rice. If 2,746 calories had to be made up it would necessarily include besides the calorie value of 3.5 seers of rice which was the only ration obtainable by the worker, the equivalent calorie value of other noncereal foodstuffs which would go to make up the requirements of his normal diet. All this was taken into account when the Minimum Wages Committee fixed in paragraph 14 A of its Report the quantities of foodstuffs, cereal as well aswhich would go to make up a total dietary value of 2,600 calories mentioned therein. These calculations go to show that instead of 5 seers of rice having been taken into account in fixing the minimum wages it was only 3.5 seers of rice that were taken into account and there is no basis for the submission which was made by the learned counsel for the appellant that the Committee took into consideration the 5 seers of rice which were being supplied by the employers the workmen and thus merged the cash compensation which was being given to the workmen for the cut in the rice ration in the minimum wage which it recommended.12. The other fallacy lies in this that the Report of the Minimum Wages Committee was considered by the learned counsel for the appellant as the final word on the subject. The Minimum Wages Committee was merely an advisory body and under S.5 of the Minimum Wages Act the function of the Committee was to collect materials, make enquiries and advise the Government in the matter of the fixation or revision of the minimum wages. The Government was not bound to adopt that report. It could accept it either wholly or in part or it could also modify it and in this particular case, be it noted, the notification dated the 11th March, 1952, expressly stated that the minimum wages as fixed by the Government consisted of basic wages and, dearness allowance in terms of S.4(1)(i) but as the workmen were getting essential commodities which included rice at concessional rates, such rights as also other amenities were preserved by paragraph 2 of the notification. If it was thus competent to the Government to accept only a part of the Report and substitute its own decision for such part of it as did not meet with its approval it could not be urged that the report of the Minimum Wages Committee governed the situation.Assuming Wages Committee included within its calculation of minimum wage the cash compensation which was being paid by the employers to the workmen for, the cut in rice ration, it was open to the Government nevertheless to give the go by to it and recommend that the cash compensation be paid by the employers to the workmen as hithertofore in addition to the minimum wage which was fixed by the Committee. The terms of paragraph 2 of the notification make it abundantly clear that whatever may have been at the back of the Committees mind in fixing the minimum wage the Government thought it proper that the employers should make available to the workmen, all concessions enjoyed by them in respect of the supply of foodstuffs and other essential commodities and the other amenities which they used to enjoy. The concession enjoyed by the workmen in respect of the supply of foodstuffs included the supply of 3.5 seers of rice at concession rates as also cash compensation for theof 1.5 seers of rice by reason of the All India Ration Scale. This was the concession which was being enjoyed by the workmen and that was the concession which was preserved to the workmen under paragraph 2 of the notification.
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M/S. Jethanand And Sons Vs. The State Of Uttar Pradesh | under the three contracts and filed the same in the court of the Civil Judge, Lucknow. The appellants applied for setting aside the awards alleging that the contracts were fully performed and that the dispute alleged by the State of Uttar Pradesh to have arisen out of the contracts could not arise after the contracts were fully performed and that the State could not refer those alleged disputes to arbitration. They also contended that the awards were not valid in law because on the arbitration agreements, action was not taken under S. 20 of the Arbitration Act. The Civil Judge, Lucknow, held that the disputes between the parties were properly referred to the Superintending Engineer by the State of Uttar Pradesh and that the awards were validly made. Against the orders passed by the Civil Judge, Lucknow, three appeals were preferred by the appellants to the High Court of Judicature at Allahabad.4. The High Court set aside the orders passed by the Civil Judge and remanded the cases to the Trial Judge with a direction that he do allow the appellants and if need be, the respondent to amend their pleadings, and frame all issues that arise out of the pleadings and allow the parties an opportunity to place such evidence as they desire and decided the case on such evidence. In the view of the High Court no proper notice of the filing of the awards was served upon the appellants and that they were "seriously handicapped in their reply by the course which had been adopted both by the court and the arbitrator in the conduct of the proceedings in court. On the applications filed by the appellants, the High Court granted leave to appeal to this court under Art. 133 (1) (c) of the Constitution, certifying that the cases were fit for appeal to this court.5. Counsel for the respondent has urged that the High Court was incompetent to grant certificate under Art. 133(1)(c) of the Constitution.6. The order passed by the High Court was manifestly passed in exercise of the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Under Art. 133 of the Constitution, an appeal lies to this court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that:(a) ..........................(b) ........................... Or(c) "the case is a fit one for appeal to the Supreme Court ,7. In our view, the order remanding the cases under S. 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Art. 133 of the Constitution. By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(1)(c).An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Art. 133.The High Court assumed that a certificate of fitness to appeal to this court may be issued under S. 109(1)(c) of the Code of Civil Procedure, even if the order is not final, and in support of that view, they relied upon the judgment of the Judicial Committee of the Privy Council in Abdul Rahman v. D. K. Cassim and Sons, 60 Ind App 76 : (AIR 1933 PC 58 ).But S. 109 of the Code is, now made expressly subject to Ch. IV, Part V of the Constitution and Art. 133(1)(c) which occurs in that chapter authorises the grant of a certificate by the High Court only if the order is a final order. The inconsistency between S. 109 Civil Procedure Code and Art. 133 of the Constitution has now been removed by the Code of Civil Procedure (Amendment) Act 66 of 1955. But even before the amending Act, the power under S. 109(1)(c) being expressly made subject to the Constitution, an appeal lay to this Court only against judgments, decrees and final orders.8. Again, the orders passed by the High Court did not raise any question of great public or private importance. In the view of the High Court, the applications for setting aside the awards filed by the appellants were not properly tried and therefore the cases deserved to be remanded to the court of first instance for trial de novo. The High Court granted leave to the parties to amend their pleadings; they also directed the Civil Judge to frame "all the issues that arise and allow the parties an opportunity of adducing such evidence as they desired. It was an order for trial de novo on fresh pleadings and on all issues that may arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge. The High Court was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act raised a substantial question of law. But by the direction of the High Court, this question was also left open to be tried before the Civil Judge. We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private importance justifying grant of a certificate under Art. 133(1) (c) of the Constitution. | 1[ds]7. In our view, the order remanding the cases under S. 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Art. 133 of the Constitution. By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(1)(c).An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Art. 133.Again, the orders passed by the High Court did not raise any question of great public or private importance. In the view of the High Court, the applications for setting aside the awards filed by the appellants were not properly tried and therefore the cases deserved to be remanded to the court of first instance for trial de novo. The High Court granted leave to the parties to amend their pleadings; they also directed the Civil Judge to frame "all the issues that arise and allow the parties an opportunity of adducing such evidence as they desired. It was an order for trial de novo on fresh pleadings and on all issues that may arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge. The High Court was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act raised a substantial question of law. But by the direction of the High Court, this question was also left open to be tried before the Civil Judge. We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private importance justifying grant of a certificate under Art. 133(1) (c) of the Constitution. | 1 | 1,486 | 453 | ### Instruction:
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under the three contracts and filed the same in the court of the Civil Judge, Lucknow. The appellants applied for setting aside the awards alleging that the contracts were fully performed and that the dispute alleged by the State of Uttar Pradesh to have arisen out of the contracts could not arise after the contracts were fully performed and that the State could not refer those alleged disputes to arbitration. They also contended that the awards were not valid in law because on the arbitration agreements, action was not taken under S. 20 of the Arbitration Act. The Civil Judge, Lucknow, held that the disputes between the parties were properly referred to the Superintending Engineer by the State of Uttar Pradesh and that the awards were validly made. Against the orders passed by the Civil Judge, Lucknow, three appeals were preferred by the appellants to the High Court of Judicature at Allahabad.4. The High Court set aside the orders passed by the Civil Judge and remanded the cases to the Trial Judge with a direction that he do allow the appellants and if need be, the respondent to amend their pleadings, and frame all issues that arise out of the pleadings and allow the parties an opportunity to place such evidence as they desire and decided the case on such evidence. In the view of the High Court no proper notice of the filing of the awards was served upon the appellants and that they were "seriously handicapped in their reply by the course which had been adopted both by the court and the arbitrator in the conduct of the proceedings in court. On the applications filed by the appellants, the High Court granted leave to appeal to this court under Art. 133 (1) (c) of the Constitution, certifying that the cases were fit for appeal to this court.5. Counsel for the respondent has urged that the High Court was incompetent to grant certificate under Art. 133(1)(c) of the Constitution.6. The order passed by the High Court was manifestly passed in exercise of the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Under Art. 133 of the Constitution, an appeal lies to this court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that:(a) ..........................(b) ........................... Or(c) "the case is a fit one for appeal to the Supreme Court ,7. In our view, the order remanding the cases under S. 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Art. 133 of the Constitution. By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(1)(c).An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Art. 133.The High Court assumed that a certificate of fitness to appeal to this court may be issued under S. 109(1)(c) of the Code of Civil Procedure, even if the order is not final, and in support of that view, they relied upon the judgment of the Judicial Committee of the Privy Council in Abdul Rahman v. D. K. Cassim and Sons, 60 Ind App 76 : (AIR 1933 PC 58 ).But S. 109 of the Code is, now made expressly subject to Ch. IV, Part V of the Constitution and Art. 133(1)(c) which occurs in that chapter authorises the grant of a certificate by the High Court only if the order is a final order. The inconsistency between S. 109 Civil Procedure Code and Art. 133 of the Constitution has now been removed by the Code of Civil Procedure (Amendment) Act 66 of 1955. But even before the amending Act, the power under S. 109(1)(c) being expressly made subject to the Constitution, an appeal lay to this Court only against judgments, decrees and final orders.8. Again, the orders passed by the High Court did not raise any question of great public or private importance. In the view of the High Court, the applications for setting aside the awards filed by the appellants were not properly tried and therefore the cases deserved to be remanded to the court of first instance for trial de novo. The High Court granted leave to the parties to amend their pleadings; they also directed the Civil Judge to frame "all the issues that arise and allow the parties an opportunity of adducing such evidence as they desired. It was an order for trial de novo on fresh pleadings and on all issues that may arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge. The High Court was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act raised a substantial question of law. But by the direction of the High Court, this question was also left open to be tried before the Civil Judge. We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private importance justifying grant of a certificate under Art. 133(1) (c) of the Constitution.
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7. In our view, the order remanding the cases under S. 151 of the Civil Procedure Code is not a judgment, decree or final order within the meaning of Art. 133 of the Constitution. By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(1)(c).An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Art. 133.Again, the orders passed by the High Court did not raise any question of great public or private importance. In the view of the High Court, the applications for setting aside the awards filed by the appellants were not properly tried and therefore the cases deserved to be remanded to the court of first instance for trial de novo. The High Court granted leave to the parties to amend their pleadings; they also directed the Civil Judge to frame "all the issues that arise and allow the parties an opportunity of adducing such evidence as they desired. It was an order for trial de novo on fresh pleadings and on all issues that may arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de novo be binding and the cases will have to be tried afresh by the Civil Judge. The High Court was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act raised a substantial question of law. But by the direction of the High Court, this question was also left open to be tried before the Civil Judge. We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private importance justifying grant of a certificate under Art. 133(1) (c) of the Constitution.
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K. Sashidhar Vs. Indian Overseas Bank and Ors | some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures Under Sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures Under Sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained Under Sub-section (4) of Section 13. At the same time, more importantly, we must make it clear unequivocally that communication of the reasons for not accepting the objections taken by the secured borrower may not be taken to give occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps Under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reasons of non-acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debts Recovery Tribunal as provided Under Section 17 of the Act matures on any measure having been taken Under Sub-section (4) of Section 13 of the Act.(Emphasis supplied)In the present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.63. It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases.64. As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application.65. The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel. | 0[ds]In the present case, however, our focus must be on the dispensation governing the process of approval or rejection of resolution plan by the CoC. The CoC is called upon to consider the resolution plan Under Section 30(4) of the I & B Code after it is verified and vetted by the resolution professional as being compliant with all the statutory requirements specified in Section 30(2).The CoC is constituted as per Section 21 of the I & B Code, which consists of financial creditors. The term financial creditor has been defined in Section 5(7) of the I & B Code to mean any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. Be it noted that the process of insolvency resolution and liquidation concerning corporate debtors has been codified in Part II of the I & B Code, comprising of seven Chapters. Chapter I predicates that Part II shall apply in matters relating to the insolvency and liquidation of corporate debtor where the minimum amount of default is Rs. 1,00,000/-. Section 5 in Chapter I is a dictionary Clause specific to Part II of the Code. Chapter II deals with the gamut of procedure to be followed for the corporate insolvency resolution process. For dealing with the issue on hand, the provisions contained in Chapter II will be significant. From the scheme of the provisions, it is clear that the provisions in Part II of the Code are self-contained code, providing for the procedure for consideration of the resolution plan by the CoC.According to the resolution applicant and the stakeholders supporting the concerned resolution plan in respect of the two corporate debtors, the stipulation in Section 30(4) of the I & B Code as applicable at the relevant time in October 2017 is only directory and not mandatory. This argument is founded on the expression "may" occurring in Section 30(4) of the I & B Code. This argument does not commend to us. In that, the word "may" is ascribable to the discretion of the CoC-to approve the resolution plan or not to approve the same. What is significant is the second part of the said provision, which stipulates the requisite threshold of "not less than seventy five percent of voting share of the financial creditors" to treat the resolution plan as duly approved by the CoC. That stipulation is the quintessence and made mandatory for approval of the resolution plan. Any other interpretation would result in rewriting of the provision and doing violence to the legislative intent.It was then contended that the amendment vide Insolvency and Bankruptcy Code Amendment Act, 2018 (Act No. 8 of 2018, dated 18th January, 2018) w.e.f. 23rd November, 2017 was to substitute the amended provision, which means that the amended provision stood incorporated as Section 30(4) from the commencement of I & B Code. This argument will be dealt with a little later while considering the effect of the amended provisions. For the present, we are adverting to the provisions in the I & B Code and the Regulations framed there under, as were in force in October 2017, when the CoC of the concerned corporate debtor was called upon to consider the proposed resolutiona conjoint reading of these provisions it is amply clear that the stipulation is to reckon the percent of "voting share of the financial creditors", for the purposes of determining as to whether the proposed resolution plan has been approved by the CoC or otherwise. When it comes to the method of voting and for determining the outcome of voting with regard to other subjects (other than the approval of the resolution plan), discussed in the meeting of the CoC, the same is governed by Regulation 25 as applicable in OctoberRegulations 25 and 39 must be read in light of Section 30(4) of the I & B Code, concerning the process of approval of a resolution plan. For that, the "percent of voting share of the financial creditors" approving vis-a-vis dissenting-is required to be reckoned. It is not on the basis of members present and voting as such. At any rate, the approving votes must fulfill the threshold percent of voting share of the financial creditors. Keeping this clear distinction in mind, it must follow that the resolution plan concerning the respective corporate debtors, namely, KS & PIPL and IIL, is deemed to have been rejected as it had failed to muster the approval of requisite threshold votes, of not less than 75% of voting share of the financial creditors. It is not possible to countenance any other construction or interpretation, which may run contrary to what has been noted herein before.Thus understood, no fault can be found with the NCLAT for having recorded the fact that the proposed resolution plan in respect of both the corporate debtors was approved by vote of "less than 75%" of voting share of the financial creditors or deemed to have been rejected. In that event, the inevitable corollary is to initiate liquidation process relating to the concerned corporate debtor, as per Section 33 of the I & B Code.Indeed, in terms of Section 31 of the I & B Code, the adjudicating authority (NCLT) is expected to deal with two situations. The first is when it does not receive a resolution plan Under Sub-section (6) of Section 30 or when the resolution plan has been rejected by the resolution professional for non-compliance of Section 30(2) of the I & B Code or also when the resolution plan fails to garner approval of not less than seventy five percent of voting share of the financial creditors, as the case may be; and there is no alternate plan mooted before the expiry of the statutory period. The second is when a resolution plan duly approved by the CoC by not less than 75% of voting share of the financial creditors is submitted before it by the resolution professional Under Section 30(6) of the Code, for its approval.In the present case, we are concerned with a situation where in both the resolution processes under consideration, the resolution plan failed to garner support of not less than 75% of voting share of the financial creditors. That is the first category referred to above. In such a situation, the adjudicating authority can have no other option but to initiate liquidation process in terms of Section 33 (1) of the I & B Code.As aforesaid, upon receipt of a "rejected" resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process Under Section 33(1) of the I & B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I & B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given Under Section 22 of Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I & B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject matter expressed by them after due deliberations in the CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the "commercial wisdom" of the individual financial creditors or their collective decision before the adjudicating authority. That is made non-justiciable.Whereas, the discretion of the adjudicating authority (NCLT) is circumscribed by Section 31 limited to scrutiny of the resolution plan "as approved" by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the adjudicating authority can reject the resolution plan is in reference to matters specified in Section 30(2), when the resolution plan does not conform to the stated requirements. Reverting to Section 30(2), the enquiry to be done is in respect of whether the resolution plan provides: (i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such other requirements as may be specified by the Board. The Board referred to is established Under Section 188 of the I & B Code. The powers and functions of the Board have been delineated in Section 196 of the I & B Code. None of the specified functions of the Board, directly or indirectly, pertain to regulating the manner in which the financial creditors ought to or ought not to exercise their commercial wisdom during the voting on the resolution plan Under Section 30(4) of the I & B Code. The subjective satisfaction of the financial creditors at the time of voting is bound to be a mixed baggage of variety of factors. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan Under Section 30(4) of the I & B Code.For the same reason, even the jurisdiction of the NCLAT being in continuation of the proceedings would be circumscribed in that regard and more particularly on account of Section 32 of the I & B Code, which envisages that any appeal from an order approving the resolution plan shall be in the manner and on the grounds specified in Section 61(3) of the I & B Code.On a bare reading of the provisions of the I & B Code, it would appear that the remedy of appeal Under Section 61(1) is against an "order passed by the adjudicating authority (NCLT)" - which we will assume may also pertain to recording of the fact that the proposed resolution plan has been rejected or not approved by a vote of not less than 75% of voting share of the financial creditors. Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in the NCLT or NCLAT as noticed earlier, has not made the commercial decision exercised by the CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order "approving a resolution plan" Under Section 31. First, that the approved resolution plan is in contravention of the provisions of any law for the time being in force. Second, there has been material irregularity in exercise of powers "by the resolution professional" during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds-be it Under Section 30(2) or Under Section 61(3) of the I & B Code-are regarding testing the validity of the "approved" resolution plan by the CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by the CoC in exercise of its business decision.Indubitably, the inquiry in such an appeal would be limited to the power exercisable by the resolution professional Under Section 30(2) of the I & B Code or, at best, by the adjudicating authority (NCLT) Under Section 31(2) read with 31(1) of the I & B Code. No other inquiry would be permissible. Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I & B Code, which is limited to matters "other than" enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. Thus, the prescribed authorities (NCLT/NCLAT) have been endowed with limited jurisdiction as specified in the I & B Code and not to act as a court of equity or exercise plenary powers.In our view, neither the adjudicating authority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors. The fact that substantial or majority percent of financial creditors have accorded approval to the resolution plan would be of no avail, unless the approval is by a vote of not less than 75% (after amendment of 2018 w.e.f. 06.06.2018, 66%) of voting share of the financial creditors. To put it differently, the action of liquidation process postulated in Chapter-III of the I & B Code, is avoidable, only if approval of the resolution plan is by a vote of not less than 75% (as in October, 2017) of voting share of the financial creditors. Conversely, the legislative intent is to uphold the opinion or hypothesis of the minority dissenting financial creditors. That must prevail, if it is not less than the specified percent (25% in October, 2017; and now after the amendment w.e.f. 06.06.2018, 44%). The inevitable outcome of voting by not less than requisite percent of voting share of financial creditors to disapprove the proposed resolution plan, de jure, entails in its deemed rejection.Notably, the threshold of voting share of the dissenting financial creditors for rejecting the resolution plan is way below the simple majority mark, namely not less than 25% (and even after amendment w.e.f. 06.06.2018, 44%). Thus, the scrutiny of the resolution plan is required to pass through the litmus test of not less than requisite (75% or 66% as may be applicable) of voting share-a strict regime. That means the resolution plan must appear, to not less than requisite voting share of the financial creditors, to be an overall credible plan, capable of achieving timelines specified in the Code generally, assuring successful revival of the corporate debtor and disavowing endless speculation.The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan of the concerned corporate debtor, were at pains to persuade us to take a view that voting by the dissenting financial creditors suffers from the vice of being unreasonable, irrational, unintelligible and an abuse of exercise of power. The power bestowed on the financial creditors to cast their vote Under Section 30(4) is coupled with a duty to exercise that power with utmost care, caution and reason, keeping in mind the legislative intent and the spirit of the I & B Code-fullest attempt should be made to revive the corporate debtors and not to mechanically shove them to the brink of liquidation process, which has the inevitable impact on larger public interests and the stakeholders in particular, including workers associated with the company.The argument, though attractive at the first blush, but if accepted, would require us to re-write the provisions of the I & B Code. It would also result in doing violence to the legislative intent of having consciously not stipulated that as a ground-to challenge the commercial wisdom of the minority (dissenting) financial creditors. Concededly, the process of resolution plan is necessitated in respect of corporate debtors in whom their financial creditors have lost hope of recovery and who have turned into non-performer or a chronic defaulter. The fact that the concerned corporate debtor was still able to carry on its business activities does not obligate the financial creditors to postpone the recovery of the debt due or to prolong their losses indefinitely. Be that as it may, the scope of enquiry and the grounds on which the decision of "approval" of the resolution plan by the CoC can be interfered with by the adjudicating authority (NCLT), has been set out in Section 31(1) read with Section 30(2) and by the appellate tribunal (NCLAT) Under Section 32 read with Section 61(3) of the I & B Code. No corresponding provision has been envisaged by the legislature to empower the resolution professional, the adjudicating authority (NCLT) or for that matter the appellate authority (NCLAT), to reverse the "commercial decision" of the CoC much less of the dissenting financial creditors for not supporting the proposed resolution plan. Whereas, from the legislative history there is contra indication that the commercial or business decisions of the financial creditors are not open to any judicial review by the adjudicating authority or the appellate authority.It was argued that the dissenting financial creditors have not assigned any reason for recording their dissent and therefore, their action is vitiated. As per the provisions applicable at the relevant time in October 2017, there was no requirement of recording reasons for the dissent. That requirement has been introduced by an amendment to the Regulations effected in 2018 w.e.f. 4th July, 2018. Whether that amendment is prospective or has retrospective effect is a matter which will be considered a little later.Suffice it to observe that in the I & B Code and the Regulations framed thereunder as applicable in October 2017, there was no need for the dissenting financial creditors to record reasons for disapproving or rejecting a resolution plan. Further, as aforementioned, there is no provision in the I & B Code which empowers the adjudicating authority (NCLT) to oversee the justness of the approach of the dissenting financial creditors in rejecting the proposed resolution plan or to engage in judicial review thereof. Concededly, the inquiry by the resolution professional precedes the consideration of the resolution plan by the CoC. The resolution professional is not required to express his opinion on matters within the domain of the financial creditor(s), to approve or reject the resolution plan, Under Section 30(4) of the I & B Code. At best, the Adjudicating Authority (NCLT) may cause an enquiry into the "approved" resolution plan on limited grounds referred to in Section 30(2) read with Section 31(1) of the I & B Code. It cannot make any other inquiry nor is competent to issue any direction in relation to the exercise of commercial wisdom of the financial creditors-be it for approving, rejecting or abstaining, as the case may be. Even the inquiry before the Appellate Authority (NCLAT) is limited to the grounds Under Section 61(3) of the I & B Code. It does not postulate jurisdiction to undertake scrutiny of the justness of the opinion expressed by financial creditors at the time of voting. To take any other view would enable even the minority dissenting financial creditors to question the logic or justness of the commercial opinion expressed by the majority of the financial creditors albeit by requisite percent of voting share to approve the resolution plan; and in the process authorize the adjudicating authority to reject the approved resolution plan upon accepting such a challenge. That is not the scope of jurisdiction vested in the adjudicating authority Under Section 31 of the I & B Code dealing with approval of the resolution plan.To put it differently, since none of the grounds available Under Section 30(2) or Section 61(3) of the I & B Code are attracted in the fact situation of the present case, the Adjudicating Authority (NCLT) as well as the Appellate Authority (NCLAT) had no other option but to record that the proposed resolution plan concerning the respective corporate debtor (KS & PIPL and IIL) stood rejected. Further, as no alternative resolution plan was approved by the requisite percent of voting share of the financial creditors before the expiry of the statutory period of 270 days, the inevitable sequel is to pass an order directing initiation of liquidation process against the concerned corporate debtor in the manner specified in Chapter III of the I & B Code.Suffice it to observe that the amended provision merely restates as to what the financial creditors are expected to bear in mind whilst expressing their choice during consideration of the proposal for approval of a resolution plan. No more and no less. Indubitably, the legislature has consciously not provided for a ground to challenge the justness of the "commercial decision" expressed by the financial creditors - be it to approve or reject the resolution plan. The opinion so expressed by voting is non-justiciable. Further, in the present cases, there is nothing to indicate as to which other requirements specified by the Board at the relevant time have not been fulfilled by the dissenting financial creditors. As noted earlier, the Board established Under Section 188 of the I & B Code can perform powers and functions specified in Section 196 of the I & B Code. That does not empower the Board to specify requirements for exercising commercial decisions by the financial creditors in the matters of approval of the resolution plan or liquidation process. Viewed thus, the amendment under consideration does not take the matter any further.We may not be understood to have expressed any opinion either way about the effect of the three provisos introduced by the same amendment to Section 30(4) - as to whether it would have retrospective or retroactive effect. That question does not arise for consideration in these appeals. Our discussion is restricted to the efficacy of the amendment to main provision viz., Section 30(4), whereby the above quoted words ("after considering feasibility and viability, and such other requirements as may be specified by the Board") have been inserted.The learned Counsel for the resolution applicant and other stakeholders supporting the resolution plan of the concerned creditors, next relied upon the amendment to Section 30(4) which has come into force w.e.f. 6th day of June, 2018 vide the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 (No. 8 of 2018). Vide Section 23(iii)(a) of the said amendment Act, the word "seventy-five" in Sub-section (4) of Section 30 has been substituted by the word "sixty-six". Taking clue from this amendment, it was argued that since the amendment substitutes the threshold requirement of 75% to 66% and since the same has been brought into force when appeals were pending, the NCLAT was obliged to consider its effect on the present cases. Further, being substitution, it must be assumed that the amended provision was always there from the beginning of the Code.We are not impressed by this submission. In our opinion, by this amendment, a new norm and qualifying standard for approval of a resolution plan has been introduced. That cannot be treated as a declaratory/clarificatory or stricto sensu procedural matter as such. Whereas, the stated Amendment Act makes it expressly clear that it shall be deemed to have come into force on the 6th day of June, 2018. Thus, by mere use of expression "substituted" in Section 23(iii) (a) of the Amendment Act of 2018, it would not make the provision retrospective in operation or having retroactive effect. This interpretation is reinforced by the fact that there is no indication in the Amendment Act of 2018 that the legislature intended to undo and/or govern the decisions already taken by the CoC of the concerned corporate debtors prior to 6-06-2018.Significantly, the report mentions that the empirical record suggests that the apprehension regarding companies are being put into liquidation by minority creditors is premature and further that the objective of the Code is to respect the commercial wisdom of the CoC. As aforesaid, the amendment of 2018 cannot be considered as clarificatory but it envisages a new norm of threshold for considering the decision of the CoC as approval of the resolution plan. The Amendment Act of 2018 having come into force w.e.f. 6th day of June, 2018, therefore, will have prospective application and apply only to the decisions of CoC taken on or after that date concerning the approval of resolution plan.In the present case, however, the amendment under consideration pertaining to Section 30(4), is to modify the voting share threshold for decisions of the CoC and cannot be treated as clarificatory in nature. It changes the qualifying standards for reckoning the decision of the CoC concerning the process of approval of a resolution plan. The rights/obligations crystallized between the parties and, in particular, the dissenting financial creditors in October 2017, in terms of the governing provisions can be divested or undone only by a law made in that behalf by the legislature. There is no indication either in the report of the Committee or in the Amendment Act of 2018 that the legislature intended to undo the decisions of the CoC already taken prior to 6th day of June, 2018. It is not possible to fathom how the provisions of the amendment Act 2018, reducing the threshold percent of voting share can be perceived as declaratory or clarificatory in nature. In such a situation, the NCLAT could not have examined the case on the basis of the amended provision. For the same reason, the NCLT could not have adopted a different approach in these matters. Hence, no fault can be found with the impugned decision of the NCLAT.In our view, no other contention raised to support the resolution plan of the concerned corporate debtors would be of any avail. Even so, we may advert to the argument regarding the effect of amendment of Regulation 39 which has come into force with effect from 4th July, 2018. Prior to that amendment, Regulation 39(3) merely provided that the Committee may approve any resolution plan with such modifications as it deems fit.In the first place, amendment to Regulation cannot have retrospective effect so as to impact the decision of the CoC of the concerned corporate debtor - taken before the amendment of the said Regulation. There is no indication in the Code as amended or the Regulations to suggest that as a consequence of this amendment the decisions already taken by the concerned CoC prior to 3rd July, 2018 be treated as deemed to have been vitiated or for that matter, necessitating reversion of the proposal to CoC for recording reasons, that too beyond the statutory period of 270 days. A new life cannot be infused in the resolution plan which did not fructify within the statutory period, by such circuitous route.Assuming that this provision was applicable to the cases on hand, non-recording of reasons for approving or rejecting the resolution plan by the concerned financial creditor during the voting in the meeting of CoC, would not render the final collective decision of CoC nullity per se. Concededly, if the objection to the resolution plan is on account of infraction of ground(s) specified in Sections 30(2) and 61(3), that must be specifically and expressly raised at the relevant time. For, the approval of the resolution plan by the CoC can be challenged on those grounds. However, if the opposition to the proposed resolution plan is purely a commercial or business decision, the same, being non-justiciable, is not open to challenge before the Adjudicating Authority (NCLT) or for that matter the Appellate Authority (NCLAT). If so, non-recording of any reason for taking such commercial decision will be of no avail. In the present case, admittedly, the dissenting financial creditors have rejected the resolution plan in exercise of business/commercial decision and not because of non-compliance of the grounds specified in Section 30(2) or Section 61(3), as such. Resultantly, the amended Regulation pressed into service, will be of no avail.Relying on the dictum in Mardia Chemicals (supra), in particular paragraph 45, it was argued that even in regard to the option exercisable by the financial creditors Under Section 30(4), the requirement of giving reasons for approval or disapproval of the proposed resolution plan must be read into it. In that case, the Court had considered the mechanism specified in Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which provided for giving a notice to the borrower and upon receipt of such notice the borrower could raise objections as to why the proposed action of the secured creditor was uncalledthe present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases.As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application.The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel. | 0 | 23,231 | 6,192 | ### Instruction:
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some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures Under Sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures Under Sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained Under Sub-section (4) of Section 13. At the same time, more importantly, we must make it clear unequivocally that communication of the reasons for not accepting the objections taken by the secured borrower may not be taken to give occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps Under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reasons of non-acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debts Recovery Tribunal as provided Under Section 17 of the Act matures on any measure having been taken Under Sub-section (4) of Section 13 of the Act.(Emphasis supplied)In the present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.63. It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases.64. As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application.65. The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel.
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first place, amendment to Regulation cannot have retrospective effect so as to impact the decision of the CoC of the concerned corporate debtor - taken before the amendment of the said Regulation. There is no indication in the Code as amended or the Regulations to suggest that as a consequence of this amendment the decisions already taken by the concerned CoC prior to 3rd July, 2018 be treated as deemed to have been vitiated or for that matter, necessitating reversion of the proposal to CoC for recording reasons, that too beyond the statutory period of 270 days. A new life cannot be infused in the resolution plan which did not fructify within the statutory period, by such circuitous route.Assuming that this provision was applicable to the cases on hand, non-recording of reasons for approving or rejecting the resolution plan by the concerned financial creditor during the voting in the meeting of CoC, would not render the final collective decision of CoC nullity per se. Concededly, if the objection to the resolution plan is on account of infraction of ground(s) specified in Sections 30(2) and 61(3), that must be specifically and expressly raised at the relevant time. For, the approval of the resolution plan by the CoC can be challenged on those grounds. However, if the opposition to the proposed resolution plan is purely a commercial or business decision, the same, being non-justiciable, is not open to challenge before the Adjudicating Authority (NCLT) or for that matter the Appellate Authority (NCLAT). If so, non-recording of any reason for taking such commercial decision will be of no avail. In the present case, admittedly, the dissenting financial creditors have rejected the resolution plan in exercise of business/commercial decision and not because of non-compliance of the grounds specified in Section 30(2) or Section 61(3), as such. Resultantly, the amended Regulation pressed into service, will be of no avail.Relying on the dictum in Mardia Chemicals (supra), in particular paragraph 45, it was argued that even in regard to the option exercisable by the financial creditors Under Section 30(4), the requirement of giving reasons for approval or disapproval of the proposed resolution plan must be read into it. In that case, the Court had considered the mechanism specified in Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which provided for giving a notice to the borrower and upon receipt of such notice the borrower could raise objections as to why the proposed action of the secured creditor was uncalledthe present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases.As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application.The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel.
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Additional District & Sessions Judge 'X' Vs. Registrar General, High Court of Madhya Pradesh & Others | attempts were made by the petitioner to meet the Chief Justice of the High Court, and whether he declined such attempts. In the above view of the matter, we are of the considered view, that it may not be appropriate, in the facts and circumstances of the present case, to associate the Chief Justice of the High Court with the investigative process. It is not as if, there is any lack of faith, in the Chief Justice of the High Court. It is also not as if, there is any doubt in our mind, about the righteousness of the Chief Justice of the High Court. The issue is that of propriety. To the credit of the Chief Justice of the High Court, we may also observe, that he may have adopted the present procedure, just for the reasons indicated above, namely, to keep himself out of the fact finding process, so as to arrive at a fair and just decision. But that is inconsequential. We are accordingly further satisfied in concluding, that following the in-house procedure strictly by associating the Chief Justice of the concerned High Court, would not serve the contemplated purpose, insofar as the present controversy is concerned. 44. We have concluded hereinabove, that it is no longer viable, to strictly follow the in-house procedure contemplated for sitting judges of the High Court de novo. That however, does not mean, that it is no longer possible to determine the veracity of the allegations levelled by the petitioner. What procedure must be followed in the facts and circumstances of the present case, will have to be determined by the Chief Justice of India. We therefore, leave it to the Chief Justice of India, to take a fresh call on the matter. All that needs to be done is, that the role assigned to the Chief Justice of the concerned High Court, in the first stage of the in-house procedure, will now have to be assigned to some one other than the Chief Justice of the concerned High Court. In taking a decision on the matter, the Chief Justice of India may assign the above role to a Chief Justice, of some other High Court. Or alternatively, he may himself assume the said role. The assumption of the role by the Chief Justice of India himself, would not be unrealistic, as the said role is vested with the Chief Justice of India, under the in-house procedure, with reference to complaints received against Chief Justices of High Courts. 45. In view of the consideration and the findings recorded hereinabove, we may record our general conclusions as under: (i) The in-house procedure framed by this Court, consequent upon the decision rendered in C. Ravichandran Iyers case (supra) can be adopted, to examine allegations levelled against Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India. (ii) The investigative process under the in-house procedure takes into consideration the rights of the complainant, and that of the concerned judge, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution. (iii) Even though the said procedure, should ordinarily be followed in letter and spirit, the Chief Justice of India, would have the authority to mould the same, in the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias. (iv) In view of the importance of the in-house procedure, it is essential to bring it into public domain. The Registry of the Supreme Court of India, is accordingly directed, to place the same on the official website of the Supreme Court of India. 46. In the facts and circumstances of the present case, our conclusions are as under: With reference to the in-house procedure pertaining to a judge of a High Court, the limited authority of the Chief Justice of the concerned High Court, is to determine whether or not a deeper probe is required. The said determination is a part of stage-one (comprising of the first three steps) of the in-house procedure (elucidated in paragraph 37, hereinabove). The Chief Justice of the High Court, in the present case, traveled beyond the determinative authority vested in him, under stage-one of the in-house procedure. The Chief Justice of the High Court, by constituting a two-Judge Committee, commenced an in-depth probe, into the allegations levelled by the petitioner. The procedure adopted by the Chief Justice of the High Court, forms a part of the second stage (contemplated under steps four to seven -elucidated in paragraph 37, hereinabove). The second stage of the in-house procedure is to be carried out, under the authority of the Chief Justice of India. The Chief Justice of the High Court by constituting a two-Judge Committee clearly traversed beyond his jurisdictional authority, under the in-house procedure. In order to ensure, that the investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself. The Chief Justice of the High Court is accordingly directed to divest respondent no.3 - Justice A, of the administrative and supervisory control vested in him, to the extent expressed above. The Chief Justice of the High Court, having assumed a firm position, in respect of certain facts contained in the complaint filed by the petitioner, ought not to be associated with the in-house procedure in the present case. In the above view of the matter, the Chief Justice of India may reinitiate the investigative process, under the in-house procedure, by vesting the authority required to be discharged by the Chief Justice of the concerned High Court, to a Chief Justice of some other High Court, or alternatively, the Chief Justice of India may himself assume the said role. | 1[ds]34. We have given our thoughtful consideration to the main contention advanced at the hands of the learned counsel for the petitioner. In the process of examining the, we have had the occasion to appreciate the invaluable contribution made by three Judges of this Court, two of whom adorned this Court as Chief Justices, and two Chief Justices of High Courts, one of whom was later elevated as a Judge of this Court. The, did not overlook any relevant aspect. The sensitivity of the matter was kept in mind. The individual integrity of the parties was taken care of. The parties concerned were assured, that all efforts would be made to unravel the truth. The procedure devised ensured the preservation of institutional reputation, as well. In dealing with complaints made against sitting judges of High Courts, the onus of recording a prima facie view, was vested with the Chief Justice of the concerned High Court. Participation in the investigative process, at the hands of any other judge of the same High Court, was sought to be excluded. The exclusion of judges of the same Court from the investigative process, was also well thought out. In certain situations it may be true, as pointed out by the learned counsel for the petitioner, that judges of the same Court being colleagues of the concerned judge, would endeavour to exculpate him from his predicament. It is not as if, the position could not be otherwise. Animosity amongst colleagues is not unknown. Reasons of competitiveness, jealousy and the like are known amongst colleague judges, specially from the same High Court. By excluding judges of the concerned High Court (as the judge complained against), is bound to be beneficial, in both the situations, referred to above. The Chief Justice of the High Court, being a Judge from another State, would be shorn of any such prejudices. Moreover, being a man on the spot, he would be most suited for the purpose35. A perusal of theapplicable to sitting judges of High Courts reveals, that the same is compartmentalized into two stages. Through the first stage, the prima facie veracity of the allegations, contained in the complaint is ascertained. If so, whether a deeper probe is called for. The first stage does not contemplate an in-depth examination of the allegations. It requires merely an assessment based on the contents of the complaint, and the response of the concerned judge. All that the Chief Justice of the High Court is required to do, is to determine whether a deeper probe is required. This is to be done, on the basis of a logical assessment made on a consideration of the response of the concerned Judge (with reference to the allegations levelled in the complaint)38. It is apparent from the, for sitting High Court Judges, that the role of the Chief Justice of the High Court, is limited to the first three steps. We are satisfied, that the main contention advanced by the learned counsel for the petitioner, relying on theis fully justified. There can be no doubt, that it was not open to the Chief Justice of the High Court, either to constitute the, or to require the, to hold an inquiry into the matter, by recording statements of witnesses. The role of the Chief Justice of the High Court, being limited to the first stage of the investigative process, during which the only determination is, whether a prima facie case is made out requiring a deeper probe; the Chief Justice of the High Court had exceeded the authority vested in him under the. It is only in the second stage of the investigative process, that the Chief Justice of India, is to constitute afor holding a deeper probe, into the allegations levelled in the complaint. Learned counsel for the petitioner, was fully justified, in submitting, that theconstituted by the Chief Justice of the High Court, was beyond the purview of the39. Having examined the facts and circumstances of the case, we are of the view, that by not strictly abiding by the procedure contemplated under theevolved by this Court, the Chief Justice of the High Court, introduced serious infirmities in the investigative process. These infirmities were of the nature which were sought to be consciously avoided under the. We may mention a few. It is apparent, that thecontemplated an independent holistic two-stage process. We have described hereinabove, that the first stage comprises of steps one to three. The first stage is limited to a prima facie consideration, at the hands of the Chief Justice of the High Court, for determining whether a deeper probe into the matter was required43. It is essential for us to record a finding even on the last contention advanced at the hands of the learned counsel. We say so, because according to the learned counsel for the petitioner, it would not be proper, in the facts and circumstances of this case, to reinitiate the process expressed in the, through the Chief Justice of the High Court. It seems to us, that there is merit in the instant contention. Undoubtedly, the Chief Justice of the High Court has adopted a position, in respect of some aspects of the matter, contrary to the position asserted by the petitioner. Truthfully, even though these facts do not have any direct bearing on the allegations levelled against respondent no. 3, yet when examined dispassionately, the fact of the matter is that the Chief Justice of the High Court, personally perceived certain facts differently. These facts are personal to the Chief Justice of the High Court, namely, whether attempts were made by the petitioner to meet the Chief Justice of the High Court, and whether he declined such attempts. In the above view of the matter, we are of the considered view, that it may not be appropriate, in the facts and circumstances of the present case, to associate the Chief Justice of the High Court with the investigative process. It is not as if, there is any lack of faith, in the Chief Justice of the High Court. It is also not as if, there is any doubt in our mind, about the righteousness of the Chief Justice of the High Court. The issue is that of propriety. To the credit of the Chief Justice of the High Court, we may also observe, that he may have adopted the present procedure, just for the reasons indicated above, namely, to keep himself out of the fact finding process, so as to arrive at a fair and just decision. But that is inconsequential. We are accordingly further satisfied in concluding, that following thestrictly by associating the Chief Justice of the concerned High Court, would not serve the contemplated purpose, insofar as the present controversy is concerned45. In view of the consideration and the findings recorded hereinabove, we may record our general conclusions as under:framed by this Court, consequent upon the decision rendered in C. Ravichandran Iyers case (supra) can be adopted, to examine allegations levelled against Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India(ii) The investigative process under thetakes into consideration the rights of the complainant, and that of the concerned judge, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution(iii) Even though the said procedure, should ordinarily be followed in letter and spirit, the Chief Justice of India, would have the authority to mould the same, in the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias(iv) In view of the importance of the, it is essential to bring it into public domain. The Registry of the Supreme Court of India, is accordingly directed, to place the same on the official website of the Supreme Court of India46. In the facts and circumstances of the present case, our conclusions are as under:pertaining to a judge of a High Court, the limited authority of the Chief Justice of the concerned High Court, is to determine whether or not a deeper probe is required. The said determination is a part of stage-one (comprising of the first three steps) of the(elucidated in paragraph 37, hereinabove). The Chief Justice of the High Court, in the present case, traveled beyond the determinative authority vested in him, under stage-one of theThe Chief Justice of the High Court, by constituting a, commenced an in-depth probe, into the allegations levelled by the petitioner. The procedure adopted by the Chief Justice of the High Court, forms a part of the second stage (contemplated under steps four to seven -elucidated in paragraph 37, hereinabove). The second stage of theis to be carried out, under the authority of the Chief Justice of India. The Chief Justice of the High Court by constituting aclearly traversed beyond his jurisdictional authority, under theIn order to ensure, that the investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself. The Chief Justice of the High Court is accordingly directed to divest respondent no.3 - Justice A, of the administrative and supervisory control vested in him, to the extent expressed aboveThe Chief Justice of the High Court, having assumed a firm position, in respect of certain facts contained in the complaint filed by the petitioner, ought not to be associated with thein the present case. In the above view of the matter, the Chief Justice of India may reinitiate the investigative process, under the, by vesting the authority required to be discharged by the Chief Justice of the concerned High Court, to a Chief Justice of some other High Court, or alternatively, the Chief Justice of India may himself assume the said role | 1 | 20,705 | 1,901 | ### Instruction:
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attempts were made by the petitioner to meet the Chief Justice of the High Court, and whether he declined such attempts. In the above view of the matter, we are of the considered view, that it may not be appropriate, in the facts and circumstances of the present case, to associate the Chief Justice of the High Court with the investigative process. It is not as if, there is any lack of faith, in the Chief Justice of the High Court. It is also not as if, there is any doubt in our mind, about the righteousness of the Chief Justice of the High Court. The issue is that of propriety. To the credit of the Chief Justice of the High Court, we may also observe, that he may have adopted the present procedure, just for the reasons indicated above, namely, to keep himself out of the fact finding process, so as to arrive at a fair and just decision. But that is inconsequential. We are accordingly further satisfied in concluding, that following the in-house procedure strictly by associating the Chief Justice of the concerned High Court, would not serve the contemplated purpose, insofar as the present controversy is concerned. 44. We have concluded hereinabove, that it is no longer viable, to strictly follow the in-house procedure contemplated for sitting judges of the High Court de novo. That however, does not mean, that it is no longer possible to determine the veracity of the allegations levelled by the petitioner. What procedure must be followed in the facts and circumstances of the present case, will have to be determined by the Chief Justice of India. We therefore, leave it to the Chief Justice of India, to take a fresh call on the matter. All that needs to be done is, that the role assigned to the Chief Justice of the concerned High Court, in the first stage of the in-house procedure, will now have to be assigned to some one other than the Chief Justice of the concerned High Court. In taking a decision on the matter, the Chief Justice of India may assign the above role to a Chief Justice, of some other High Court. Or alternatively, he may himself assume the said role. The assumption of the role by the Chief Justice of India himself, would not be unrealistic, as the said role is vested with the Chief Justice of India, under the in-house procedure, with reference to complaints received against Chief Justices of High Courts. 45. In view of the consideration and the findings recorded hereinabove, we may record our general conclusions as under: (i) The in-house procedure framed by this Court, consequent upon the decision rendered in C. Ravichandran Iyers case (supra) can be adopted, to examine allegations levelled against Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India. (ii) The investigative process under the in-house procedure takes into consideration the rights of the complainant, and that of the concerned judge, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution. (iii) Even though the said procedure, should ordinarily be followed in letter and spirit, the Chief Justice of India, would have the authority to mould the same, in the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias. (iv) In view of the importance of the in-house procedure, it is essential to bring it into public domain. The Registry of the Supreme Court of India, is accordingly directed, to place the same on the official website of the Supreme Court of India. 46. In the facts and circumstances of the present case, our conclusions are as under: With reference to the in-house procedure pertaining to a judge of a High Court, the limited authority of the Chief Justice of the concerned High Court, is to determine whether or not a deeper probe is required. The said determination is a part of stage-one (comprising of the first three steps) of the in-house procedure (elucidated in paragraph 37, hereinabove). The Chief Justice of the High Court, in the present case, traveled beyond the determinative authority vested in him, under stage-one of the in-house procedure. The Chief Justice of the High Court, by constituting a two-Judge Committee, commenced an in-depth probe, into the allegations levelled by the petitioner. The procedure adopted by the Chief Justice of the High Court, forms a part of the second stage (contemplated under steps four to seven -elucidated in paragraph 37, hereinabove). The second stage of the in-house procedure is to be carried out, under the authority of the Chief Justice of India. The Chief Justice of the High Court by constituting a two-Judge Committee clearly traversed beyond his jurisdictional authority, under the in-house procedure. In order to ensure, that the investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself. The Chief Justice of the High Court is accordingly directed to divest respondent no.3 - Justice A, of the administrative and supervisory control vested in him, to the extent expressed above. The Chief Justice of the High Court, having assumed a firm position, in respect of certain facts contained in the complaint filed by the petitioner, ought not to be associated with the in-house procedure in the present case. In the above view of the matter, the Chief Justice of India may reinitiate the investigative process, under the in-house procedure, by vesting the authority required to be discharged by the Chief Justice of the concerned High Court, to a Chief Justice of some other High Court, or alternatively, the Chief Justice of India may himself assume the said role.
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of the view, that by not strictly abiding by the procedure contemplated under theevolved by this Court, the Chief Justice of the High Court, introduced serious infirmities in the investigative process. These infirmities were of the nature which were sought to be consciously avoided under the. We may mention a few. It is apparent, that thecontemplated an independent holistic two-stage process. We have described hereinabove, that the first stage comprises of steps one to three. The first stage is limited to a prima facie consideration, at the hands of the Chief Justice of the High Court, for determining whether a deeper probe into the matter was required43. It is essential for us to record a finding even on the last contention advanced at the hands of the learned counsel. We say so, because according to the learned counsel for the petitioner, it would not be proper, in the facts and circumstances of this case, to reinitiate the process expressed in the, through the Chief Justice of the High Court. It seems to us, that there is merit in the instant contention. Undoubtedly, the Chief Justice of the High Court has adopted a position, in respect of some aspects of the matter, contrary to the position asserted by the petitioner. Truthfully, even though these facts do not have any direct bearing on the allegations levelled against respondent no. 3, yet when examined dispassionately, the fact of the matter is that the Chief Justice of the High Court, personally perceived certain facts differently. These facts are personal to the Chief Justice of the High Court, namely, whether attempts were made by the petitioner to meet the Chief Justice of the High Court, and whether he declined such attempts. In the above view of the matter, we are of the considered view, that it may not be appropriate, in the facts and circumstances of the present case, to associate the Chief Justice of the High Court with the investigative process. It is not as if, there is any lack of faith, in the Chief Justice of the High Court. It is also not as if, there is any doubt in our mind, about the righteousness of the Chief Justice of the High Court. The issue is that of propriety. To the credit of the Chief Justice of the High Court, we may also observe, that he may have adopted the present procedure, just for the reasons indicated above, namely, to keep himself out of the fact finding process, so as to arrive at a fair and just decision. But that is inconsequential. We are accordingly further satisfied in concluding, that following thestrictly by associating the Chief Justice of the concerned High Court, would not serve the contemplated purpose, insofar as the present controversy is concerned45. In view of the consideration and the findings recorded hereinabove, we may record our general conclusions as under:framed by this Court, consequent upon the decision rendered in C. Ravichandran Iyers case (supra) can be adopted, to examine allegations levelled against Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India(ii) The investigative process under thetakes into consideration the rights of the complainant, and that of the concerned judge, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution(iii) Even though the said procedure, should ordinarily be followed in letter and spirit, the Chief Justice of India, would have the authority to mould the same, in the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias(iv) In view of the importance of the, it is essential to bring it into public domain. The Registry of the Supreme Court of India, is accordingly directed, to place the same on the official website of the Supreme Court of India46. In the facts and circumstances of the present case, our conclusions are as under:pertaining to a judge of a High Court, the limited authority of the Chief Justice of the concerned High Court, is to determine whether or not a deeper probe is required. The said determination is a part of stage-one (comprising of the first three steps) of the(elucidated in paragraph 37, hereinabove). The Chief Justice of the High Court, in the present case, traveled beyond the determinative authority vested in him, under stage-one of theThe Chief Justice of the High Court, by constituting a, commenced an in-depth probe, into the allegations levelled by the petitioner. The procedure adopted by the Chief Justice of the High Court, forms a part of the second stage (contemplated under steps four to seven -elucidated in paragraph 37, hereinabove). The second stage of theis to be carried out, under the authority of the Chief Justice of India. The Chief Justice of the High Court by constituting aclearly traversed beyond his jurisdictional authority, under theIn order to ensure, that the investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself. The Chief Justice of the High Court is accordingly directed to divest respondent no.3 - Justice A, of the administrative and supervisory control vested in him, to the extent expressed aboveThe Chief Justice of the High Court, having assumed a firm position, in respect of certain facts contained in the complaint filed by the petitioner, ought not to be associated with thein the present case. In the above view of the matter, the Chief Justice of India may reinitiate the investigative process, under the, by vesting the authority required to be discharged by the Chief Justice of the concerned High Court, to a Chief Justice of some other High Court, or alternatively, the Chief Justice of India may himself assume the said role
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HAMMAD AHMED Vs. ABDUL MAJEED | Bench reported as The Secretary of State for India in Council vs. Syed Ahmad Badsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.) . The Full Bench was examining the applicability of principle of res judicata in view of findings recorded in an earlier suit. It was held by the Full Bench that decision in the previous suit is not conclusive but is only evidence and it is open to the plaintiff to establish his title as against the Government. Consequent to the opinion of the Full Bench, the appeal was taken up for hearing on 09.05.1921. It was consequent to the opinion of the Full Bench; the appeal was taken up for hearing on 09.05.1921. 53. The Division Bench held that plaintiff has proved that he is lawful successor by heredity right as the office cannot be enjoyed by several heirs in common, therefore, succession must be by lineal primogeniture. The said order does not support the argument raised by the respondent as it is not a single heir who is holder of the office. In fact, the Wakif Mutawalli has constituted a Board of five Mutawallis. Therefore, it is a body of Mutawallis which has been vested with the right of management of Hamdard and senior most male descendant amongst them contemplated to be Chief Mutawalli. 54. The argument that there is delay and laches on the part of the Appellant to dispute the existing mechanism of the management is again not tenable. The entire argument is based upon the constitution of the Board on 04.07.1995. Mere failure to dispute the constitution of Board would not mean that the 1948 Deed or 1973 Deed is rendered otiose. The constitution of the Board by the Wakif Mutawalli is in relation to the requirements of the Hamdard to carry out the functions of the Board but that does not rewrite the Rule of Succession contemplated after amendments in 1948 Deed in the year 1973. 55. The argument that the Appellant is involved in criminal cases is again not relevant at this stage. 1973 Deed provided for disqualification of conviction in criminal case involving moral turpitude. None of the criminal prosecution launched against the Appellant have ended up in conviction, therefore, there is no disqualification attached to the Appellant at this stage. 56. The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case (supra). It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given. 57. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. In Deoraj vs. State of Maharashtra and Others (2004) 4 SCC 697 , this Court held that Court would grant such an interim relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Therefore, in appropriate case, ad-interim injunction in mandatory form can be granted. The Court held as under:- ?12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.? 58. The argument that under Order XXXIX Rules 1 and 2 of the Code, the Court has the jurisdiction to maintain the status of the parties on the date of filing of the suit or on the date of passing of the order but cannot direct the parties to do something which was not in existence at the time of filing of the suit, is not a general rule of universal application. The nature of the orders claimed by the Appellant are not passed ordinarily in a routine manner as the Plaintiff is required to have a case which should be of higher standard than mere prima facie case. But in view of the agreement between the parties, as recorded by the Division Bench in an earlier round of litigation the primary question was agreed to be that who is to act as Chief Mutawalli. Both learned Single Judge and the Division Bench has examined such question only. Even, before this Court, the parties have argued primarily on the question as to who shall be Chief Mutawalli. Therefore, a prima-facie opinion would lead to consequential order in respect of management of the affairs of the Hamdard. | 1[ds]37. We find that the order of Division Bench cannot be sustained.Thus, the nature of Hamdard was settled that it is not Wakf as is defined in the Wakf Act,1995 and that the property, movable and immovable, belonging to it would be deemed to be vested in its governing body.We do not find any merit in the argument that the consent of the parties in an appeal against an interim order passed on an application under Order XXXIX Rules 1 and 2 of the Code related to issues which are required to be framed after completion of the pleadings in a suit. The appeal was directed against interim injunction, therefore, the expression ?issue? used in para 3 of the consent order is not the issues in the suit, but the questions which arise for consideration at the ad-interim stage. The parties have agreed that the question of considerable importance relates to the appointment of Chief Mutawalli at the time of consideration of an interim application. Both the courts have examined the Deeds to consider as to whether the Appellant can be said to be Chief Mutawalli.The learned Single Judge held that the Appellant is a Chief Mutawalli by interpreting the Wakf Deed, whereas, the Division Bench has taken a different view. In fact, the Division Bench relied upon A. Aruputham case (supra) which was in respect of a construction of a Will relating to vesting of the estate of the testator-a Hindu Male. The said judgment is not applicable in respect of appointment of a Chief Mutawalli which is not a case of succession of the property of the deceased governed by Muslim personal law but appointment of successor under a deed executed by Wakif Mutawalli for the management of Hamdard. The question relates to construction of the Wakf Deed as amended in the year 1973 for the management of Wakf as to who shall have the right to manage the affairs of Hamdard and not the succession of an estate of the deceased. Therefore, we find that the Division Bench has wrongly relied upon A. Aruputham case (supra).The learned Division Bench referred to Faqruddin?s case (supra) that under Personal Law the rule of lineal primogeniture is not applicable as a rule of succession amongst Muslims, is not a ground to overrule its application if a deed (testamentary or otherwise) so directs. It is thereafter, the Division Bench has interpreted the amended deed of wakf and also the resolution of 04.07.1995 to hold that lineal male primogeniture is the rule of succession applied to the office of Chief Mutawalli rather than an uncertain collegial ambulatory lineal succession.The rule of primogeniture is not a rule applicable to the Muslims as per the Personal Law as held in Faqruddin?s case (supra). Therefore, the primary question between the parties relating to appointment of Chief Mutawalli has to be decided on the basis of construction of 1948 Deed and the amendments made in the year 1973 by the Wakif Mutawalli. The 1948 Deed is unambiguous that two brothers Haji Hakim Abdul Hamid and Hakim Mohd. Sayeed shall be Trustees and that in case of death of any one of the Trustee then the deceased Trustee will be replaced by his elder son and in case of death of other Trustee he will be replaced by his elder son (Clause 3 as reproduced above). Similarly, Clause 4 of the Deed is that the Trustees of the Trust will be appointed from their sons who will be eldest in age and after that from the sons of their sons, the elder son will be appointed as Trustee.The 1973 Deed is not a new document but includes amendments in the 1948 Deed based upon the declarations made by the Wakif Mutawalli from time to time compiled on 02.07.1973. Last page of document Annexure ?P-1? would show that it is not a new document but the document incorporating amendments which were counter signed by Wakif Mutawalli on 26.06.1973.We find that in the declaration dated 02.07.1973, in the first line there is a full stop after the word ?mutawalli? and thereafter, new line starts. But in the 1973 Deed (Annexure P-1), the full stop is missing. It appears to be an inadvertent omission as the Deed as amended in the year 1973 in the absence of full stop is not coherent and appears to be incomplete.The well-known principle of interpretation of document is that one line cannot be taken out of context. It is a cumulative reading of entire document which would lead to one conclusion or the other. Some of the judgments relevant for determining as to the principle of interpretation of documents are delineated hereinafter.Therefore, the entire 1948 Deed as amended in the year 1973 has to be read together to find out the process of appointment of Chief Mutawalli.The argument that the rule of primogeniture is explicit in the amended clauses of the 1948 Wakf Deed, as the eldest son and after his death his son has been given the preferential treatment than the other male descendants, is not tenable. The question is not succession in the matter of immovable property but line of succession for the management of Wakf.The Clause 1 of 1973 Deed is that the senior most among the male descendants of the Wakif-Mutawalli holding an office of Mutawalli will be the Chief Mutawalli. The Clause 3 of the same deed is that the First Chief Mutawalli will be appointed by Wakif Mutawalli thereafter the senior most male descendant in line of succession (of Wakif Mutawalli) and then holding an office of Mutawalli will be the Chief Mutawalli. Thus, at least two provisions of the 1973 Deed are that the senior most male descendant in the line of succession of Wakif Mutawalli shall be Chief Mutawalli.The argument that the constitution of the Board of Mutawallis on 04.07.1995 negates the argument raised by the Appellant that the senior most male descendant has to be the Chief Mutawalli and second in line as Nazir (Secretary). No doubt in the constitution of the Board on 04.07.1995, the second senior most male descendant was not nominated as Nazir (Secretary) but such fact alone will not negate the various provisions of the document which support the contention raised by the Appellant that it is the senior most male descendant who shall be the Chief Mutawalli. May be, Abdul Majeed was nominated as Secretary of the Board keeping in view his age and educational qualifications but such action will not negate cumulative reading of the 1973 Deed.The action of the Wakif Mutawalli in nominating the senior most male descendant Abdul Mueed and his younger son-the Appellant as Mutawallis in terms of 1948 Deed shows that his both lines of successors were treated equally. After the composition of the Board of Management was increased to five after amendment in the year 1973, the Wakif Mutawalli appointed Abdul Majeed eldest son of the Abdul Mueed (born on 23.12.1969) and Hamed Ahmed eldest son of the Appellant (born on 25.03.1977) on 30.05.1995 as Mutawallis. On that day, Asad Mueed (born on 1.09.1973) younger son of Abdul Mueed but older in age than the Hamed Ahmed was not made Mutawalli. It was only on 17.04.2000 i.e. after the death of Wakif Mutawalli, he was made the fifth Mutawalli. If the line of management has to be in the hands of senior most male descendant of Abdul Hamid, the Wakif Mutawalli should have appointed Asad Mueed instead of Hamed Ahmed in the year 1995.1973 Deed is not a new document but the amended 1948 Deed by Wakif Mutawalli from time to time. Since, the Board of Trustees was contemplated to be five Mutawallis including Wakif Mutawalli or Chief Mutawalli, therefore, the induction of grandsons was not in order of date of birth but keeping in view the representations to both sons of the Wakif Mutawalli. Therefore, the 1948 Deed as amended does not show the applicability of principal of rule of primogeniture but equal representation to the heirs of both sons of Wakif Mutawalli.The judgment of Division Bench of Madras High Court in Secretary of State for India (supra) is consequent to the judgment of Full Bench reported as The Secretary of State for India in Council vs. Syed Ahmad Badsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.. The Full Bench was examining the applicability of principle of res judicata in view of findings recorded in an earlier suit. It was held by the Full Bench that decision in the previous suit is not conclusive but is only evidence and it is open to the plaintiff to establish his title as against the Government. Consequent to the opinion of the Full Bench, the appeal was taken up for hearing on 09.05.1921. It was consequent to the opinion of the Full Bench; the appeal was taken up for hearing on 09.05.1921.The Division Bench held that plaintiff has proved that he is lawful successor by heredity right as the office cannot be enjoyed by several heirs in common, therefore, succession must be by lineal primogeniture. The said order does not support the argument raised by the respondent as it is not a single heir who is holder of the office. In fact, the Wakif Mutawalli has constituted a Board of five Mutawallis. Therefore, it is a body of Mutawallis which has been vested with the right of management of Hamdard and senior most male descendant amongst them contemplated to be Chief Mutawalli.The argument that there is delay and laches on the part of the Appellant to dispute the existing mechanism of the management is again not tenable. The entire argument is based upon the constitution of the Board on 04.07.1995. Mere failure to dispute the constitution of Board would not mean that the 1948 Deed or 1973 Deed is rendered otiose. The constitution of the Board by the Wakif Mutawalli is in relation to the requirements of the Hamdard to carry out the functions of the Board but that does not rewrite the Rule of Succession contemplated after amendments in 1948 Deed in the year 1973.The argument that the Appellant is involved in criminal cases is again not relevant at this stage. 1973 Deed provided for disqualification of conviction in criminal case involving moral turpitude. None of the criminal prosecution launched against the Appellant have ended up in conviction, therefore, there is no disqualification attached to the Appellant at this stage.The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case (supra). It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given.The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction.The argument that under Order XXXIX Rules 1 and 2 of the Code, the Court has the jurisdiction to maintain the status of the parties on the date of filing of the suit or on the date of passing of the order but cannot direct the parties to do something which was not in existence at the time of filing of the suit, is not a general rule of universal application. The nature of the orders claimed by the Appellant are not passed ordinarily in a routine manner as the Plaintiff is required to have a case which should be of higher standard than mere prima facie case. But in view of the agreement between the parties, as recorded by the Division Bench in an earlier round of litigation the primary question was agreed to be that who is to act as Chief Mutawalli. Both learned Single Judge and the Division Bench has examined such question only. Even, before this Court, the parties have argued primarily on the question as to who shall be Chief Mutawalli. Therefore, a prima-facie opinion would lead to consequential order in respect of management of the affairs of the Hamdard. | 1 | 11,689 | 2,161 | ### 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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Bench reported as The Secretary of State for India in Council vs. Syed Ahmad Badsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.) . The Full Bench was examining the applicability of principle of res judicata in view of findings recorded in an earlier suit. It was held by the Full Bench that decision in the previous suit is not conclusive but is only evidence and it is open to the plaintiff to establish his title as against the Government. Consequent to the opinion of the Full Bench, the appeal was taken up for hearing on 09.05.1921. It was consequent to the opinion of the Full Bench; the appeal was taken up for hearing on 09.05.1921. 53. The Division Bench held that plaintiff has proved that he is lawful successor by heredity right as the office cannot be enjoyed by several heirs in common, therefore, succession must be by lineal primogeniture. The said order does not support the argument raised by the respondent as it is not a single heir who is holder of the office. In fact, the Wakif Mutawalli has constituted a Board of five Mutawallis. Therefore, it is a body of Mutawallis which has been vested with the right of management of Hamdard and senior most male descendant amongst them contemplated to be Chief Mutawalli. 54. The argument that there is delay and laches on the part of the Appellant to dispute the existing mechanism of the management is again not tenable. The entire argument is based upon the constitution of the Board on 04.07.1995. Mere failure to dispute the constitution of Board would not mean that the 1948 Deed or 1973 Deed is rendered otiose. The constitution of the Board by the Wakif Mutawalli is in relation to the requirements of the Hamdard to carry out the functions of the Board but that does not rewrite the Rule of Succession contemplated after amendments in 1948 Deed in the year 1973. 55. The argument that the Appellant is involved in criminal cases is again not relevant at this stage. 1973 Deed provided for disqualification of conviction in criminal case involving moral turpitude. None of the criminal prosecution launched against the Appellant have ended up in conviction, therefore, there is no disqualification attached to the Appellant at this stage. 56. The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case (supra). It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given. 57. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. In Deoraj vs. State of Maharashtra and Others (2004) 4 SCC 697 , this Court held that Court would grant such an interim relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Therefore, in appropriate case, ad-interim injunction in mandatory form can be granted. The Court held as under:- ?12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.? 58. The argument that under Order XXXIX Rules 1 and 2 of the Code, the Court has the jurisdiction to maintain the status of the parties on the date of filing of the suit or on the date of passing of the order but cannot direct the parties to do something which was not in existence at the time of filing of the suit, is not a general rule of universal application. The nature of the orders claimed by the Appellant are not passed ordinarily in a routine manner as the Plaintiff is required to have a case which should be of higher standard than mere prima facie case. But in view of the agreement between the parties, as recorded by the Division Bench in an earlier round of litigation the primary question was agreed to be that who is to act as Chief Mutawalli. Both learned Single Judge and the Division Bench has examined such question only. Even, before this Court, the parties have argued primarily on the question as to who shall be Chief Mutawalli. Therefore, a prima-facie opinion would lead to consequential order in respect of management of the affairs of the Hamdard.
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senior most male descendant was not nominated as Nazir (Secretary) but such fact alone will not negate the various provisions of the document which support the contention raised by the Appellant that it is the senior most male descendant who shall be the Chief Mutawalli. May be, Abdul Majeed was nominated as Secretary of the Board keeping in view his age and educational qualifications but such action will not negate cumulative reading of the 1973 Deed.The action of the Wakif Mutawalli in nominating the senior most male descendant Abdul Mueed and his younger son-the Appellant as Mutawallis in terms of 1948 Deed shows that his both lines of successors were treated equally. After the composition of the Board of Management was increased to five after amendment in the year 1973, the Wakif Mutawalli appointed Abdul Majeed eldest son of the Abdul Mueed (born on 23.12.1969) and Hamed Ahmed eldest son of the Appellant (born on 25.03.1977) on 30.05.1995 as Mutawallis. On that day, Asad Mueed (born on 1.09.1973) younger son of Abdul Mueed but older in age than the Hamed Ahmed was not made Mutawalli. It was only on 17.04.2000 i.e. after the death of Wakif Mutawalli, he was made the fifth Mutawalli. If the line of management has to be in the hands of senior most male descendant of Abdul Hamid, the Wakif Mutawalli should have appointed Asad Mueed instead of Hamed Ahmed in the year 1995.1973 Deed is not a new document but the amended 1948 Deed by Wakif Mutawalli from time to time. Since, the Board of Trustees was contemplated to be five Mutawallis including Wakif Mutawalli or Chief Mutawalli, therefore, the induction of grandsons was not in order of date of birth but keeping in view the representations to both sons of the Wakif Mutawalli. Therefore, the 1948 Deed as amended does not show the applicability of principal of rule of primogeniture but equal representation to the heirs of both sons of Wakif Mutawalli.The judgment of Division Bench of Madras High Court in Secretary of State for India (supra) is consequent to the judgment of Full Bench reported as The Secretary of State for India in Council vs. Syed Ahmad Badsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.. The Full Bench was examining the applicability of principle of res judicata in view of findings recorded in an earlier suit. It was held by the Full Bench that decision in the previous suit is not conclusive but is only evidence and it is open to the plaintiff to establish his title as against the Government. Consequent to the opinion of the Full Bench, the appeal was taken up for hearing on 09.05.1921. It was consequent to the opinion of the Full Bench; the appeal was taken up for hearing on 09.05.1921.The Division Bench held that plaintiff has proved that he is lawful successor by heredity right as the office cannot be enjoyed by several heirs in common, therefore, succession must be by lineal primogeniture. The said order does not support the argument raised by the respondent as it is not a single heir who is holder of the office. In fact, the Wakif Mutawalli has constituted a Board of five Mutawallis. Therefore, it is a body of Mutawallis which has been vested with the right of management of Hamdard and senior most male descendant amongst them contemplated to be Chief Mutawalli.The argument that there is delay and laches on the part of the Appellant to dispute the existing mechanism of the management is again not tenable. The entire argument is based upon the constitution of the Board on 04.07.1995. Mere failure to dispute the constitution of Board would not mean that the 1948 Deed or 1973 Deed is rendered otiose. The constitution of the Board by the Wakif Mutawalli is in relation to the requirements of the Hamdard to carry out the functions of the Board but that does not rewrite the Rule of Succession contemplated after amendments in 1948 Deed in the year 1973.The argument that the Appellant is involved in criminal cases is again not relevant at this stage. 1973 Deed provided for disqualification of conviction in criminal case involving moral turpitude. None of the criminal prosecution launched against the Appellant have ended up in conviction, therefore, there is no disqualification attached to the Appellant at this stage.The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case (supra). It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given.The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction.The argument that under Order XXXIX Rules 1 and 2 of the Code, the Court has the jurisdiction to maintain the status of the parties on the date of filing of the suit or on the date of passing of the order but cannot direct the parties to do something which was not in existence at the time of filing of the suit, is not a general rule of universal application. The nature of the orders claimed by the Appellant are not passed ordinarily in a routine manner as the Plaintiff is required to have a case which should be of higher standard than mere prima facie case. But in view of the agreement between the parties, as recorded by the Division Bench in an earlier round of litigation the primary question was agreed to be that who is to act as Chief Mutawalli. Both learned Single Judge and the Division Bench has examined such question only. Even, before this Court, the parties have argued primarily on the question as to who shall be Chief Mutawalli. Therefore, a prima-facie opinion would lead to consequential order in respect of management of the affairs of the Hamdard.
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Lakshmi and Ors Vs. Narayani and Ors | 1. The question in this appeal is whether Ex. A-1 dated March 26,1900 and Ex. B-1 dated March 27,1900 were kanam-kuzhikanam transactions, or whether they created usufructuary mortgages. The appellants sued for redemption and recovery of the suit lands alleging that Exs. A-1 and B-1 created usufructuary mortgages. The respondents claimed that they were kanam-kuzhikanamdars and entitled to fixity of tenure under S.21 read with S.3(15) of the Malabar Tenancy Act, 1929 (Madras Act 14 of 1930). The trial Court upheld the respondents contention and dismissed the suit. On appeal, the Kerala High Court affirmed this decree. The appellants now appeal to this Court by special leave. During the pendency of this appeal, the Kerala Land Reforms Act, 1963 (Act 1 of 1964) came into force. It is common case before us that the appeal must be disposed of in accordance with the provisions of Act 1 of 1964. In this appeal, the respondents claim that they are the holders of kanam-kuzhikanam within the meaning of S.2 (23) of this Act.2. S.13 of Act 1 of 1964 gives to every tenant fixity of tenure in respect of his holding and forbids resumption of the holding except as provided in S.14 to 22. S.2 is the definition section. By S.2 (57), a tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to possess and enjoy the land of the latter and includes inter alia a kanam¬kuzhikanamdar. S.2 (23) reads:"kanam-kuzhikanam" means and includes a transfer by a landlord to another person of garden lands or of other lands or of both, with the fruit-bearing trees, if any standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, the incidents of which transfer include(a) a right in the transferee to hold the said lands liable for the consideration paid by him or due to him, which consideration is called kanartham; and(b) the liability of the transferor to pay to the transferee interest on the kanartham unless otherwise agreed to by the parties:Provided that a usufructuary mortgage as defined in the Transfer of Property Act, 1882 (Central Act 4 of 1882), shall not be deemed to be a kanam-kuzhikanam:"3. Exhibits A-1 and B-1 demised the suit lands together with the fruit-bearing coconut, arecanut and jack trees standing thereon for a period of 24 years. The transfer was for the enjoyment of the lands with the standing trees and for the purpose of planting fruit-bearing trees thereon. The kanam amount or the kanartham under Ex. A-1 was Rs. 5,000 and under Ex. B-1 was Rs. 600. The transferees were entitled to appropriate the income of the lands in lieu of interest on the kanam amounts and to hold the lands even after the expiry of 24 years until payment of the kanam amounts and the value of the trees planted by them. Thus, all the conditions of a kanam-kuzhikanam mentioned in the main part of S.2 (23) were satisfied. Nevertheless, in view of the proviso to S.2 (23), the transactions would not be kanam-kuzhikanam if it is shown that they were by way of usufructuary mortgages as defined in S.58 (d) of the Transfer of Property Act, 1882. A kanam-kuzhikanam and a usufructuary mortgage have many common features. Both the transactions involve or may involve transfer of possession on payment of money by the transferee, set-off of profits against interest and retention of possession until repayment of the money. In spite of their close resemblance, the essential distinction between the two types of transactions must not be overlooked. A kanam-kuzhikanam is a lease, and is, therefore, a transfer of a right to enjoy the property. A mortgage is a transfer of an interest in the property for securing the repayment of a debt. The purpose of one is to enable enjoyment of the property by the transferee, that of the other is to secure the debt. On the question whether a transaction is a kanam-kuzhikanam or a usufructuary mortgage, the name given to it by the parties is a relevant, though not always a decisive, consideration. If the parties described the transaction to be a kanam-kuzhikanam it is a valuable indication that they intended it to be such and not a usufructuary mortgage. If the document purports to be a mortgage, S.12 of the Act allows the parties to prove that it is, in substance a kanam-kuzhikanam or other lease. But if the document purports to be or is, on its true construction, a kanam-kuzhikanam or other lease, S.12 has no application and full effect must be given to the document according to its tenor.4. Both Exs. A-1 and B-1 were styled kanam deeds. Ex. A-1 stated that the demise was in Kettiyadakkam kanam right. "Kettiadaki" means "took possession". The expression "kettiyadakkam kanam" may mean a usufructuary mortgage, but this is not its necessary or invariable meaning. Ex. B-1 explained Ex. A-1. Ex. B-1 explicity stated that the demises under Exs. A-1 and B-1 were in kanam-kuzhikanam right. Exs. A-1 and B-1 read together show that both the transactions were kanam-kuzhikanam. The subsequent documents, Exst. B-2. B-5, B-8, B-9 and B-10 executed between 1921 and 1944 all recited that Exs. A-1 and B-1 were kanam-kuzhikanam transactions. Exs. A-1 and B-1 did no. contain any recital showing that they created security for repayment of a debt. Significantly, the parties did not describe the transactions to be a mortgage, Otti, panayam or a kyvasam panayam. Instead, they described the transactions as kanam¬kuzhikanam and the amounts paid to the transferees as kanartham. Exs. A-1 and B-1 did not purport to be and were not transactions for securing debts. We agree with the Courts below that the transactions were kanam-kuzhikanam and were not usufructuary mortgages. | 0[ds]3. Exhibits A-1 and B-1 demised the suit lands together with the fruit-bearing coconut, arecanut and jack trees standing thereon for a period of 24 years. The transfer was for the enjoyment of the lands with the standing trees and for the purpose of planting fruit-bearing trees thereon. The kanam amount or the kanartham under Ex. A-1 was Rs. 5,000 and under Ex. B-1 was Rs. 600. The transferees were entitled to appropriate the income of the lands in lieu of interest on the kanam amounts and to hold the lands even after the expiry of 24 years until payment of the kanam amounts and the value of the trees planted by them. Thus, all the conditions of a kanam-kuzhikanam mentioned in the main part of S.2 (23) were satisfied. Nevertheless, in view of the proviso to S.2 (23), the transactions would not be kanam-kuzhikanam if it is shown that they were by way of usufructuary mortgages as defined in S.58 (d) of the Transfer of Property Act, 1882. A kanam-kuzhikanam and a usufructuary mortgage have many common features. Both the transactions involve or may involve transfer of possession on payment of money by the transferee, set-off of profits against interest and retention of possession until repayment of the money. In spite of their close resemblance, the essential distinction between the two types of transactions must not be overlooked. A kanam-kuzhikanam is a lease, and is, therefore, a transfer of a right to enjoy the property. A mortgage is a transfer of an interest in the property for securing the repayment of a debt. The purpose of one is to enable enjoyment of the property by the transferee, that of the other is to secure the debt. On the question whether a transaction is a kanam-kuzhikanam or a usufructuary mortgage, the name given to it by the parties is a relevant, though not always a decisive, consideration. If the parties described the transaction to be a kanam-kuzhikanam it is a valuable indication that they intended it to be such and not a usufructuary mortgage. If the document purports to be a mortgage, S.12 of the Act allows the parties to prove that it is, in substance a kanam-kuzhikanam or other lease. But if the document purports to be or is, on its true construction, a kanam-kuzhikanam or other lease, S.12 has no application and full effect must be given to the document according to its tenor.4. Both Exs. A-1 and B-1 were styled kanam deeds. Ex. A-1 stated that the demise was in Kettiyadakkam kanam right. "Kettiadaki" means "took possession". The expression "kettiyadakkam kanam" may mean a usufructuary mortgage, but this is not its necessary or invariable meaning. Ex. B-1 explained Ex. A-1. Ex. B-1 explicity stated that the demises under Exs. A-1 and B-1 were in kanam-kuzhikanam right. Exs. A-1 and B-1 read together show that both the transactions were kanam-kuzhikanam. The subsequent documents, Exst. B-2. B-5, B-8, B-9 and B-10 executed between 1921 and 1944 all recited that Exs. A-1 and B-1 were kanam-kuzhikanam transactions. Exs. A-1 and B-1 did no. contain any recital showing that they created security for repayment of a debt. Significantly, the parties did not describe the transactions to be a mortgage, Otti, panayam or a kyvasam panayam. Instead, they described the transactions as kanam¬kuzhikanam and the amounts paid to the transferees as kanartham. Exs. A-1 and B-1 did not purport to be and were not transactions for securing debts. We agree with the Courts below that the transactions were kanam-kuzhikanam and were not usufructuary mortgages. | 0 | 1,120 | 682 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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1. The question in this appeal is whether Ex. A-1 dated March 26,1900 and Ex. B-1 dated March 27,1900 were kanam-kuzhikanam transactions, or whether they created usufructuary mortgages. The appellants sued for redemption and recovery of the suit lands alleging that Exs. A-1 and B-1 created usufructuary mortgages. The respondents claimed that they were kanam-kuzhikanamdars and entitled to fixity of tenure under S.21 read with S.3(15) of the Malabar Tenancy Act, 1929 (Madras Act 14 of 1930). The trial Court upheld the respondents contention and dismissed the suit. On appeal, the Kerala High Court affirmed this decree. The appellants now appeal to this Court by special leave. During the pendency of this appeal, the Kerala Land Reforms Act, 1963 (Act 1 of 1964) came into force. It is common case before us that the appeal must be disposed of in accordance with the provisions of Act 1 of 1964. In this appeal, the respondents claim that they are the holders of kanam-kuzhikanam within the meaning of S.2 (23) of this Act.2. S.13 of Act 1 of 1964 gives to every tenant fixity of tenure in respect of his holding and forbids resumption of the holding except as provided in S.14 to 22. S.2 is the definition section. By S.2 (57), a tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to possess and enjoy the land of the latter and includes inter alia a kanam¬kuzhikanamdar. S.2 (23) reads:"kanam-kuzhikanam" means and includes a transfer by a landlord to another person of garden lands or of other lands or of both, with the fruit-bearing trees, if any standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, the incidents of which transfer include(a) a right in the transferee to hold the said lands liable for the consideration paid by him or due to him, which consideration is called kanartham; and(b) the liability of the transferor to pay to the transferee interest on the kanartham unless otherwise agreed to by the parties:Provided that a usufructuary mortgage as defined in the Transfer of Property Act, 1882 (Central Act 4 of 1882), shall not be deemed to be a kanam-kuzhikanam:"3. Exhibits A-1 and B-1 demised the suit lands together with the fruit-bearing coconut, arecanut and jack trees standing thereon for a period of 24 years. The transfer was for the enjoyment of the lands with the standing trees and for the purpose of planting fruit-bearing trees thereon. The kanam amount or the kanartham under Ex. A-1 was Rs. 5,000 and under Ex. B-1 was Rs. 600. The transferees were entitled to appropriate the income of the lands in lieu of interest on the kanam amounts and to hold the lands even after the expiry of 24 years until payment of the kanam amounts and the value of the trees planted by them. Thus, all the conditions of a kanam-kuzhikanam mentioned in the main part of S.2 (23) were satisfied. Nevertheless, in view of the proviso to S.2 (23), the transactions would not be kanam-kuzhikanam if it is shown that they were by way of usufructuary mortgages as defined in S.58 (d) of the Transfer of Property Act, 1882. A kanam-kuzhikanam and a usufructuary mortgage have many common features. Both the transactions involve or may involve transfer of possession on payment of money by the transferee, set-off of profits against interest and retention of possession until repayment of the money. In spite of their close resemblance, the essential distinction between the two types of transactions must not be overlooked. A kanam-kuzhikanam is a lease, and is, therefore, a transfer of a right to enjoy the property. A mortgage is a transfer of an interest in the property for securing the repayment of a debt. The purpose of one is to enable enjoyment of the property by the transferee, that of the other is to secure the debt. On the question whether a transaction is a kanam-kuzhikanam or a usufructuary mortgage, the name given to it by the parties is a relevant, though not always a decisive, consideration. If the parties described the transaction to be a kanam-kuzhikanam it is a valuable indication that they intended it to be such and not a usufructuary mortgage. If the document purports to be a mortgage, S.12 of the Act allows the parties to prove that it is, in substance a kanam-kuzhikanam or other lease. But if the document purports to be or is, on its true construction, a kanam-kuzhikanam or other lease, S.12 has no application and full effect must be given to the document according to its tenor.4. Both Exs. A-1 and B-1 were styled kanam deeds. Ex. A-1 stated that the demise was in Kettiyadakkam kanam right. "Kettiadaki" means "took possession". The expression "kettiyadakkam kanam" may mean a usufructuary mortgage, but this is not its necessary or invariable meaning. Ex. B-1 explained Ex. A-1. Ex. B-1 explicity stated that the demises under Exs. A-1 and B-1 were in kanam-kuzhikanam right. Exs. A-1 and B-1 read together show that both the transactions were kanam-kuzhikanam. The subsequent documents, Exst. B-2. B-5, B-8, B-9 and B-10 executed between 1921 and 1944 all recited that Exs. A-1 and B-1 were kanam-kuzhikanam transactions. Exs. A-1 and B-1 did no. contain any recital showing that they created security for repayment of a debt. Significantly, the parties did not describe the transactions to be a mortgage, Otti, panayam or a kyvasam panayam. Instead, they described the transactions as kanam¬kuzhikanam and the amounts paid to the transferees as kanartham. Exs. A-1 and B-1 did not purport to be and were not transactions for securing debts. We agree with the Courts below that the transactions were kanam-kuzhikanam and were not usufructuary mortgages.
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3. Exhibits A-1 and B-1 demised the suit lands together with the fruit-bearing coconut, arecanut and jack trees standing thereon for a period of 24 years. The transfer was for the enjoyment of the lands with the standing trees and for the purpose of planting fruit-bearing trees thereon. The kanam amount or the kanartham under Ex. A-1 was Rs. 5,000 and under Ex. B-1 was Rs. 600. The transferees were entitled to appropriate the income of the lands in lieu of interest on the kanam amounts and to hold the lands even after the expiry of 24 years until payment of the kanam amounts and the value of the trees planted by them. Thus, all the conditions of a kanam-kuzhikanam mentioned in the main part of S.2 (23) were satisfied. Nevertheless, in view of the proviso to S.2 (23), the transactions would not be kanam-kuzhikanam if it is shown that they were by way of usufructuary mortgages as defined in S.58 (d) of the Transfer of Property Act, 1882. A kanam-kuzhikanam and a usufructuary mortgage have many common features. Both the transactions involve or may involve transfer of possession on payment of money by the transferee, set-off of profits against interest and retention of possession until repayment of the money. In spite of their close resemblance, the essential distinction between the two types of transactions must not be overlooked. A kanam-kuzhikanam is a lease, and is, therefore, a transfer of a right to enjoy the property. A mortgage is a transfer of an interest in the property for securing the repayment of a debt. The purpose of one is to enable enjoyment of the property by the transferee, that of the other is to secure the debt. On the question whether a transaction is a kanam-kuzhikanam or a usufructuary mortgage, the name given to it by the parties is a relevant, though not always a decisive, consideration. If the parties described the transaction to be a kanam-kuzhikanam it is a valuable indication that they intended it to be such and not a usufructuary mortgage. If the document purports to be a mortgage, S.12 of the Act allows the parties to prove that it is, in substance a kanam-kuzhikanam or other lease. But if the document purports to be or is, on its true construction, a kanam-kuzhikanam or other lease, S.12 has no application and full effect must be given to the document according to its tenor.4. Both Exs. A-1 and B-1 were styled kanam deeds. Ex. A-1 stated that the demise was in Kettiyadakkam kanam right. "Kettiadaki" means "took possession". The expression "kettiyadakkam kanam" may mean a usufructuary mortgage, but this is not its necessary or invariable meaning. Ex. B-1 explained Ex. A-1. Ex. B-1 explicity stated that the demises under Exs. A-1 and B-1 were in kanam-kuzhikanam right. Exs. A-1 and B-1 read together show that both the transactions were kanam-kuzhikanam. The subsequent documents, Exst. B-2. B-5, B-8, B-9 and B-10 executed between 1921 and 1944 all recited that Exs. A-1 and B-1 were kanam-kuzhikanam transactions. Exs. A-1 and B-1 did no. contain any recital showing that they created security for repayment of a debt. Significantly, the parties did not describe the transactions to be a mortgage, Otti, panayam or a kyvasam panayam. Instead, they described the transactions as kanam¬kuzhikanam and the amounts paid to the transferees as kanartham. Exs. A-1 and B-1 did not purport to be and were not transactions for securing debts. We agree with the Courts below that the transactions were kanam-kuzhikanam and were not usufructuary mortgages.
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Bismillah Be (Dead) by L.Rs Vs. Majeed Shah | decreeing the appellants suit against the respondent.23. In reply, learned counsel for the respondent (defendant) supported the impugned order and prayed for dismissal of the appeal.24. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for the appellant.25. Law relating to derivative title of the landlord (Lessor) and challenge, if made, to such title by the tenant (Lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. In other words, if the tenant/lessee pays rent to the Assignee/Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings.26. However, once the Assignee/Vendee proves his title to the demised property, the original tenancy devolves on the Assignee/Vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till either modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/Vendee to acquire the status of a "new landlord" in place of the original landlord of the demised premises qua tenant/lessee. (See Law of Evidence by Sarkar, 16th Edition, pages 2106-2108).27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.31. In view of what is held above, it is not necessary to remand the case to the High Court for deciding the second appeal afresh on merits which, in our view, did involve the substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 and deserved its admission for final hearing.32. The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act. | 1[ds]27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act. | 1 | 2,797 | 704 | ### 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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decreeing the appellants suit against the respondent.23. In reply, learned counsel for the respondent (defendant) supported the impugned order and prayed for dismissal of the appeal.24. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned counsel for the appellant.25. Law relating to derivative title of the landlord (Lessor) and challenge, if made, to such title by the tenant (Lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of Section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an Assignee/Vendee of the original landlord (Lessor) of the demised property in an action brought by the Assignee/Vendee against the tenant for his eviction from the demised property under the Rent laws. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the Assignee/Vendee. In other words, if the tenant/lessee pays rent to the Assignee/Vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an Assignee/Vendee in the proceedings.26. However, once the Assignee/Vendee proves his title to the demised property, the original tenancy devolves on the Assignee/Vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continues till either modified by the parties or is determined by the landlord in accordance with law. It enables the Assignee/Vendee to acquire the status of a "new landlord" in place of the original landlord of the demised premises qua tenant/lessee. (See Law of Evidence by Sarkar, 16th Edition, pages 2106-2108).27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.31. In view of what is held above, it is not necessary to remand the case to the High Court for deciding the second appeal afresh on merits which, in our view, did involve the substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 and deserved its admission for final hearing.32. The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act.
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27. Keeping the aforementioned principle of law in mind and applying the same to the facts of the case, we are of the considered opinion that the appellant (plaintiff) has proved his title to the suit house so also the relationship of landlord and tenant with the respondent in relation to suit house. This we say for more than one reason stated infra.28. First, it is an admitted fact that Rai Bahadur Motiram Mathuradas was the original owner of the suit house, which was a part of Moti Bada. Second, it is also an admitted fact that the respondent was inducted as a tenant by Rai Bahadur Motiram Mathuradas in the suit house. Third, the respondent, in his reply, has admitted the aforesaid two facts in para 4 of his reply to the appellants legal notice and in para 13 of his written statement. Fourth, the suit house was sold after obtaining permission from Income Tax Department to Mr. Kriplani by registered deed of sale dated 16.09.1974 and Mr. Kriplani, in turn, sold to six persons, which included the appellant, by another registered deed of sale dated 16.09.1974. Fifth, these six persons (co-owners) then by registered deed of partition dated 14.03.1984 effected partition inter se and the suit house fell to the share of the appellant herein. Sixth, all these five facts enumerated herein were duly proved by the appellant by first pleading in the plaint and then by filing documentary evidence. Seventh, the appellant served quit notice to the respondent setting out therein all these facts. Eighth, the respondent failed to adduce any evidence in rebuttal to disprove the appellants case except bald denial of the appellants title over the suit house and lastly, the respondent having admitted the ownership of his original landlord and his tenancy with the original landlord, he became the appellants tenant by operation of law on the appellants proving his title over the suit house.29. In the light of aforementioned eight reasons, we find no difficulty in holding that the appellant proved her title over the suit house and thus she became a landlady of the suit house. In consequence thereof, the respondent became her tenant by operation of law on the same terms as agreed upon with the original landlord. The appellant then rightly determined the tenancy by serving quit notice to the respondent.30. In the light of foregoing discussion, we answer issue nos. 1, 2 and 3 framed by the Trial Court in favour of the appellant (plaintiff) and against the respondent (defendant) and accordingly hold that the appellant (plaintiff) is the owner/landlord of the suit house whereas the respondent(defendant) is the appellants tenant and there exists relationship of landlord and tenant between the appellant and the respondent in relation to the suit house; second, the respondent (defendant) is the tenant at the rate of Rs. 80/- per month and third, the appellant(plaintiff) has served proper quit notice on the respondent (defendant) demanding balanced rent.The cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in these appeals and legal principles applicable to the case can not be countenanced.33. Though the Trial Court has also recorded findings on other issues against the appellant but we find that the findings on other issues were influenced by the findings given on the first three issues.34. In our view, in the light of the reversal of findings of three courts by this Court, it would be just and proper that the case is remanded to the Trial Court (Civil Judge Class I), Jabalpur for deciding the suit afresh on merits on issues nos. 4 to 11 which relate to grounds for seeking eviction under Section 12 of the Act.
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Kehar Singh and Ors Vs. State (Delhi Administration) | at that time. The arms and ammunition register Ex. PW 3A at Teen Murti Lines also shows that Satwant Singh was issued an SAF Carbine having But No. 80 along-with five magazines and hundred live rounds of 99 of ammunition. He signed the register in token of the receipt. PW 3, the Armoury Incharge confirms this. There is also evidence to indicate that this person manipulated his duty and was put on the TMC gate where ultimately the incident took place on the morning of 31.10.1984. 89. The main evidence against him is evidence of eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Ministers house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV representative and he was to go alongwith her holding an umbrella to protect her from the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left side and Satwant Singh on the right side, the former in a Safari suit and the later in the uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his revolver from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and injured. She fell down on the right side. Seeing this he threw the umbrella on the left side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured Satwant Singh. Some other persons also came and secured Beant Singh. He then ran to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty of controlling the crowd. At about 10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors room which was recorded by him and sent to Tuglak Road Police Station which is the FIR in this Case. 90. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct witnesses also finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appellant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed. 91. Then is the question of sentence which was argued to some extent. But it must be clearly understood that it is not a case where X is killed by Y on some personal vendetta. The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reasons or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserves any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper. | 0[ds]The learned Judges of the High Court in their judgment have come to the conclusion that the last part of the Section refers to The High Court may by special order direct him to try and on the basis of this phrase the High Court in the impugned judgment, has observed that it was even open to the accused to make an application and to get the case transferred or allotted to a Judge. Section 194 Cr. P.C.The first part of the Section clearly provides that the Sessions Judge of the Division by general or special order is supposed to allot cases arising in a particular area or jurisdiction to be tried by Additional or Assistant Sessions Judges appointed in the division but the last part of this Section also authorises the High Court to allot the case to a particular Judge keeping in view the fact that in certain cases the Sessions Judge may not like to allot and may report to the High Court or either of the parties may move an application for transfer and under these circumstances it may become necessary for the High Court to allot a particular case to a particular Judge. Thus, this objection is of no consequence. The other objection which has been raised by the learned Counsel is about the issuance of a notification by the High Court under Section 9(6) Cr.P.C. and by this notification the High Court purported to direct that the trial in this case shall be held in Tihar Jail. Learned counsel appearing for the Delhi Administration on the other hand attempted to justify such an order passed by the High Court by contending that if the High Court had the authority to issue notification fixing the place of sitting it was open to the High Court also to fix the place of sitting for a particular case whereas emphasis by learned Counsel for the appellants was that Section 9(6) only authorises the High Court to fix the place of sitting generally. So far as in any particular case is concerned, the second part of Sub-clause 6 permits the trial court with the consent of parties to sit at any other place than the ordinary place of sitting.21. The High Court in the impugned judgment have attempted to draw from proviso which has been a local amendment of Uttar Pradesh. Unfortunately nothing could be drawn from that proviso as admittedly that is not a State amendment applicable to Delhi. Section 9(6) Cr. P.C. nowhere permits the High Court to fix the venue of a trial of particular case at any place other than the place which is notified as the ordinary place of sitting.On the basis of this language one thing is clear that so far as the High Court is concerned it has the jurisdiction to specify the place or places where ordinarily a Court of Sessions may sit within the division. So far as any particular case is to be taken at a place other than the normal place of sitting it is only permissible under the second part of sub-clause with the consent of parties and that decision has to be taken by the trial court itself. It appears that seeing the difficulty the Uttar Pradesh amended the provision further by adding a proviso which reads:Provided that the court of Sessions may hold, or the High Court may, direct the Court of Session to hold, its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and accused shall not be necessary.22. But it is certain that if this proviso is not on the statute book applicable to Delhi, it can not be used as the High Court has used to interpret it. That apart, if we look at the notification from a different angle the contention advanced by the learned Counsel for the appellants ceases to have any force. Whatever be the terms of the notification, it is not disputed that it is a notification issued by the Delhi High Court under Section9 Sub-clause (6) Cr.P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do. Therefore, the said notification of the High Court could be taken to have notified that Tihar Jail is also one of the places of sitting of the Sessions Court in the Sessions division ordinarily. That means apart from the two places Tis Hazari and the New Delhi, the High Court by notification also notified Tihar Jail as one of the places where ordinarily a Sessions Court could hold its sittings. In this view of the matter, there is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High Court.In fact, the argument advanced has been on the basis of the American decisions where the concept of open trial has developed in due course of time whereas so far as India is concerned here even before the Constitution our criminal practice always contemplated a trial which is open to public.24. In fact, the High Court in the impugned judgment was right when it referred to the concept of administration of justice under the old Hindu Law. But apart from it even the Criminal Procedure Code as it stood before the amendment had a provision similar to Section 327 which was Section 352 of the Old Code and in fact it is because of this that the criminal trial is expected to be open and public that in our Constitution phraseology difference from the United States has been thereIt appears that the whole argument advanced on behalf of the appellants is on the basis of an assumption inspite of the provisions of Section 327 that as the trial was shifted from the ordinary place where the Sessions Court are sitting to Tihar Jail it automatically became a trial which was not open to public but in our opinion in view of Section 327 this assumption, the basis of the argument itself is without any foundation and can not be accepted and argument on the basis of the foreign decisions loses all its significance. So far as this country is concerned the law be very clear that as soon as a trial of a criminal case is held whatever may be the place it will be an open trial. The only thing that it is necessary for the appellant is to point out that in fact that it was not an open trial. It is not disputed that there is no material at all to suggest that any one who wanted to attend the trial was prevented from so doing or one who wanted to go into the Court room was not allowed to do so and in absence of any such material on actual facts all these legal arguments loses its significance.It is very clear that Article 21 contemplates procedure established by law and in my opinion the procedure established by law was as on the day on which the Constitution was adopted and therefore it is not so easy to contend that by amending the Criminal Procedure Code the effect of the procedure established by law indicated in Article 21 could be taken away. The trend of decisions of this Court has clearly indicated that the procedure must be fair and just. Even expeditious trial has been considered to be a part of guarantee under Article 21 but in my opinion so far as the present case is concerned it is not necessary to go so far. At present no one could dispute that the procedure established by law as indicated in Article 21 is as provided in Section 327 and unless on facts it is established that what is provided in Section 327 was prevented or was not permitted, it could not be said that merely because trial was held at a particular place it could be said to be a trial which was not open to public. As indicated earlier on facts there is nothing to indicate although learned Counsel also attempted to some extent to suggest that there were restrictions. A person has to pass through two gates, a person has to sign on the gate and had to have a pass or a clearance but in the modern times especially in the context of the circumstances as they exist. On this basis it could not be said that it ceased to be a public trial. It could not be doubted that at one time in this Court the highest Court of the land, any one could freely walk in and sit and attend the Court but today even in this Court there are restrictions and one has to pass through those restrictions but still it could not be said that any one is prevented from attending the Court and therefore merely suggesting the difficulties in reaching the Jail will not be enough.On the other hand, learned Additional Solicitor General drew our attention to the plan of the Jail and the situation of the premises where the trial was held and it is not disputed that it was not that part of the Jail where the prisoners are kept but was the Office block where there was an approach, people were permitted to reach and the trial was held as if it was held in an ordinary place and it is in this view that as I observed earlier that in fact what the High Court did by issuing a notification under Section 9(6) was not to fix place of trial of this particular case in Tihar Jail. But what could be understood is that High Court by notification made Tihar Jail also as one of the places where a Sessions Court could ordinarily sit and in this case therefore the trial was held at this place. As soon as a trial is held whatever the place may be the provisions of Section 327 are attracted and it will be an open Court and every citizen has a right to go and unless there is evidence or material on record to suggest that on the facts in this particular case public at large was not permitted to go or some one was prevented from attending the trial or that the trial was in camera. In fact without an appropriate order it could not be said that what is contemplated under Section 327 or under Article 21 was not made available to the accused in this case and therefore it could not be contended that there is any prejudice at the trial.28. Soon after the assassination of Smt. Indira Gandhi, the Government of India by notification dated 20.11.84 constituted a Commission under the Commission of Enquiry Act, 1952 (the Act).The Commission was presided over by Mr. Justice M.P. Thakkar, a sitting Judge of this Court. The terms of enquiry notified for the Committee reads:a) the sequence of events leading and all the facts relating to, the assassination of late Prime Minister;b) Whether the crime could have been averted and whether there were any lefts or dereliction of duty in this regard on the part of any one of the commission of the crime and other individuals responsible for the security of the late Prime Minister;c) the deficiencies, if any, in the security system and arrangements as prescribed or as operated to in practice which might have facilitated the commission of the crime;d) the deficiencies, if any, in the procedure and measures as prescribed, of as operated in practice in attending to any providing medical attention to the late Prime Minister after the commission of the crime; and whether was any lapse or dereliction of duty in this regard on the part of the individuals responsible for providing such medical attention;e) whether any person or persons or agencies were responsible for coursing, preparing and planning the assassination or whether there was any conspiracy in this behalf, and if so, all its ramifications.29. The Commission was also asked to make recommendations as to corrective remedies and measures that need to be taken for future.30. It is therefore clear that out of these terms of reference the first term (a) and the last one (e) are such that the evidence collected by the Commission could be said to be relevant for the purposes of this trial.31. It is significant that the Commission framed regulations under Section 8 of the Act in regard to the procedure for enquiryRegulation made it clear that the proceedings of the Commission will be ordinarily in camera. It would only be in public if the Commission so directs and it is not disputed that so far as recording of evidence is concerned and the proceedings of the Commission it has gone on in camera throughout and even the report, interim and the final report. And then also it was stated by the Commission itself to be confidential.It is interesting that on 20.8.86, Ordinance No. 6 was replaced by Commission of Enquiry (Amendment) Act, 1986 (Act No. 36 of 1986 with retrospective effect. The said notification dated May 15,1986 was also got approved by the House of People as required under Sub-section 6 of Section 3 and therefore after the approval of the notification by the House of the People there remains no question of placing the report of the Commission before the House.33. So far as the steps taken by the appellants are concerned, it is no doubt true that an appropriate application in the manner in which it was moved in the High Court was not moved in the trial court but it could not be doubted that one of the accused persons had even sought these copies in the trial court and the same prayer has been appropriately made during the hearing in the High Court.The High Court relied on the decision of this Court in the case of Rain Krishan Dalmiay. Justice Tendulkar 1959 SCR 279 , which is referred to henceforth as Dalmias case. It was contended by learned Counsel for the appellants that this case could not be accepted as an authority on interpretation of Section 6 as in that case the scope of Section 6 was not before the Court but it was the validity of the provisions which were challenged. Das, C.J. in Dalmias case while examining the challenge to the validity of the Act and the notification issued thereunder made the following observations:The whole purpose of setting up of a Commission of Enquiry consisting of experts will be frustrated and the elaborate process of enquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures and situation disclosed calls for can not be placed before the Government for consideration notwithstanding that doing so can not be to the prejudice of anybody because it has no force of its own. In our view, the recommendations of a Commission of Enquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Enquiry recommending the imposition of some form of punishment which will, in its opinion, be sufficiently deterrent to delinquent in future. But seeing that the Commission of Enquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore.The statement made by any person before the Commission of Enquiry under Section 6 of the Act is wholly inadmissible in evidence in any further proceedings civil or criminal.35. According to learned Counsel, in that case it was not the scope of Section 6 but the validity of the provisions were in question and the observations were only incidental and it can not be regarded as a binding precedent. The High Court has accepted these observations of this Court in the judgment quoted above and in our opinion rightly.35A. Section 6 of the Commission of Enquiries Act36. On analysis of the provision, it will be found that there are restrictions on the use of a statement made by a witness before the Commission. First is Shall subject him to ...any civil or criminal proceedings except a prosecution for giving false evidence by such statement. The second restriction, according to me, is spelt out from the words or be used against him in any civil or criminal proceedings. Thus if we examine the two restrictions stated above it appears that a statement given in a Commission can not be used to subject the witness to any civil or criminal proceedings nor it can be used against him in any civil or criminal proceedings and in my opinion it is in the context of these restrictions that we will have to examine the provisions of the Evidence Act which permit the use of a previous statement of a witness and for what purposeA perusal of these three Sections clearly indicate that there are two purposes for which a previous statement can be used. One is for cross examination and contradiction and. the other is for corroboration. The first purpose is to discredit the witness by putting to him the earlier statement and contradicting him on that basis. So far as corroboration is concerned it could not be disputed that it is none of the purposes of the defence to corroborate the evidence on the basis of the previous statement. Section 145 therefore is the main section under which relief was sought by the accused. The use for which the previous statement was asked for was to contradict him if necessary and if it was a contradiction then the earlier statement was necessary so that contradiction be put to the witness and that part of the statement can be proved.39. To my mind, there could be no other purpose for which the appellants could use the previous statements of those witnesses. Contradiction could be used either to impeach his credit or discredit him or to pull down or bring down the reliability of the witness. These purposes for which the previous statements are required could not be said to be purposes which were not against the witness. The two aspects of the restrictions which Section 6 contemplates and have been discussed earlier are the only two aspects which could be the result of the use of these statements. I cannot find any other use of such previous statements in criminal proceedings. It is therefore clear that without going into the wider questions even a plain reading of Section 6 as discussed above will prohibit the use of the previous statements at the trial either for the purposes of the cross examination to contradict the witness or to impeach his credit. The only permissible use which has been provided under Section 6 is which has been discussed earlier and therefore the Courts below were right in not granting the relief to the accused.40. The report of the Commission was also prayed for although learned Counsel could not clearly suggest as to what use report of the Thakkar Commission could be to the accused in his defence. The report is a recommendation of the Commission for consideration of the Government. It is the opinion of the Commission based on the statements of witnesses and other material. It has no evidentiary value in the trial of the criminal case. The courts below were also justified in not summoning the reports.It is apparent that in the facts of the case as the evidence stands the question of post-mortem or a fuller post-mortem was necessary or not loses all its significance. There is no dispute that she died as a result of the gun shot injuries which was inflicted by Bent Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of the death, the post-mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy.Similarly in Ram Raj v. State of Ajmer 1954CriLJ1313 Justice Mahajan, Chief Justice observed at page 1134:Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice] have been done and the casein question presents features of sufficient gravity to warrant a review of decision appealed against this Court does not exercise its overriding powers under Article 136(1) of the Constitution and the circumstances that because the appeal have been admitted by special leave does not elant to open out the whole case and contest all the findings of fact and raise every point which should have been raised in the High Court. Even in the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for.Even in a recent decision 1983CriLJ1096 Justice Thakkar Stated:A concurrent finding of fact can not be reopened in an appeal unless it is established; (i) that the finding is based on no evidence or record, that the finding is perverse, it being such as no reasonable person would have arrived at even if the evidence was taken at its face value or thirdly, the finding is based and built on inadmissible evidence which evidence if excluded from the vision would negate the prosecution case or substantially discredit or impair it or; fourthly some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded.I may however, mention that where the High Court has reached conclusions based on partly inadmissible evidence and partly on circumstances which are not justified on the basis of evidence, or partly on facts which are not borne out from the evidence on record it can not be contended that in an appeal under Article 136 this Court will not go into the facts of the case and come to its own conclusions. The case on hand is one of such cases and some of the findings of fact reached by the High Court could not be said to be such which are concurrent or conclusive.Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy and it is interesting to note that in order to prove a conspiracy it has always been felt that it was not easy to get direct evidence. It appears that considering this experience about the proof of conspiracy that Section 10 of the Indian Evidence Act was enacted.Section mainly could be divided into two: the first part talks of where there is reasonable ground to believe that two or more persons have conspired to commit an offence or an actionable wrong, and it is only when this condition precedent is satisfied that the subsequent part of the Section comes into operation and it is material to note that this part of the Section talks of reasonable grounds to believe that two or more persons have conspired together and this evidently has reference to Section 120-A where it is provided When two or more persons agree to do, or cause to be done. This further has been safeguarded by providing a proviso that no agreement except an agreement to commit an offence shall amount to criminal conspiracy. It will be therefore necessary that a prima facie case of conspiracy was to be established for application of Sec, 10. The second part of Section talks of anything said, done or written by any one of such persons in reference to the common intention after the time when such intention was first entertained by any one of them is relevant fact against each of the persons believed to be so conspiring as well for the purpose for proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It is clear that this second part permits the use of evidence which otherwise could not be used against the accused person. It is well settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in cases of conspiracy. The second part operates only when the first part of the Section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120-A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other.49. Now, we will take first, the arrest of this accused on 1st November. It is not disputed that on 1st November late at night his house was searched and a printed took - Sant Bhindrawale was seized from his house and he was brought to Yamuna Velodrome. It is also not in dispute that the prosecution evidence itself indicates that upto the evening the next day he was seen in the Yamuna Velodrome.49. Now, we will take first, the arrest of this accused on 1st November. It is not disputed that on 1st November late at night his house was searched and a printed took - Sant Bhindrawale was seized from his house and he was brought to Yamuna Velodrome. It is also not in dispute that the prosecution evidence itself indicates that upto the evening the next day he was seen in the Yamuna Velodrome.50. It will be better here to describe what this Yamuna Velodrome is? From the prosecution evidence what has emerged is that this is a place where there are number of offices but Police has reserved a portion of this building to be used for interrogation and investigation. Normally when a person or a witness is brought for interrogation or investigation at a Police station, some record has to, be made as there is a general diary although diaries may or may not be filled in but a duty is cast on the Station House Officer of a Police Station to maintain the movements of the Police Officers and also to note down the activities especially when it is connected with the investigation of an important case. But it appears that all about the preliminary investigation of this case was going on at Yamuna Velodrome, witnesses and persons were brought here, detained or kept, and interrogated. We do not have any further evidence in regard to this place.51. According to the prosecution, this accused was at Yamuna Velodrome upto the evening of that day and thereafter he was allowed to go and then he absconded. As a matter of fact this part of the story becomes very important in view of the further facts alleged by the prosecution that the investigating officer got some information through some one that this accused who was wanted would appear at the time and place indicated. But there is no evidence as to who asked this accused to go. He was a suspect in the criminal conspiracy. He could not have gone away of his own accord. Some responsible officer must have taken the decision but it is unfortunate that no officer has been examined to state thatI thought that his presence was not necessary and therefore I allowed him to go. Learned Additional Solicitor General appearing for the State before us also was asked if he could lay his hands at any part of the evidence of any one of the witnesses who could say that before him this person was allowed to go from the Yamuna Velodrome. There is no evidence on this aspect of the matter at all and therefore we are left with the only evidence that this person was arrested at midnight in the late hours on 1st November and was carried to Yamuna Velodrome and was seen there by some prosecution witness till the evening of the next day.52. Then the other aspect of the matter which is of some importance is about the prosecution allegation that he was absconding from 1st or 2nd November till 3rd Dec. 1984. It is significant that no witness has been examined to indicate that he went to find him out either at his residence or at any other place in search of him and that he was not available. There is also no evidence produced to indicated that inspite of the fact that during investigation police wanted to arrest him again but he was not available at his known address. It is perhaps of absence of evidence as to absconding the trial court when examined this accused under Section 313 did not put him any question about his abscondence. It is therefore clear that the abscondence as a circumstance could not be used against him.53. Let us now examine the story of the prosecution that this accused was arrested at Najafgarh Bus-stand. It is alleged that Sh. Kochhar, the Investigating Officer got some information that this accused was expected to appear at that place on 3rd December, 1984. It was not immediately after the assassination. It was after a month. The people could come forward to become witness. But no independent witness has been examined in support of the arrest or seizure from the accused. It may be as technically argued by the learned Additional Solicitor General that the presence of public witnesses under the scheme of CrPC is required when there is search and seizure from the house or property of the accused but not when a person is arrested and something is recovered from the personal search. But it is well-known that in all matters where the police wants that the story should be believed they always get an independent witness of the locality so that that evidence may lend support to what is alleged by the police officers. Admittedly for this arrest at Najafgarh and for the seizure of the articles from the person of the accused there is no other evidence except the evidence of police officers. Independent witness in this case would be all the more necessary especially in view of what has been found above as his release after the earlier arrest is not established, and his abscondence is not proved. In such a controversial situation the presence of an independent witness from the public, if not of the locality, would have lent some support to the case of the prosecution. It may also be noted that according to Mr. Kochhar, that the accused appeared at the Bus-stand but they have not been able to disclose from where he appeared. Whether he got down from a bus, if so from which bus - city or outstation bus? How he appeared there is all mystery. Nobody bothered to notice of his coming. It is said that he had a DTC bus ticket. Nobody examined it. Perhaps there was nothing to examine. If the Police Officers had gone with prior information to arrest the absconding accused who was involved in such an important crime, they could have taken an independent witness with them. It is again interesting to note that instead of searching him and performing the formalities of arrest at the place where the accused appeared, he was taken to a place said to be the office of the Electricity Board. The search and seizure took place there. Some articles were recovered from his possession. Most of the articles recovered are mere personal belongings. There was also a piece of paper since marked as Ex. PW 26/B. The Police did not think it necessary to have an independent witness even for the seizure memo, when particularly some important piece of evidence was recovered from his possession. The reply of the learned Additional Solicitor General was that in law it was not necessary. The Investigating Officer when questioned in cross-examination answered that nobody was available or none was prepared to be a witness in this matter. It is unthinkable at a public place and that too at the Bus-stand. Learned Additional Solicitor. General also attempted to contend that the circumstances in Delhi after the assassination of the Prime Minister were such that no witness was prepared to come forward. It appears that for every problem this situation is brought as a defence but in our opinion, this would not help them so far as this matter is concerned. We are talking of 3rd December which was more than a month after the unrest in Delhi. It is very difficult to believe that a citizen in this capital did not come forward to be a witness for seizure memo. The arrest of the accused in the circumstances appears to be only a show and not an arrest in actuality.54. Learned Additional Solicitor General appearing for the State frankly conceded that if the release of this accused after his arrest on 1st November is not established and his abscondence is not proved, then the story of his arrest on 3rd December with the recovery of the articles loses all its significance. It is indeed so.55. In the context of what has been discussed above it is apparent that the arrest of the accused on 3rd December and the recovery of these articles from his person have not been proved satisfactorily and therefore could not be of any consequence against this accused.There is an endorsement in the- Malkhana Register stating that the DTC ticket which the accused carried and the paper containing the dates in English Ex. PW 26/B were not deposited. The Malkhana Register therefore is of no help to the prosecution. If they were taken back for any further investigation they could have made an entry to that effect in the general diary. The nature of entry in the Malkhana Register only shows the recovery of certain articles and a note that the two documents although are said to be recovered but they were not brought and deposited at the Tuglak Road Police Station. It is therefore clear that although in the seizure memo the mention of the two documents including Ex. PW 26/B is there, they in fact did not reach the Police Station or see the light of the day.57. In view of these infirmities we can not accept that the accused was arrested on 3rd December as alleged by the prosecution. So the recovery of Ex. PW 26/B is doubtful. However, we may refer to the said document as it has been said to be one of the most important pieces of evidence as the High Court has described it.There is an endorsement in the- Malkhana Register stating that the DTC ticket which the accused carried and the paper containing the dates in English Ex. PW 26/B were not deposited. The Malkhana Register therefore is of no help to the prosecution. If they were taken back for any further investigation they could have made an entry to that effect in the general diary. The nature of entry in the Malkhana Register only shows the recovery of certain articles and a note that the two documents although are said to be recovered but they were not brought and deposited at the Tuglak Road Police Station. It is therefore clear that although in the seizure memo the mention of the two documents including Ex. PW 26/B is there, they in fact did not reach the Police Station or see the light of the day.57. In view of these infirmities we can not accept that the accused was arrested on 3rd December as alleged by the prosecution. So the recovery of Ex. PW 26/B is doubtful. However, we may refer to the said document as it has been said to be one of the most important pieces of evidence as the High Court has described it.58. The document can be taken to have been written in the handwriting of Balbir Singh as that is not seriously contested before us. The document is a sheet of paper in which we find certain entries.59. If this document is considered to be a memorandum of events prepared by this accused relating to his conspiracy, why should he carry it in an atmosphere surcharged with emotion against the Sikhs. Not only that, this person knew that he was an accused in such an important case where whole public opinion is against him. He also knew that he was absconding and he also knew that he was carrying in his pocket such an important piece of evidence. Was it his intention that he should keep it readily available so that he could oblige the prosecution whenever they needed? There is no other possible reason why this person should keep this document with him all the time. On our questioning the learned Additional Solicitor General about this strange behaviour of the accused, he also could not explain as to why the accused could have thought of carrying such a piece of paper in his pocket.60. Apart from it, if the document is looked at as it is we see nothing in it except a mention of few dates and few events. It even does not indicate that with those events whether this accused was connected in any manner. It is also significant that this document was not with this accused when his house was searched and he was arrested on the night of 1st November, 1984. If the accused after that arrest was not released at all and there was no occasion for him to go away then, one fails to understand as to how this document came in his possession? The explanation suggested by the learned Counsel for the accused appears to be the most probable. As indicated from other evidence, the accused was preparing to give a statement or a confession and therefore he was given the notes and he must have recorded those dates to facilitate the statement that he was planning or he was made to give which ultimately he chose not to give at all.61. Looking to this document the only material which could be said to be of some significance is the words felt like killing. But there is no reference after those words as to who was intended to be killed. There is also no indication as to whose feelings are noted in this piece of paper. There are entries in this document which refer to meetings, visits, persons, visiting somebodys house but it is not clear as to whom they refer and what is intended when these reference is made. Beant Singh has been referred to in this document more than in one place. At one place, there, is a reference to Beant Singh with eagle. But there is no reference to a joint Ardas or this accused or Beant Singh telling that it had brought a message or they should take revenge. The entry does not suggest that the accused has anything to do with the eagle. If there is anything, it is against Beant Singh.62. A perusal of this whole document also shows that there is no reference at all to Beant Singh and his plan to kill the Prime Minister. Nowhere it is mentioned about the bomb or grenade with which he was planning to eliminate the Prime Minister before 15th August, 1984. There is also no reference about Beant Singh conspiring with this accused or vice-versa. Kehar Singh is not at all in the document. Satwant Singh, however, is mentioned against 30th October,. But it does not give an indication where? The prosecution has connected it with the evidence of PW 52 who was the Sentry in the Prime Minister security.63. Under these circumstances it is very clear that except the mention of Bluestar Operation and felt like killing there is nothing in this document which is of any significance. If the document is read as it is, we see nothing incriminating against this accused. Unfortunately it appears that the High Court read in this document what was suggested by the prosecution without considering whether it could be accepted or not in the absence of evidence on record. Admittedly, there is no such evidence at all in this case65. In view of what we have noticed, even if the document is accepted to have been written by the accused, still there is nothing in it on the basis of which an inference of conspiracy could be drawn. There must be evidence to indicate that the accused was in agreement with the other accused persons to do the act which was the ultimate object which was achieved on 31.10.1984. This document therefore although described by the learned Judges of the High Court as very important piece of evidence is nothing but a scrap of paper.Unfortunately, the learned Judges of the High Court when they came to the conclusion that Balbir Singh knew Beant Singh and Satwant Singh well, have not referred to any piece of evidence in this case which establishes that they knew each other well. The learned Additional Solicitor General appearing for the State also has not been able to point out any piece of evidence on the basis of which this could be inferred. This accused being a Sikh also is referred to but there were number of Sikh officers posted at the house of the Prime Minister and merely because he was a Sikh it could not be said that he became a party to the conspiracy or he was in conspiracy or he knew Beant Singh and Satwant Singh well. Similarly as regards the observations made by the High Court that Balbir Singh shared indignation of Beant Singh against Smt. Gandhi and was in a mood to avenge for the Bluestar Operation, there is no evidence to support it. From the testimony of SI Madan Lal Sharma, PW 30 all that we could gather is that after the Bluestar Operation Balbir Singh was in an agitated mood and he used to say that the responsibility of damaging the Akal Takht lies with Smt. Gandhi and it would be avenged by them. From this it cannot be inferred that Balbir Singh wanted to take revenge against the Prime Minister along-with Beant Singh. This is not what is said by the witness. If expression of anger or protest on the Bluestar Operation could be used as a piece of evidence or a circumstance against accused then all that members of the Sikh community who felt agitated over the Bluestar Operation must be held as members of the conspiracy.67. So far as taking leave is concerned there is nothing on the basis of which any significance could be attached to it. There is no material to indicate that during the leave Balbir Singh met Beant Singh or anyone else or was in any manner connected with the conspiracy or was doing something in pursuance of the agreement of conspiracy between them. Merely because on certain dates he was on leave no inference could be drawn. The High Court relied on the fact that after returning from leave this accused met Beant Singh and Amarjit Singh but on this meeting also there is no other evidence except the evidence of Amarjit Singh PW 44 which we will deal with a little later.68. So far as appearance of falcon and offering of ardas is concerned it is admitted that appearance of falcon is considered, by the Sikh community, as a sacred thing as falcon is supposed to be a representative of the Guru and if therefore this accused and Beant Singh offered ardas nothing could be inferred from this alone. As even the High Court observed that:Nothing unusual or abnormal about the incident as any religious Sikh seeing the appearance of the falcon could offer the Ardas.So far as meeting with Satwant Singh is concerned on October 30, 1984 the only evidence of that fact is the evidence of Satish Chandra Singh PW 52 about whom I have discussed little earlier and nothing more need be stated here.69. With this we are now left with the evidence of Amarjit Singh who is an important witness as per the prosecution. It has come on record that his statement during investigation was recorded thrice; twice by Police under Section 161 and then under Section 164 Cr. P.C. The first statement is Ex. PW 44 which was recorded on November 24, 1984 after 25 days of the incident and the Second statement PW 44 DB was recorded on December 19, 1984. On December 21, 1984 the third statement PW 44A under Section 164 of the Code came to be recorded. In the first statement there is no involvement of Balbir Singh. The second statement according to the witness was recorded at his own instance. He states that it did not occur to him that assassination was the handwork of Balbir Singh and Kehar Singh. After he had learnt about the firing and death of Smt. Indira Gandhi he recalled certain things and went to Shri R.P. Sharma who recorded his statement on 24.11.84. According to him, he recalled bit by bit and that was the reason, he gave the subsequent two statements. If we carefully peruse these statements it is clear that the entire approach of the High Court appears to be erroneous.These portions of the statement which were put and proved from Amarjit Singh as his first statement recorded by the police clearly go to show that he had only alleged these things against Beant Singh. What he did later was to improve upon his statement and introduce Balbir Singh also or substitute Balbir Singh in place of Beant Singh. The only other inference is that he was himself a party to that conspiracy. Otherwise there is no explanation why he should keep on giving statement after statement, that too after 25 days of the incident. The second statement was recorded on December 19 and a third statement on December 21, 1984. It clearly shows that he was a convenient witness available to State whatever was desired from him. He appears to have become wiser day by day and remembered bit by bit, is certainly interesting to remember.70. It could not be doubted that the two versions given out by this witness are not such which could easily be reconciled. In fact in his first version there is nothing against Balbir Singh. In his second statement he has tried to introduce things against him. This apparently is a clear improvement. It is well-settled that even delay is said to be dangerous and if a person who is an important witness does not open his mouth for a long time his evidence is always looked with suspicion but here we have a witness who even after 25 days gave his first statement and said nothing against the present accused and then even waited for one more month and then he suddenly chose to come out with the allegations against this accused. In our opinion, therefore, such a witness could not be relied upon and even the High Court felt that it would not be safe to rely on the testimony of such a witness alone.71. Apart from it, the evidence which he has given is rather interesting. According to him Beant Singh and Balbir Singh were so close to him that they used to keep him informed about their plans to assassinate the Prime Minister of India. But relation with Balbir was such that he was not even invited when Balbir Singh was married and therefore it was nothing but casual but still he claims that he had so much of close association that he used to be taken in confidence by these two persons. That means that he is one of the conspirators or otherwise he would not have kept quiet without informing his superiors as it was his duty to do when the Prime Minister was in Janger.72. In view of this, it is clear that there is no evidence at all to establish prima facie participation of this accused in conspiracy or any evidence to indicate that he had entered into any agreement to do an unlawful act or to commit an offence alongwith the other accused persons. Therefore, in absence of any evidence in respect of the first part of Section 10 which is necessary it could not be contended that the confession of Satwant Singh could be of any avail or could be used against this appellant.73. Before parting with this witness, one more thing may be noted. The High Court, in order to explain that this witness Amarjit Singh did not refer to Balbir Singh in his first statement on 24.11.84 stated something out of imagination. The High Court has quoted his statement on 24.11.84 in these words:He is also reported to have said that Beant Singh had wanted to kill Smt. Gandhi before 15th of August and that he had agreed to do so if grenade and remote control were available.In this context, the use of the word agreed and word he the High Court felt that they refer to Balbir Singh and none else. This appears to be an explanation given by Amarjit Singh in his statement in Court and the High Court felt that it could accept it. It is clear that where he says agreed and he in his statement on November 24, 1984 he had not named Balbir at all. It is only now in his statement at trial that he grew wiser and made an attempt by way of this explanation. It is rather unfortunate that the High Court felt that this explanation should be accepted. The statement against Balbir coming for the first time on 21st December, 1984 itself in the light of the settled criminal jurisprudence of this country ought to have been rejected outright. Secondly, the High Court found corroboration from the confession of Satwant Singh. So far as the statement or the confession of Satwant Singh is concerned, it could not be used against this accused as we have earlier indicated.74. Thirdly so far as falcon incident is concerned, we do not know how the High Court felt that that incident corroborates the evidence of Amarjit Singh when Amarjit Singh alone talks of the falcon incident. There is no basis for this conclusion of the High Court.75. Lastly, it may be noted that so far as this accused is concerned, even Bimla Khalsa, the wife of Beant Singh does not mention anything.Kehar Singh:77. The finding of guilt recorded by the High Court against Kehar Singh is a mixture of both relevant and irrelevant evidence adduced by the prosecution.Material evidence against Kehar Singh is the evidence of PW 65, Bimla Khalsa wife of Be ant Singh.79. There is only one variation between the previous statement and evidence in Court. That relates to identification of Satwant Singh. In the Court she attempted to s.ay that he was a boy and later explained that at that time he had no beard but the manner in which the boy has been described and the occasions when the boy had come to their house, there is hardly any doubt left. Apart from it, so far as Satwant Singh is concerned even if we omit the evidence of Bimla Khalsa, it is not material. But it could not be doubted that from her evidence that the above circumstances have been established.80. Next important circumstance is the Vak. It is alleged that when early morning the worship starts in a Gurudwara, the Granth Sahib is opened at random and some message from a page which is so opened is written on the blackboard as a Vak for the day. It is proved by Bimla Khalsa that Ex. P. 55 A was written in the handwriting of Beant Singh. It was a Vak of a particular day which was in the following terms:One gets comfort on serving the Guru. Then miseries do not come near. Birth and death come to an end and black (wicked) do not have effect.About this Vak having been taken out in the Gurudwara, there is some controversy as the witness produced for that purpose Surendra Singh, PW 55 was not in a position to produce the diary but so far as Beant Singh is concerned, the Vak written by him on a piece of paper in Yellow ink in gurumukhi with date 13.10.84 was put on it has been proved by the evidence of Bimla Khalsa. This was admittedly found from the quarters of Beant Singh on 31.10.84 and it was lying inside the book Sant Bhindrawale.81. As far as the incident on 17th October is concerned, Bimla Khalsa in clear terms stated that Kehar Singh and Beant Singh had secret talks. She wanted to know it, but she was not given to understand. This kind of secret talk with Beant Singh which Kehar Singh had, is a very significant circumstance. Apparently Kehar Singh being an elderly person did not indicate to her about their plan. If the attempt of Kehar Singh was to dissuade Beant Singh then there was no occasion for him to keep the matter secret from his wife. On the contrary he should have indicated to his wife also what Beant Singh was planning. These talks therefore as proved by Bimla Khalsa go a long way in establishing Kehar Singh being a party to the conspiracy.82. Her evidence also indicates that Beant Singh took Amrit on 14th and Beant Singh kept his golden kara and ring in the house of Kehar Singh which has been recovered from the latter. It clearly goes to show that Kehar Singh knew why Beant Singh took Amrit and why he handed over the golden kara and ring to him. It is also clear from the evidence of Bimla Khalsa that what transpired between Beant Singh and Kehar Singh on 14th was not conveyed to her and she was kept in dark.83. In this background, the trip to Amritsar of Beant Singh, Kehar Singh and their families is of some significance. On October 20, 1984 Beant Singh and Kehar Singh alongwith their family members went to Amritsar. There is evidence indicated by Bimla Khalsa that originally Kehar Singh arid Beant Singh wanted to go alone but ultimately they agreed that the families also could accompany. According to the evidence of Bimla Khalsa they reached at Amritsar at about 2 to 3 P.M. and went to Darbar Sahib Gurudwara in the evening of 20th October. While ladies and children were listening to kirtan, Beant Singh and Kehar Singh went to see the Akal Takht. Bimla Khalsa wanted to accompany them to see the Akal Takht but she was told to see the same on the next morning. On the next morning i.e. on 21st October, PW 53 was woken up by Kehar Singh and told that he would attend Asaki War Kirtan in Darbar Sahib. He went alongwith Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M. alongwith PW 53. They returned home at 11 A.M. Beant Singh and Kehar Singh did not return alongwith them. After lunch, PW 53 took the ladies and children to the railway station. Beant Singh and Kehar Singh directly came to the railway station from where they caught the train to New Delhi. The attempt of these two persons to keep themselves away from the company of their wives and children speaks volume about their sinister designs. The way in which these two avoided the company of the members of the family and PW 53 at whose residence they were staying and the manner in which they remained mysterious if looked at with the secret talks which they had in the house of Bimla Khalsa earlier goes to establish that the two were doing something or discussing something or planning something which they wanted to keep it as a secret even from Bimla Khalsa.84. So far as Amrit Chhakna ceremony is concerned or taking Amrit is concerned, ordinarily it may not be significant. It is only a ceremony wherein a Sikh takes a vow to lead the life of purity and giving up all worldly pleasures and evil habits but this unfortunately is a situation which could be understood in different ways. The manner in which Amrit has been taken by Beant Singh and even Satwant Singh has been made to take it and even Bimla Khalsa made to take it makes it significant that in all these three of Amrit taking Kehar Singh was always with them or atleast it could be said, was inspiring them to have it. It also indicates that there was something in the mind of Beant Singh which was known to Kehar Singh and which he even tried to keep a secret from Bimla Khalsa, wife of Beant Singh and wanted Beant Singh to have a full religious purification and confidence.85. There is yet another circumstance. Post-crime conduct of Kehar Singh. It is in the evidence that on the day i.e. 31st October, 1984 although Kehar Singh claims to be on leave, he goes to the office at 10.45Whosoever would take confrontation with the Panth, he would meet the sames remark shows his guilty mind with that of Beant Singh.86. We have discussed some of the main features of the case and it is not necessary for us to go into other details which the High Court has discussed. These circumstances by themselves indicate that Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi.Satwant Singh:87. He was a Constable on security duty at the residence of the Prime Minister.89. The main evidence against him is evidence of eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Ministers house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV representative and he was to go alongwith her holding an umbrella to protect her from the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left side and Satwant Singh on the right side, the former in a Safari suit and the later in the uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his revolver from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and injured. She fell down on the right side. Seeing this he threw the umbrella on the left side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured Satwant Singh. Some other persons also came and secured Beant Singh. He then ran to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty of controlling the crowd. At about 10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors room which was recorded by him and sent to Tuglak Road Police Station which is the FIR in this Case.90. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct witnesses also finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appellant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed.76. In the light of the discussions above, in our opinion, so far as this accused is concerned there is no evidence at all on the basis of which his conviction could be justified. He is therefore entitled to be acquitted.The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reasons or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserves any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper. | 0 | 21,865 | 11,234 | ### 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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at that time. The arms and ammunition register Ex. PW 3A at Teen Murti Lines also shows that Satwant Singh was issued an SAF Carbine having But No. 80 along-with five magazines and hundred live rounds of 99 of ammunition. He signed the register in token of the receipt. PW 3, the Armoury Incharge confirms this. There is also evidence to indicate that this person manipulated his duty and was put on the TMC gate where ultimately the incident took place on the morning of 31.10.1984. 89. The main evidence against him is evidence of eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Ministers house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV representative and he was to go alongwith her holding an umbrella to protect her from the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left side and Satwant Singh on the right side, the former in a Safari suit and the later in the uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his revolver from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and injured. She fell down on the right side. Seeing this he threw the umbrella on the left side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured Satwant Singh. Some other persons also came and secured Beant Singh. He then ran to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty of controlling the crowd. At about 10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors room which was recorded by him and sent to Tuglak Road Police Station which is the FIR in this Case. 90. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct witnesses also finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appellant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed. 91. Then is the question of sentence which was argued to some extent. But it must be clearly understood that it is not a case where X is killed by Y on some personal vendetta. The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reasons or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserves any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper.
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the office at 10.45Whosoever would take confrontation with the Panth, he would meet the sames remark shows his guilty mind with that of Beant Singh.86. We have discussed some of the main features of the case and it is not necessary for us to go into other details which the High Court has discussed. These circumstances by themselves indicate that Kehar Singh was a co-conspirator to assassinate Mrs. Gandhi.Satwant Singh:87. He was a Constable on security duty at the residence of the Prime Minister.89. The main evidence against him is evidence of eye witnesses. The first eye witness which I would like to refer is Narain Singh PW 9. This witness stated that he was on duty at about 7.30 A.M. in the porch of the Prime Ministers house. According to him at 8.45 A.M. he with an umbrella took up his position near the entry gate as he came to know that Smt. Gandhi had to go to No. 1, Akbar Road to meet certain foreign TV representative and he was to go alongwith her holding an umbrella to protect her from the sun. At 9.10.A.M. Smt. Gandhi came out of the house followed by Nathu Ram PW 6 and her Private Secretary Shri R.K. Dhawan. Then he moved over to the right side and held the umbrella Ex.P.19. They approached the TMC Gate and when they were about 10 ft. therefrom he saw that the gate was open and he also saw Beant Singh on the left side and Satwant Singh on the right side, the former in a Safari suit and the later in the uniform and with a Carbine stengun in his hands. At that time Beant Singh took out his revolver from the right dub and fired at Smt. Gandhi and immediately thereafter Satwant Singh also started firing at her. Smt. Gandhi was hit by these bullets and injured. She fell down on the right side. Seeing this he threw the umbrella on the left side, took out his revolver and jumped on Beant Singh. As a result of which revolver fell from the hands. He saw Satwant Singh throwing his Carbine to the ground on his right side. At that time Shri Bhatt, the personal guard of Smt. Gandhi and ITBP personnel arrived there and secured Satwant Singh. Some other persons also came and secured Beant Singh. He then ran to summon the doctor and while going, he noticed that Rameshwar Dayal PW 10 had also sustained bullet injuries. The doctor himself came running by then. He, Bhatt, the doctor and Nathu Ram took her to the escort car which had arrived near and placed he/in the rear seat. By this time, Smt. Sonia Gandhi had also arrived and Smt. Gandhi was taken to AIIMS accompanied by Bhat, Dhawan and Fotedar on the Front seat and the doctor and Sonia Gandhi on the back seat. He went to the Hospital in a staff car and PW 10 was taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty of controlling the crowd. At about 10 or 10.15 A.M. R.P.Kochhar, PW 73 arrived and this witness gave a statement to Kochhar in the doctors room which was recorded by him and sent to Tuglak Road Police Station which is the FIR in this Case.90. His testimony is corroborated by the First Information Report and also by the two other eye witnesses Rameshwar Dayal and Nathu Ram whose presence on the spot could not be doubted. Nathu was in the personal staff of the Prime Minister and Rameshwar Dayal himself had received injuries. Apart from it, this evidence of direct witnesses also finds corroboration from the post-mortem report, recovery of cartridges and arms on the spot and the evidence of the Doctor and the expert who tallied the bullets. Under these circumstances even if the confession of this appellant Satwant Singh is not taken into consideration, still there is enough evidence which conclusively establish his part in the offence and in this view of the matter there appears to be no reason to interfere with the conclusions arrived at by the two courts below. In our opinion, therefore, the appeal of Satwant Singh deserves to be dismissed.76. In the light of the discussions above, in our opinion, so far as this accused is concerned there is no evidence at all on the basis of which his conviction could be justified. He is therefore entitled to be acquitted.The person killed is a lady and no less than the Prime Minister of this Country who was the elected leader of the people. In our country we have adopted and accepted a system wherein change of the leader is permissible by ballet and not by bullet. The act of the accused not only takes away the life of popular leader but also undermines our system which has been working so well for the last forty years. There is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed on the security duty of the Prime Minister. They are posted there to protect her from any intruder or from any attack from outside and therefore if they themselves resort to this kind of offence, there appears to be no reasons or no mitigating circumstance for consideration on the question of sentence. Additionally, an unarmed lady was attacked by these two persons with a series of bullets and it has been found that a number of bullets entered her body. The manner in which mercilessly she was attacked by these two persons on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. In this view of the matter, even the conspirator who inspired the persons who actually acted does not deserves any leniency in the matter of sentence. In our opinion, the sentence awarded by the trial court and maintained by the High Court appears to be just and proper.
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Vishundas Hundumal, Etc Vs. State of Madhya Pradesh and Others | and the reasons which appealed to the High Court rejecting those contentions are so convincing that we adopt them and reject all those contentions.The only contention that survives for our consideration is that while cancelling and or curtailing certain permits for routes parts of which overlapped with the notified routes there were other permit holders in the same class having stage carriage permits for certain routes parts of which were overlapping with the notified route and yet in the case of petitioners their perm its were curtailed prohibiting them from operating their stage carriages on that portion of the route for which they had permit which was overlapping with the notified route while others in all 19 who, though similarly situated, were favourably treated by neither curtailing nor cancelling their permits and were permitted to ply their stage carriages on the routes for which they had permits passing over a portion of the notified route without any let or hindrance. The contention is that this is hostile discrimination by executive act without any valid criteria for picking and choosing and that the discrimination is so writ large on its face that the Corporation and the State Government did not try to justify the same before either the Special Secretary who heard the objections or the High Court and took convenient refuge under the plea of unconscious and unintentional discrimination through oversight relying upon Ramnath Verma v. State of Rajasthan. Th ose 19 operators who received a favourable yet unjustified treatment are listed at page 45 in Special Leave Petition No. 6150/79. Neither the learned counsel for the Corporation nor Mr. Gambhir for the State of Madhya Pradesh attempted to justify c lassification amongst operators holding stage carriage permits and plying vehicles on routes part of which was overlapping with the notified route. 3. Before we examine what has been laid down by this Court in Ramnath Vermas case (supra) it would be advantageous to recall how the Special Secretary appointed to hear objections and approve the scheme dealt with this contention of the petitioners. In paragraph 13 of his order he has observed as under:-"It is clear from the evidence that certain permits which were valid on the date of the publication of the scheme were left out and have not been included in the scheme which was published under section 68-C. The question to be considered is whether the permits have been left out by the Corporation consciously and whether this is an act of conscious discrimination. And also if it is conscious discrimination, what will be its effect. The law relating to left out permits has been laid down by the Supreme Court in Ramnath Verma v. State of Rajasthan". 4. After referring to the facts in Ramnath Vermas case (supra), he held that error or omission was on the part of the Regional Transport Authority in not supplying particulars of all those permits which were valid and which were either to be curtailed or cancelled consequent upon the approved scheme coming into force and on this account the Corporation cannot suffer and the whole scheme cannot be struck down. For almost identical reasons the High Court has negatived this contention. 5. Undoubtedly, the error or omission was on the part of the Regional Transport Authority in not supplying full information to the Special Secretary about all the valid permits in force at the relevant time and which were either to be curtailed or cancelled consequent upon the approval of scheme. This error or omission on the part of the Regional Transport Authority has resulted in gross discrimination between the transport operators in the same class in that some have their permits remaining intact with right to ply their vehicles on the notified route and some others whose permits are curtailed. That this is discrimination between persons in the same class does not call for any discussion. Maybe, the discrimination may arise out of error or omission on the part of a governmental agency but the question is: Can it be overlooked on that account? Ramnath Vermas case (supra) cannot help the respondents in this behalf because a Constitution Bench of this Court held in that case that discrimination under Art. 14 is conscious discrimination and not accidental discrimination that arises from oversight which the Stat e is ready to rectify. We did not find any willingness on the part of the State authorities to rectify the error either in the High Court or before this Court. There was some vague suggestion of another scheme which was under examination which may ultimately result in rectification of this discrimination. No concrete or adequate information was laid before the Court as to whether that scheme is pending and how long would it take to reach its final destination. And further, t here is no guarantee that it will be approved We, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of six months.Conceding that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole scheme. Such an approach would be destructive of a whole some effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority. 6. | 1[ds]2. Number of contentions were raised before the High Court, about the validity of the scheme, the procedure adopted while approving the scheme, the opportunity to raise objections and the consideration of the objections. None of them found favour with the High Court and the reasons which appealed to the High Court rejecting those contentions are so convincing that we adopt them and reject all those contentions3. Before we examine what has been laid down by this Court in Ramnath Vermas case (supra) it would be advantageous to recall how the Special Secretary appointed to hear objections and approve the scheme dealt with this contention of the petitioners. In paragraph 13 of his order he has observed ast is clear from the evidence that certain permits which were valid on the date of the publication of the scheme were left out and have not been included in the scheme which was published under section. The question to be considered is whether the permits have been left out by the Corporation consciously and whether this is an act of conscious discrimination. And also if it is conscious discrimination, what will be its effect. The law relating to left out permits has been laid down by the Supreme Court in Ramnath Verma v. State of Rajasthan"4. After referring to the facts in Ramnath Vermas case (supra), he held that error or omission was on the part of the Regional Transport Authority in not supplying particulars of all those permits which were valid and which were either to be curtailed or cancelled consequent upon the approved scheme coming into force and on this account the Corporation cannot suffer and the whole scheme cannot be struck down. For almost identical reasons the High Court has negatived this contention5. Undoubtedly, the error or omission was on the part of the Regional Transport Authority in not supplying full information to the Special Secretary about all the valid permits in force at the relevant time and which were either to be curtailed or cancelled consequent upon the approval of scheme. This error or omission on the part of the Regional Transport Authority has resulted in gross discrimination between the transport operators in the same class in that some have their permits remaining intact with right to ply their vehicles on the notified route and some others whose permits are curtailed. That this is discrimination between persons in the same class does not call for any discussion. Maybe, the discrimination may arise out of error or omission on the part of a governmental agency but the question is: Can it be overlooked on that account? Ramnath Vermas case (supra) cannot help the respondents in this behalf because a Constitution Bench of this Court held in that case that discrimination under Art. 14 is conscious discrimination and not accidental discrimination that arises from oversight which the Stat e is ready to rectify. We did not find any willingness on the part of the State authorities to rectify the error either in the High Court or before this Court. There was some vague suggestion of another scheme which was under examination which may ultimately result in rectification of this discrimination. No concrete or adequate information was laid before the Court as to whether that scheme is pending and how long would it take to reach its final destination. And further, t here is no guarantee that it will be approved We, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of six monthsWe, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of sixg that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole schemeWe, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of sixg that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the wholescheme.Such an approach would be destructive of a whole some effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority. | 1 | 1,376 | 909 | ### 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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and the reasons which appealed to the High Court rejecting those contentions are so convincing that we adopt them and reject all those contentions.The only contention that survives for our consideration is that while cancelling and or curtailing certain permits for routes parts of which overlapped with the notified routes there were other permit holders in the same class having stage carriage permits for certain routes parts of which were overlapping with the notified route and yet in the case of petitioners their perm its were curtailed prohibiting them from operating their stage carriages on that portion of the route for which they had permit which was overlapping with the notified route while others in all 19 who, though similarly situated, were favourably treated by neither curtailing nor cancelling their permits and were permitted to ply their stage carriages on the routes for which they had permits passing over a portion of the notified route without any let or hindrance. The contention is that this is hostile discrimination by executive act without any valid criteria for picking and choosing and that the discrimination is so writ large on its face that the Corporation and the State Government did not try to justify the same before either the Special Secretary who heard the objections or the High Court and took convenient refuge under the plea of unconscious and unintentional discrimination through oversight relying upon Ramnath Verma v. State of Rajasthan. Th ose 19 operators who received a favourable yet unjustified treatment are listed at page 45 in Special Leave Petition No. 6150/79. Neither the learned counsel for the Corporation nor Mr. Gambhir for the State of Madhya Pradesh attempted to justify c lassification amongst operators holding stage carriage permits and plying vehicles on routes part of which was overlapping with the notified route. 3. Before we examine what has been laid down by this Court in Ramnath Vermas case (supra) it would be advantageous to recall how the Special Secretary appointed to hear objections and approve the scheme dealt with this contention of the petitioners. In paragraph 13 of his order he has observed as under:-"It is clear from the evidence that certain permits which were valid on the date of the publication of the scheme were left out and have not been included in the scheme which was published under section 68-C. The question to be considered is whether the permits have been left out by the Corporation consciously and whether this is an act of conscious discrimination. And also if it is conscious discrimination, what will be its effect. The law relating to left out permits has been laid down by the Supreme Court in Ramnath Verma v. State of Rajasthan". 4. After referring to the facts in Ramnath Vermas case (supra), he held that error or omission was on the part of the Regional Transport Authority in not supplying particulars of all those permits which were valid and which were either to be curtailed or cancelled consequent upon the approved scheme coming into force and on this account the Corporation cannot suffer and the whole scheme cannot be struck down. For almost identical reasons the High Court has negatived this contention. 5. Undoubtedly, the error or omission was on the part of the Regional Transport Authority in not supplying full information to the Special Secretary about all the valid permits in force at the relevant time and which were either to be curtailed or cancelled consequent upon the approval of scheme. This error or omission on the part of the Regional Transport Authority has resulted in gross discrimination between the transport operators in the same class in that some have their permits remaining intact with right to ply their vehicles on the notified route and some others whose permits are curtailed. That this is discrimination between persons in the same class does not call for any discussion. Maybe, the discrimination may arise out of error or omission on the part of a governmental agency but the question is: Can it be overlooked on that account? Ramnath Vermas case (supra) cannot help the respondents in this behalf because a Constitution Bench of this Court held in that case that discrimination under Art. 14 is conscious discrimination and not accidental discrimination that arises from oversight which the Stat e is ready to rectify. We did not find any willingness on the part of the State authorities to rectify the error either in the High Court or before this Court. There was some vague suggestion of another scheme which was under examination which may ultimately result in rectification of this discrimination. No concrete or adequate information was laid before the Court as to whether that scheme is pending and how long would it take to reach its final destination. And further, t here is no guarantee that it will be approved We, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of six months.Conceding that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole scheme. Such an approach would be destructive of a whole some effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority. 6.
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2. Number of contentions were raised before the High Court, about the validity of the scheme, the procedure adopted while approving the scheme, the opportunity to raise objections and the consideration of the objections. None of them found favour with the High Court and the reasons which appealed to the High Court rejecting those contentions are so convincing that we adopt them and reject all those contentions3. Before we examine what has been laid down by this Court in Ramnath Vermas case (supra) it would be advantageous to recall how the Special Secretary appointed to hear objections and approve the scheme dealt with this contention of the petitioners. In paragraph 13 of his order he has observed ast is clear from the evidence that certain permits which were valid on the date of the publication of the scheme were left out and have not been included in the scheme which was published under section. The question to be considered is whether the permits have been left out by the Corporation consciously and whether this is an act of conscious discrimination. And also if it is conscious discrimination, what will be its effect. The law relating to left out permits has been laid down by the Supreme Court in Ramnath Verma v. State of Rajasthan"4. After referring to the facts in Ramnath Vermas case (supra), he held that error or omission was on the part of the Regional Transport Authority in not supplying particulars of all those permits which were valid and which were either to be curtailed or cancelled consequent upon the approved scheme coming into force and on this account the Corporation cannot suffer and the whole scheme cannot be struck down. For almost identical reasons the High Court has negatived this contention5. Undoubtedly, the error or omission was on the part of the Regional Transport Authority in not supplying full information to the Special Secretary about all the valid permits in force at the relevant time and which were either to be curtailed or cancelled consequent upon the approval of scheme. This error or omission on the part of the Regional Transport Authority has resulted in gross discrimination between the transport operators in the same class in that some have their permits remaining intact with right to ply their vehicles on the notified route and some others whose permits are curtailed. That this is discrimination between persons in the same class does not call for any discussion. Maybe, the discrimination may arise out of error or omission on the part of a governmental agency but the question is: Can it be overlooked on that account? Ramnath Vermas case (supra) cannot help the respondents in this behalf because a Constitution Bench of this Court held in that case that discrimination under Art. 14 is conscious discrimination and not accidental discrimination that arises from oversight which the Stat e is ready to rectify. We did not find any willingness on the part of the State authorities to rectify the error either in the High Court or before this Court. There was some vague suggestion of another scheme which was under examination which may ultimately result in rectification of this discrimination. No concrete or adequate information was laid before the Court as to whether that scheme is pending and how long would it take to reach its final destination. And further, t here is no guarantee that it will be approved We, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of six monthsWe, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of sixg that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole schemeWe, however, take note of a submission by Mr. Gambhir, learned counsel for the State Government that the said scheme would be finalised within a period of sixg that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the wholescheme.Such an approach would be destructive of a whole some effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority.
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Babu Noorul Hasan Khan Vs. Ram Prasad Singh and Others | illegality of the Award was apparent on the face of it in as much as the Arbitrator did not apply the correct law in determining the rights of the parties. He set aside the Award and remitted it back to the arbitrator for reconsideration i n the light of his judgment.Appeals were taken to the learned Additional District Judge who by order dated 8-12-1962 disagreed with the learned Civil Judge on the main question but affirmed his order of remand on the ground that in the Award many questions were left undetermined. Both sides filed separate revisions before the High Court. The High Court has allowed the revisions of the ex-Thekedars and dismissed those of the ex-Zamindars. Hence this appeal.2. The only point which was argued and agitated before us is whether Bhagwati Singh and others have been rightly held to be the Sirdars of the plots in question or whether the ex-landlords had become the bhumidars. The determination of this question depends upon a correct appreciation of the provisions of law contained in sections 12 and 13 of the Act. We shall read the relevant portions of the two sections. They are as follows:-"12. Thekedars to be hereditary tenants in certain circumstances.-(1) Where any land was in the personal cultivation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then not withstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates.13. Estate in possession of a thekedar.-(1) Subject to the provisions of Section 12 and sub-section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting, cease to have any right to or possess as such any land in such estate.(2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting, the same shall-(a) if it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir or khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, with effect from the date of vesting, become the asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less;(b) if it was not sir or khudkasht of the lessor on the date of the grant of the theka and-(i) its area does not exceed thirty acres, be deemed for purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting.(ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall b e deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209."3. It would be noticed from the provisions aforesaid that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting. This is what has been provided in sub- section (1) of section 13. But it is subject to two exceptions-viz., on e the provision contained in section 12 and the other engrafted in sub-section (2) of section 13. There is no dispute between the parties that the land in possession of the Thekedars on the date of vesting was either covered by section 12(1) or section 13(2) (a). We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars. If such a land was in the personal cultivation of a person on the 1st day of May, 195 0 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non-obstante clause occurring in sub-section (1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent at hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13(2)(a) of the Act. The Arbitrator on a consideration of the Theka document found that the theka was made with a view to cultivation of the land by the Thekedar personally. The interpretation of the Arbitrator was not such that it could enable the Civil Judge to take the view that there was an error of law apparent on the face of the record. On the other hand it appears to us what the interpretation put by the Arbitrator was correct. There is a subtle but clear dividing line between the two types of cases one falling under section 12(1) of the Act and the other coming within the ambit of section 13(2)(a).4. In our opinion the High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with.5. | 0[ds]It would be noticed from the provisions aforesaid that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting. This is what has been provided in sub- section (1) of section 13. But it is subject to two exceptions-viz., on e the provision contained in section 12 and the other engrafted in sub-section (2) of section 13. There is no dispute between the parties that the land in possession of the Thekedars on the date of vesting was either covered by section 12(1) or section 13(2) (a). We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars. If such a land was in the personal cultivation of a person on the 1st day of May, 195 0 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non-obstante clause occurring in sub-section (1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent at hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13(2)(a) of the Act. The Arbitrator on a consideration of the Theka document found that the theka was made with a view to cultivation of the land by the Thekedar personally. The interpretation of the Arbitrator was not such that it could enable the Civil Judge to take the view that there was an error of law apparent on the face of the record. On the other hand it appears to us what the interpretation put by the Arbitrator was correct. There is a subtle but clear dividing line between the two types of cases one falling under section 12(1) of the Act and the other coming within the ambit of section 13(2)(a).In our opinion the High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with. | 0 | 1,471 | 453 | ### 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:
illegality of the Award was apparent on the face of it in as much as the Arbitrator did not apply the correct law in determining the rights of the parties. He set aside the Award and remitted it back to the arbitrator for reconsideration i n the light of his judgment.Appeals were taken to the learned Additional District Judge who by order dated 8-12-1962 disagreed with the learned Civil Judge on the main question but affirmed his order of remand on the ground that in the Award many questions were left undetermined. Both sides filed separate revisions before the High Court. The High Court has allowed the revisions of the ex-Thekedars and dismissed those of the ex-Zamindars. Hence this appeal.2. The only point which was argued and agitated before us is whether Bhagwati Singh and others have been rightly held to be the Sirdars of the plots in question or whether the ex-landlords had become the bhumidars. The determination of this question depends upon a correct appreciation of the provisions of law contained in sections 12 and 13 of the Act. We shall read the relevant portions of the two sections. They are as follows:-"12. Thekedars to be hereditary tenants in certain circumstances.-(1) Where any land was in the personal cultivation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then not withstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates.13. Estate in possession of a thekedar.-(1) Subject to the provisions of Section 12 and sub-section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting, cease to have any right to or possess as such any land in such estate.(2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting, the same shall-(a) if it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir or khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, with effect from the date of vesting, become the asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less;(b) if it was not sir or khudkasht of the lessor on the date of the grant of the theka and-(i) its area does not exceed thirty acres, be deemed for purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting.(ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall b e deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209."3. It would be noticed from the provisions aforesaid that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting. This is what has been provided in sub- section (1) of section 13. But it is subject to two exceptions-viz., on e the provision contained in section 12 and the other engrafted in sub-section (2) of section 13. There is no dispute between the parties that the land in possession of the Thekedars on the date of vesting was either covered by section 12(1) or section 13(2) (a). We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars. If such a land was in the personal cultivation of a person on the 1st day of May, 195 0 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non-obstante clause occurring in sub-section (1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent at hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13(2)(a) of the Act. The Arbitrator on a consideration of the Theka document found that the theka was made with a view to cultivation of the land by the Thekedar personally. The interpretation of the Arbitrator was not such that it could enable the Civil Judge to take the view that there was an error of law apparent on the face of the record. On the other hand it appears to us what the interpretation put by the Arbitrator was correct. There is a subtle but clear dividing line between the two types of cases one falling under section 12(1) of the Act and the other coming within the ambit of section 13(2)(a).4. In our opinion the High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with.5.
### Response:
0
### Explanation:
It would be noticed from the provisions aforesaid that a Thekedar of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of its vesting. This is what has been provided in sub- section (1) of section 13. But it is subject to two exceptions-viz., on e the provision contained in section 12 and the other engrafted in sub-section (2) of section 13. There is no dispute between the parties that the land in possession of the Thekedars on the date of vesting was either covered by section 12(1) or section 13(2) (a). We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars. If such a land was in the personal cultivation of a person on the 1st day of May, 195 0 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non-obstante clause occurring in sub-section (1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent at hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere asami in accordance with section 13(2)(a) of the Act. The Arbitrator on a consideration of the Theka document found that the theka was made with a view to cultivation of the land by the Thekedar personally. The interpretation of the Arbitrator was not such that it could enable the Civil Judge to take the view that there was an error of law apparent on the face of the record. On the other hand it appears to us what the interpretation put by the Arbitrator was correct. There is a subtle but clear dividing line between the two types of cases one falling under section 12(1) of the Act and the other coming within the ambit of section 13(2)(a).In our opinion the High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with.
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CANARA BANK Vs. M/S LEATHEROID PLASTICS PVT. LTD | policy, statement of other relevant papers regarding the policies and payments used to be supplied by the bank to the respondent company whenever their directors used to visit bank premises. To sustain their case that the duty to insure rested with the borrower, clause 18 of the sanction letter has been relied upon by the bank, which stipulates:- 18. The fixed assets such as Building, Plant and Machinery and the prime securities to be insured for the adequate value as per our banks guidelines. 12. What we have to adjudicate here is as to whether there was any deficiency of service on the part of the bank in not covering the whole set hypothecated assets under the insurance policy. The respondent companys stand has been that they had been asking for copies of the policies but they were not given particulars thereof. The premium for the same was deducted by the bank from their account. In their counter affidavit, payment of insurance premium from their account has been shown in the following table:- table 13. It has been the respondents case that two letters were sent dated 11 th June, 2001 and 2 nd July, 2001 seeking copies and the status of the Insurance Policy but there was no reply to such letters. These two letters dated 11 th June, 2001 and 2 nd July, 2001 have been annexed at pages 71 and 72 of the Counter Affidavit of the respondent-company filed in connection with the subject appeal. 14. Turning to clause 9 of the respective deeds/agreements, we find that it was the duty of the respondent to obtain the insurance policy. But liberty was with the bank also to effect such insurance at the risk, responsibility and expenses of the borrower only to the extent of the value of the securities as estimated by the bank. In the event of rejection of the claim wholly or in part irrespective of the fact as to whether the claim was made by the bank or the borrower, the banks responsibility ceased. What emerges from a plain reading of clause 9 of the respective documents is that the duty to effect insurance was with the borrower, and the bank could not be held responsible if there was any loss or damage to the hypothecated assets which was not adequately covered by insurance taken by the borrower. Bank also would not remain responsible if the claim was rejected, whether in whole or part thereof. But the question that arises for adjudication in this appeal is that if the bank themselves effected the insurance and left significant part of hypothecated assets out of it without any intimation to that effect to the borrower, could such omission be held to be a lapse on the part of the bank? Going through the said two clauses, in our opinion, their proper construction would be that once the bank exercised the liberty to effect the insurance, it was implicit that such insurance ought to have covered the entire set of hypothecated assets, against which the credit facilities were extended. The bank could absolve themselves from any obligation in the event the claim was rejected wholly or in part. If, however, the bank in exercise of their liberty effected the insurance, then it became their obligation to cover the entire set of hypothecated assets. The clause under which liberty is given to the bank to effect insurance starts with the phrase – The bank is at liberty and is not bound to effect such insurance…… The employment of the adjective such in this clause demonstrates that if the bank effected insurance, that policy would have to carry the features which a borrowers policy would have covered as per the terms of the deeds or agreements. The borrowers liability in such a situation to repay to the bank could arise in the event of rejection of the claim or part thereof, such claim arising on account of loss/damage to the hypothecated assets. But the grievance of the borrower here is that though the bank effected such insurance, part of the hypothecated securities was left out from the coverage. It was a case of underinsurance. We have already construed the relevant clauses to mean that if the bank had exercised liberty to effect insurance, it was their duty to take out policies covering the entire set of hypothecated assets. That would constitute part of services the bank were rendering to the borrower. Effecting insurance was not their absolute obligation. But such obligation they had taken it upon themselves. The contractual terms also envisaged banks option or liberty to take up such obligation. 15. This being the position of law, in our opinion, the Commission was right in holding that the complainant had suffered loss because of inaction and negligence on the part of the Bank. This constituted deficiency in service. Any loss arising out of such deficiency was compensable under the provisions of the Consumer Protection Act, 1986. Before the Commission, certain decisions of the Commission were relied upon. The bank sought to distinguish these decisions, again relying on certain order of the Commission. But we have considered this case independently, on its own factual basis and accept the view of the Commission. The position could have been different in the event the Bank had alerted borrower at the time of effecting the policy that the entire set of assets was not being covered by the policies being effected by them. No such case has been made out. On the other hand, the Bank remained silent to the two letters of the respondent seeking particulars of the policy. The banks stand that the policies and statements were made available to the Directors of the respondent-Company is also not backed by any material. No particulars thereof has been furnished. We also do not find any reason as to why once the Bank had exercised their liberty or option for effecting insurance chose not to cover the entire set of hypothecated assets. | 0[ds]These two letters dated 11 th June, 2001 and 2 nd July, 2001 have been annexed at pages 71 and 72 of the Counter Affidavit of the respondent-company filed in connection with the subject appeal14. Turning to clause 9 of the respective deeds/agreements, we find that it was the duty of the respondent to obtain the insurance policy. But liberty was with the bank also to effect such insurance at the risk, responsibility and expenses of the borrower only to the extent of the value of the securities as estimated by the bank. In the event of rejection of the claim wholly or in part irrespective of the fact as to whether the claim was made by the bank or the borrower, the banks responsibility ceased. What emerges from a plain reading of clause 9 of the respective documents is that the duty to effect insurance was with the borrower, and the bank could not be held responsible if there was any loss or damage to the hypothecated assets which was not adequately covered by insurance taken by the borrower. Bank also would not remain responsible if the claim was rejected, whether in whole or part thereofGoing through the said two clauses, in our opinion, their proper construction would be that once the bank exercised the liberty to effect the insurance, it was implicit that such insurance ought to have covered the entire set of hypothecated assets, against which the credit facilities were extended. The bank could absolve themselves from any obligation in the event the claim was rejected wholly or in part. If, however, the bank in exercise of their liberty effected the insurance, then it became their obligation to cover the entire set of hypothecated assets. The clause under which liberty is given to the bank to effect insurance starts with the phrase – The bank is at liberty and is not bound to effect such insurance…… The employment of the adjective such in this clause demonstrates that if the bank effected insurance, that policy would have to carry the features which a borrowers policy would have covered as per the terms of the deeds or agreements. The borrowers liability in such a situation to repay to the bank could arise in the event of rejection of the claim or part thereof, such claim arising on account of loss/damage to the hypothecated assets. But the grievance of the borrower here is that though the bank effected such insurance, part of the hypothecated securities was left out from the coverage. It was a case of underinsurance. We have already construed the relevant clauses to mean that if the bank had exercised liberty to effect insurance, it was their duty to take out policies covering the entire set of hypothecated assets. That would constitute part of services the bank were rendering to the borrower. Effecting insurance was not their absolute obligation. But such obligation they had taken it upon themselves. The contractual terms also envisaged banks option or liberty to take up such obligation15. This being the position of law, in our opinion, the Commission was right in holding that the complainant had suffered loss because of inaction and negligence on the part of the Bank. This constituted deficiency in service. Any loss arising out of such deficiency was compensable under the provisions of the Consumer Protection Act, 1986. Before the Commission, certain decisions of the Commission were relied upon. The bank sought to distinguish these decisions, again relying on certain order of the Commission. But we have considered this case independently, on its own factual basis and accept the view of the Commission. The position could have been different in the event the Bank had alerted borrower at the time of effecting the policy that the entire set of assets was not being covered by the policies being effected by them. No such case has been made out. On the other hand, the Bank remained silent to the two letters of the respondent seeking particulars of the policy. The banks stand that the policies and statements were made available to the Directors of the respondent-Company is also not backed by any material. No particulars thereof has been furnished. We also do not find any reason as to why once the Bank had exercised their liberty or option for effecting insurance chose not to cover the entire set of hypothecated assets. | 0 | 4,358 | 789 | ### 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:
policy, statement of other relevant papers regarding the policies and payments used to be supplied by the bank to the respondent company whenever their directors used to visit bank premises. To sustain their case that the duty to insure rested with the borrower, clause 18 of the sanction letter has been relied upon by the bank, which stipulates:- 18. The fixed assets such as Building, Plant and Machinery and the prime securities to be insured for the adequate value as per our banks guidelines. 12. What we have to adjudicate here is as to whether there was any deficiency of service on the part of the bank in not covering the whole set hypothecated assets under the insurance policy. The respondent companys stand has been that they had been asking for copies of the policies but they were not given particulars thereof. The premium for the same was deducted by the bank from their account. In their counter affidavit, payment of insurance premium from their account has been shown in the following table:- table 13. It has been the respondents case that two letters were sent dated 11 th June, 2001 and 2 nd July, 2001 seeking copies and the status of the Insurance Policy but there was no reply to such letters. These two letters dated 11 th June, 2001 and 2 nd July, 2001 have been annexed at pages 71 and 72 of the Counter Affidavit of the respondent-company filed in connection with the subject appeal. 14. Turning to clause 9 of the respective deeds/agreements, we find that it was the duty of the respondent to obtain the insurance policy. But liberty was with the bank also to effect such insurance at the risk, responsibility and expenses of the borrower only to the extent of the value of the securities as estimated by the bank. In the event of rejection of the claim wholly or in part irrespective of the fact as to whether the claim was made by the bank or the borrower, the banks responsibility ceased. What emerges from a plain reading of clause 9 of the respective documents is that the duty to effect insurance was with the borrower, and the bank could not be held responsible if there was any loss or damage to the hypothecated assets which was not adequately covered by insurance taken by the borrower. Bank also would not remain responsible if the claim was rejected, whether in whole or part thereof. But the question that arises for adjudication in this appeal is that if the bank themselves effected the insurance and left significant part of hypothecated assets out of it without any intimation to that effect to the borrower, could such omission be held to be a lapse on the part of the bank? Going through the said two clauses, in our opinion, their proper construction would be that once the bank exercised the liberty to effect the insurance, it was implicit that such insurance ought to have covered the entire set of hypothecated assets, against which the credit facilities were extended. The bank could absolve themselves from any obligation in the event the claim was rejected wholly or in part. If, however, the bank in exercise of their liberty effected the insurance, then it became their obligation to cover the entire set of hypothecated assets. The clause under which liberty is given to the bank to effect insurance starts with the phrase – The bank is at liberty and is not bound to effect such insurance…… The employment of the adjective such in this clause demonstrates that if the bank effected insurance, that policy would have to carry the features which a borrowers policy would have covered as per the terms of the deeds or agreements. The borrowers liability in such a situation to repay to the bank could arise in the event of rejection of the claim or part thereof, such claim arising on account of loss/damage to the hypothecated assets. But the grievance of the borrower here is that though the bank effected such insurance, part of the hypothecated securities was left out from the coverage. It was a case of underinsurance. We have already construed the relevant clauses to mean that if the bank had exercised liberty to effect insurance, it was their duty to take out policies covering the entire set of hypothecated assets. That would constitute part of services the bank were rendering to the borrower. Effecting insurance was not their absolute obligation. But such obligation they had taken it upon themselves. The contractual terms also envisaged banks option or liberty to take up such obligation. 15. This being the position of law, in our opinion, the Commission was right in holding that the complainant had suffered loss because of inaction and negligence on the part of the Bank. This constituted deficiency in service. Any loss arising out of such deficiency was compensable under the provisions of the Consumer Protection Act, 1986. Before the Commission, certain decisions of the Commission were relied upon. The bank sought to distinguish these decisions, again relying on certain order of the Commission. But we have considered this case independently, on its own factual basis and accept the view of the Commission. The position could have been different in the event the Bank had alerted borrower at the time of effecting the policy that the entire set of assets was not being covered by the policies being effected by them. No such case has been made out. On the other hand, the Bank remained silent to the two letters of the respondent seeking particulars of the policy. The banks stand that the policies and statements were made available to the Directors of the respondent-Company is also not backed by any material. No particulars thereof has been furnished. We also do not find any reason as to why once the Bank had exercised their liberty or option for effecting insurance chose not to cover the entire set of hypothecated assets.
### Response:
0
### Explanation:
These two letters dated 11 th June, 2001 and 2 nd July, 2001 have been annexed at pages 71 and 72 of the Counter Affidavit of the respondent-company filed in connection with the subject appeal14. Turning to clause 9 of the respective deeds/agreements, we find that it was the duty of the respondent to obtain the insurance policy. But liberty was with the bank also to effect such insurance at the risk, responsibility and expenses of the borrower only to the extent of the value of the securities as estimated by the bank. In the event of rejection of the claim wholly or in part irrespective of the fact as to whether the claim was made by the bank or the borrower, the banks responsibility ceased. What emerges from a plain reading of clause 9 of the respective documents is that the duty to effect insurance was with the borrower, and the bank could not be held responsible if there was any loss or damage to the hypothecated assets which was not adequately covered by insurance taken by the borrower. Bank also would not remain responsible if the claim was rejected, whether in whole or part thereofGoing through the said two clauses, in our opinion, their proper construction would be that once the bank exercised the liberty to effect the insurance, it was implicit that such insurance ought to have covered the entire set of hypothecated assets, against which the credit facilities were extended. The bank could absolve themselves from any obligation in the event the claim was rejected wholly or in part. If, however, the bank in exercise of their liberty effected the insurance, then it became their obligation to cover the entire set of hypothecated assets. The clause under which liberty is given to the bank to effect insurance starts with the phrase – The bank is at liberty and is not bound to effect such insurance…… The employment of the adjective such in this clause demonstrates that if the bank effected insurance, that policy would have to carry the features which a borrowers policy would have covered as per the terms of the deeds or agreements. The borrowers liability in such a situation to repay to the bank could arise in the event of rejection of the claim or part thereof, such claim arising on account of loss/damage to the hypothecated assets. But the grievance of the borrower here is that though the bank effected such insurance, part of the hypothecated securities was left out from the coverage. It was a case of underinsurance. We have already construed the relevant clauses to mean that if the bank had exercised liberty to effect insurance, it was their duty to take out policies covering the entire set of hypothecated assets. That would constitute part of services the bank were rendering to the borrower. Effecting insurance was not their absolute obligation. But such obligation they had taken it upon themselves. The contractual terms also envisaged banks option or liberty to take up such obligation15. This being the position of law, in our opinion, the Commission was right in holding that the complainant had suffered loss because of inaction and negligence on the part of the Bank. This constituted deficiency in service. Any loss arising out of such deficiency was compensable under the provisions of the Consumer Protection Act, 1986. Before the Commission, certain decisions of the Commission were relied upon. The bank sought to distinguish these decisions, again relying on certain order of the Commission. But we have considered this case independently, on its own factual basis and accept the view of the Commission. The position could have been different in the event the Bank had alerted borrower at the time of effecting the policy that the entire set of assets was not being covered by the policies being effected by them. No such case has been made out. On the other hand, the Bank remained silent to the two letters of the respondent seeking particulars of the policy. The banks stand that the policies and statements were made available to the Directors of the respondent-Company is also not backed by any material. No particulars thereof has been furnished. We also do not find any reason as to why once the Bank had exercised their liberty or option for effecting insurance chose not to cover the entire set of hypothecated assets.
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S. BHASKARAN Vs. SEBASTIAN (DEAD) BY LRS. AND ORS | 8664/1988. 2. The brief facts from which this appeal arises are as follows: The suit temple properties were originally administered by three brothers– Sadhasivamurthy, Balasundaram, and Sundararajan (original owners). Vide settlement deed dated 19.09.1947, these original owners endowed the property to the temple. The deed also included a provision that the eldest son of the deceased trustee would become his successor. The genealogy of the family of the original owners is as follows: Sadhasivamurthy Balasundaram Sundararajan (issueless) K.S.Jaganathan Sabapathy Umapathy Ram Gnanambal S. Bhaskaran (Appellant)3. From 1987-88, three suits relating to the temple properties were filed. Among these, O.S. No. 8664/1988 is relevant to the instant appeal. This suit was filed on behalf of the temple by one K.S. Jaganathan and S. Bhaskaran (Appellant herein) in their capacity as trustees, seeking permanent injunction against Gnanambal and her husband, who were tenants in the suit properties (Respondents 1-7 herein) at that time. One Umapathymurthy (represented by Respondents 8-14 herein) was impleaded in this suit as a defendant. In his written statement, he claimed that he was the eldest son of Sadhasivamurthy and that he had been dispossessed from the trusteeship of the temple by his younger brother, K.S. Sabapathy. 4. By a common judgment dated 09.09.1991, the Trial Court disposed of all the three suits. With respect to the relevant suit (O.S. No. 8664/1988), it gave a finding that the Appellant herein and his uncle, K.S. Jaganathan were the trustees of the temple. To arrive at this finding, the Court relied on documents indicating that the Appellants father, K.S. Sabapathy was the eldest son of Sadhasivamurthy and the heir to the suit land in terms of the settlement deed dated 19.09.1947. These included the license issued by the Police Commissioner in 1983 showing K.S. Sabapathy as the heir (Ex. B21), electricity card of K.S. Sabapathy (Ex. B22), wedding invitation of Sadhasivamurthy (Ex. B24), license issued by police department for temple celebration (Ex. B25), and the legal heir certificate dated31.08.1987 issued to Sadhasivamurthy by the Tahsildar (Ex. B26). In holding that the Appellant was a trustee and passing a decree in his favour, the Court rejected the claim of Umapathymurthy that he was the eldest son of Sadhasivamurthy, and consequently the trustee of the temple. 5. In first appeal, the Appellate Court confirmed the judgment and decree of the Trial Court passed in O.S.No.8664/1988. No further appeal was preferred. It is crucial to note that Umapathymurthy was an appellant in the first appeal and had contested it. 6. The decree holders filed Execution Petition No. 1910/1992, for executing the decree obtained by them in O.S. No.8664/1988. In this petition, the judgment debtors (Respondents herein) filed an execution application (E.A. No. 5750/2003) under Section 47 of the Code of Civil Procedure, 1908 (CPC) against the Appellant and his uncle, seeking dismissal of the execution petition on the basis that the original decree was vitiated by fraud. They alleged that the heir certificate of Sadhasivamurthy furnished by the Appellant (Ex. B26 in the Trial Court record) was falsely prepared and suppressed the name of Umapathymurthy as the eldest son of Sadhasivamurthy. 7. While examining this application, the executing court observed that the judgment debtors had not objected to the heir certificate when it was adduced before the Trial Court. In any case, the Trial Court had not adjudicated the issue of trusteeship solely on the basis of the heir certificate, and other documents had been considered as well. Thus, by order dated 31.01.2007, the executing court dismissed E.A. No. 5750/2003 filed under Section 47 of the CPC as non-maintainable on the ground that the judgment of the Trial Court had been confirmed by the First Appellate Court after considering all relevant evidence, and had therefore become final. 8. When a revision petition was filed against the above order, the High Court allowed E.A. No. 5750/2003 vide the impugned judgment. Relying on sale deeds dated 11.08.1948 and 22.06.1950 showing Umapathymurthy as the eldest son and K.S. Sabapathy as the second minor son of Sadhasivamurthy, the High Court concluded that Umapathymurthy qualified as the trustee of the temple in view of the settlement deed dated 19.09.1947. Thus, K.S. Sabapathy could not have become the trustee of the temple. In view of this finding, the High Court went on to observe that the decree passed in the original suit was a nullity and could not be enforced. 9. Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728 ). In the present case, the Trial Court had already considered the evidence on record and given a finding that the Appellant and his uncle were the trustees of the temple. Notably, Umapathymurthy was a party to this suit and had contested it by filing a written statement, claiming to be the eldest son of Sadhasivamurthy. However, at that time, he did not put forth any objections to the heir certificate of Sadhasivamurthy, which was considered by the Trial Court while arriving at its finding. This judgment was confirmed by the First Appellate Court and no further appeal was preferred by the Respondents against it. In light of this, the findings of the Trial Court have become final, and Umapathymurthy as well as the other Respondents are bound by them. By allowing them to re-open the question of trusteeship by way of an application in an execution petition, the High Court has gone beyond the decree to be executed and exceeded its revisional jurisdiction under Section 115 of the CPC. Since the findings of the Trial Court had attained finality, the decision of the executing court dated 31.01.2007 by which E.A. No. 5750/2003 was dismissed, should have been affirmed. Thus, the impugned judgment is not only illegal, but also without jurisdiction. | 1[ds]9. Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728 ). In the present case, the Trial Court had already considered the evidence on record and given a finding that the Appellant and his uncle were the trustees of the temple. Notably, Umapathymurthy was a party to this suit and had contested it by filing a written statement, claiming to be the eldest son of Sadhasivamurthy. However, at that time, he did not put forth any objections to the heir certificate of Sadhasivamurthy, which was considered by the Trial Court while arriving at its finding. This judgment was confirmed by the First Appellate Court and no further appeal was preferred by the Respondents against it. In light of this, the findings of the Trial Court have become final, and Umapathymurthy as well as the other Respondents are bound by them. By allowing them to re-open the question of trusteeship by way of an application in an execution petition, the High Court has gone beyond the decree to be executed and exceeded its revisional jurisdiction under Section 115 of the CPC. Since the findings of the Trial Court had attained finality, the decision of the executing court dated 31.01.2007 by which E.A. No. 5750/2003 was dismissed, should have been affirmed. Thus, the impugned judgment is not only illegal, but also without jurisdiction. | 1 | 1,229 | 307 | ### Instruction:
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8664/1988. 2. The brief facts from which this appeal arises are as follows: The suit temple properties were originally administered by three brothers– Sadhasivamurthy, Balasundaram, and Sundararajan (original owners). Vide settlement deed dated 19.09.1947, these original owners endowed the property to the temple. The deed also included a provision that the eldest son of the deceased trustee would become his successor. The genealogy of the family of the original owners is as follows: Sadhasivamurthy Balasundaram Sundararajan (issueless) K.S.Jaganathan Sabapathy Umapathy Ram Gnanambal S. Bhaskaran (Appellant)3. From 1987-88, three suits relating to the temple properties were filed. Among these, O.S. No. 8664/1988 is relevant to the instant appeal. This suit was filed on behalf of the temple by one K.S. Jaganathan and S. Bhaskaran (Appellant herein) in their capacity as trustees, seeking permanent injunction against Gnanambal and her husband, who were tenants in the suit properties (Respondents 1-7 herein) at that time. One Umapathymurthy (represented by Respondents 8-14 herein) was impleaded in this suit as a defendant. In his written statement, he claimed that he was the eldest son of Sadhasivamurthy and that he had been dispossessed from the trusteeship of the temple by his younger brother, K.S. Sabapathy. 4. By a common judgment dated 09.09.1991, the Trial Court disposed of all the three suits. With respect to the relevant suit (O.S. No. 8664/1988), it gave a finding that the Appellant herein and his uncle, K.S. Jaganathan were the trustees of the temple. To arrive at this finding, the Court relied on documents indicating that the Appellants father, K.S. Sabapathy was the eldest son of Sadhasivamurthy and the heir to the suit land in terms of the settlement deed dated 19.09.1947. These included the license issued by the Police Commissioner in 1983 showing K.S. Sabapathy as the heir (Ex. B21), electricity card of K.S. Sabapathy (Ex. B22), wedding invitation of Sadhasivamurthy (Ex. B24), license issued by police department for temple celebration (Ex. B25), and the legal heir certificate dated31.08.1987 issued to Sadhasivamurthy by the Tahsildar (Ex. B26). In holding that the Appellant was a trustee and passing a decree in his favour, the Court rejected the claim of Umapathymurthy that he was the eldest son of Sadhasivamurthy, and consequently the trustee of the temple. 5. In first appeal, the Appellate Court confirmed the judgment and decree of the Trial Court passed in O.S.No.8664/1988. No further appeal was preferred. It is crucial to note that Umapathymurthy was an appellant in the first appeal and had contested it. 6. The decree holders filed Execution Petition No. 1910/1992, for executing the decree obtained by them in O.S. No.8664/1988. In this petition, the judgment debtors (Respondents herein) filed an execution application (E.A. No. 5750/2003) under Section 47 of the Code of Civil Procedure, 1908 (CPC) against the Appellant and his uncle, seeking dismissal of the execution petition on the basis that the original decree was vitiated by fraud. They alleged that the heir certificate of Sadhasivamurthy furnished by the Appellant (Ex. B26 in the Trial Court record) was falsely prepared and suppressed the name of Umapathymurthy as the eldest son of Sadhasivamurthy. 7. While examining this application, the executing court observed that the judgment debtors had not objected to the heir certificate when it was adduced before the Trial Court. In any case, the Trial Court had not adjudicated the issue of trusteeship solely on the basis of the heir certificate, and other documents had been considered as well. Thus, by order dated 31.01.2007, the executing court dismissed E.A. No. 5750/2003 filed under Section 47 of the CPC as non-maintainable on the ground that the judgment of the Trial Court had been confirmed by the First Appellate Court after considering all relevant evidence, and had therefore become final. 8. When a revision petition was filed against the above order, the High Court allowed E.A. No. 5750/2003 vide the impugned judgment. Relying on sale deeds dated 11.08.1948 and 22.06.1950 showing Umapathymurthy as the eldest son and K.S. Sabapathy as the second minor son of Sadhasivamurthy, the High Court concluded that Umapathymurthy qualified as the trustee of the temple in view of the settlement deed dated 19.09.1947. Thus, K.S. Sabapathy could not have become the trustee of the temple. In view of this finding, the High Court went on to observe that the decree passed in the original suit was a nullity and could not be enforced. 9. Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728 ). In the present case, the Trial Court had already considered the evidence on record and given a finding that the Appellant and his uncle were the trustees of the temple. Notably, Umapathymurthy was a party to this suit and had contested it by filing a written statement, claiming to be the eldest son of Sadhasivamurthy. However, at that time, he did not put forth any objections to the heir certificate of Sadhasivamurthy, which was considered by the Trial Court while arriving at its finding. This judgment was confirmed by the First Appellate Court and no further appeal was preferred by the Respondents against it. In light of this, the findings of the Trial Court have become final, and Umapathymurthy as well as the other Respondents are bound by them. By allowing them to re-open the question of trusteeship by way of an application in an execution petition, the High Court has gone beyond the decree to be executed and exceeded its revisional jurisdiction under Section 115 of the CPC. Since the findings of the Trial Court had attained finality, the decision of the executing court dated 31.01.2007 by which E.A. No. 5750/2003 was dismissed, should have been affirmed. Thus, the impugned judgment is not only illegal, but also without jurisdiction.
### Response:
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9. Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728 ). In the present case, the Trial Court had already considered the evidence on record and given a finding that the Appellant and his uncle were the trustees of the temple. Notably, Umapathymurthy was a party to this suit and had contested it by filing a written statement, claiming to be the eldest son of Sadhasivamurthy. However, at that time, he did not put forth any objections to the heir certificate of Sadhasivamurthy, which was considered by the Trial Court while arriving at its finding. This judgment was confirmed by the First Appellate Court and no further appeal was preferred by the Respondents against it. In light of this, the findings of the Trial Court have become final, and Umapathymurthy as well as the other Respondents are bound by them. By allowing them to re-open the question of trusteeship by way of an application in an execution petition, the High Court has gone beyond the decree to be executed and exceeded its revisional jurisdiction under Section 115 of the CPC. Since the findings of the Trial Court had attained finality, the decision of the executing court dated 31.01.2007 by which E.A. No. 5750/2003 was dismissed, should have been affirmed. Thus, the impugned judgment is not only illegal, but also without jurisdiction.
|
State Bank Of India Vs. Mula Sahakari Sakhar Karkhana Ltd | the contract 32. Despite such conditions, holding that the guarantee in question was a performance guarantee, this Court opined: The Bank, in the above guarantee, no doubt, has used the expression agree unconditionally and irrevocably to guarantee payment to the Executive Engineer on his first demand without any right of objection, but these expressions are immediately qualified by following: ... in the event that the obligations expressed in the said clause of the above-mentioned contract have not been fulfilled by the contractor giving the right of claim to the employer for recovery of the whole or part of the advance mobilisation loan from the contractor under the contract. 33. This condition clearly refers to the original contract between HCCL and the defendants and postulates that if the obligations, expressed in the contract, are not fulfilled by HCCL giving to the defendants the right to claim recovery of the whole or part of the advance mobilisation loan, then the Bank would pay the amount due under the guarantee to the Executive Engineer. By referring specifically to clause 9, the Bank has qualified its liability to pay the amount covered by the guarantee relating to advance mobilisation loan to the Executive Engineer only if the obligations under the contract were not fulfilled by HCCL or HCCL has misappropriated any portion of the advance mobilisation loan. It is in these circumstances that the aforesaid clause would operate and the whole of the amount covered by the mobilisation advance would become payable on demand. The bank guarantee thus could be invoked only in the circumstances referred to in clause 9 whereunder the amount would become payable only if the obligations are not fulfilled or there is misappropriation. That being so, the bank guarantee could not be said to be unconditional or unequivocal in terms so that the defendants could be said to have had an unfettered right to invoke that guarantee and demand immediate payment thereof from the Bank. It was clearly held therein that the bank guarantee constitutes a separate, distinct and independent contract between the bank and the defendants. In this case, the document in question does not specifically refer to any particular clause of the contract. In fact the contract does not contain any clause requiring Pentagon to furnish any Bank Guarantee. 34. We may now consider the decision in Daewoo Motors India Ltd. v. Union of India and Others [(2003) 4 SCC 690] . The bank guarantee involved therein inter alia read as under: We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi, 110 001 further agree that the demand made by the President of India any money so demanded notwithstanding any dispute raised by M/s Daewoo Motors India Ltd. in any proceeding before any court or tribunal; We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi 110 001 further agree that the demand made by the President of India shall be conclusive as regards the amount due and payable by us under these presents as out of liability under these presents are absolute and unequivocal; 35. Construing the terms thereof, this Court held: From a perusal of the above clauses, it is abundantly clear that the bank guarantee furnished by the Bank is an unconditional and absolute bank guarantee. The Bank has rendered itself liable to pay the cash on demand by the President of India notwithstanding any dispute raised by M/s Daewoo Motors India Limited in any proceeding before any court or tribunal. It is worth noticing that the clause in the bank guarantee specifically provides that the demand made by the President of India shall be conclusive as regards the amount due and payable by the Bank under this guarantee and the liability under the guarantee is absolute and unequivocal. In the face of the clear averments, it is trite to contend that the bank guarantee is a conditional bank guarantee. Therefore, the Bank has no case to resist the encashment of the bank guarantee. Inasmuch as we have held that the bank guarantee is an unconditional bank guarantee, the case of Hindustan Construction Co. Ltd. v. State of Bihar is of no avail to the appellant. 36. The said decision, in the facts and circumstances of the case, cannot be said to have any application here. We are not oblivious of the decisions of this Court where, save and except the cases of fraud or irretrievable evil, the Bank has been held liable to pay the guaranteed amount without any demur whatsoever. In an instructive judgment, M. Jagannadha Rao, J. in Federal Bank Ltd. v. V.M. Jog Engineering Ltd. and Others [(2001) 1 SCC 663] referring to Uniform Commercial Practice of Documentary Credits and a catena of decisions of this Court as also the English Courts, dealt with a case where a fraud was alleged and observed: Thus, not only must fraud be clearly proved but so far as the bank is concerned, it must prove that it had knowledge of the fraud. In United Trading Corpn. S.A. v. Allied Arab Bank it was stated that there must be proof of knowledge of fraud on the part of the bank at any time before payment. It as also observed that it would be sufficient if the corroborated evidence of the plaintiff usually in the form of contemporary documents and the unexplained failure of a beneficiary to respond to the attack, lead to the conclusion that the only realistic inference to draw was fraud. [See also Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Another, (1997) 6 SCC 450 ] and M/s. BSES Ltd. (Now Reliance Energy Ltd.) v. M/s. Fenner India Ltd. & Anr. JT 2006 (2) SC 192 ] However, in this case, we have no doubt in our mind that the document in question constitutes a contract of indemnity and not an absolute or unconditional bank guarantee. The High Court, therefore, erred in construing the same to be an unconditional and absolute bank guarantee. RATE OF INTEREST 37. | 1[ds]We have hereinbefore noticed the surrounding circumstances as pointed out by Mr. Naphade as contained in Clauses 15.2.4 and 15.2.5 of the contracts the letters exchanged between the parties dated 6.4.1985, 11.4.1985, 16.4.1985 leading to execution of the document dated 07.09.1985 by the First Appellant in favour of the cooperative societyWe are, however, unable to accept the submissions of the learned Senior Counsel that the bank guarantee must be construed in the light of other purported contemporaneous documents. A contract indisputably may be contained in more than one document. Such a document, however, must be a subject matter of contract by and between the parties. The correspondences referred to hereinbefore were between the cooperative society and Pentagon. The said correspondences were not exchanged between the parties hereto as a part of the same transaction. The Appellant understood that it would stand as a surety and not as a guarantorIn P.L. Bapuswami (supra), relied upon by Mr. Naphade, this Court was concerned with a question as to whether Ex.1 therein was a transaction of mortgage by conditional sale or a sale with a condition ofr in the light of Section 58(c) of the Transfer of Property Act. We are not concerned with such a case hereIt is one thing to say that the nature of a transaction would be judged by the terms and conditions together with the surrounding and/or attending circumstances in a case where the document suffers from some ambiguities but it is another thing to say that the court will take recourse to such a course, although no such ambiguity existsThe said decision, in the facts and circumstances of the case, cannot be said to have any application here. We are not oblivious of the decisions of this Court where, save and except the cases of fraud or irretrievable evil, the Bank has been held liable to pay the guaranteed amount without any demur whatsoeverHowever, in this case, we have no doubt in our mind that the document in question constitutes a contract of indemnity and not an absolute or unconditional bank guarantee. The High Court, therefore, erred in construing the same to be an unconditional and absolute bank guarantee. | 1 | 4,668 | 399 | ### Instruction:
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the contract 32. Despite such conditions, holding that the guarantee in question was a performance guarantee, this Court opined: The Bank, in the above guarantee, no doubt, has used the expression agree unconditionally and irrevocably to guarantee payment to the Executive Engineer on his first demand without any right of objection, but these expressions are immediately qualified by following: ... in the event that the obligations expressed in the said clause of the above-mentioned contract have not been fulfilled by the contractor giving the right of claim to the employer for recovery of the whole or part of the advance mobilisation loan from the contractor under the contract. 33. This condition clearly refers to the original contract between HCCL and the defendants and postulates that if the obligations, expressed in the contract, are not fulfilled by HCCL giving to the defendants the right to claim recovery of the whole or part of the advance mobilisation loan, then the Bank would pay the amount due under the guarantee to the Executive Engineer. By referring specifically to clause 9, the Bank has qualified its liability to pay the amount covered by the guarantee relating to advance mobilisation loan to the Executive Engineer only if the obligations under the contract were not fulfilled by HCCL or HCCL has misappropriated any portion of the advance mobilisation loan. It is in these circumstances that the aforesaid clause would operate and the whole of the amount covered by the mobilisation advance would become payable on demand. The bank guarantee thus could be invoked only in the circumstances referred to in clause 9 whereunder the amount would become payable only if the obligations are not fulfilled or there is misappropriation. That being so, the bank guarantee could not be said to be unconditional or unequivocal in terms so that the defendants could be said to have had an unfettered right to invoke that guarantee and demand immediate payment thereof from the Bank. It was clearly held therein that the bank guarantee constitutes a separate, distinct and independent contract between the bank and the defendants. In this case, the document in question does not specifically refer to any particular clause of the contract. In fact the contract does not contain any clause requiring Pentagon to furnish any Bank Guarantee. 34. We may now consider the decision in Daewoo Motors India Ltd. v. Union of India and Others [(2003) 4 SCC 690] . The bank guarantee involved therein inter alia read as under: We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi, 110 001 further agree that the demand made by the President of India any money so demanded notwithstanding any dispute raised by M/s Daewoo Motors India Ltd. in any proceeding before any court or tribunal; We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi 110 001 further agree that the demand made by the President of India shall be conclusive as regards the amount due and payable by us under these presents as out of liability under these presents are absolute and unequivocal; 35. Construing the terms thereof, this Court held: From a perusal of the above clauses, it is abundantly clear that the bank guarantee furnished by the Bank is an unconditional and absolute bank guarantee. The Bank has rendered itself liable to pay the cash on demand by the President of India notwithstanding any dispute raised by M/s Daewoo Motors India Limited in any proceeding before any court or tribunal. It is worth noticing that the clause in the bank guarantee specifically provides that the demand made by the President of India shall be conclusive as regards the amount due and payable by the Bank under this guarantee and the liability under the guarantee is absolute and unequivocal. In the face of the clear averments, it is trite to contend that the bank guarantee is a conditional bank guarantee. Therefore, the Bank has no case to resist the encashment of the bank guarantee. Inasmuch as we have held that the bank guarantee is an unconditional bank guarantee, the case of Hindustan Construction Co. Ltd. v. State of Bihar is of no avail to the appellant. 36. The said decision, in the facts and circumstances of the case, cannot be said to have any application here. We are not oblivious of the decisions of this Court where, save and except the cases of fraud or irretrievable evil, the Bank has been held liable to pay the guaranteed amount without any demur whatsoever. In an instructive judgment, M. Jagannadha Rao, J. in Federal Bank Ltd. v. V.M. Jog Engineering Ltd. and Others [(2001) 1 SCC 663] referring to Uniform Commercial Practice of Documentary Credits and a catena of decisions of this Court as also the English Courts, dealt with a case where a fraud was alleged and observed: Thus, not only must fraud be clearly proved but so far as the bank is concerned, it must prove that it had knowledge of the fraud. In United Trading Corpn. S.A. v. Allied Arab Bank it was stated that there must be proof of knowledge of fraud on the part of the bank at any time before payment. It as also observed that it would be sufficient if the corroborated evidence of the plaintiff usually in the form of contemporary documents and the unexplained failure of a beneficiary to respond to the attack, lead to the conclusion that the only realistic inference to draw was fraud. [See also Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Another, (1997) 6 SCC 450 ] and M/s. BSES Ltd. (Now Reliance Energy Ltd.) v. M/s. Fenner India Ltd. & Anr. JT 2006 (2) SC 192 ] However, in this case, we have no doubt in our mind that the document in question constitutes a contract of indemnity and not an absolute or unconditional bank guarantee. The High Court, therefore, erred in construing the same to be an unconditional and absolute bank guarantee. RATE OF INTEREST 37.
### Response:
1
### Explanation:
We have hereinbefore noticed the surrounding circumstances as pointed out by Mr. Naphade as contained in Clauses 15.2.4 and 15.2.5 of the contracts the letters exchanged between the parties dated 6.4.1985, 11.4.1985, 16.4.1985 leading to execution of the document dated 07.09.1985 by the First Appellant in favour of the cooperative societyWe are, however, unable to accept the submissions of the learned Senior Counsel that the bank guarantee must be construed in the light of other purported contemporaneous documents. A contract indisputably may be contained in more than one document. Such a document, however, must be a subject matter of contract by and between the parties. The correspondences referred to hereinbefore were between the cooperative society and Pentagon. The said correspondences were not exchanged between the parties hereto as a part of the same transaction. The Appellant understood that it would stand as a surety and not as a guarantorIn P.L. Bapuswami (supra), relied upon by Mr. Naphade, this Court was concerned with a question as to whether Ex.1 therein was a transaction of mortgage by conditional sale or a sale with a condition ofr in the light of Section 58(c) of the Transfer of Property Act. We are not concerned with such a case hereIt is one thing to say that the nature of a transaction would be judged by the terms and conditions together with the surrounding and/or attending circumstances in a case where the document suffers from some ambiguities but it is another thing to say that the court will take recourse to such a course, although no such ambiguity existsThe said decision, in the facts and circumstances of the case, cannot be said to have any application here. We are not oblivious of the decisions of this Court where, save and except the cases of fraud or irretrievable evil, the Bank has been held liable to pay the guaranteed amount without any demur whatsoeverHowever, in this case, we have no doubt in our mind that the document in question constitutes a contract of indemnity and not an absolute or unconditional bank guarantee. The High Court, therefore, erred in construing the same to be an unconditional and absolute bank guarantee.
|
State Of Mysore & Anr Vs. S. V. Narayanappa | to the benefit of the regularisation order. So long as he was in service on the two termini his service would have to be regularised irrespective of whether his service during the interval was continuous or not. The High Court also equated regularisation with permanence of service and, therefore, held that once a local candidates service was regularised he had to be treated as a permanent servant.8. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.9. We are, however, not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repercussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 196l, assuming there was such a break, the Government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Courts Judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.10. Coming now to the Order, sub-cl (i) of Cl. 2 provides that all appointment to Class III posts by direct recruitment made upto December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-cl. (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time of their services are regularised. It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construction finds support from sub-cl. (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3.The High Court was, therefore, in error when it said that sub-l. (iv) did not relate to considerations under Sub-cl (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-cl. (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, l960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuos service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, l961 would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, l960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against other who were recruited properly under the Rules of Recruitment. Under sub-cl (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961 such services is to be taken into account for purpose of leave, pension and increments but not for purpose of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise. | 0[ds]8. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.9. We are, however, not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repercussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 196l, assuming there was such a break, the Government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Courts Judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.10. Coming now to the Order, sub-cl (i) of Cl. 2 provides that all appointment to Class III posts by direct recruitment made upto December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-cl. (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time of their services are regularised. It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construction finds support from sub-cl. (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3.The High Court was, therefore, in error when it said that sub-l. (iv) did not relate to considerations under Sub-cl (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-cl. (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, l960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuos service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, l961 would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, l960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against other who were recruited properly under the Rules of Recruitment. Under sub-cl (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961 such services is to be taken into account for purpose of leave, pension and increments but not for purpose of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise. | 0 | 2,495 | 1,036 | ### Instruction:
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### Input:
to the benefit of the regularisation order. So long as he was in service on the two termini his service would have to be regularised irrespective of whether his service during the interval was continuous or not. The High Court also equated regularisation with permanence of service and, therefore, held that once a local candidates service was regularised he had to be treated as a permanent servant.8. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.9. We are, however, not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repercussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 196l, assuming there was such a break, the Government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Courts Judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.10. Coming now to the Order, sub-cl (i) of Cl. 2 provides that all appointment to Class III posts by direct recruitment made upto December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-cl. (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time of their services are regularised. It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construction finds support from sub-cl. (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3.The High Court was, therefore, in error when it said that sub-l. (iv) did not relate to considerations under Sub-cl (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-cl. (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, l960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuos service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, l961 would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, l960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against other who were recruited properly under the Rules of Recruitment. Under sub-cl (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961 such services is to be taken into account for purpose of leave, pension and increments but not for purpose of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise.
### Response:
0
### Explanation:
8. Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence.9. We are, however, not called upon in this appeal to decide and we do not decide that question as Mr. Desai on behalf of the State Government assured us that the Government had come in appeal only in its anxiety to have the order interpreted by this Court as the construction placed by the High Court on the said order, if upheld, would have considerable repercussions on the prospects of other State employees. He also assured us on behalf of the State Government that since the break in the service of the respondent during the material time was only of one day, viz., March 1, 196l, assuming there was such a break, the Government would not do anything to adversely affect his service and would not take away the benefit which he acquired as a result of the High Courts Judgment, even if we were to disagree with the interpretation placed by the High Court on the said Order.10. Coming now to the Order, sub-cl (i) of Cl. 2 provides that all appointment to Class III posts by direct recruitment made upto December 31, 1959 should be regularised provided the candidates satisfied the conditions as to age and qualifications at the time of their initial appointment. The controversy arises on the construction of sub-cl. (ii). That sub-clause provides that the services of such candidates shall be regularised with effect from the date of their appointment from which their services are continuous provided they were in service on January 1, 1960 and continue to be in service at the time of their services are regularised. It is clear from the express words used in this sub-clause that continuity of service from January 1, 1960 until the date of the order is a condition prescribed for regularisation. In other words, a candidate claiming the benefit of this order has to satisfy that he was initially appointed prior to December 31, 1959, that he was in service on January 1, 1960 and continued in that service till the date of the order, i.e., September 22, 1961. This construction finds support from sub-cl. (iii) which provides that local service prior to regularisation would be counted for the purposes of leave, pension and increments though not for seniority as seniority was to be fixed from the length of service calculated from the date of regularisation. It is manifest that unless the local service was continuous such service could not be taken into account for the purposes, in particular of pension and increments. How would increments, for example, be granted unless the service prior to such increments was continuous? The same consideration would also apply in the case of pension. It had, therefore, to be provided as has been done in sub-cl. (iv) that a break in service would not be condoned for a period howsoever short. Continuity of service is thus a condition for both sub-cls. 2 and 3.The High Court was, therefore, in error when it said that sub-l. (iv) did not relate to considerations under Sub-cl (ii) or that it had reference only to a break in service before December 31, 1959. The High Court was also in error when it construed sub-cl. (ii) to mean that the only thing it required was that the candidate had to be appointed initially prior to December 31, 1959 and that he had to be in service on the two dates, viz., January 1, l960 and September 22, 1961 and that the service during the interval need not be continuos. If that construction were to be upheld it would result in injustice, for local candidates, not recruited regularly and not in continuos service provided they were in service on the two relevant dates, viz., January 1, 1960 and September 22, l961 would get seniority over candidates regularly appointed after December 31, 1959 and whose service is continuos. Such a result would manifestly be both unjust and improper and could hardly have been contemplated. Therefore, the proper interpretation would be that in order that the regularisation order may apply to a particular case the local candidate must be initially appointed prior to December 31, 1959, he must be in service on January 1, l960 and continue to be in service without any break till the date of the said order. If his service is regularised, his service from the date of such regularisation would be counted for seniority as against other who were recruited properly under the Rules of Recruitment. Under sub-cl (iii), however, if the service is continuous from January 1, 1960 to September 22, 1961 such services is to be taken into account for purpose of leave, pension and increments but not for purpose of seniority. The construction which we are inclined to adopt thus harmonises all the provisions of the Order and besides results in fairness to all the local candidates appointed by direct recruitment whether regularly or otherwise.
|
Ganeshlal Vs. State Of Maharashtra | appellants mother, sister and father sitting. On enquiry they did not speak anything but directed to go upstairs. When he went, he saw the body of the deceased in the room burning. The only omission in his statement under S. 161, Cr.P.C. was regarding his asking the mother and sister of the appellant and their directions to go to the upstairs. He admitted that his shop belongs to P.W. 5s family. Admittedly he took had no enmity with the appellant or his family, nor even suggested. As stated earlier, the family of P.W.- 5 had also no enmity. Under these circumstances P.W.- 5 being also an independent witness, his evidence inspires confidence to believe him as a truthful witness. The High Court was right in believing his evidence. From the evidence of P.W.- 6 and P.W.- 8 it is clear that the appellant was falsely exclaiming that there was a short circuit and requesting the people to save them. At the same time he was preventing the people from getting into the house. They saw the appellant and other accused in the house without attempting to save the life of Kanchana. It may be relevant to state that the earliest version of A. 6 in Ex. 73 report given to the police was that the deceased was drying the clothes at that time. Due to short circuit she received shock and died. This theory is now found to be false from the evidence of P.W. 10, the Electrical Engineer. It is also now not set up as defence even before us. Evidence of P.W. 7, the Panch witness, and Asstt. Sub-Inspector, P.W.- 14, P.W.- 6 and P.W.- 8 clearly establishes that in the room on the third floor, the deceased was seen burning and that the door was open from outside. The contention that the deceased had access to open another door from inside into the stair-case from the room and that it is not a case of homicide, is false in view of the facts narrated hereinbefore. 11. From this evidence it is clear that the accused-appellant and his family members were present in the house at the time when the deceased was burning due to fire lit after pouring kerosene on her and they made on attempt to save her. The contention that the Doctor had stated that the death was in-stantaneous and nothing was left for the appellant and the other family members to save her, is unacceptable. The normal ordinary human conduct would be that when one of their inmates, namely Kanchana was in flames, they would have made every endeavour to save her life, if it were a case of suicide, and call the people to come to their rescue to save her life or at least would have sought first aid from P.W. 6, who is next door neighbour, to save the life of the deceased. No such attempt was made nor even attempted. On the other hand the appellants earliest attempt was to misguide that Kanchana died due to short circuit. This attempt was burried fathom deep from the evidence of P.W. 10, Elec. Engineer. Then set up the plea of suicide. We have Ex. 73, the first information report, immediately lodged by A-6 with the police. We need not go into the question as to what extent the admission by a co-accused would be used against the appellant. Suffice it to state that in his examination under S. 313, Cr.P.C., the appellant admitted that A-6 went to the police station and gave FIR Ex-73, to the Head Constable, P.W.- 11 and that A-6 stated that the deceased caught fire while she was handing the wet clothes for drying, due to short circuit, In Ex.- 73, it was also stated that this information was conveyed by the appellant himself. This admission is not only a relevant fact under S. 8 of Evidence Act as a res gestae but a most important circumstance against the appellant. The indifferent and hard hearted conduct are also important circumstances. It was also admitted that the walls in the room became blackish due to smoke. It is settled law that the conduct of an accused is an offence previous and subsequent to the crime are relevant facts. Absence of any attempt to save the life of the deceased Kanchana while she was burning and was charred to death, their conduct in not attempting to give any medical aid, the conduct of the appellant immediately after the deceased was soaked with kerosene and litting fire after closing the door A. 6 obviously opened it after ensuring that the she had died, the appellants coming down and standing at the grill gate on ground floor; the appellant shouted that uncle A. 6 should close down falsely proclaimed that there was short circuit; implying to scare away the people from attempting to save Kanchana. There are most telling and relevant crucial facts apart from repulsive inhuman conduct. The false plea of suicide is yet another relevant fact. When the death had occurred in their custody the appellant is under an obligation in S. 313, Cr.P.C. statement at least to give plausible explanation for the cause of her death. No such attempt was even made excepting denying the prosecution case. These facts completely are inconsistent with the innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder of his wife. The circumstantial evidence thus discussed is complete and consistent with the only conclusion that the inmates alone among them. 12. The evidence on recorded does establish that more than one would be participants to murder Kanchana. The absence of an appeal against acquittal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai, Premlata, Aruna and Rameshwar, all of them or who among them shared common intention with the appellant is obviated. The appellant is the principle perpetrator of the crime or one among the accused that shared common intention to murder Kanchana. The | 1[ds]find no force in the contention. It is true that the record now placed before us would show that way back in 1984 as Asstt. Govt. Pleader, Shri Desai appeared against the appellant in a bail application and other proceedings. Might be that the learned Judge had forgotten about his appearing against the appellant. It might also be possible that it was not brought to his notice when the Bench heard the appeal. Finding that the matter went against the appellant, he turned round and desperately raised the contention. However, to remove the feeling of injustice due to above factor and to satisfy ourselves of the merits, we have heard the appeal as if it is a first appeal against the judgment of the Sessions Court.contention that no kerosene was found in any other parts; the doors to the room from stairs was not closed from outside in case of murder she should have run away from the room opening the latch; she was determined to commit suicide of humiliation caused to her and P.W. 5 Vanmala her sister in not allowing her to go to P.W. 5s house and that there were no signs of external injuries and, therefore, the death was due to suicide is fallacious and the High Court has rightly negatived theThe next contention that the prosecution all through proceeded with the assumption that the accused abeted suicide, punishable under S. 306, I.P.C. and that, therefore, it is not a case of murder has no substance.It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction.The evidence on recorded does establish that more than one would be participants to murder Kanchana. The absence of an appeal against acquittal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai, Premlata, Aruna and Rameshwar, all of them or who among them shared common intention with the appellant is obviated. The appellant is the principle perpetrator of the crime or one among the accused that shared common intention to murder Kanchana. | 1 | 4,657 | 477 | ### 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:
appellants mother, sister and father sitting. On enquiry they did not speak anything but directed to go upstairs. When he went, he saw the body of the deceased in the room burning. The only omission in his statement under S. 161, Cr.P.C. was regarding his asking the mother and sister of the appellant and their directions to go to the upstairs. He admitted that his shop belongs to P.W. 5s family. Admittedly he took had no enmity with the appellant or his family, nor even suggested. As stated earlier, the family of P.W.- 5 had also no enmity. Under these circumstances P.W.- 5 being also an independent witness, his evidence inspires confidence to believe him as a truthful witness. The High Court was right in believing his evidence. From the evidence of P.W.- 6 and P.W.- 8 it is clear that the appellant was falsely exclaiming that there was a short circuit and requesting the people to save them. At the same time he was preventing the people from getting into the house. They saw the appellant and other accused in the house without attempting to save the life of Kanchana. It may be relevant to state that the earliest version of A. 6 in Ex. 73 report given to the police was that the deceased was drying the clothes at that time. Due to short circuit she received shock and died. This theory is now found to be false from the evidence of P.W. 10, the Electrical Engineer. It is also now not set up as defence even before us. Evidence of P.W. 7, the Panch witness, and Asstt. Sub-Inspector, P.W.- 14, P.W.- 6 and P.W.- 8 clearly establishes that in the room on the third floor, the deceased was seen burning and that the door was open from outside. The contention that the deceased had access to open another door from inside into the stair-case from the room and that it is not a case of homicide, is false in view of the facts narrated hereinbefore. 11. From this evidence it is clear that the accused-appellant and his family members were present in the house at the time when the deceased was burning due to fire lit after pouring kerosene on her and they made on attempt to save her. The contention that the Doctor had stated that the death was in-stantaneous and nothing was left for the appellant and the other family members to save her, is unacceptable. The normal ordinary human conduct would be that when one of their inmates, namely Kanchana was in flames, they would have made every endeavour to save her life, if it were a case of suicide, and call the people to come to their rescue to save her life or at least would have sought first aid from P.W. 6, who is next door neighbour, to save the life of the deceased. No such attempt was made nor even attempted. On the other hand the appellants earliest attempt was to misguide that Kanchana died due to short circuit. This attempt was burried fathom deep from the evidence of P.W. 10, Elec. Engineer. Then set up the plea of suicide. We have Ex. 73, the first information report, immediately lodged by A-6 with the police. We need not go into the question as to what extent the admission by a co-accused would be used against the appellant. Suffice it to state that in his examination under S. 313, Cr.P.C., the appellant admitted that A-6 went to the police station and gave FIR Ex-73, to the Head Constable, P.W.- 11 and that A-6 stated that the deceased caught fire while she was handing the wet clothes for drying, due to short circuit, In Ex.- 73, it was also stated that this information was conveyed by the appellant himself. This admission is not only a relevant fact under S. 8 of Evidence Act as a res gestae but a most important circumstance against the appellant. The indifferent and hard hearted conduct are also important circumstances. It was also admitted that the walls in the room became blackish due to smoke. It is settled law that the conduct of an accused is an offence previous and subsequent to the crime are relevant facts. Absence of any attempt to save the life of the deceased Kanchana while she was burning and was charred to death, their conduct in not attempting to give any medical aid, the conduct of the appellant immediately after the deceased was soaked with kerosene and litting fire after closing the door A. 6 obviously opened it after ensuring that the she had died, the appellants coming down and standing at the grill gate on ground floor; the appellant shouted that uncle A. 6 should close down falsely proclaimed that there was short circuit; implying to scare away the people from attempting to save Kanchana. There are most telling and relevant crucial facts apart from repulsive inhuman conduct. The false plea of suicide is yet another relevant fact. When the death had occurred in their custody the appellant is under an obligation in S. 313, Cr.P.C. statement at least to give plausible explanation for the cause of her death. No such attempt was even made excepting denying the prosecution case. These facts completely are inconsistent with the innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder of his wife. The circumstantial evidence thus discussed is complete and consistent with the only conclusion that the inmates alone among them. 12. The evidence on recorded does establish that more than one would be participants to murder Kanchana. The absence of an appeal against acquittal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai, Premlata, Aruna and Rameshwar, all of them or who among them shared common intention with the appellant is obviated. The appellant is the principle perpetrator of the crime or one among the accused that shared common intention to murder Kanchana. The
### Response:
1
### Explanation:
find no force in the contention. It is true that the record now placed before us would show that way back in 1984 as Asstt. Govt. Pleader, Shri Desai appeared against the appellant in a bail application and other proceedings. Might be that the learned Judge had forgotten about his appearing against the appellant. It might also be possible that it was not brought to his notice when the Bench heard the appeal. Finding that the matter went against the appellant, he turned round and desperately raised the contention. However, to remove the feeling of injustice due to above factor and to satisfy ourselves of the merits, we have heard the appeal as if it is a first appeal against the judgment of the Sessions Court.contention that no kerosene was found in any other parts; the doors to the room from stairs was not closed from outside in case of murder she should have run away from the room opening the latch; she was determined to commit suicide of humiliation caused to her and P.W. 5 Vanmala her sister in not allowing her to go to P.W. 5s house and that there were no signs of external injuries and, therefore, the death was due to suicide is fallacious and the High Court has rightly negatived theThe next contention that the prosecution all through proceeded with the assumption that the accused abeted suicide, punishable under S. 306, I.P.C. and that, therefore, it is not a case of murder has no substance.It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence. But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved. Men do not act wholly without motive. Failure to discover the motive of the offence does not signify the non-existence of the crime. The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law. Proof of motive is never an indispensable factor for conviction.The evidence on recorded does establish that more than one would be participants to murder Kanchana. The absence of an appeal against acquittal of A-1 and A-3 to A-6, namely, Hiralal, Ayodhyabai, Premlata, Aruna and Rameshwar, all of them or who among them shared common intention with the appellant is obviated. The appellant is the principle perpetrator of the crime or one among the accused that shared common intention to murder Kanchana.
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Tara Kakati Smt. and Others Vs. Oriental Insurance Company Limited and Others | Leave granted. This appeal is by the mother and two sisters of the deceased Kanak Kakati who died as a result of an accident caused by a bus belonging to the respondent Surendra Nath Choudhary. The insurance company is the respondent in the appeal. The Motor Accident Claims Tribunal, Nalbari, came to the conclusion that the accident took place because of the negligence of the bus driver. The Tribunal estimated the average income of the deceased at Rs. 510 and further came to the conclusion on the basis of the evidence that he used to give Rs. 300 per month to his mother. The deceased was a bachelor. Adopting the multiplier of 20, the Tribunal awarded Rs. 70, 000 as compensation to the mother, and adding another sum of Rs. 5000 a total of Rs. 77, 000 was awarded to the mother. The Tribunal also awarded Rs. 5000 each to the two sisters. The Tribunal declined to award any interest. The High Court reduced the compensation awarded to the mother to Rs. 36, 000 and set aside the award so far as the sisters are concerned. The High Court interfered with the award of the Tribunal on the following reasoning : "Of the 3 claimants, mother alone is the heir of the deceased. The sisters, therefore, cannot claim any compensation on account of loss of economic support. It is stated at the Bar, that at the time of accident the deceased was aged 24 years and the mother was aged 40 years. Mothers age appears to be underestimated. Having fixed the average income of the deceased at Rs. 510 p.m. the Tribunal assessed that the deceased would have contributed Rs. 300 p.m. for the expense of the mother. This appears to be absolutely erroneous. It could not be held that out of a monthly income of Rs. 510, he would have contributed Rs. 300 p.m. to the mother alone. At the time of the accident, the deceased was a bachelor. In course of time he would have married and would have raised his own family in which case the contribution of the mother would have come down. The Tribunal did not take this important factor into consideration. The multiplier adopted also appears to be excessive inasmuch as the bank rate would be one per cent per month. Adopting contribution of Rs. 200 per month and multiplier of 15, compensation payable to the mother would be only Rs. 36, 000, instead of Rs. 72, 000. Additional award of Rs. 15, 000 has not been justified on any ground. Thus, we are satisfied that the compensation awarded is exorbitant and has more than compensated the mother for failure to award interest." * We are of the view that the High Court fell into patent error in reaching the conclusion that the deceased could not have contributed Rs. 300 per month to his mother for expenses. The Tribunal based its conclusion on the evidence produced before it. The High Court did not discuss the evidence and in a cryptic manner came to the conclusion that the contribution of Rs. 300 per month could not have been made. The High Court further fell into patent error in reaching the conclusion that since the sisters were not the heirs, they were not entitled to compensation. The mother being a widow and the sisters being unmarried, the deceased was performing his duties towards his family. | 1[ds]We are of the view that the High Court fell into patent error in reaching the conclusion that the deceased could not have contributed Rs. 300 per month to his mother for expenses. The Tribunal based its conclusion on the evidence produced before it. The High Court did not discuss the evidence and in a cryptic manner came to the conclusion that the contribution of Rs. 300 per month could not have been made. The High Court further fell into patent error in reaching the conclusion that since the sisters were not the heirs, they were not entitled to compensation. The mother being a widow and the sisters being unmarried, the deceased was performing his duties towards his family. | 1 | 639 | 132 | ### 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:
Leave granted. This appeal is by the mother and two sisters of the deceased Kanak Kakati who died as a result of an accident caused by a bus belonging to the respondent Surendra Nath Choudhary. The insurance company is the respondent in the appeal. The Motor Accident Claims Tribunal, Nalbari, came to the conclusion that the accident took place because of the negligence of the bus driver. The Tribunal estimated the average income of the deceased at Rs. 510 and further came to the conclusion on the basis of the evidence that he used to give Rs. 300 per month to his mother. The deceased was a bachelor. Adopting the multiplier of 20, the Tribunal awarded Rs. 70, 000 as compensation to the mother, and adding another sum of Rs. 5000 a total of Rs. 77, 000 was awarded to the mother. The Tribunal also awarded Rs. 5000 each to the two sisters. The Tribunal declined to award any interest. The High Court reduced the compensation awarded to the mother to Rs. 36, 000 and set aside the award so far as the sisters are concerned. The High Court interfered with the award of the Tribunal on the following reasoning : "Of the 3 claimants, mother alone is the heir of the deceased. The sisters, therefore, cannot claim any compensation on account of loss of economic support. It is stated at the Bar, that at the time of accident the deceased was aged 24 years and the mother was aged 40 years. Mothers age appears to be underestimated. Having fixed the average income of the deceased at Rs. 510 p.m. the Tribunal assessed that the deceased would have contributed Rs. 300 p.m. for the expense of the mother. This appears to be absolutely erroneous. It could not be held that out of a monthly income of Rs. 510, he would have contributed Rs. 300 p.m. to the mother alone. At the time of the accident, the deceased was a bachelor. In course of time he would have married and would have raised his own family in which case the contribution of the mother would have come down. The Tribunal did not take this important factor into consideration. The multiplier adopted also appears to be excessive inasmuch as the bank rate would be one per cent per month. Adopting contribution of Rs. 200 per month and multiplier of 15, compensation payable to the mother would be only Rs. 36, 000, instead of Rs. 72, 000. Additional award of Rs. 15, 000 has not been justified on any ground. Thus, we are satisfied that the compensation awarded is exorbitant and has more than compensated the mother for failure to award interest." * We are of the view that the High Court fell into patent error in reaching the conclusion that the deceased could not have contributed Rs. 300 per month to his mother for expenses. The Tribunal based its conclusion on the evidence produced before it. The High Court did not discuss the evidence and in a cryptic manner came to the conclusion that the contribution of Rs. 300 per month could not have been made. The High Court further fell into patent error in reaching the conclusion that since the sisters were not the heirs, they were not entitled to compensation. The mother being a widow and the sisters being unmarried, the deceased was performing his duties towards his family.
### Response:
1
### Explanation:
We are of the view that the High Court fell into patent error in reaching the conclusion that the deceased could not have contributed Rs. 300 per month to his mother for expenses. The Tribunal based its conclusion on the evidence produced before it. The High Court did not discuss the evidence and in a cryptic manner came to the conclusion that the contribution of Rs. 300 per month could not have been made. The High Court further fell into patent error in reaching the conclusion that since the sisters were not the heirs, they were not entitled to compensation. The mother being a widow and the sisters being unmarried, the deceased was performing his duties towards his family.
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Union of India and Others Vs. Surya Phosphate Limited and Another | cost of production of SSP] and the actual ex-factory price of SSP of each of the manufacturing units. Hence, uged Shri Sen, the High Court was right in directing the Government to calculate the subsidy payable to the respondent-Company as per the interpretation of the Circular letter by the Company and also to pay the arrears in question. He also contended that that is the only interpretation possible of the said Circular letter. 12. There is no dispute that what holds the field for the payment of the subsidy is the Circular letter of 19th June, 1982. The controversy relates to its interpretation. Taking into consideration the entire history of the subsidy as we have narrated above, the recommendation of the Working Group, its acceptance by the Government and the issuance of the Circular letter to implement the recommendation and the subsequent minutes of the meetings of the FICC held on 16th October, 1982 and 17th February, 1983 and the method for working out the ex-factory price detailed therein, we are of the view that the contention advanced by Shri Sen is not correct. Viewed in its proper context, there is no doubt that the Circular letter in question has only intimated to the manufacturers that consequent upon the fixing of the retail price of SSP w.e.f. 23rd May, 1982, it had become necessary to replace the old scheme of the payment of uniform flat subsidy, by a new scheme. The new scheme was for payment of differential rate of subsidy. That rate of subsidy was to be based on the ex-factory price which had to be worked out separately for each manufacturing unit. In order to work out the ex-factory price of each unit, it was necessary to have information from each to the units on items detailed in the proformae. The information called for was for two different quarters preceding the quarter beginning from April, 1982 since the uniform retail price of SSP had come into effect from 23rd May, 1982. This quarterly information was to be certified either by the Chartered Accountant of the unit concerned or by the statutory auditors. The quarterly information was required because the variable costs were to be determined with reference to the expenses for each factory on the average of three months preceding the last quarter. In para 2 of the Circular letter it was clearly stated that the information in question was required to enable this office to work out the ex-factory price in respect of SSP manufactured in your unit. This was a clear indication that it was the FICC which was going to work out the ex-factory price. If the subsidy was to be based only on the ex-factory price to be stated by the manufacturing unit, there was no question of working it out by the FICC office. 13. It would thus be seen that the Circular letter made no representation other than conveying to each of the manufacturing units that a scheme for payment of differential rate of subsidy in place of the earlier uniform flat subsidy was being introduced. What that differential rate of subsidy would be would depend upon the ex-factory price worked out by the FICC separately for each manufacturing unit. The method by which the ex-factory price was to be worked out for each of the manufacturing units was not indicated in the Circular letter. That was to be on the basis of the recommendation of the Group as accepted by the Government. In fact, the new method of payment of subsidy was based o n the said recommendation which also included the formula to work out the ex-factory price. 14. Shri Sen attacked the recommendation of the Group and the method adopted by the FICC to work out the ex-factory price and the subsidy, on the ground that they were not made known to the manufacturing units. They were, according to him, kept confidential by the Government and all that was held out was the promise contained in the Circular letter of 19th June 1982 which, according to him, was for payment of subsidy to each unit on the basis of its actual costs. It is not necessary for us to go into the question as to whether the method/formula adopted by the FICC should have been made known to the manufacturers or not. Suffice it to point out that the Circular letter in question had not indicated any particular method of working out the ex-factory price. It was implicit in the said Circular letter that the ex-factory price would be worked out by the FICC on certain basis. It is incorrect to say that in the absence of a method for working out the ex-factory price indicated in the said Circular letter it should be presumed that what was represented to the manufacturing units was that they would be paid subsidy on the basis of the actual costs shown by them. 15. Understandably, the method adopted by the FICC for working out the ex-factory price was on a normative basis as recommended by the Group and accepted by the Government. That was as it should be. In the absence of norms for working out the costs of different components, there would virtually be a chaos and arbitrariness. To give only one instance: if a manufacturing unit were to consume more Rock Phosphate and Sulfur or Sulfuric Acid than the consumption norm, its cost of production of SSP would be higher than the cost of production of the standard SSP. It cannot be argued that in spite of it, the manufacturing unit should be paid the differential rate of subsidy on the basis of the unwarranted cost. One can multiply such instances with reference to each of the other elements of cost of producing SSP. In the absence of norms, there would be a good deal of scope for arbitrariness and misfeasance at both ends. We are, therefore, of the view that the contention urged by Shri Sen cannot be accepted. | 1[ds]It is not necessary for us to go into the question as to whether the method/formula adopted by the FICC should have been made known to the manufacturers or not. Suffice it to point out that the Circular letter in question had not indicated any particular method of working out the ex-factory price. It was implicit in the said Circular letter that the ex-factory price would be worked out by the FICC on certain basis. It is incorrect to say that in the absence of a method for working out the ex-factory price indicated in the said Circular letter it should be presumed that what was represented to the manufacturing units was that they would be paid subsidy on the basis of the actual costs shown by them13. It would thus be seen that the Circular letter made no representation other than conveying to each of the manufacturing units that a scheme for payment of differential rate of subsidy in place of the earlier uniform flat subsidy was being introduced. What that differential rate of subsidy would be would depend upon the ex-factory price worked out by the FICC separately for each manufacturing unit. The method by which the ex-factory price was to be worked out for each of the manufacturing units was not indicated in the Circular letter. That was to be on the basis of the recommendation of the Group as accepted by the Government. In fact, the new method of payment of subsidy was based o n the said recommendation which also included the formula to work out the ex-factory price15. Understandably, the method adopted by the FICC for working out the ex-factory price was on a normative basis as recommended by the Group and accepted by the Government. That was as it should be. In the absence of norms for working out the costs of different components, there would virtually be a chaos and arbitrariness. To give only one instance: if a manufacturing unit were to consume more Rock Phosphate and Sulfur or Sulfuric Acid than the consumption norm, its cost of production of SSP would be higher than the cost of production of the standard SSP. It cannot be argued that in spite of it, the manufacturing unit should be paid the differential rate of subsidy on the basis of the unwarranted cost. One can multiply such instances with reference to each of the other elements of cost of producing SSP. In the absence of norms, there would be a good deal of scope for arbitrariness and misfeasance at both ends. We are, therefore, of the view that the contention urged by Shri Sen cannot be accepted. | 1 | 2,834 | 474 | ### 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:
cost of production of SSP] and the actual ex-factory price of SSP of each of the manufacturing units. Hence, uged Shri Sen, the High Court was right in directing the Government to calculate the subsidy payable to the respondent-Company as per the interpretation of the Circular letter by the Company and also to pay the arrears in question. He also contended that that is the only interpretation possible of the said Circular letter. 12. There is no dispute that what holds the field for the payment of the subsidy is the Circular letter of 19th June, 1982. The controversy relates to its interpretation. Taking into consideration the entire history of the subsidy as we have narrated above, the recommendation of the Working Group, its acceptance by the Government and the issuance of the Circular letter to implement the recommendation and the subsequent minutes of the meetings of the FICC held on 16th October, 1982 and 17th February, 1983 and the method for working out the ex-factory price detailed therein, we are of the view that the contention advanced by Shri Sen is not correct. Viewed in its proper context, there is no doubt that the Circular letter in question has only intimated to the manufacturers that consequent upon the fixing of the retail price of SSP w.e.f. 23rd May, 1982, it had become necessary to replace the old scheme of the payment of uniform flat subsidy, by a new scheme. The new scheme was for payment of differential rate of subsidy. That rate of subsidy was to be based on the ex-factory price which had to be worked out separately for each manufacturing unit. In order to work out the ex-factory price of each unit, it was necessary to have information from each to the units on items detailed in the proformae. The information called for was for two different quarters preceding the quarter beginning from April, 1982 since the uniform retail price of SSP had come into effect from 23rd May, 1982. This quarterly information was to be certified either by the Chartered Accountant of the unit concerned or by the statutory auditors. The quarterly information was required because the variable costs were to be determined with reference to the expenses for each factory on the average of three months preceding the last quarter. In para 2 of the Circular letter it was clearly stated that the information in question was required to enable this office to work out the ex-factory price in respect of SSP manufactured in your unit. This was a clear indication that it was the FICC which was going to work out the ex-factory price. If the subsidy was to be based only on the ex-factory price to be stated by the manufacturing unit, there was no question of working it out by the FICC office. 13. It would thus be seen that the Circular letter made no representation other than conveying to each of the manufacturing units that a scheme for payment of differential rate of subsidy in place of the earlier uniform flat subsidy was being introduced. What that differential rate of subsidy would be would depend upon the ex-factory price worked out by the FICC separately for each manufacturing unit. The method by which the ex-factory price was to be worked out for each of the manufacturing units was not indicated in the Circular letter. That was to be on the basis of the recommendation of the Group as accepted by the Government. In fact, the new method of payment of subsidy was based o n the said recommendation which also included the formula to work out the ex-factory price. 14. Shri Sen attacked the recommendation of the Group and the method adopted by the FICC to work out the ex-factory price and the subsidy, on the ground that they were not made known to the manufacturing units. They were, according to him, kept confidential by the Government and all that was held out was the promise contained in the Circular letter of 19th June 1982 which, according to him, was for payment of subsidy to each unit on the basis of its actual costs. It is not necessary for us to go into the question as to whether the method/formula adopted by the FICC should have been made known to the manufacturers or not. Suffice it to point out that the Circular letter in question had not indicated any particular method of working out the ex-factory price. It was implicit in the said Circular letter that the ex-factory price would be worked out by the FICC on certain basis. It is incorrect to say that in the absence of a method for working out the ex-factory price indicated in the said Circular letter it should be presumed that what was represented to the manufacturing units was that they would be paid subsidy on the basis of the actual costs shown by them. 15. Understandably, the method adopted by the FICC for working out the ex-factory price was on a normative basis as recommended by the Group and accepted by the Government. That was as it should be. In the absence of norms for working out the costs of different components, there would virtually be a chaos and arbitrariness. To give only one instance: if a manufacturing unit were to consume more Rock Phosphate and Sulfur or Sulfuric Acid than the consumption norm, its cost of production of SSP would be higher than the cost of production of the standard SSP. It cannot be argued that in spite of it, the manufacturing unit should be paid the differential rate of subsidy on the basis of the unwarranted cost. One can multiply such instances with reference to each of the other elements of cost of producing SSP. In the absence of norms, there would be a good deal of scope for arbitrariness and misfeasance at both ends. We are, therefore, of the view that the contention urged by Shri Sen cannot be accepted.
### Response:
1
### Explanation:
It is not necessary for us to go into the question as to whether the method/formula adopted by the FICC should have been made known to the manufacturers or not. Suffice it to point out that the Circular letter in question had not indicated any particular method of working out the ex-factory price. It was implicit in the said Circular letter that the ex-factory price would be worked out by the FICC on certain basis. It is incorrect to say that in the absence of a method for working out the ex-factory price indicated in the said Circular letter it should be presumed that what was represented to the manufacturing units was that they would be paid subsidy on the basis of the actual costs shown by them13. It would thus be seen that the Circular letter made no representation other than conveying to each of the manufacturing units that a scheme for payment of differential rate of subsidy in place of the earlier uniform flat subsidy was being introduced. What that differential rate of subsidy would be would depend upon the ex-factory price worked out by the FICC separately for each manufacturing unit. The method by which the ex-factory price was to be worked out for each of the manufacturing units was not indicated in the Circular letter. That was to be on the basis of the recommendation of the Group as accepted by the Government. In fact, the new method of payment of subsidy was based o n the said recommendation which also included the formula to work out the ex-factory price15. Understandably, the method adopted by the FICC for working out the ex-factory price was on a normative basis as recommended by the Group and accepted by the Government. That was as it should be. In the absence of norms for working out the costs of different components, there would virtually be a chaos and arbitrariness. To give only one instance: if a manufacturing unit were to consume more Rock Phosphate and Sulfur or Sulfuric Acid than the consumption norm, its cost of production of SSP would be higher than the cost of production of the standard SSP. It cannot be argued that in spite of it, the manufacturing unit should be paid the differential rate of subsidy on the basis of the unwarranted cost. One can multiply such instances with reference to each of the other elements of cost of producing SSP. In the absence of norms, there would be a good deal of scope for arbitrariness and misfeasance at both ends. We are, therefore, of the view that the contention urged by Shri Sen cannot be accepted.
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Deokar Exports Pvt. Ltd Vs. New India Assurance Company Ltd | Sub-sections (1) and (2) of the said section, relevant for our purpose, are extracted below: "64-VB. No risk to be assumed unless premium is received in advance - (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the inusrer.Explanation - Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be." (Emphasis supplied) Two things emerge from the said section. The first is that the insurer cannot assume risk unless and until premium is received or guaranteed or deposited. The second is that a policy issued can assume the risk from a retrospective date provided such date is not earlier than the date on which premium had been paid in cash or by cheque to the insurer. 9. In this case, the proposal sent by the appellant was received by the insurer on 16.6.1989. It required that the period of insurance cover should be for the period 12.3.1988 to 12.9.1989. The reason why the respondent wanted the insurance cover retrospectively from 12.3.1988 is obvious. The initial insurance policy expired on 12.3.1988. Under the terms of finance between MSFC and the appellant, apparently it was necessary to have an uninterrupted and continuous insurance cover during the period the machine was secured in favour of MSFC. Therefore, the appellant wanted the insurance cover to be continued by way of renewal for the period 12.3.1988 to 12.9.1989. But the premium amount for one year was received by the insurer only on 26.8.1988. Having regard to the bar contained in Section 64-VB of the Act, the insurer could not accept the request of the appellant to grant insurance cover with retrospective effect from a date prior to 26.8.1988 when it received the premium. Therefore, the insurer adopted the standard, logical and obvious course of issuing the insurance policy with effect from the date on which it received the premium amount by cheque that is with effect from 26.8.1988. As the premium paid was for one year and the standard term of fire policy was one year, the policy was issued assuming risk for the period 26.8.1988 to 25.8.1989. Non-issue of the policy for the period commencing from 12.3.1988 required by the appellant, was for a good and valid reason. There was also nothing illogical or arbitrary about the insurance of a policy specifying the period of insurance cover as one year effective from the date of receipt of the premium, that is from 26.8.1988 to 25.8.1989. If the appellant wanted insurance cover prospectively it should have so specified in the proposal. Having failed to do so and having sought retrospective cover, the appellant cannot make a grievance when the insurance cover is issued retrospectively from the date of receipt of the premium.10. Another aspect which requires to be noticed is that when the policy was sent by the insurer to MSFC, there was no protest or objection from MSFC that the policy was issued for a wrong period. Nor did it return the policy to the insurer with a request to make it prospective from the date of the policy. The appellant did not choose to examine the policy or cross-check with MSFC about the currency of the insurance policy or about the need to further renewal of the policy. In fact, it would appear from the record that MSFC had written on 31.7.1989 to the appellant that the insurance policy was due to expire in August, 1989. It is, thus, clear that both the appellant and MSFC were aware of the fact that the insurance cover under the policy was for the period 26.8.1988 to 25.8.1989 but neither of them objected to it. Nor was any premium paid for further renewal of the policy beyond 25.8.1989. Obviously, therefore, the insurer cannot be made liable for the loss which occurred on account of a fire accident on 10.2.1990.11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondents acceptance with modification), which would result in, a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter-proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.12. The contention of the learned counsel for the appellant that an equitable view must be taken is untenable. In a contract of insurance, rights and obligations are strictly governed by the policy of insurance. No exception or relaxation can be made on the ground of equity. 13. | 0[ds]In this case, the proposal sent by the appellant was received by the insurer on 16.6.1989. It required that the period of insurance cover should be for the period 12.3.1988 to 12.9.1989. The reason why the respondent wanted the insurance cover retrospectively from 12.3.1988 is obvious. The initial insurance policy expired on 12.3.1988. Under the terms of finance between MSFC and the appellant, apparently it was necessary to have an uninterrupted and continuous insurance cover during the period the machine was secured in favour of MSFC. Therefore, the appellant wanted the insurance cover to be continued by way of renewal for the period 12.3.1988 to 12.9.1989. But the premium amount for one year was received by the insurer only on 26.8.1988. Having regard to the bar contained in Section 64-VB of the Act, the insurer could not accept the request of the appellant to grant insurance cover with retrospective effect from a date prior to 26.8.1988 when it received the premium. Therefore, the insurer adopted the standard, logical and obvious course of issuing the insurance policy with effect from the date on which it received the premium amount by cheque that is with effect from 26.8.1988. As the premium paid was for one year and the standard term of fire policy was one year, the policy was issued assuming risk for the period 26.8.1988 to 25.8.1989. Non-issue of the policy for the period commencing from 12.3.1988 required by the appellant, was for a good and valid reason. There was also nothing illogical or arbitrary about the insurance of a policy specifying the period of insurance cover as one year effective from the date of receipt of the premium, that is from 26.8.1988 to 25.8.1989. If the appellant wanted insurance cover prospectively it should have so specified in the proposal. Having failed to do so and having sought retrospective cover, the appellant cannot make a grievance when the insurance cover is issued retrospectively from the date of receipt of the premium.10. Another aspect which requires to be noticed is that when the policy was sent by the insurer to MSFC, there was no protest or objection from MSFC that the policy was issued for a wrong period. Nor did it return the policy to the insurer with a request to make it prospective from the date of the policy. The appellant did not choose to examine the policy or cross-check with MSFC about the currency of the insurance policy or about the need to further renewal of the policy. In fact, it would appear from the record that MSFC had written on 31.7.1989 to the appellant that the insurance policy was due to expire in August, 1989. It is, thus, clear that both the appellant and MSFC were aware of the fact that the insurance cover under the policy was for the period 26.8.1988 to 25.8.1989 but neither of them objected to it. Nor was any premium paid for further renewal of the policy beyond 25.8.1989. Obviously, therefore, the insurer cannot be made liable for the loss which occurred on account of a fire accident on 10.2.1990.11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondents acceptance with modification), which would result in, a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter-proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.12. The contention of the learned counsel for the appellant that an equitable view must be taken is untenable. In a contract of insurance, rights and obligations are strictly governed by the policy of insurance. No exception or relaxation can be made on the ground of equity. | 0 | 2,274 | 814 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
Sub-sections (1) and (2) of the said section, relevant for our purpose, are extracted below: "64-VB. No risk to be assumed unless premium is received in advance - (1) No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.(2) For the purposes of this section, in the case of risks for which premium can be ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque to the inusrer.Explanation - Where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case may be." (Emphasis supplied) Two things emerge from the said section. The first is that the insurer cannot assume risk unless and until premium is received or guaranteed or deposited. The second is that a policy issued can assume the risk from a retrospective date provided such date is not earlier than the date on which premium had been paid in cash or by cheque to the insurer. 9. In this case, the proposal sent by the appellant was received by the insurer on 16.6.1989. It required that the period of insurance cover should be for the period 12.3.1988 to 12.9.1989. The reason why the respondent wanted the insurance cover retrospectively from 12.3.1988 is obvious. The initial insurance policy expired on 12.3.1988. Under the terms of finance between MSFC and the appellant, apparently it was necessary to have an uninterrupted and continuous insurance cover during the period the machine was secured in favour of MSFC. Therefore, the appellant wanted the insurance cover to be continued by way of renewal for the period 12.3.1988 to 12.9.1989. But the premium amount for one year was received by the insurer only on 26.8.1988. Having regard to the bar contained in Section 64-VB of the Act, the insurer could not accept the request of the appellant to grant insurance cover with retrospective effect from a date prior to 26.8.1988 when it received the premium. Therefore, the insurer adopted the standard, logical and obvious course of issuing the insurance policy with effect from the date on which it received the premium amount by cheque that is with effect from 26.8.1988. As the premium paid was for one year and the standard term of fire policy was one year, the policy was issued assuming risk for the period 26.8.1988 to 25.8.1989. Non-issue of the policy for the period commencing from 12.3.1988 required by the appellant, was for a good and valid reason. There was also nothing illogical or arbitrary about the insurance of a policy specifying the period of insurance cover as one year effective from the date of receipt of the premium, that is from 26.8.1988 to 25.8.1989. If the appellant wanted insurance cover prospectively it should have so specified in the proposal. Having failed to do so and having sought retrospective cover, the appellant cannot make a grievance when the insurance cover is issued retrospectively from the date of receipt of the premium.10. Another aspect which requires to be noticed is that when the policy was sent by the insurer to MSFC, there was no protest or objection from MSFC that the policy was issued for a wrong period. Nor did it return the policy to the insurer with a request to make it prospective from the date of the policy. The appellant did not choose to examine the policy or cross-check with MSFC about the currency of the insurance policy or about the need to further renewal of the policy. In fact, it would appear from the record that MSFC had written on 31.7.1989 to the appellant that the insurance policy was due to expire in August, 1989. It is, thus, clear that both the appellant and MSFC were aware of the fact that the insurance cover under the policy was for the period 26.8.1988 to 25.8.1989 but neither of them objected to it. Nor was any premium paid for further renewal of the policy beyond 25.8.1989. Obviously, therefore, the insurer cannot be made liable for the loss which occurred on account of a fire accident on 10.2.1990.11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondents acceptance with modification), which would result in, a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter-proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.12. The contention of the learned counsel for the appellant that an equitable view must be taken is untenable. In a contract of insurance, rights and obligations are strictly governed by the policy of insurance. No exception or relaxation can be made on the ground of equity. 13.
### Response:
0
### Explanation:
In this case, the proposal sent by the appellant was received by the insurer on 16.6.1989. It required that the period of insurance cover should be for the period 12.3.1988 to 12.9.1989. The reason why the respondent wanted the insurance cover retrospectively from 12.3.1988 is obvious. The initial insurance policy expired on 12.3.1988. Under the terms of finance between MSFC and the appellant, apparently it was necessary to have an uninterrupted and continuous insurance cover during the period the machine was secured in favour of MSFC. Therefore, the appellant wanted the insurance cover to be continued by way of renewal for the period 12.3.1988 to 12.9.1989. But the premium amount for one year was received by the insurer only on 26.8.1988. Having regard to the bar contained in Section 64-VB of the Act, the insurer could not accept the request of the appellant to grant insurance cover with retrospective effect from a date prior to 26.8.1988 when it received the premium. Therefore, the insurer adopted the standard, logical and obvious course of issuing the insurance policy with effect from the date on which it received the premium amount by cheque that is with effect from 26.8.1988. As the premium paid was for one year and the standard term of fire policy was one year, the policy was issued assuming risk for the period 26.8.1988 to 25.8.1989. Non-issue of the policy for the period commencing from 12.3.1988 required by the appellant, was for a good and valid reason. There was also nothing illogical or arbitrary about the insurance of a policy specifying the period of insurance cover as one year effective from the date of receipt of the premium, that is from 26.8.1988 to 25.8.1989. If the appellant wanted insurance cover prospectively it should have so specified in the proposal. Having failed to do so and having sought retrospective cover, the appellant cannot make a grievance when the insurance cover is issued retrospectively from the date of receipt of the premium.10. Another aspect which requires to be noticed is that when the policy was sent by the insurer to MSFC, there was no protest or objection from MSFC that the policy was issued for a wrong period. Nor did it return the policy to the insurer with a request to make it prospective from the date of the policy. The appellant did not choose to examine the policy or cross-check with MSFC about the currency of the insurance policy or about the need to further renewal of the policy. In fact, it would appear from the record that MSFC had written on 31.7.1989 to the appellant that the insurance policy was due to expire in August, 1989. It is, thus, clear that both the appellant and MSFC were aware of the fact that the insurance cover under the policy was for the period 26.8.1988 to 25.8.1989 but neither of them objected to it. Nor was any premium paid for further renewal of the policy beyond 25.8.1989. Obviously, therefore, the insurer cannot be made liable for the loss which occurred on account of a fire accident on 10.2.1990.11. A policy of insurance is a contract based on an offer (proposal) and an acceptance. The appellant made a proposal. The respondent accepted the proposal with a modification. Therefore, it was a counter proposal. The appellant had three choices. The first was to refuse to accept the counter-proposal, in which event there would have been no contract. The second was to accept either expressly or impliedly, the counter-proposal of the respondent (that is respondents acceptance with modification), which would result in, a concluded contract in terms of the counter proposal. The third was to make a counter proposal to the counter-proposal of the respondent in which event there would have been no concluded contract unless the respondent agreed to such counter-counter-proposal. But the appellant definitely did not have the fourth choice of propounding a concluded contract with a modification neither proposed nor agreed to by either party. If the appellant did not agree to the policy covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to 12.9.1989, the result would never create an insurance contract effective from 30.6.1989 or any other date.12. The contention of the learned counsel for the appellant that an equitable view must be taken is untenable. In a contract of insurance, rights and obligations are strictly governed by the policy of insurance. No exception or relaxation can be made on the ground of equity.
|
M/s. Govind Impex (P) Ltd. & Others Vs. Appropriate Authority, Income Tax Department | attracted. The rival submissions necessitate examination of Section 269UA(f)(i) of the Act, particularly its explanation, same reads as follows: ?269UA(f) ?transfer?,— (i) in relation to any immovable property referred to in Sub-clause (i) of Clause (d), means transfer of such property by way of sale or exchange or lease for a terms of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882 (4 of 1882) Explanation—For the purposes of this Sub-clause, a lease which provides for the extension of the term thereof by a further term or terms shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years; (ii) xxx xxx xxx? 6. On a plain reading of the explanation aforesaid it is evident that a lease which provides for the extension of the term thereof by a further term it shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the period for which the lease is granted and period of extension counted together makes it more than twelve years. In the present case, we are proceeding on our assumption that explanation to Section 269UA(f)(i) would be attracted only when lease provides for extension of term and in view thereof, we do not consider it expedient to examine the judgment relied on by Mr. Salve. In the case in hand, the lease was for a period of nine years and the question, therefore, is as to whether the same was extendable for a further period of nine years so as to make it for not less than twelve years. To answer this one is required to refer to the lease deed and Clauses 1 and 12 thereof which are relevant for the purpose, same read as follows: ?1. That the Lessors of the First Part have agreed to lease out to the Lessee of the Second Part the demised premises as aforesaid which are being used for commercial purposes at present namely on the lower ground floor/basement, ground floor/upper ground floor, first floor, second floor and the terrace of the building known as B-68, Greater Kailash-I, New Delhi - 110048, and clearly delineated in green outlines in the site plan annexed herewith for a period of nine years, extendable purely at the discretion and option of the Lessee of the Second Part for a further period of nine years, commencing from the date when the possession of the peremises is handed over i.e. 1.6.1991 and ending on the last date when the period of first nine years expires i.e. on 31.5.2000 at a monthly lease amount of Rs. 2,50,000/- (Rupees Two lacs and fifty thousand only) subject to the periodic revision as mentioned in later para. The said premises comprise of a total area of about 12904 sq. ft. with floor wise rentals as per the details below: xxx xxx xxx xxx xxx xxx 12. That the Lessee may at its option and discretion renew the lease for a further period of nine years after the expiry of the term of the present lease on 31st May, 2000. If the Lessee shall be desirous of such renewal it shall give a notice of such renewal to the Lessors at least three months prior to the expiry of the term in the present lease deed. The subsequent renewals of the Lease Deed shall also be got duly signed and registered. The renewals of the Lease shall be on the same terms and conditions.? 7. Mr. Salve submits that statute providing for penal prosecution has to be construed strictly. He refers to Clause 12 aforesaid and contends that it shall govern the field. Mr. Bhatt submits that it is Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in accepting the broad submission of Mr. Salve that Penal statute which make an act a penal offence or impose penalty is to be strictly construed and if two views are possible, one favourable to the citizen is to be ordinarily preferred but this principle has no application in the facts of the present case. There is no serious dispute in regard to the interpretation of explanation to Section 269UA(f) of the Act and in fact, we are proceeding on an assumption that it will cover only such cases where exists provision for extension in lease deed. In our opinion, what we are required to consider is the terms and conditions of lease. The terms of lease are not to be interpreted following strict rules of construction. One term of the lease cannot be taken into consideration in isolation. Entire document in totality has to be seen to decipher the terms and conditions of lease. Here in the present case, Clause 1 in no uncertain term provides for extension of period of lease for a further period of nine years and Clause 12 thereof provides for renewal on fulfilment of certain terms and conditions. Therefore, when the document is constructed as a whole, it is apparent that it provides for the extension of the term. If that is taken into account the lease is for a period of not less than twelve years. Once it is held so the explanation to Section 269UA(f)(i) is clearly attracted. We are of the opinion that the High Court is right in observing that ?on a conjoint reading of paras 1 and 12 of the lease deed, the lessor intended the lease to last for 18 years? and further the lessor could not have refused to renew/extend the lease after first term if the lessee complied with the conditions. | 0[ds]7. Mr. Salve submits that statute providing for penal prosecution has to be construed strictly. He refers to Clause 12 aforesaid and contends that it shall govern the field. Mr. Bhatt submits that it is Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in accepting the broad submission of Mr. Salve that Penal statute which make an act a penal offence or impose penalty is to be strictly construed and if two views are possible, one favourable to the citizen is to be ordinarily preferred but this principle has no application in the facts of the present case. There is no serious dispute in regard to the interpretation of explanation to Section 269UA(f) of the Act and in fact, we are proceeding on an assumption that it will cover only such cases where exists provision for extension in lease deed. In our opinion, what we are required to consider is the terms and conditions of lease. The terms of lease are not to be interpreted following strict rules of construction. One term of the lease cannot be taken into consideration in isolation. Entire document in totality has to be seen to decipher the terms and conditions of lease. Here in the present case, Clause 1 in no uncertain term provides for extension of period of lease for a further period of nine years and Clause 12 thereof provides for renewal on fulfilment of certain terms and conditions. Therefore, when the document is constructed as a whole, it is apparent that it provides for the extension of the term. If that is taken into account the lease is for a period of not less than twelve years. Once it is held so the explanation to Section 269UA(f)(i) is clearly attracted. We are of the opinion that the High Court is right in observing that ?on a conjoint reading of paras 1 and 12 of the lease deed, the lessor intended the lease to last for 18 years? and further the lessor could not have refused to renew/extend the lease after first term if the lessee complied with the conditions. | 0 | 2,129 | 396 | ### 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:
attracted. The rival submissions necessitate examination of Section 269UA(f)(i) of the Act, particularly its explanation, same reads as follows: ?269UA(f) ?transfer?,— (i) in relation to any immovable property referred to in Sub-clause (i) of Clause (d), means transfer of such property by way of sale or exchange or lease for a terms of not less than twelve years, and includes allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act, 1882 (4 of 1882) Explanation—For the purposes of this Sub-clause, a lease which provides for the extension of the term thereof by a further term or terms shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the term for which such lease is to be granted and the further term or terms for which it can be so extended is not less than twelve years; (ii) xxx xxx xxx? 6. On a plain reading of the explanation aforesaid it is evident that a lease which provides for the extension of the term thereof by a further term it shall be deemed to be a lease for a term of not less than twelve years, if the aggregate of the period for which the lease is granted and period of extension counted together makes it more than twelve years. In the present case, we are proceeding on our assumption that explanation to Section 269UA(f)(i) would be attracted only when lease provides for extension of term and in view thereof, we do not consider it expedient to examine the judgment relied on by Mr. Salve. In the case in hand, the lease was for a period of nine years and the question, therefore, is as to whether the same was extendable for a further period of nine years so as to make it for not less than twelve years. To answer this one is required to refer to the lease deed and Clauses 1 and 12 thereof which are relevant for the purpose, same read as follows: ?1. That the Lessors of the First Part have agreed to lease out to the Lessee of the Second Part the demised premises as aforesaid which are being used for commercial purposes at present namely on the lower ground floor/basement, ground floor/upper ground floor, first floor, second floor and the terrace of the building known as B-68, Greater Kailash-I, New Delhi - 110048, and clearly delineated in green outlines in the site plan annexed herewith for a period of nine years, extendable purely at the discretion and option of the Lessee of the Second Part for a further period of nine years, commencing from the date when the possession of the peremises is handed over i.e. 1.6.1991 and ending on the last date when the period of first nine years expires i.e. on 31.5.2000 at a monthly lease amount of Rs. 2,50,000/- (Rupees Two lacs and fifty thousand only) subject to the periodic revision as mentioned in later para. The said premises comprise of a total area of about 12904 sq. ft. with floor wise rentals as per the details below: xxx xxx xxx xxx xxx xxx 12. That the Lessee may at its option and discretion renew the lease for a further period of nine years after the expiry of the term of the present lease on 31st May, 2000. If the Lessee shall be desirous of such renewal it shall give a notice of such renewal to the Lessors at least three months prior to the expiry of the term in the present lease deed. The subsequent renewals of the Lease Deed shall also be got duly signed and registered. The renewals of the Lease shall be on the same terms and conditions.? 7. Mr. Salve submits that statute providing for penal prosecution has to be construed strictly. He refers to Clause 12 aforesaid and contends that it shall govern the field. Mr. Bhatt submits that it is Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in accepting the broad submission of Mr. Salve that Penal statute which make an act a penal offence or impose penalty is to be strictly construed and if two views are possible, one favourable to the citizen is to be ordinarily preferred but this principle has no application in the facts of the present case. There is no serious dispute in regard to the interpretation of explanation to Section 269UA(f) of the Act and in fact, we are proceeding on an assumption that it will cover only such cases where exists provision for extension in lease deed. In our opinion, what we are required to consider is the terms and conditions of lease. The terms of lease are not to be interpreted following strict rules of construction. One term of the lease cannot be taken into consideration in isolation. Entire document in totality has to be seen to decipher the terms and conditions of lease. Here in the present case, Clause 1 in no uncertain term provides for extension of period of lease for a further period of nine years and Clause 12 thereof provides for renewal on fulfilment of certain terms and conditions. Therefore, when the document is constructed as a whole, it is apparent that it provides for the extension of the term. If that is taken into account the lease is for a period of not less than twelve years. Once it is held so the explanation to Section 269UA(f)(i) is clearly attracted. We are of the opinion that the High Court is right in observing that ?on a conjoint reading of paras 1 and 12 of the lease deed, the lessor intended the lease to last for 18 years? and further the lessor could not have refused to renew/extend the lease after first term if the lessee complied with the conditions.
### Response:
0
### Explanation:
7. Mr. Salve submits that statute providing for penal prosecution has to be construed strictly. He refers to Clause 12 aforesaid and contends that it shall govern the field. Mr. Bhatt submits that it is Clause 1 of the lease deed which shall govern the issue. We do not have the slightest hesitation in accepting the broad submission of Mr. Salve that Penal statute which make an act a penal offence or impose penalty is to be strictly construed and if two views are possible, one favourable to the citizen is to be ordinarily preferred but this principle has no application in the facts of the present case. There is no serious dispute in regard to the interpretation of explanation to Section 269UA(f) of the Act and in fact, we are proceeding on an assumption that it will cover only such cases where exists provision for extension in lease deed. In our opinion, what we are required to consider is the terms and conditions of lease. The terms of lease are not to be interpreted following strict rules of construction. One term of the lease cannot be taken into consideration in isolation. Entire document in totality has to be seen to decipher the terms and conditions of lease. Here in the present case, Clause 1 in no uncertain term provides for extension of period of lease for a further period of nine years and Clause 12 thereof provides for renewal on fulfilment of certain terms and conditions. Therefore, when the document is constructed as a whole, it is apparent that it provides for the extension of the term. If that is taken into account the lease is for a period of not less than twelve years. Once it is held so the explanation to Section 269UA(f)(i) is clearly attracted. We are of the opinion that the High Court is right in observing that ?on a conjoint reading of paras 1 and 12 of the lease deed, the lessor intended the lease to last for 18 years? and further the lessor could not have refused to renew/extend the lease after first term if the lessee complied with the conditions.
|
Basmati Devi Vs. Chamroo Sao And Ors | the mortgagee as well as the mortgagee, the High Court appears to have followed a number of previous decisions of the same High Court.10. In support of the appeal it is urged that the view taken by the High Court in the present case as well as the previous decisions of the Patna High Court is incorrect and defeats the very object of S. 90 of the Indian Trusts Act. Section 90 of the Indian Trusts Act is in these words :-"Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage."11. The question for consideration is whether in circumstances like the present where the decree and the sale in execution of it are brought about by the default of both the mortgagor and the mortgagee, the mortgagee can be said to have taken advantage of his position by purchasing the property at the sale. The High Court appears to think that unless the sale was brought about by the default of the mortgagee alone the mortgagee cannot be said to have taken advantage of his position in making the purchases. What seems to have weighed with the learned Judges is that even if the mortgagee had done his duty by paying the rent he was liable to pay, the sale would still have taken place as the mortgagor did not pay that portion of the rent which he was liable to pay. So, they thought that the mortgagees, though they took advantage of the fact that the property had been brought to sale, could not be said to have taken advantage of their position as mortgagees.12. With this view we are unable to agree. In our opinion, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee. When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee.13. This, in our opinion, is the position in law even if the mortgagees liability was to pay less than the major portion of the rent of the holdings. Whether this would be true even where the portion with the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the present case.14. In the present case, the finding is that the liability of the defendants 1 and 2 was to pay a substantial portion of the rent. To say in such circumstances that they did not take advantage of their position as mortgagees is entirely unrealistic. Such a construction would put a premium on dishonesty on the part of mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgagee as under the provision of S. 76 of the transfer of Property Act.15. Mr. Sarjoo Prasad, who appeared before us on behalf of the respondent tried to persuade us that in any case the plaintiffs suit should fail as regards the lands recorded in Khata No. 57, as, according to him, these mortgagees were not at all liable to pay any portion of the rent of this holding. He drew our attention in this connection to Ex. 2, the mortgage bond executed in favour of Chamroo Sao, and to the statement made therein: Annual rent payable to the Zamindar is the concern of me, the executant". This argument proceeds on the basis that the holding recorded in Khata No. 57 continued to be separate and distinct from the Khata No. 57. It is thus in direct conflict with the plea of these very defendants in their written statement that the two holdings had been consolidated into one holding with one rental. As the oral and documentary evidence on the Paper Book prepared in the appeal did not clearly show whether or not these two holdings had become one, we called for one of the documents, Ex. B which seemed likely to throw some light on the matter. The document has now been received. It is the copy of a judgment of a suit between these parties in which this very question, viz., whether the two holdings had been consolidated into one or not, was raised. It was decided that such consolidation had taken place. It is clear that it was after such consolidation that the rent suit was brought in respect of that consolidated holding and it was that consolidated holding which was sold in execution of the decree. It is clear therefore that the mortgage bond Ex. 2 in which the mortgagor accepted liability to pay rent to the Zamindar in respect of the mortgaged land in Khata No. 57 does not affect the correctness of the High Courts finding that the liability to pay rent of the holding that was sold was partly of the mortgagees and that it was the default of both the mortgagor and the mortgagees that brought about the sale. | 1[ds]The High Court appears to think that unless the sale was brought about by the default of the mortgagee alone the mortgagee cannot be said to have taken advantage of his position in making the purchases. What seems to have weighed with the learned Judges is that even if the mortgagee had done his duty by paying the rent he was liable to pay, the sale would still have taken place as the mortgagor did not pay that portion of the rent which he was liable to pay. So, they thought that the mortgagees, though they took advantage of the fact that the property had been brought to sale, could not be said to have taken advantage of their position as mortgagees.12. With this view we are unable to agree. In our opinion, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee. When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee.13. This, in our opinion, is the position in law even if the mortgagees liability was to pay less than the major portion of the rent of the holdings. Whether this would be true even where the portion with the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the presentis thus in direct conflict with the plea of these very defendants in their written statement that the two holdings had been consolidated into one holding with one rental. As the oral and documentary evidence on the Paper Book prepared in the appeal did not clearly show whether or not these two holdings had become one, we called for one of the documents, Ex. B which seemed likely to throw some light on the matter. The document has now been received. It is the copy of a judgment of a suit between these parties in which this very question, viz., whether the two holdings had been consolidated into one or not, was raised. It was decided that such consolidation had taken place. It is clear that it was after such consolidation that the rent suit was brought in respect of that consolidated holding and it was that consolidated holding which was sold in execution of the decree. It is clear therefore that the mortgage bond Ex. 2 in which the mortgagor accepted liability to pay rent to the Zamindar in respect of the mortgaged land in Khata No. 57 does not affect the correctness of the High Courts finding that the liability to pay rent of the holding that was sold was partly of the mortgagees and that it was the default of both the mortgagor and the mortgagees that brought about the sale.In the present case, the finding is that the liability of the defendants 1 and 2 was to pay a substantial portion of the rent. To say in such circumstances that they did not take advantage of their position as mortgagees is entirely unrealistic. Such a construction would put a premium on dishonesty on the part of mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgagee as under the provision of S. 76 of the transfer of Property Act. | 1 | 1,890 | 684 | ### 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:
the mortgagee as well as the mortgagee, the High Court appears to have followed a number of previous decisions of the same High Court.10. In support of the appeal it is urged that the view taken by the High Court in the present case as well as the previous decisions of the Patna High Court is incorrect and defeats the very object of S. 90 of the Indian Trusts Act. Section 90 of the Indian Trusts Act is in these words :-"Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage."11. The question for consideration is whether in circumstances like the present where the decree and the sale in execution of it are brought about by the default of both the mortgagor and the mortgagee, the mortgagee can be said to have taken advantage of his position by purchasing the property at the sale. The High Court appears to think that unless the sale was brought about by the default of the mortgagee alone the mortgagee cannot be said to have taken advantage of his position in making the purchases. What seems to have weighed with the learned Judges is that even if the mortgagee had done his duty by paying the rent he was liable to pay, the sale would still have taken place as the mortgagor did not pay that portion of the rent which he was liable to pay. So, they thought that the mortgagees, though they took advantage of the fact that the property had been brought to sale, could not be said to have taken advantage of their position as mortgagees.12. With this view we are unable to agree. In our opinion, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee. When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee.13. This, in our opinion, is the position in law even if the mortgagees liability was to pay less than the major portion of the rent of the holdings. Whether this would be true even where the portion with the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the present case.14. In the present case, the finding is that the liability of the defendants 1 and 2 was to pay a substantial portion of the rent. To say in such circumstances that they did not take advantage of their position as mortgagees is entirely unrealistic. Such a construction would put a premium on dishonesty on the part of mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgagee as under the provision of S. 76 of the transfer of Property Act.15. Mr. Sarjoo Prasad, who appeared before us on behalf of the respondent tried to persuade us that in any case the plaintiffs suit should fail as regards the lands recorded in Khata No. 57, as, according to him, these mortgagees were not at all liable to pay any portion of the rent of this holding. He drew our attention in this connection to Ex. 2, the mortgage bond executed in favour of Chamroo Sao, and to the statement made therein: Annual rent payable to the Zamindar is the concern of me, the executant". This argument proceeds on the basis that the holding recorded in Khata No. 57 continued to be separate and distinct from the Khata No. 57. It is thus in direct conflict with the plea of these very defendants in their written statement that the two holdings had been consolidated into one holding with one rental. As the oral and documentary evidence on the Paper Book prepared in the appeal did not clearly show whether or not these two holdings had become one, we called for one of the documents, Ex. B which seemed likely to throw some light on the matter. The document has now been received. It is the copy of a judgment of a suit between these parties in which this very question, viz., whether the two holdings had been consolidated into one or not, was raised. It was decided that such consolidation had taken place. It is clear that it was after such consolidation that the rent suit was brought in respect of that consolidated holding and it was that consolidated holding which was sold in execution of the decree. It is clear therefore that the mortgage bond Ex. 2 in which the mortgagor accepted liability to pay rent to the Zamindar in respect of the mortgaged land in Khata No. 57 does not affect the correctness of the High Courts finding that the liability to pay rent of the holding that was sold was partly of the mortgagees and that it was the default of both the mortgagor and the mortgagees that brought about the sale.
### Response:
1
### Explanation:
The High Court appears to think that unless the sale was brought about by the default of the mortgagee alone the mortgagee cannot be said to have taken advantage of his position in making the purchases. What seems to have weighed with the learned Judges is that even if the mortgagee had done his duty by paying the rent he was liable to pay, the sale would still have taken place as the mortgagor did not pay that portion of the rent which he was liable to pay. So, they thought that the mortgagees, though they took advantage of the fact that the property had been brought to sale, could not be said to have taken advantage of their position as mortgagees.12. With this view we are unable to agree. In our opinion, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee. When therefore he purchased the property himself at the sale in execution of the rent decree he clearly gained an advantage by availing himself of his position as a mortgagee.13. This, in our opinion, is the position in law even if the mortgagees liability was to pay less than the major portion of the rent of the holdings. Whether this would be true even where the portion with the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the presentis thus in direct conflict with the plea of these very defendants in their written statement that the two holdings had been consolidated into one holding with one rental. As the oral and documentary evidence on the Paper Book prepared in the appeal did not clearly show whether or not these two holdings had become one, we called for one of the documents, Ex. B which seemed likely to throw some light on the matter. The document has now been received. It is the copy of a judgment of a suit between these parties in which this very question, viz., whether the two holdings had been consolidated into one or not, was raised. It was decided that such consolidation had taken place. It is clear that it was after such consolidation that the rent suit was brought in respect of that consolidated holding and it was that consolidated holding which was sold in execution of the decree. It is clear therefore that the mortgage bond Ex. 2 in which the mortgagor accepted liability to pay rent to the Zamindar in respect of the mortgaged land in Khata No. 57 does not affect the correctness of the High Courts finding that the liability to pay rent of the holding that was sold was partly of the mortgagees and that it was the default of both the mortgagor and the mortgagees that brought about the sale.In the present case, the finding is that the liability of the defendants 1 and 2 was to pay a substantial portion of the rent. To say in such circumstances that they did not take advantage of their position as mortgagees is entirely unrealistic. Such a construction would put a premium on dishonesty on the part of mortgagees whenever the entire burden of payment of rent was not left squarely on the mortgagee as under the provision of S. 76 of the transfer of Property Act.
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Union Of India Vs. M/S. Sohanlal Sampatlal | 83-A shall be the market value on the date and at the place of posting. Part IV of the rules deals with insurance of postal articles. The second proviso to rule 72 (1) lays down that articles containing government currency notes or gold coin or bullion shall be insured for the actual value of the contents. Rule 74 gives the additional fee chargeable for the insurance. Under rule 81 the compensation payable to the sender of an insured article shall not exceed the amount for which the article has been insured for the loss of the postal article or any of its contents. According to the first proviso the compensation shall in no case exceed the value of the article or any of its contents lost. Clause (g) of the second proviso is to the effect that no compensation shall be payable where the insured article contains gold coins or both and has not been insured for the actual value of the contents. Rule 83A makes it obligatory for the sender to declare on the article the value of the contents where gold coin, bullion etc., is despatched. Thus under the rules whenever gold coin or bullion is sent by parcel post it must be insured for the actual value of the contents. If the articles are lost the amount of compensation cannot exceed the amount for which the articles have been insured and no compensation shall be payable where the articles have not been insured for the actual value. By reference to rule 44 the value has to be the market value on the date and at the place of posting.4. The argument which has been raised on behalf of the Union of India is that the respondent firm had purchased the gold coin for Rupees 2465-14-0 on June 15, 1955. Its actual market value, therefore on respondents own admission was not Rupees 2500/-. It has, further, been pointed out that in para 2 of the plaint it has been stated that on or about June 16, 1955 the plaintiffs despatched 26 tolas gold valued at Rs. 2474-15-6 under insured parcel which was lost in transit and even the decree was claimed for that amount and not for Rs. 2500/-. As there was a discrepancy between the value declared and the actual or market value the respondent firm was not entitled to any compensation. The plea in defence substantially was that the respondent ought to have declared the actual value of the contents on the date of insurance, namely June 16, 1955 which it failed to do and therefore there was no contract of insurance between the parties.5. Now the statutory provisions of the Act and the rules have to be construed and read in a reasonable manner. If the interpretation sought to be placed on behalf of the appellant is accepted it would mean that where a person declares a value which varies even by one paisa from the market value on the date and at the place of posting the insured would be deprived of the compensation for the loss of the article. That could never have been in the contemplation of the legislature and the rule making authority. The rules seem to ensure that the insured should not make a declaration in excess of the market value so as to avoid fraudulent dealings. Nor can the insured get more compensation than the market value. But this does not and cannot mean that any innocent and insignificant misstatement by the insured of the actual value which has to be the market value on a particular date and at the place of posting can lead to the startling result that he becomes wholly disentitled to receive any compensation. It is well known that the market in articles like gold and bullion exists only in large towns and the value fluctuates from day to day and from hour to hour. It may be sometimes impossible for any person sending gold or bullion by post after getting it insured to ascertain the exact value on a particular date. Take for instance the case of a person who is illiterate and has to dispatch gold from a place in the vicinity of which there is no market from where the market value can be ascertained. He cannot in the very nature of things be absolutely precise and accurate about the market value prevailing at the material time. This does not, however, mean that he is completely absolved from the responsibility of ascertaining it but if he gives some value which is approximately the same as the market value the insurer cannot take up the position that owing to an insignificant difference the insured cannot recover the compensation.6. The High Court referred to Article 429 in Halsburys Laws of England III Edition, Vol. 22, at page 227 and to certain other text books on the law of insurance according to which the burden is on the insurer of showing that the policy is no longer subsisting or that there had been a breach of such a condition which relieves the insurer from liability. It has not been shown that these general principles will not be applicable when an insurance has been effected under the provisions of the Act and the rules. The finding of the High Court was that there was no evidence of any kind regarding the market rate of gold prevailing on June 16, 1955 on the record. It was for the insurer to lead evidence on that point and show that according to the market rate prevailing on that date the value could not be Rs. 2500/-The mere fact that the respondent was under the impression or had stated in the " plaint that the value of the gold was less than Rs. 2500/- was not sufficient to absolve the insurer from the responsibility of proving that the value which was declared i.e. Rs. 2500/- was not the market value on the date and at the place of posting | 0[ds]5. Now the statutory provisions of the Act and the rules have to be construed and read in a reasonable manner. If the interpretation sought to be placed on behalf of the appellant is accepted it would mean that where a person declares a value which varies even by one paisa from the market value on the date and at the place of posting the insured would be deprived of the compensation for the loss of the article. That could never have been in the contemplation of the legislature and the rule making authority. The rules seem to ensure that the insured should not make a declaration in excess of the market value so as to avoid fraudulent dealings. Nor can the insured get more compensation than the market value. But this does not and cannot mean that any innocent and insignificant misstatement by the insured of the actual value which has to be the market value on a particular date and at the place of posting can lead to the startling result that he becomes wholly disentitled to receive any compensation. It is well known that the market in articles like gold and bullion exists only in large towns and the value fluctuates from day to day and from hour to hour. It may be sometimes impossible for any person sending gold or bullion by post after getting it insured to ascertain the exact value on a particular date. Take for instance the case of a person who is illiterate and has to dispatch gold from a place in the vicinity of which there is no market from where the market value can be ascertained. He cannot in the very nature of things be absolutely precise and accurate about the market value prevailing at the material time. This does not, however, mean that he is completely absolved from the responsibility of ascertaining it but if he gives some value which is approximately the same as the market value the insurer cannot take up the position that owing to an insignificant difference the insured cannot recover the compensation.6. The High Court referred to Article 429 in Halsburys Laws of England III Edition, Vol. 22, at page 227 and to certain other text books on the law of insurance according to which the burden is on the insurer of showing that the policy is no longer subsisting or that there had been a breach of such a condition which relieves the insurer from liability. It has not been shown that these general principles will not be applicable when an insurance has been effected under the provisions of the Act and the rules. The finding of the High Court was that there was no evidence of any kind regarding the market rate of gold prevailing on June 16, 1955 on the record. It was for the insurer to lead evidence on that point and show that according to the market rate prevailing on that date the value could not be Rs. 2500/-The mere fact that the respondent was under the impression or had stated in the " plaint that the value of the gold was less than Rs. 2500/- was not sufficient to absolve the insurer from the responsibility of proving that the value which was declared i.e. Rs. 2500/- was not the market value on the date and at the place of posting | 0 | 1,771 | 595 | ### 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:
83-A shall be the market value on the date and at the place of posting. Part IV of the rules deals with insurance of postal articles. The second proviso to rule 72 (1) lays down that articles containing government currency notes or gold coin or bullion shall be insured for the actual value of the contents. Rule 74 gives the additional fee chargeable for the insurance. Under rule 81 the compensation payable to the sender of an insured article shall not exceed the amount for which the article has been insured for the loss of the postal article or any of its contents. According to the first proviso the compensation shall in no case exceed the value of the article or any of its contents lost. Clause (g) of the second proviso is to the effect that no compensation shall be payable where the insured article contains gold coins or both and has not been insured for the actual value of the contents. Rule 83A makes it obligatory for the sender to declare on the article the value of the contents where gold coin, bullion etc., is despatched. Thus under the rules whenever gold coin or bullion is sent by parcel post it must be insured for the actual value of the contents. If the articles are lost the amount of compensation cannot exceed the amount for which the articles have been insured and no compensation shall be payable where the articles have not been insured for the actual value. By reference to rule 44 the value has to be the market value on the date and at the place of posting.4. The argument which has been raised on behalf of the Union of India is that the respondent firm had purchased the gold coin for Rupees 2465-14-0 on June 15, 1955. Its actual market value, therefore on respondents own admission was not Rupees 2500/-. It has, further, been pointed out that in para 2 of the plaint it has been stated that on or about June 16, 1955 the plaintiffs despatched 26 tolas gold valued at Rs. 2474-15-6 under insured parcel which was lost in transit and even the decree was claimed for that amount and not for Rs. 2500/-. As there was a discrepancy between the value declared and the actual or market value the respondent firm was not entitled to any compensation. The plea in defence substantially was that the respondent ought to have declared the actual value of the contents on the date of insurance, namely June 16, 1955 which it failed to do and therefore there was no contract of insurance between the parties.5. Now the statutory provisions of the Act and the rules have to be construed and read in a reasonable manner. If the interpretation sought to be placed on behalf of the appellant is accepted it would mean that where a person declares a value which varies even by one paisa from the market value on the date and at the place of posting the insured would be deprived of the compensation for the loss of the article. That could never have been in the contemplation of the legislature and the rule making authority. The rules seem to ensure that the insured should not make a declaration in excess of the market value so as to avoid fraudulent dealings. Nor can the insured get more compensation than the market value. But this does not and cannot mean that any innocent and insignificant misstatement by the insured of the actual value which has to be the market value on a particular date and at the place of posting can lead to the startling result that he becomes wholly disentitled to receive any compensation. It is well known that the market in articles like gold and bullion exists only in large towns and the value fluctuates from day to day and from hour to hour. It may be sometimes impossible for any person sending gold or bullion by post after getting it insured to ascertain the exact value on a particular date. Take for instance the case of a person who is illiterate and has to dispatch gold from a place in the vicinity of which there is no market from where the market value can be ascertained. He cannot in the very nature of things be absolutely precise and accurate about the market value prevailing at the material time. This does not, however, mean that he is completely absolved from the responsibility of ascertaining it but if he gives some value which is approximately the same as the market value the insurer cannot take up the position that owing to an insignificant difference the insured cannot recover the compensation.6. The High Court referred to Article 429 in Halsburys Laws of England III Edition, Vol. 22, at page 227 and to certain other text books on the law of insurance according to which the burden is on the insurer of showing that the policy is no longer subsisting or that there had been a breach of such a condition which relieves the insurer from liability. It has not been shown that these general principles will not be applicable when an insurance has been effected under the provisions of the Act and the rules. The finding of the High Court was that there was no evidence of any kind regarding the market rate of gold prevailing on June 16, 1955 on the record. It was for the insurer to lead evidence on that point and show that according to the market rate prevailing on that date the value could not be Rs. 2500/-The mere fact that the respondent was under the impression or had stated in the " plaint that the value of the gold was less than Rs. 2500/- was not sufficient to absolve the insurer from the responsibility of proving that the value which was declared i.e. Rs. 2500/- was not the market value on the date and at the place of posting
### Response:
0
### Explanation:
5. Now the statutory provisions of the Act and the rules have to be construed and read in a reasonable manner. If the interpretation sought to be placed on behalf of the appellant is accepted it would mean that where a person declares a value which varies even by one paisa from the market value on the date and at the place of posting the insured would be deprived of the compensation for the loss of the article. That could never have been in the contemplation of the legislature and the rule making authority. The rules seem to ensure that the insured should not make a declaration in excess of the market value so as to avoid fraudulent dealings. Nor can the insured get more compensation than the market value. But this does not and cannot mean that any innocent and insignificant misstatement by the insured of the actual value which has to be the market value on a particular date and at the place of posting can lead to the startling result that he becomes wholly disentitled to receive any compensation. It is well known that the market in articles like gold and bullion exists only in large towns and the value fluctuates from day to day and from hour to hour. It may be sometimes impossible for any person sending gold or bullion by post after getting it insured to ascertain the exact value on a particular date. Take for instance the case of a person who is illiterate and has to dispatch gold from a place in the vicinity of which there is no market from where the market value can be ascertained. He cannot in the very nature of things be absolutely precise and accurate about the market value prevailing at the material time. This does not, however, mean that he is completely absolved from the responsibility of ascertaining it but if he gives some value which is approximately the same as the market value the insurer cannot take up the position that owing to an insignificant difference the insured cannot recover the compensation.6. The High Court referred to Article 429 in Halsburys Laws of England III Edition, Vol. 22, at page 227 and to certain other text books on the law of insurance according to which the burden is on the insurer of showing that the policy is no longer subsisting or that there had been a breach of such a condition which relieves the insurer from liability. It has not been shown that these general principles will not be applicable when an insurance has been effected under the provisions of the Act and the rules. The finding of the High Court was that there was no evidence of any kind regarding the market rate of gold prevailing on June 16, 1955 on the record. It was for the insurer to lead evidence on that point and show that according to the market rate prevailing on that date the value could not be Rs. 2500/-The mere fact that the respondent was under the impression or had stated in the " plaint that the value of the gold was less than Rs. 2500/- was not sufficient to absolve the insurer from the responsibility of proving that the value which was declared i.e. Rs. 2500/- was not the market value on the date and at the place of posting
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State of Kerala Vs. Pothen Joseph and Sons | empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the power they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly."The question which came up for decision in Yaddalam L. Settys case ([1965] 16 S.T.C. 231) was the true import and meaning of the expression "in the same manner" in section 9(2) as it stood before the enactment of Amending Act 31 of 1958, and which was in the same terms as sub-section (3) of section 9. This is what was said in the majority judgment in that case :"The expression in the manner may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But section 9(1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub-section (2); and sub-section (2) of section 9 empowers the appropriate State authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected."4. Referring to the provisions of section 5(3)(a) of the Mysore Sales Tax Act, 1957, it was observed that under that section tax was to be levied in the case of sale of any of the goods mentioned in column 2 of the Second Schedule by the first or the earliest of successive dealers in the State who was liable to tax under that section. The conclusion was that "when section 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected, it is reasonable to hold that the expression levied in section 9(1) of the Central Act refers to the expression levied in section 5(3)(a) of the State Act."It is common ground that the assessee was entitled to deduction on account of payment of excise duty etc. under rule 7 of the General Sales Tax Rules, 1950. By virtue of the above decision of this court rule 7 would become applicable because under sub-sections (1) and (3) of section 9 of the Act the tax shall be levied and collected in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is so paid and collected. The High Court while referring to the judgment of this court in Yaddalam L. Settys case ([1965] 16 S.T.C. 231) understood the observations in the majority judgment to uphold the contention raised on behalf of the assessee that in all respects the tax must be levied as envisaged by the general sales tax law of the State. The Madras High Court in S. Mariappa Nadar v. State Madras ([1962] 13 S.T.C. 371) had gone elaborately into the question of the applicability of the general sales tax law of the State in such circumstances and had held that the phrase "in the same manner" in section 9(3) did not make applicable all the incidents of the local sales tax law to the assessment under the Act and what was contemplated was that the procedure of making an assessment, collection of tax etc. should be the same as laid down in the general sales tax law. In other words, according to the Madras High Court it was only the machinery of the procedural provisions of the local law which was made applicable by section 9(3) of the Act. In the decision of this court, in the majority judgment, no reference was made to the Madras decision but in the minority judgment the Madras case was discussed. In these circumstances it would be legitimate to conclude that although Mariappa Nadars case ([1962] 13 S.T.C. 371) was cited before this court but in the majority judgment a different view was taken. As we are bound to follow the majority judgment we find no escape from the conclusion, after applying the ratio therein, that the general sales tax law of the State which would include the rules framed thereunder governed the levy and assessment of the tax in the matter of inter-State sales.The learned Attorney-General has greatly stressed the conflict which may arise if we follow the view expressed in the majority judgment; for instance, it is pointed out that if in the rules it is expressly provided that no deduction would be permissible on account of payment of excise duty whereas such a deduction is allowable under the rules framed under the general sales tax law of the State, a question would immediately arise which enactment or set of rules is to prevail. If and when such a situation arises, the matter can be considered but for the purpose of the present case we are satisfied that the decision of the majority of this court in the aforesaid case would govern the determination of the question which was resolved in favour of the assessee by the High Court. | 0[ds]The Madras High Court in S. Mariappa Nadar v. State Madras ([1962] 13 S.T.C. 371) had gone elaborately into the question of the applicability of the general sales tax law of the State in such circumstances and had held that the phrase "in the same manner" in section 9(3) did not make applicable all the incidents of the local sales tax law to the assessment under the Act and what was contemplated was that the procedure of making an assessment, collection of tax etc. should be the same as laid down in the general sales tax law. In other words, according to the Madras High Court it was only the machinery of the procedural provisions of the local law which was made applicable by section 9(3) of the Act. In the decision of this court, in the majority judgment, no reference was made to the Madras decision but in the minority judgment the Madras case was discussed. In these circumstances it would be legitimate to conclude that although Mariappa Nadars case ([1962] 13 S.T.C. 371) was cited before this court but in the majority judgment a different view was taken. As we are bound to follow the majority judgment we find no escape from the conclusion, after applying the ratio therein, that the general sales tax law of the State which would include the rules framed thereunder governed the levy and assessment of the tax in the matter ofral has greatly stressed the conflict which may arise if we follow the view expressed in the majority judgment; for instance, it is pointed out that if in the rules it is expressly provided that no deduction would be permissible on account of payment of excise duty whereas such a deduction is allowable under the rules framed under the general sales tax law of the State, a question would immediately arise which enactment or set of rules is to prevail. If and when such a situation arises, the matter can be considered but for the purpose of the present case we are satisfied that the decision of the majority of this court in the aforesaid case would govern the determination of the question which was resolved in favour of the assessee by the High Court. | 0 | 1,921 | 412 | ### 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:
empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected; and for this purpose they may exercise all or any of the power they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly."The question which came up for decision in Yaddalam L. Settys case ([1965] 16 S.T.C. 231) was the true import and meaning of the expression "in the same manner" in section 9(2) as it stood before the enactment of Amending Act 31 of 1958, and which was in the same terms as sub-section (3) of section 9. This is what was said in the majority judgment in that case :"The expression in the manner may give rise to two conflicting views, namely, (i) it is concerned only with the calculation of the tax, and (ii) it deals not only with the calculation of the rates but also the manner of levy of the tax. But section 9(1) dispels the ambiguity for it says that the tax payable by any dealer under the Central Act shall be levied and collected in the appropriate State by the Government of India in the manner provided in sub-section (2); and sub-section (2) of section 9 empowers the appropriate State authorities to assess, collect and enforce payment of any tax payable by any dealer under the Central Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected."4. Referring to the provisions of section 5(3)(a) of the Mysore Sales Tax Act, 1957, it was observed that under that section tax was to be levied in the case of sale of any of the goods mentioned in column 2 of the Second Schedule by the first or the earliest of successive dealers in the State who was liable to tax under that section. The conclusion was that "when section 9(1) says that under the Central Act tax shall be levied in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected, it is reasonable to hold that the expression levied in section 9(1) of the Central Act refers to the expression levied in section 5(3)(a) of the State Act."It is common ground that the assessee was entitled to deduction on account of payment of excise duty etc. under rule 7 of the General Sales Tax Rules, 1950. By virtue of the above decision of this court rule 7 would become applicable because under sub-sections (1) and (3) of section 9 of the Act the tax shall be levied and collected in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is so paid and collected. The High Court while referring to the judgment of this court in Yaddalam L. Settys case ([1965] 16 S.T.C. 231) understood the observations in the majority judgment to uphold the contention raised on behalf of the assessee that in all respects the tax must be levied as envisaged by the general sales tax law of the State. The Madras High Court in S. Mariappa Nadar v. State Madras ([1962] 13 S.T.C. 371) had gone elaborately into the question of the applicability of the general sales tax law of the State in such circumstances and had held that the phrase "in the same manner" in section 9(3) did not make applicable all the incidents of the local sales tax law to the assessment under the Act and what was contemplated was that the procedure of making an assessment, collection of tax etc. should be the same as laid down in the general sales tax law. In other words, according to the Madras High Court it was only the machinery of the procedural provisions of the local law which was made applicable by section 9(3) of the Act. In the decision of this court, in the majority judgment, no reference was made to the Madras decision but in the minority judgment the Madras case was discussed. In these circumstances it would be legitimate to conclude that although Mariappa Nadars case ([1962] 13 S.T.C. 371) was cited before this court but in the majority judgment a different view was taken. As we are bound to follow the majority judgment we find no escape from the conclusion, after applying the ratio therein, that the general sales tax law of the State which would include the rules framed thereunder governed the levy and assessment of the tax in the matter of inter-State sales.The learned Attorney-General has greatly stressed the conflict which may arise if we follow the view expressed in the majority judgment; for instance, it is pointed out that if in the rules it is expressly provided that no deduction would be permissible on account of payment of excise duty whereas such a deduction is allowable under the rules framed under the general sales tax law of the State, a question would immediately arise which enactment or set of rules is to prevail. If and when such a situation arises, the matter can be considered but for the purpose of the present case we are satisfied that the decision of the majority of this court in the aforesaid case would govern the determination of the question which was resolved in favour of the assessee by the High Court.
### Response:
0
### Explanation:
The Madras High Court in S. Mariappa Nadar v. State Madras ([1962] 13 S.T.C. 371) had gone elaborately into the question of the applicability of the general sales tax law of the State in such circumstances and had held that the phrase "in the same manner" in section 9(3) did not make applicable all the incidents of the local sales tax law to the assessment under the Act and what was contemplated was that the procedure of making an assessment, collection of tax etc. should be the same as laid down in the general sales tax law. In other words, according to the Madras High Court it was only the machinery of the procedural provisions of the local law which was made applicable by section 9(3) of the Act. In the decision of this court, in the majority judgment, no reference was made to the Madras decision but in the minority judgment the Madras case was discussed. In these circumstances it would be legitimate to conclude that although Mariappa Nadars case ([1962] 13 S.T.C. 371) was cited before this court but in the majority judgment a different view was taken. As we are bound to follow the majority judgment we find no escape from the conclusion, after applying the ratio therein, that the general sales tax law of the State which would include the rules framed thereunder governed the levy and assessment of the tax in the matter ofral has greatly stressed the conflict which may arise if we follow the view expressed in the majority judgment; for instance, it is pointed out that if in the rules it is expressly provided that no deduction would be permissible on account of payment of excise duty whereas such a deduction is allowable under the rules framed under the general sales tax law of the State, a question would immediately arise which enactment or set of rules is to prevail. If and when such a situation arises, the matter can be considered but for the purpose of the present case we are satisfied that the decision of the majority of this court in the aforesaid case would govern the determination of the question which was resolved in favour of the assessee by the High Court.
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Employees State Insurance Corporation Vs. Hindustan Milkfood Manufacturers Ltd. and Ors | 1. Heard Mr. A.K. Ganguli, learned Senior Counsel for the Respondent No. 1. The High Court by its order dated 08.03.2006 in FAO No. 236 of 1982 reversed the order dated 04.03.1982 passed by the Employees Insurance Court, Patiala whereby it was held that the Atta Mohammad Ram Swarup, Behari Ram, Ram Dev, Deep Chand, Bansi Lal, Mohinder Ram, Harnam Singh, Bani Ram and Hari Singh are the employees of the Appellant within the meaning of Section 2(9) of the E.S.I. Act and challenge to the notice dated 18.09.1976 made by the Appellant has been repelled. The ESI Court has considered the evidence in detail. It has considered evidence of several witnesses i.e. PW 1 to PW 8 particularly the Executive Officer of the Appellant. His statement clearly indicate that the payment was made by the employer. However, the workman were employed through a contractor. As per the work done, the bill submitted by the employees were paid by the employer. Photo state copies of the bills have been submitted. It was also admitted that all these persons have worked during the year 1972-1983 and they worked for several years on contract basis. The ESI inspector has also given a report that they were found working at the time of inspection made on 14/15 January, 1994 under the direct supervision of the employer. And they worked in supervising employer. The Inspector ESI had also been Postal Page No. 29 examined in the case. His statement has also been considered by the ESI court. He has also stated as found by the ESI Court that the employer had made payment for the work which was done. He stated that Atta Mohammad and Ram Swarup were washing clothes at the time of inspection on the Bank of company in the premises of the factory. However, the High Court without examining the evidence and the reasoning employed by the ESI Court in a perfunctory manner reversed the findings of the ESI Court which could not have been done within ken of the appellate jurisdiction. In our view, a reading of the entire order of the High Court and that of the ESI Court make it clear that the proper reasons have not been employed by the High Court. 2. It was submitted by learned Counsel appearing for the Respondent that the employees did not fall within the definition of Section 2(9) of the Act as payment was made on piece rate basis. In our opinion as the work had been done for more than 10 years. The mode of such payment is covered under definition of wages in Section 2(22) of the Act. The findings recorded by the High Court are clearly perverse and cannot be said to be in accordance with law. | 1[ds]In our view, a reading of the entire order of the High Court and that of the ESI Court make it clear that the proper reasons have not been employed by the High CourtIn our opinion as the work had been done for more than 10 years. The mode of such payment is covered under definition of wages in Section 2(22) of the Act. The findings recorded by the High Court are clearly perverse and cannot be said to be in accordance with law. | 1 | 513 | 96 | ### 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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1. Heard Mr. A.K. Ganguli, learned Senior Counsel for the Respondent No. 1. The High Court by its order dated 08.03.2006 in FAO No. 236 of 1982 reversed the order dated 04.03.1982 passed by the Employees Insurance Court, Patiala whereby it was held that the Atta Mohammad Ram Swarup, Behari Ram, Ram Dev, Deep Chand, Bansi Lal, Mohinder Ram, Harnam Singh, Bani Ram and Hari Singh are the employees of the Appellant within the meaning of Section 2(9) of the E.S.I. Act and challenge to the notice dated 18.09.1976 made by the Appellant has been repelled. The ESI Court has considered the evidence in detail. It has considered evidence of several witnesses i.e. PW 1 to PW 8 particularly the Executive Officer of the Appellant. His statement clearly indicate that the payment was made by the employer. However, the workman were employed through a contractor. As per the work done, the bill submitted by the employees were paid by the employer. Photo state copies of the bills have been submitted. It was also admitted that all these persons have worked during the year 1972-1983 and they worked for several years on contract basis. The ESI inspector has also given a report that they were found working at the time of inspection made on 14/15 January, 1994 under the direct supervision of the employer. And they worked in supervising employer. The Inspector ESI had also been Postal Page No. 29 examined in the case. His statement has also been considered by the ESI court. He has also stated as found by the ESI Court that the employer had made payment for the work which was done. He stated that Atta Mohammad and Ram Swarup were washing clothes at the time of inspection on the Bank of company in the premises of the factory. However, the High Court without examining the evidence and the reasoning employed by the ESI Court in a perfunctory manner reversed the findings of the ESI Court which could not have been done within ken of the appellate jurisdiction. In our view, a reading of the entire order of the High Court and that of the ESI Court make it clear that the proper reasons have not been employed by the High Court. 2. It was submitted by learned Counsel appearing for the Respondent that the employees did not fall within the definition of Section 2(9) of the Act as payment was made on piece rate basis. In our opinion as the work had been done for more than 10 years. The mode of such payment is covered under definition of wages in Section 2(22) of the Act. The findings recorded by the High Court are clearly perverse and cannot be said to be in accordance with law.
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In our view, a reading of the entire order of the High Court and that of the ESI Court make it clear that the proper reasons have not been employed by the High CourtIn our opinion as the work had been done for more than 10 years. The mode of such payment is covered under definition of wages in Section 2(22) of the Act. The findings recorded by the High Court are clearly perverse and cannot be said to be in accordance with law.
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M/S Integrated Finance Co.Ltd Vs. Reserve Bank Of India Etc.Etc | the scheme has been rightly held to be lacking bona fide, as well being contrary to public policy. It has been proposed with the oblique purpose of avoiding the mandate of Section 45QA(1) of RBI Act. 55. We are also not inclined to accept the submission of the appellant that Section 45QA of RBI Act is pari materia if not identical with Section 58A of the Companies Act. It was further argued that if a scheme of arrangement is not prohibited under the latter section; it cannot be prohibited under the former, i.e., Section 45QA of the RBI Act.The issue concerning Section 45QA being para materia with Section 58A of the Companies Act does not arise since, in our considered opinion, the provisions of the RBI Act will override the provisions of the Companies Act. Thus, this submission is also rejected. 56. In view of the aforesaid, we reject the submission of the learned counsel for the appellant that the scheme of arrangement could be approved even though there is a non-compliance with the provisions of Chapter IIIB of the RBI Act in particular Section 45QA(1). We may notice here that the appellants had an opportunity to approach the Company Court under Section 45QA(1) to seek further time for making payment. It appears that no such application was made and, therefore, there is a complete infringement of Section 45QA(1). This would lead to an inevitable conclusion that the scheme of arrangements could not be approved. The Effect of Non-disclosure of the Notice dated 18th January, 2005 57. The aforesaid notice has been sent to the Company under Section 45MB(1). Such notice is only sent if any NBFC violates the provisions of any section or fails to comply with any direction or order given by the RBI under any of the provisions of Chapter IIIB. Under these provisions, the RBI has the power to prohibit the NBFC from accepting any deposit. Under Section 45MB(2), in order to protect the interest of the depositors, RBI is also empowered to direct the Non-Banking Financial Company not to sell, transfer, create charge or mortgage or deal in any manner with its property and assets without prior permission of the bank. It is an accepted fact that the orders directing the company not to accept deposits have been duly published in the Indian Express on 20th January, 2005. Learned counsel for the appellant has submitted that it is an accepted fact that on inspection of the books of accounts of the appellant company under Section 45N of the RBI Act, 1934, numerous violations were disclosed. The details of the violations have been extracted in the earlier part of this judgment. Whilst the investigation was being conducted into all the irregularities that have been committed by the company, the scheme of arrangement was presented to the Company Court on or about 19th May, 2005. It is an accepted fact that the notice dated 18th January, 2005 was not disclosed to the shareholders, who were present in the meetings which had been convened on the directions of the Company Court. According to the learned counsel for the appellants, such a non-disclosure was not required under the provisions of the proviso to Section 391(2) of the Companies Act. In any event, according to the learned counsel, the notice dated 18th January, 2005 had been widely advertised by the RBI in various newspapers. Therefore, the whole information was in public domain. Consequently, the requirements of proviso to Section 391(2) would be deemed to be complied with. Furthermore, according to Mr. Datar, proviso to Section 391(2) only requires disclosure to the Court sanctioning to the scheme and not to the creditors or the shareholders with whom the scheme is made. The disclosure requirement to the shareholders or the creditors is specified under Section 393(1) and is much narrower. Learned senior counsel has placed reliance on the judgment of this Court in Hindustan Lever Employees’ Union Vs. Hindustan Lever Ltd. & Ors. (supra) in support of this submission. This case is, however, distinguishable from the present case and circumstances. It was held therein that: “In the facts of this case, considering the overwhelming manner in which the shareholders, the creditors, the debenture holders, the financial institutions, who had 41% shares in TOMCO, have supported the Scheme and have not complained about any lack of notice or lack of understanding of what the Scheme was about, we are of the view, it will not be right to hold that the explanatory statement was not proper or was lacking in material particulars.” The preceding excerpt makes it clear that the scheme therein was not objected to by any of the interested persons. Thus, the reliance on the said case is misconceived. 58. In our opinion, the High Court has correctly concluded that even if no investigation was pending under Section 235-251 of the Companies Act, it was incumbent on the company to disclose the violations pointed out by the RBI on inspection of its books under Section 47N, which led to the issuance of the notice dated 18th January, 2005. This, in our opinion, would clearly reflect on the lack of bonafide of the company in proposing scheme of arrangement. In our considered opinion, non- disclosure of the action taken and initiated by the RBI as apparent from the letter dated 18th January, 2005, amounted to non-disclosure of material facts which are required to be disclosed under Section 391(1) read with Section 393(1) of the Companies Act. The Company Court whilst examining the fairness and the bonafide of a scheme of arrangement does not act as a rubber stamp. It cannot shut its eyes to blatant non-disclosure of material information, which could have a major influence/impact on the decision as to whether the scheme has to be approved or not. In our opinion, the High Court has not committed any error of jurisdiction in rejecting the submission of the appellant that the non-disclosure of the letter dated 18th January, 2005 was not material. | 0[ds]The High Court notices the well settled legal positions that whilst examining the scheme under Sections 391-393 of the Companies Act neither the Company Court nor the Appellate Court ought not to go into the nitty-gritty of the various suggestions in the scheme. The High Court recognised that it is difficult for the Company Court or the Appellate Court to consider the financial wisdom of a particular proposal. This is so as the Courts do not have the necessary expertise to examine the commercial wisdom of the scheme of arrangements, especially when it is approved by an overwhelming majority of the bond holders and depositors. The Court is not expected to substitute its own wisdom for that of the stakeholders, who give consent to a particular scheme. The High Court also holds that, by or otherwise, a scheme is ordinarily beyond the jurisdiction of the Company Court and the Appellate Court except in those rare cases where one can see that the scheme itself is on the face of it so unreasonable that no man of ordinary prudence can accept it. The High Court concludes thatthe facts of the present case, we do not think that we can characterise the Scheme as so outrageously improper as to invite the wrath of theThe High Court rejected the submission of some of the deposit holders that meetings for approving the scheme should have been held within the State ofthe interpretation of the provisions of Section 45 of the RBI Act, the Division Bench has concluded that by virtue of non-obstante clause in Section 45Q of the RBI Act, Chapter IIIB of the RBI Act will prevail over Sections 391-393 of the Companies Act. It is held that the provision contained in Section 45QA which is intended to protect the depositors must have primacy over any other law inconsistent with such provision. It is further held that the scheme of arrangement of compromise even if presented by a NBFC would have to conform to the provisions contained in the Chapter IIIB of the RBI Act. The Division Bench also concluded that not only the scheme is contrary to the specific provisions contained in Chapter IIIB of the RBI Act; it is also against public policy. With these observations the Division Bench had declined to approve the scheme and set aside the order passed by the Companyour opinion, the aforesaid conclusions of the High Court do not require any interference. Even according to the appellant since its incorporation in 1983, the appellant had grown into a gigantic NBFC; it had 20,000 shareholders. Its shares were listed in two Stock Exchanges in India. Till 1995-1996, it was a profit making company and declared dividends to its shareholdersview of the aforesaid, it needs to be considered as to whether a scheme which does not comply with the provisions of Section 45QA of the RBI Act can be sanctioned.The High Court on a careful consideration of the entire matter has concluded that the scheme must fail as it does not comply with the provisions contained in Section 45QA(1) of the RBI Act. To get over this difficulty, the learned counsel for the appellant has submitted that Chapter IIIB of the RBI Act is not a complete code. This apart, the RBI Act and the Companies Act must be read in their own sphere since both operate in different fields, altogether. We are unable to agree with the aforesaid submission of the learned senior counsel for theour opinion, Chapter IIIB has been given an overriding effect over all other laws including Companies Act by incorporating Section 45Q with a clear intention to ensure that in a case of NBFC, a scheme under Section 391 of the Companies Act cannot be entertained unless it is in conformity with the provisions of Section 45QA of the RBImay briefly notice here the judgments relied by the learned counsel for the appellant in support of the submission that the non-obstante clause in Section 45Q of the RBI Act will not have an overriding effect over the Sections 391-394 of the Companies Act. Reliance was placed on Aswini Kumar Ghose (supra); Madhav Rao Jivaji Rao Scindia (supra); A.G. Vardarajulu (supra); ICICI Bank Ltd. (supra); R.S. Raghunath and JIK Industries Limited (supra). The said cases undoubtedly reiterate the settled law on the manner in which a particular non-obstante clause ought to be interpreted. In Aswini Kumar Ghose (supra), this court held thatnon-obstante clause must be construed strictly and the Court must try to find the extent to which the legislature had intended to give one provision overriding effect over anotherSimilar observations were reiterated by this Court in the other cases relied by the appellant. Since it has been already noticed by us that the Parliament clearly intended to give an overriding effect to Chapter IIIB of the RBI Act over Sections 391-394 of the Companies Act, the aforesaid observations will not be of any help to the appellants in support of their submission that Section 45Q and/or Section 45QA of the RBI Act will not override Sections 391-394 of the Companies Act.50. We, therefore, endorse the opinion expressed by the High Court that the scheme has been introduced only with a view to avoid repayment to the small depositors as it contemplates that instead of repaying of amount in accordance with the terms and conditions of the deposit, such amount shall be considered as convertible debentures with interest @ 6%, which would be converted into equity shares within a period of one year. Such a provision is clearly contrary to the mandatory requirements under Section 45QA(1) which requires thatdeposit accepted by a NBFC, unless renewed, shall be repaid in accordance with the terms and conditions of suchThis ingenious effort by the appellants in fact justifies the insertion of the amendment, which has been obviously incorporated with a view to protect the depositors and to avoid exploitation of these hapless and poor depositors from exploitation by Non Banking Financial Institutions, such as the appellant. It is for this reason that Chapter IIIB clearly provides that the provisions contained therein shall override all other laws, which are inconsistent with the same. This will also be applicable to Sections 391-394 of the Companiesour opinion, these observations would be of no avail to the appellants in view of our conclusions recorded earlier that the present arrangement is not bona fide.53. We are further of the opinion that there can be no question of novation in the face of the categoric provisions contained in Section 45Q, which has an overriding effect over all other laws, which would necessarily negate the principle of novation contained in the Contract Act also. Since we have already negated the submission of the learned counsel for the appellant that it was open to each individual depositor to vary the contract, i.e., novate the contract, it would not be possible to accept the subsequent submission of the learned counsel that since the scheme has been approved by the requisite majority and sanctioned by the Court, it is binding on the minority as well. In support of this submission, learned counsel has relied on the observations made by this Court in J.K. (Bombay) Private Ltd. (supra) and Administrator of the Specified Undertaking of the Unit Trust of India (supra). On the basis of the aforesaid, it is submitted that if the parties could have novated the terms and conditions individually, there is no bar on such novation through aview of the aforesaid, we reject the submission of the learned counsel for the appellant that the scheme of arrangement could be approved even though there is a non-compliance with the provisions of Chapter IIIB of the RBI Act in particular Section 45QA(1). We may notice here that the appellants had an opportunity to approach the Company Court under Section 45QA(1) to seek further time for making payment. It appears that no such application was made and, therefore, there is a complete infringement of Section 45QA(1). This would lead to an inevitable conclusion that the scheme of arrangements could not beour opinion, the High Court has correctly concluded that even if no investigation was pending under Section 235-251 of the Companies Act, it was incumbent on the company to disclose the violations pointed out by the RBI on inspection of its books under Section 47N, which led to the issuance of the notice dated 18th January, 2005. This, in our opinion, would clearly reflect on the lack of bonafide of the company in proposing scheme of arrangement. In our considered opinion, non- disclosure of the action taken and initiated by the RBI as apparent from the letter dated 18th January, 2005, amounted to non-disclosure of material facts which are required to be disclosed under Section 391(1) read with Section 393(1) of the Companies Act. The Company Court whilst examining the fairness and the bonafide of a scheme of arrangement does not act as a rubber stamp. It cannot shut its eyes to blatant non-disclosure of material information, which could have a major influence/impact on the decision as to whether the scheme has to be approved or not. In our opinion, the High Court has not committed any error of jurisdiction in rejecting the submission of the appellant that the non-disclosure of the letter dated 18th January, 2005 was not material. | 0 | 11,999 | 1,693 | ### Instruction:
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the scheme has been rightly held to be lacking bona fide, as well being contrary to public policy. It has been proposed with the oblique purpose of avoiding the mandate of Section 45QA(1) of RBI Act. 55. We are also not inclined to accept the submission of the appellant that Section 45QA of RBI Act is pari materia if not identical with Section 58A of the Companies Act. It was further argued that if a scheme of arrangement is not prohibited under the latter section; it cannot be prohibited under the former, i.e., Section 45QA of the RBI Act.The issue concerning Section 45QA being para materia with Section 58A of the Companies Act does not arise since, in our considered opinion, the provisions of the RBI Act will override the provisions of the Companies Act. Thus, this submission is also rejected. 56. In view of the aforesaid, we reject the submission of the learned counsel for the appellant that the scheme of arrangement could be approved even though there is a non-compliance with the provisions of Chapter IIIB of the RBI Act in particular Section 45QA(1). We may notice here that the appellants had an opportunity to approach the Company Court under Section 45QA(1) to seek further time for making payment. It appears that no such application was made and, therefore, there is a complete infringement of Section 45QA(1). This would lead to an inevitable conclusion that the scheme of arrangements could not be approved. The Effect of Non-disclosure of the Notice dated 18th January, 2005 57. The aforesaid notice has been sent to the Company under Section 45MB(1). Such notice is only sent if any NBFC violates the provisions of any section or fails to comply with any direction or order given by the RBI under any of the provisions of Chapter IIIB. Under these provisions, the RBI has the power to prohibit the NBFC from accepting any deposit. Under Section 45MB(2), in order to protect the interest of the depositors, RBI is also empowered to direct the Non-Banking Financial Company not to sell, transfer, create charge or mortgage or deal in any manner with its property and assets without prior permission of the bank. It is an accepted fact that the orders directing the company not to accept deposits have been duly published in the Indian Express on 20th January, 2005. Learned counsel for the appellant has submitted that it is an accepted fact that on inspection of the books of accounts of the appellant company under Section 45N of the RBI Act, 1934, numerous violations were disclosed. The details of the violations have been extracted in the earlier part of this judgment. Whilst the investigation was being conducted into all the irregularities that have been committed by the company, the scheme of arrangement was presented to the Company Court on or about 19th May, 2005. It is an accepted fact that the notice dated 18th January, 2005 was not disclosed to the shareholders, who were present in the meetings which had been convened on the directions of the Company Court. According to the learned counsel for the appellants, such a non-disclosure was not required under the provisions of the proviso to Section 391(2) of the Companies Act. In any event, according to the learned counsel, the notice dated 18th January, 2005 had been widely advertised by the RBI in various newspapers. Therefore, the whole information was in public domain. Consequently, the requirements of proviso to Section 391(2) would be deemed to be complied with. Furthermore, according to Mr. Datar, proviso to Section 391(2) only requires disclosure to the Court sanctioning to the scheme and not to the creditors or the shareholders with whom the scheme is made. The disclosure requirement to the shareholders or the creditors is specified under Section 393(1) and is much narrower. Learned senior counsel has placed reliance on the judgment of this Court in Hindustan Lever Employees’ Union Vs. Hindustan Lever Ltd. & Ors. (supra) in support of this submission. This case is, however, distinguishable from the present case and circumstances. It was held therein that: “In the facts of this case, considering the overwhelming manner in which the shareholders, the creditors, the debenture holders, the financial institutions, who had 41% shares in TOMCO, have supported the Scheme and have not complained about any lack of notice or lack of understanding of what the Scheme was about, we are of the view, it will not be right to hold that the explanatory statement was not proper or was lacking in material particulars.” The preceding excerpt makes it clear that the scheme therein was not objected to by any of the interested persons. Thus, the reliance on the said case is misconceived. 58. In our opinion, the High Court has correctly concluded that even if no investigation was pending under Section 235-251 of the Companies Act, it was incumbent on the company to disclose the violations pointed out by the RBI on inspection of its books under Section 47N, which led to the issuance of the notice dated 18th January, 2005. This, in our opinion, would clearly reflect on the lack of bonafide of the company in proposing scheme of arrangement. In our considered opinion, non- disclosure of the action taken and initiated by the RBI as apparent from the letter dated 18th January, 2005, amounted to non-disclosure of material facts which are required to be disclosed under Section 391(1) read with Section 393(1) of the Companies Act. The Company Court whilst examining the fairness and the bonafide of a scheme of arrangement does not act as a rubber stamp. It cannot shut its eyes to blatant non-disclosure of material information, which could have a major influence/impact on the decision as to whether the scheme has to be approved or not. In our opinion, the High Court has not committed any error of jurisdiction in rejecting the submission of the appellant that the non-disclosure of the letter dated 18th January, 2005 was not material.
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in their own sphere since both operate in different fields, altogether. We are unable to agree with the aforesaid submission of the learned senior counsel for theour opinion, Chapter IIIB has been given an overriding effect over all other laws including Companies Act by incorporating Section 45Q with a clear intention to ensure that in a case of NBFC, a scheme under Section 391 of the Companies Act cannot be entertained unless it is in conformity with the provisions of Section 45QA of the RBImay briefly notice here the judgments relied by the learned counsel for the appellant in support of the submission that the non-obstante clause in Section 45Q of the RBI Act will not have an overriding effect over the Sections 391-394 of the Companies Act. Reliance was placed on Aswini Kumar Ghose (supra); Madhav Rao Jivaji Rao Scindia (supra); A.G. Vardarajulu (supra); ICICI Bank Ltd. (supra); R.S. Raghunath and JIK Industries Limited (supra). The said cases undoubtedly reiterate the settled law on the manner in which a particular non-obstante clause ought to be interpreted. In Aswini Kumar Ghose (supra), this court held thatnon-obstante clause must be construed strictly and the Court must try to find the extent to which the legislature had intended to give one provision overriding effect over anotherSimilar observations were reiterated by this Court in the other cases relied by the appellant. Since it has been already noticed by us that the Parliament clearly intended to give an overriding effect to Chapter IIIB of the RBI Act over Sections 391-394 of the Companies Act, the aforesaid observations will not be of any help to the appellants in support of their submission that Section 45Q and/or Section 45QA of the RBI Act will not override Sections 391-394 of the Companies Act.50. We, therefore, endorse the opinion expressed by the High Court that the scheme has been introduced only with a view to avoid repayment to the small depositors as it contemplates that instead of repaying of amount in accordance with the terms and conditions of the deposit, such amount shall be considered as convertible debentures with interest @ 6%, which would be converted into equity shares within a period of one year. Such a provision is clearly contrary to the mandatory requirements under Section 45QA(1) which requires thatdeposit accepted by a NBFC, unless renewed, shall be repaid in accordance with the terms and conditions of suchThis ingenious effort by the appellants in fact justifies the insertion of the amendment, which has been obviously incorporated with a view to protect the depositors and to avoid exploitation of these hapless and poor depositors from exploitation by Non Banking Financial Institutions, such as the appellant. It is for this reason that Chapter IIIB clearly provides that the provisions contained therein shall override all other laws, which are inconsistent with the same. This will also be applicable to Sections 391-394 of the Companiesour opinion, these observations would be of no avail to the appellants in view of our conclusions recorded earlier that the present arrangement is not bona fide.53. We are further of the opinion that there can be no question of novation in the face of the categoric provisions contained in Section 45Q, which has an overriding effect over all other laws, which would necessarily negate the principle of novation contained in the Contract Act also. Since we have already negated the submission of the learned counsel for the appellant that it was open to each individual depositor to vary the contract, i.e., novate the contract, it would not be possible to accept the subsequent submission of the learned counsel that since the scheme has been approved by the requisite majority and sanctioned by the Court, it is binding on the minority as well. In support of this submission, learned counsel has relied on the observations made by this Court in J.K. (Bombay) Private Ltd. (supra) and Administrator of the Specified Undertaking of the Unit Trust of India (supra). On the basis of the aforesaid, it is submitted that if the parties could have novated the terms and conditions individually, there is no bar on such novation through aview of the aforesaid, we reject the submission of the learned counsel for the appellant that the scheme of arrangement could be approved even though there is a non-compliance with the provisions of Chapter IIIB of the RBI Act in particular Section 45QA(1). We may notice here that the appellants had an opportunity to approach the Company Court under Section 45QA(1) to seek further time for making payment. It appears that no such application was made and, therefore, there is a complete infringement of Section 45QA(1). This would lead to an inevitable conclusion that the scheme of arrangements could not beour opinion, the High Court has correctly concluded that even if no investigation was pending under Section 235-251 of the Companies Act, it was incumbent on the company to disclose the violations pointed out by the RBI on inspection of its books under Section 47N, which led to the issuance of the notice dated 18th January, 2005. This, in our opinion, would clearly reflect on the lack of bonafide of the company in proposing scheme of arrangement. In our considered opinion, non- disclosure of the action taken and initiated by the RBI as apparent from the letter dated 18th January, 2005, amounted to non-disclosure of material facts which are required to be disclosed under Section 391(1) read with Section 393(1) of the Companies Act. The Company Court whilst examining the fairness and the bonafide of a scheme of arrangement does not act as a rubber stamp. It cannot shut its eyes to blatant non-disclosure of material information, which could have a major influence/impact on the decision as to whether the scheme has to be approved or not. In our opinion, the High Court has not committed any error of jurisdiction in rejecting the submission of the appellant that the non-disclosure of the letter dated 18th January, 2005 was not material.
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Firm Mukand Lal Veer Kumar & Anr Vs. Sri Purushottam Singh & Ors | that according to the English law the act of bankruptcy must be a personal act and no act of bankruptcy could be committed by a firm as such, and no adjudication could be made against a firm in the firms name - (See Ex parte Blain, (1879) 12 Ch D 522). But under S. 99 of the Presidency-towns Insolvency Act (Act II of 1909) an adjudication order may be made against a firm in the firms name and such an order operates as if it were an order made against each of the persons who at the date of the order was a partner in the firm. There is, however, no provision in the Act corresponding to S. 99 of the Presidency-towns Insolvency Act. But S. 79 (2) (c) of the Act provides for rules to be made by the High Court as to the procedure to be followed when the debtor is a firm.This section therefore assumes that an adjudication order can be made under the Act against the firm in the firms name. Rules have been made under this section by the Allahabad High Court. Reference was made on behalf of the respondents to Rule 26 which states:"26. An adjudication order made against a firm shall operate as if it were an adjudication order made against each of the person who at the date of the order is a partner in the firm". It is manifest that an order of adjudication could be made against the firm in the present case if the proper conditions were satisfied. We therefore reject the argument of the appellants on this aspect of the case. 13. It was further contended on behalf of the appellants that there is no finding of any of the courts to the effect that the firm committed any act of insolvency. The allegation of the respondents was that appellant No. 2 transferred to his son, Veer Kumar his personal house property by way of a gift deed dated October 31 1957 and this was done by him with the intent to defeat or delay his creditors. It was pointed out that Ram Surat Misra was adjudged not to be insolvent by the High Court on the ground that there was no allegation against him of any act of insolvency. It was therefore contended that the firm should not have been declared insolvent merely because of the deed of gift executed by appellant No. 2, Mukund Lal.In our opinion this argument is well founded and must be accepted as correct. We think that in order to support an adjudication against a firm there must be proof that each of the partners has committed some act of insolvency is relied upon it must be shown to be the act of all the partners. An order for adjudication can also be made against a firm if there was an act of insolvency by an agent of the firm which was such as must necessarily be imputed to the firm. The Explanation to S. 6 of the Act says "for the purpose of this section the act of the agent may be the act of the principal". The Explanation does not lay down that an act of insolvency of the agent shall be attributed to the principal but that it may be treated as the act of the principal. Section 2 (a) of the Indian Partnership Act (Act 1X of 1932) defines an act of a firm to mean "any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. The effect of this section read with the Explanation to S. 6 of the Act appears to be that the question whether an act of insolvency of one or more partners can be regarded as an act of all the partners is a question of fact to be determined on the facts and circumstances of each particular case.For instance, in Re: Mahomed Hasham and Co., 24 Bom LR 861 = (AIR 1923 Bom 107 ) one of the partners in a firm consisting of two partners departed from the usual place of business with intent to delay and defeat the creditors of the firm. It was held by the Bombay High Court that an adjudication order could not be made against the firm in such a ease unless the other partner had also departed with like intent. Similarly, in Gopal Naidu v. Mohanlal, ILR 49 Mad 189 = (AIR 1926 Mad 206 ) it was held by the Madras High Court that it is a question of fact whether the act of one partner in closing the business of the firm and thus committing an act of insolvency so far as he is concerned was imputable to another partner so as to entitle the creditors of the firm to get the other also adjudicated an insolvent. In the circumstance of that particular case it was held that the mere fact of closing the firm by one partner without more evidence to show that the other either expressly or impliedly authorized the same was insufficient to lead to such imputation. In the present ease, the property of which Mukund Lal made a gift to Veer Kumar was not partnership property and there was no collective act of insolvency alleged on behalf of all the partners of the firm. In the circumstances of the present case it cannot also be held that the act of insolvency committed by Mukund Lal should be attributed to Ram Surat Misra. The High Court has, in fact, allowed the appeal of Ram Surat Misra and set aside the order of the lower courts declaring him as insolvent.We arc consequently of opinion that the order of the lower courts, so far as it adjudicates the registered firm as insolvent, should be set aside, but the rest of the order of the lower courts declaring Mukund Lal as insolvent will stand. | 0[ds]It is true that under S. 47 of the Indian Registration Act once a document is registered the effect begins to commence from the date of execution, but if the document is not registered it can never have any legal effect as a deed of gift. Under S. 49 of the Indian Registration Act it is provided that no document required by S. 17 or by any provision ofthe Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein unless it has been registered. The section necessarily implies that such a document by reason of its execution alone cannot have the effect of transferring the property. In the present case, therefore, the deed of gift executed by Mukund Lal in favour of Veer Kumar dated October 31, 1957 cannot be considered to be an act of insolvency unless a valid transfer of property was made by that document and such a valid transfer could be said to have been made only when the document was registered on March 11, 1958In our opinion this argument is well founded and must be accepted as correct. We think that in order to support an adjudication against a firm there must be proof that each of the partners has committed some act of insolvency is relied upon it must be shown to be the act of all the partners. An order for adjudication can also be made against a firm if there was an act of insolvency by an agent of the firm which was such as must necessarily be imputed to the firm. The Explanation to S. 6 of the Act says "for the purpose of this section the act of the agent may be the act of the principal". The Explanation does not lay down that an act of insolvency of the agent shall be attributed to the principal but that it may be treated as the act of the principal. Section 2 (a) of the Indian Partnership Act (Act 1X of 1932) defines an act of a firm to mean "any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. The effect of this section read with the Explanation to S. 6 of the Act appears to be that the question whether an act of insolvency of one or more partners can be regarded as an act of all the partners is a question of fact to be determined on the facts and circumstances of each particular caseIn the present ease, the property of which Mukund Lal made a gift to Veer Kumar was not partnership property and there was no collective act of insolvency alleged on behalf of all the partners of the firm. In the circumstances of the present case it cannot also be held that the act of insolvency committed by Mukund Lal should be attributed to Ram Surat Misra. The High Court has, in fact, allowed the appeal of Ram Surat Misra and set aside the order of the lower courts declaring him as insolvent.We arc consequently of opinion that the order of the lower courts, so far as it adjudicates the registered firm as insolvent, should be set aside, but the rest of the order of the lower courts declaring Mukund Lal as insolvent will stand. | 0 | 3,136 | 604 | ### 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:
that according to the English law the act of bankruptcy must be a personal act and no act of bankruptcy could be committed by a firm as such, and no adjudication could be made against a firm in the firms name - (See Ex parte Blain, (1879) 12 Ch D 522). But under S. 99 of the Presidency-towns Insolvency Act (Act II of 1909) an adjudication order may be made against a firm in the firms name and such an order operates as if it were an order made against each of the persons who at the date of the order was a partner in the firm. There is, however, no provision in the Act corresponding to S. 99 of the Presidency-towns Insolvency Act. But S. 79 (2) (c) of the Act provides for rules to be made by the High Court as to the procedure to be followed when the debtor is a firm.This section therefore assumes that an adjudication order can be made under the Act against the firm in the firms name. Rules have been made under this section by the Allahabad High Court. Reference was made on behalf of the respondents to Rule 26 which states:"26. An adjudication order made against a firm shall operate as if it were an adjudication order made against each of the person who at the date of the order is a partner in the firm". It is manifest that an order of adjudication could be made against the firm in the present case if the proper conditions were satisfied. We therefore reject the argument of the appellants on this aspect of the case. 13. It was further contended on behalf of the appellants that there is no finding of any of the courts to the effect that the firm committed any act of insolvency. The allegation of the respondents was that appellant No. 2 transferred to his son, Veer Kumar his personal house property by way of a gift deed dated October 31 1957 and this was done by him with the intent to defeat or delay his creditors. It was pointed out that Ram Surat Misra was adjudged not to be insolvent by the High Court on the ground that there was no allegation against him of any act of insolvency. It was therefore contended that the firm should not have been declared insolvent merely because of the deed of gift executed by appellant No. 2, Mukund Lal.In our opinion this argument is well founded and must be accepted as correct. We think that in order to support an adjudication against a firm there must be proof that each of the partners has committed some act of insolvency is relied upon it must be shown to be the act of all the partners. An order for adjudication can also be made against a firm if there was an act of insolvency by an agent of the firm which was such as must necessarily be imputed to the firm. The Explanation to S. 6 of the Act says "for the purpose of this section the act of the agent may be the act of the principal". The Explanation does not lay down that an act of insolvency of the agent shall be attributed to the principal but that it may be treated as the act of the principal. Section 2 (a) of the Indian Partnership Act (Act 1X of 1932) defines an act of a firm to mean "any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. The effect of this section read with the Explanation to S. 6 of the Act appears to be that the question whether an act of insolvency of one or more partners can be regarded as an act of all the partners is a question of fact to be determined on the facts and circumstances of each particular case.For instance, in Re: Mahomed Hasham and Co., 24 Bom LR 861 = (AIR 1923 Bom 107 ) one of the partners in a firm consisting of two partners departed from the usual place of business with intent to delay and defeat the creditors of the firm. It was held by the Bombay High Court that an adjudication order could not be made against the firm in such a ease unless the other partner had also departed with like intent. Similarly, in Gopal Naidu v. Mohanlal, ILR 49 Mad 189 = (AIR 1926 Mad 206 ) it was held by the Madras High Court that it is a question of fact whether the act of one partner in closing the business of the firm and thus committing an act of insolvency so far as he is concerned was imputable to another partner so as to entitle the creditors of the firm to get the other also adjudicated an insolvent. In the circumstance of that particular case it was held that the mere fact of closing the firm by one partner without more evidence to show that the other either expressly or impliedly authorized the same was insufficient to lead to such imputation. In the present ease, the property of which Mukund Lal made a gift to Veer Kumar was not partnership property and there was no collective act of insolvency alleged on behalf of all the partners of the firm. In the circumstances of the present case it cannot also be held that the act of insolvency committed by Mukund Lal should be attributed to Ram Surat Misra. The High Court has, in fact, allowed the appeal of Ram Surat Misra and set aside the order of the lower courts declaring him as insolvent.We arc consequently of opinion that the order of the lower courts, so far as it adjudicates the registered firm as insolvent, should be set aside, but the rest of the order of the lower courts declaring Mukund Lal as insolvent will stand.
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### Explanation:
It is true that under S. 47 of the Indian Registration Act once a document is registered the effect begins to commence from the date of execution, but if the document is not registered it can never have any legal effect as a deed of gift. Under S. 49 of the Indian Registration Act it is provided that no document required by S. 17 or by any provision ofthe Transfer of Property Act, 1882, to be registered shall affect any immovable property comprised therein unless it has been registered. The section necessarily implies that such a document by reason of its execution alone cannot have the effect of transferring the property. In the present case, therefore, the deed of gift executed by Mukund Lal in favour of Veer Kumar dated October 31, 1957 cannot be considered to be an act of insolvency unless a valid transfer of property was made by that document and such a valid transfer could be said to have been made only when the document was registered on March 11, 1958In our opinion this argument is well founded and must be accepted as correct. We think that in order to support an adjudication against a firm there must be proof that each of the partners has committed some act of insolvency is relied upon it must be shown to be the act of all the partners. An order for adjudication can also be made against a firm if there was an act of insolvency by an agent of the firm which was such as must necessarily be imputed to the firm. The Explanation to S. 6 of the Act says "for the purpose of this section the act of the agent may be the act of the principal". The Explanation does not lay down that an act of insolvency of the agent shall be attributed to the principal but that it may be treated as the act of the principal. Section 2 (a) of the Indian Partnership Act (Act 1X of 1932) defines an act of a firm to mean "any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. The effect of this section read with the Explanation to S. 6 of the Act appears to be that the question whether an act of insolvency of one or more partners can be regarded as an act of all the partners is a question of fact to be determined on the facts and circumstances of each particular caseIn the present ease, the property of which Mukund Lal made a gift to Veer Kumar was not partnership property and there was no collective act of insolvency alleged on behalf of all the partners of the firm. In the circumstances of the present case it cannot also be held that the act of insolvency committed by Mukund Lal should be attributed to Ram Surat Misra. The High Court has, in fact, allowed the appeal of Ram Surat Misra and set aside the order of the lower courts declaring him as insolvent.We arc consequently of opinion that the order of the lower courts, so far as it adjudicates the registered firm as insolvent, should be set aside, but the rest of the order of the lower courts declaring Mukund Lal as insolvent will stand.
|
JAYESH H.PANDYA Vs. SUBHTEX INDIA LIMITED THROUGH ITS DIRECTOR | the arbitration proceedings are supposed to be governed and run by the terms as agreed by the parties. The Arbitrator, therefore, cannot go beyond the clause of the arbitration agreement. We all need to respect the legislative intent underlying the Act. The speedy and alternative resolution to the dispute thus cannot be overlooked but at the same time, proceedings have to be governed and run by the terms agreed between the parties in concluding the arbitral proceedings failing which it will frustrate the mandate of the object of the Act with which it has been legislated by the Parliament to act upon on agreed terms and conditions of the agreement in concluding the arbitral proceedings. The exposition of law has been considered by this Court in NBCC Limited case(supra) in para 12 and 22 as under:- ?12. A perusal of the arbitration agreement quite clearly reveals that the arbitrator has the power to enlarge the time to make and publish the award by mutual consent of the parties. Therefore, it is obvious that the arbitrator has no power to further extend the time beyond that which is fixed without the consent of both the parties to the dispute. It is an admitted position that the respondent did not give any consent for extension of time of the arbitrator. Thus given the situation, the arbitrator had no power to further enlarge the time to make and publish the award and therefore his mandate had automatically terminated after the expiry of the time fixed by the parties to conclude the proceedings. 22. Taking into consideration the arguments of the appellant, it is necessary to mention here that the Court does not have any power to extend the time under the Act unlike Section 28 of the 1940 Act which had such a provision. The Court has therefore been denuded of the power to enlarge time for making and publishing an award. It is true that apparently there is no provision under the Act for the Court to fix a time- limit for the conclusion of an arbitration proceeding, but the Court can opt to do so in the exercise of its inherent power on the application of either party. Where however the arbitration agreement itself provides the procedure for enlargement of time and the parties have taken recourse to it, and consented to the enlargement of time by the arbitrator, the Court cannot exercise its inherent power in extending the time fixed by the parties in the absence of the consent of either of them.? 19. In the instant case, from the pleadings on record and noticed by the High Court in its impugned judgment dated 14th March, 2008, the proceedings stood terminated as the appellants have not recorded their consent for extension of time which was the requirement and essence of the conditions of the agreement and the Arbitrator became de jure unable to perform his functions after the expiry of four months from the date of first preliminary meeting held on 4th May, 2007 but that was declined by the High Court on the premise that after the appellants have participated in the arbitral proceedings, that waived their right to question extension of time as it was inpracticable for the Arbitrator to conclude the proceedings within a period of four months and the High Court was of the view that the Act has been legislated with an object to facilitate an efficacious recourse to arbitration failing which it will be in grave peril. 20. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. That apart, the doctrine of ?waiver? or ?deemed waiver? or ?estoppel? is always based on facts and circumstances of each case, conduct of the parties in each case and as per the agreement entered into between the parties and this exposition has been affirmed by this Court in NBCC Ltd.(supra) regarding adherence to the imposition of time limit for the conclusion of the arbitral proceedings. The parties have to stand by the terms of contract including the Arbitrator. 21. The clause so referred indicates that the parties have admittedly agreed and the time period so prescribed is final and binding. It means the arbitration proceedings should commence and end within the prescribed period of time which in the instant case was of four months and expired on 4 th September, 2007 and, there was no occasion for either party to raise an objection as long as the time was available at the command of the Arbitrator to conclude the arbitral proceedings and pass an award within the time schedule fixed under the terms of contract as agreed by the parties. 22. That apart, there is no provision under the arbitration agreement to condone the delay when agreement between the parties binds them to see that the arbitration proceedings should be concluded within the time prescribed. This time restriction is well within the scope and purport of the Act, 1996 at national and international arbitrations. 23. The time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed became de jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the parties as prayed for stood terminated. | 1[ds]14. From the records before us, it is established that the Arbitrator was unable to complete the arbitral proceedings within four months from the date of the first preliminary meeting held on 4th May, 2007 in terms of clause (5) of the arbitration agreement and objection to extend the time was recorded by the appellants before the Arbitrator. The Arbitrator having failed to do so rejected their application by an Order dated 31st December 2007 that came to be challenged by the appellant invoking Section 14 of the Act 1996 by filing an Arbitration Petition in the High Court of Bombay with a declaration that the Arbitrator has becomeje jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesstood terminated which came to be dismissed by the High Court under the impugned judgment dated 14th March, 2008.It is clear from the bare reading of sub-section 1(a) of Section 14 that mandate of an arbitrator shall terminate if it fails to act without undue delay. In the present case, the first preliminary meeting was held on 4th May, 2007 and the Arbitrator in terms of the agreement was supposed to conclude and pass the award within a period of four months which indisputedly stood expired on 4th September, 2007 and in the meantime the appellants recorded their objection of not consenting for extension of time beyond 4th September, 2007 and thus, it can be construed that parties were not in agreement for extension to the mandate of the Arbitrator failing which the arbitral proceedings automatically stood terminated.Sub-section(2) of Section 14 clearly stipulates that if a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), the party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate and the appellants rightly applied to the Court for termination of the mandate of the Arbitrator pursuant to the provisions of this Section and the Court was within its jurisdiction to decide accordingly.It is true that the object of the scheme of the Act, 1996 is to secure expeditious resolution of disputes and it is based on the fulcrum of promptitude but at the same time the Arbitrator is required to adjudicate the disputes in view of the agreed terms of contract and the procedure. Therefore, the arbitration proceedings are supposed to be governed and run by the terms as agreed by the parties. The Arbitrator, therefore, cannot go beyond the clause of the arbitration agreement. We all need to respect the legislative intent underlying the Act. The speedy and alternative resolution to the dispute thus cannot be overlooked but at the same time, proceedings have to be governed and run by the terms agreed between the parties in concluding the arbitral proceedings failing which it will frustrate the mandate of the object of the Act with which it has been legislated by the Parliament to act upon on agreed terms and conditions of the agreement in concluding the arbitral proceedings.In the instant case, from the pleadings on record and noticed by the High Court in its impugned judgment dated 14th March, 2008, the proceedings stood terminated as the appellants have not recorded their consent for extension of time which was the requirement and essence of the conditions of the agreement and the Arbitrator became de jure unable to perform his functions after the expiry of four months from the date of first preliminary meeting held on 4th May, 2007 but that was declined by the High Court on the premise that after the appellants have participated in the arbitral proceedings, that waived their right to question extension of time as it was inpracticable for the Arbitrator to conclude the proceedings within a period of four months and the High Court was of the view that the Act has been legislated with an object to facilitate an efficacious recourse to arbitration failing which it will be in grave peril.The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. That apart, the doctrine of ?waiver? or ?deemed waiver? or ?estoppel? is always based on facts and circumstances of each case, conduct of the parties in each case and as per the agreement entered into between the parties and this exposition has been affirmed by this Court in NBCC Ltd.(supra) regarding adherence to the imposition of time limit for the conclusion of the arbitral proceedings. The parties have to stand by the terms of contract including the Arbitrator.The clause so referred indicates that the parties have admittedly agreed and the time period so prescribed is final and binding. It means the arbitration proceedings should commence and end within the prescribed period of time which in the instant case was of four months and expired on 4 th September, 2007 and, there was no occasion for either party to raise an objection as long as the time was available at the command of the Arbitrator to conclude the arbitral proceedings and pass an award within the time schedule fixed under the terms of contract as agreed by the parties.That apart, there is no provision under the arbitration agreement to condone the delay when agreement between the parties binds them to see that the arbitration proceedings should be concluded within the time prescribed. This time restriction is well within the scope and purport of the Act, 1996 at national and international arbitrations.The time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed becamede jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesas prayed for stood terminated.e time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed becamede jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesas prayed for stood terminated.e time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed becamede jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesas prayed for stood terminated. | 1 | 4,693 | 1,390 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the arbitration proceedings are supposed to be governed and run by the terms as agreed by the parties. The Arbitrator, therefore, cannot go beyond the clause of the arbitration agreement. We all need to respect the legislative intent underlying the Act. The speedy and alternative resolution to the dispute thus cannot be overlooked but at the same time, proceedings have to be governed and run by the terms agreed between the parties in concluding the arbitral proceedings failing which it will frustrate the mandate of the object of the Act with which it has been legislated by the Parliament to act upon on agreed terms and conditions of the agreement in concluding the arbitral proceedings. The exposition of law has been considered by this Court in NBCC Limited case(supra) in para 12 and 22 as under:- ?12. A perusal of the arbitration agreement quite clearly reveals that the arbitrator has the power to enlarge the time to make and publish the award by mutual consent of the parties. Therefore, it is obvious that the arbitrator has no power to further extend the time beyond that which is fixed without the consent of both the parties to the dispute. It is an admitted position that the respondent did not give any consent for extension of time of the arbitrator. Thus given the situation, the arbitrator had no power to further enlarge the time to make and publish the award and therefore his mandate had automatically terminated after the expiry of the time fixed by the parties to conclude the proceedings. 22. Taking into consideration the arguments of the appellant, it is necessary to mention here that the Court does not have any power to extend the time under the Act unlike Section 28 of the 1940 Act which had such a provision. The Court has therefore been denuded of the power to enlarge time for making and publishing an award. It is true that apparently there is no provision under the Act for the Court to fix a time- limit for the conclusion of an arbitration proceeding, but the Court can opt to do so in the exercise of its inherent power on the application of either party. Where however the arbitration agreement itself provides the procedure for enlargement of time and the parties have taken recourse to it, and consented to the enlargement of time by the arbitrator, the Court cannot exercise its inherent power in extending the time fixed by the parties in the absence of the consent of either of them.? 19. In the instant case, from the pleadings on record and noticed by the High Court in its impugned judgment dated 14th March, 2008, the proceedings stood terminated as the appellants have not recorded their consent for extension of time which was the requirement and essence of the conditions of the agreement and the Arbitrator became de jure unable to perform his functions after the expiry of four months from the date of first preliminary meeting held on 4th May, 2007 but that was declined by the High Court on the premise that after the appellants have participated in the arbitral proceedings, that waived their right to question extension of time as it was inpracticable for the Arbitrator to conclude the proceedings within a period of four months and the High Court was of the view that the Act has been legislated with an object to facilitate an efficacious recourse to arbitration failing which it will be in grave peril. 20. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. That apart, the doctrine of ?waiver? or ?deemed waiver? or ?estoppel? is always based on facts and circumstances of each case, conduct of the parties in each case and as per the agreement entered into between the parties and this exposition has been affirmed by this Court in NBCC Ltd.(supra) regarding adherence to the imposition of time limit for the conclusion of the arbitral proceedings. The parties have to stand by the terms of contract including the Arbitrator. 21. The clause so referred indicates that the parties have admittedly agreed and the time period so prescribed is final and binding. It means the arbitration proceedings should commence and end within the prescribed period of time which in the instant case was of four months and expired on 4 th September, 2007 and, there was no occasion for either party to raise an objection as long as the time was available at the command of the Arbitrator to conclude the arbitral proceedings and pass an award within the time schedule fixed under the terms of contract as agreed by the parties. 22. That apart, there is no provision under the arbitration agreement to condone the delay when agreement between the parties binds them to see that the arbitration proceedings should be concluded within the time prescribed. This time restriction is well within the scope and purport of the Act, 1996 at national and international arbitrations. 23. The time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed became de jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the parties as prayed for stood terminated.
### Response:
1
### Explanation:
apply to the Court to decide on the termination of the mandate and the appellants rightly applied to the Court for termination of the mandate of the Arbitrator pursuant to the provisions of this Section and the Court was within its jurisdiction to decide accordingly.It is true that the object of the scheme of the Act, 1996 is to secure expeditious resolution of disputes and it is based on the fulcrum of promptitude but at the same time the Arbitrator is required to adjudicate the disputes in view of the agreed terms of contract and the procedure. Therefore, the arbitration proceedings are supposed to be governed and run by the terms as agreed by the parties. The Arbitrator, therefore, cannot go beyond the clause of the arbitration agreement. We all need to respect the legislative intent underlying the Act. The speedy and alternative resolution to the dispute thus cannot be overlooked but at the same time, proceedings have to be governed and run by the terms agreed between the parties in concluding the arbitral proceedings failing which it will frustrate the mandate of the object of the Act with which it has been legislated by the Parliament to act upon on agreed terms and conditions of the agreement in concluding the arbitral proceedings.In the instant case, from the pleadings on record and noticed by the High Court in its impugned judgment dated 14th March, 2008, the proceedings stood terminated as the appellants have not recorded their consent for extension of time which was the requirement and essence of the conditions of the agreement and the Arbitrator became de jure unable to perform his functions after the expiry of four months from the date of first preliminary meeting held on 4th May, 2007 but that was declined by the High Court on the premise that after the appellants have participated in the arbitral proceedings, that waived their right to question extension of time as it was inpracticable for the Arbitrator to conclude the proceedings within a period of four months and the High Court was of the view that the Act has been legislated with an object to facilitate an efficacious recourse to arbitration failing which it will be in grave peril.The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. That apart, the doctrine of ?waiver? or ?deemed waiver? or ?estoppel? is always based on facts and circumstances of each case, conduct of the parties in each case and as per the agreement entered into between the parties and this exposition has been affirmed by this Court in NBCC Ltd.(supra) regarding adherence to the imposition of time limit for the conclusion of the arbitral proceedings. The parties have to stand by the terms of contract including the Arbitrator.The clause so referred indicates that the parties have admittedly agreed and the time period so prescribed is final and binding. It means the arbitration proceedings should commence and end within the prescribed period of time which in the instant case was of four months and expired on 4 th September, 2007 and, there was no occasion for either party to raise an objection as long as the time was available at the command of the Arbitrator to conclude the arbitral proceedings and pass an award within the time schedule fixed under the terms of contract as agreed by the parties.That apart, there is no provision under the arbitration agreement to condone the delay when agreement between the parties binds them to see that the arbitration proceedings should be concluded within the time prescribed. This time restriction is well within the scope and purport of the Act, 1996 at national and international arbitrations.The time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed becamede jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesas prayed for stood terminated.e time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed becamede jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesas prayed for stood terminated.e time fixed for the arbitration and/or schedule of time limit in such arbitration proceedings, as it is recognised by law, there is no reason not to accept the same, basically in the present facts and circumstances where the parties themselves agreed to bind themselves by the time limit. Section 14 read with Section 15 of the Act, 1996 also recognise this mechanism and after the expiry of four months period from the date of first preliminary meeting held on 4th May, 2007, the Arbitrator indeed becamede jure unable to perform his functions and the mandate to act as an Arbitrator in the arbitral proceedings between the partiesas prayed for stood terminated.
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Shanti Kumar R. Canji Vs. The Home Insurance Co. Of New York | amendment should not be allowed. The contention of the defendant was not accepted by the learned Chamber Judge. The High Court on appeal set aside the order. It was not held to be a case of mis-description of the defendant. A mis-description of a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis-description in the cause title. In such a case, it would not be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis-description. Where a new legal entity is substituted, it was held in the M. B. Sirkar case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M. B. Sirkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time. Chakravarti, C. J. in the M B. Sirkar (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent.17. The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A rights is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The correlative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.18. The views of the High Courts at Calcutta and Madras with regard to the meaning of judgment are with respect preferred to the meaning of judgment given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case, AIR 1956 Cal 630 (supra) as to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right.Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial Court is concerned.19. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.20. The appellant made an application in December, 1969 for amendment of the plaint to claim pension. Those amendments were disallowed by the learned Chamber Judge. Four months, thereafter the appellant sought to amend the plain by adding certain paragraphs and those amendments were in relation to the appellants alleged claim for pension. The appellant submitted that the second application for amendment in regard to the claim for amortised amount of damages in relation to pension was not the same as the first application. It was said on behalf of the appellant thatif the learned Judge allowed the application the appellate Court should not have interfered with the discretionary order. The amendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interefere where, the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases on amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is outweighed by the special circumstances of the case. (See Charan Das v. Amir Khan 47 Ind App 255 = (AIR 1921 PC 50). The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim. | 0[ds]15. The present appeal concerns an application for amendment of the plaint. The suit was filed in the year 1964. The application for amendment of the plaint in regard to damages for the right to pension was made in the year 1970. An amendment, if allowed, would relate to the date of the institution of the suit. The respondent contended before the trial Court entertaining the application for amendment of the plaint that the amendment should not be allowed inter alia on the ground that the alleged claim was barred by limitation in 1970.16. The High Court in the present case relied on the decision of the High Court at Calcutta in M. B. Sirkar and Sons v. Powell and Co., AIR 1956 Cal 630 . In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant converted into a company in that name. The company so proposed to be substituted complained that the amendment took away from it a valuable right which had accrued to it by valuable right which had accrued to it by efflux of time, and, therefore, the amendment should not be allowed. The contention of the defendant was not accepted by the learned Chamber Judge. The High Court on appeal set aside the order. It was not held to be a case ofof the defendant. Aof a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccuratein the cause title. In such a case, it would not be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case ofWhere a new legal entity is substituted, it was held in the M. B. Sirkar case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M. B. Sirkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time. Chakravarti, C. J. in the M B. Sirkar (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent.17. The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A rights is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The correlative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.18. The views of the High Courts at Calcutta and Madras with regard to the meaning of judgment are with respect preferred to the meaning of judgment given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case, AIR 1956 Cal 630 (supra) as to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right.Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial Court is concerned.19. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right oramendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interefere where, the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases on amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is outweighed by the special circumstances of the case. (See Charan Das v. Amir Khan 47 Ind App 255 = (AIR 1921 PC 50). The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim. | 0 | 2,608 | 1,150 | ### 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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amendment should not be allowed. The contention of the defendant was not accepted by the learned Chamber Judge. The High Court on appeal set aside the order. It was not held to be a case of mis-description of the defendant. A mis-description of a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccurate mis-description in the cause title. In such a case, it would not be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case of mis-description. Where a new legal entity is substituted, it was held in the M. B. Sirkar case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M. B. Sirkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time. Chakravarti, C. J. in the M B. Sirkar (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent.17. The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A rights is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The correlative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.18. The views of the High Courts at Calcutta and Madras with regard to the meaning of judgment are with respect preferred to the meaning of judgment given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case, AIR 1956 Cal 630 (supra) as to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right.Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial Court is concerned.19. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.20. The appellant made an application in December, 1969 for amendment of the plaint to claim pension. Those amendments were disallowed by the learned Chamber Judge. Four months, thereafter the appellant sought to amend the plain by adding certain paragraphs and those amendments were in relation to the appellants alleged claim for pension. The appellant submitted that the second application for amendment in regard to the claim for amortised amount of damages in relation to pension was not the same as the first application. It was said on behalf of the appellant thatif the learned Judge allowed the application the appellate Court should not have interfered with the discretionary order. The amendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interefere where, the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases on amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is outweighed by the special circumstances of the case. (See Charan Das v. Amir Khan 47 Ind App 255 = (AIR 1921 PC 50). The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim.
### Response:
0
### Explanation:
inter alia on the ground that the alleged claim was barred by limitation in 1970.16. The High Court in the present case relied on the decision of the High Court at Calcutta in M. B. Sirkar and Sons v. Powell and Co., AIR 1956 Cal 630 . In that case an amendment was allowed on Chambers Summons substituting in place of the original defendant which was described as a firm a defendant converted into a company in that name. The company so proposed to be substituted complained that the amendment took away from it a valuable right which had accrued to it by valuable right which had accrued to it by efflux of time, and, therefore, the amendment should not be allowed. The contention of the defendant was not accepted by the learned Chamber Judge. The High Court on appeal set aside the order. It was not held to be a case ofof the defendant. Aof a party impleaded can arise when the party really intended to be impleaded had always been the same and such intention appeared clearly from the body of the plaint in spite of the inaccuratein the cause title. In such a case, it would not be adding a new party or substituting a new party for the original one, but perfecting the identity of the party originally impleaded clearing or rectifying the inaccurate description. When the same person, whether an individual or a legal entity, remains the defendant but only the name is altered, it would be a case ofWhere a new legal entity is substituted, it was held in the M. B. Sirkar case (supra) that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The effect of the amendment in the M. B. Sirkar case (supra) was to substitute a new party for the party originally impleaded and the consequence was to take away from the new party so substituted his defence of limitation that a suit brought on the date of the amendment would be barred by time. Chakravarti, C. J. in the M B. Sirkar (supra) said that an order for amendment of the plaint there decided a vital question concerning the merits of the case and the rights of the newly impleaded party and therefore became a judgment within the meaning of clause 15 of the Letters Patent.17. The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A rights is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The correlative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.18. The views of the High Courts at Calcutta and Madras with regard to the meaning of judgment are with respect preferred to the meaning of judgment given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M. B. Sirkar case, AIR 1956 Cal 630 (supra) as to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right.Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial Court is concerned.19. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right oramendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interefere where, the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases on amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is outweighed by the special circumstances of the case. (See Charan Das v. Amir Khan 47 Ind App 255 = (AIR 1921 PC 50). The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim.
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Vellore Citizens Welfare Forum Vs. Union of India (UOI) | Matters relating to Tanneries in the State of Tamil Nadu 1. Pursuant to this Courts Order dated December 15, 1995. NEERI has submitted Final Examination Report dated February 12, 1996, regarding CETPS constructed/under construction by the Tanneries in various districts of the State of Tamil Nadu. A four member team constituted by the Director, NEERI inspected the CETPS from January 27 to February 12.1996 According to the report, at present, 30 CETPs sites have been identified for tannery clusters in the five districts of Tamil Nadu viz., North Arcot Ambedkar, Erode Periyar, Digdigul Anna, Trichi and Chengai M.G.R. All the 30 CETP were inspected by the Team. According to the report, only 7 CETPs are under operation, while 10 are under construction and 13 are proposed. The following 7 ETPs. are under operation: 1. M/s. TALCO Ranipet Tannery Effluent Treatment Company Ltd. Ranipet, Dist. North Arcot Ambedkar 2. M/s. TALCO Ambur Tannery Effluent Treatment Company Ltd. Thuthipet Sector, Ambur, Dist. North Arcot Ambedkar 3. M/s. TALCO Vaniyambadi Tanners Enviro Control Systems Ltd., Vaniyambattu, Vaniyambadi, Dt. North Arcot Ambedkar. 4. M/s. Pallavaram Tanners Industrial Effluent Treatment Company, Chrompet Area, Dist. Chengai MGR 5. M/s. Ranipet SIDCO Finished Leather Effluent Treatment Company Pvt. Ltd., Ranipet, Dist. North Arcot Ambedkar 6. M/s. TALCO Vaniyambadi Tanners Enviro Control Systems Ltd., Udayendiram, Vaniyambadi. Dist. North Arcot Ambedkar 7. M/s. TALCO Pernambut Tannery Effluent Treatment Company Ltd., Bakkalapalli, Pernambut. Dist. North Arcot Ambedkar. The CETPs mentioned at Sl. Nos. 5, 6 and 7 were commissioned in January 1996 and were on the date of report passing through stabilization period. The report indicates that so far as the above CETPs are concerned, although there is Improvement in the performance, they are still not operating at their optimal level and are not meeting the standards as laid down by the Ministry of Environment and Forests and the Tamil Nadu Pollution Control Board for inland surface water discharge. The NEERI has given various recommendations to be followed by the above mentioned units. | 1[ds]The report indicates that so far as the above CETPs are concerned, although there is Improvement in the performance, they are still not operating at their optimal level and are not meeting the standards as laid down by the Ministry of Environment and Forests and the Tamil Nadu Pollution Control Board for inland surface water discharge. The NEERI has given various recommendations to be followed by the above mentioned units.2. Apart from the tanneries which are connected with the above mentioned 7 units, there are large number of other tanneries operating in the 5 districts mentioned above which have not set up any satisfactory pollution control devices.It is mandatory for the tanneries to set up the pollution control Despite notices it has not been done. This Court has been monitoring these matters for the last about 4 years. There is no awakening or realisation to control the pollution which is being generated by these tanneries.3. The NEERI has indicated the physico-chemical characteristics of ground water from dug wells near tannery clusters. According to the report, water samples show that well-waters around the tanneries are unfit for drinking. The report also shows that the quality of water in Palar river down stream from the place where effluent is discharged, is highly polluted.9. There are large number of tanneries in the State of Tamil Nadu which have set up individual pollution control devices and which according to the Tamil Nadu Pollution Control Board, are operating satisfactorily. The fact, however, remains that all these tanneries are discharging the treated effluents within the factory precinct itself. | 1 | 401 | 284 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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Matters relating to Tanneries in the State of Tamil Nadu 1. Pursuant to this Courts Order dated December 15, 1995. NEERI has submitted Final Examination Report dated February 12, 1996, regarding CETPS constructed/under construction by the Tanneries in various districts of the State of Tamil Nadu. A four member team constituted by the Director, NEERI inspected the CETPS from January 27 to February 12.1996 According to the report, at present, 30 CETPs sites have been identified for tannery clusters in the five districts of Tamil Nadu viz., North Arcot Ambedkar, Erode Periyar, Digdigul Anna, Trichi and Chengai M.G.R. All the 30 CETP were inspected by the Team. According to the report, only 7 CETPs are under operation, while 10 are under construction and 13 are proposed. The following 7 ETPs. are under operation: 1. M/s. TALCO Ranipet Tannery Effluent Treatment Company Ltd. Ranipet, Dist. North Arcot Ambedkar 2. M/s. TALCO Ambur Tannery Effluent Treatment Company Ltd. Thuthipet Sector, Ambur, Dist. North Arcot Ambedkar 3. M/s. TALCO Vaniyambadi Tanners Enviro Control Systems Ltd., Vaniyambattu, Vaniyambadi, Dt. North Arcot Ambedkar. 4. M/s. Pallavaram Tanners Industrial Effluent Treatment Company, Chrompet Area, Dist. Chengai MGR 5. M/s. Ranipet SIDCO Finished Leather Effluent Treatment Company Pvt. Ltd., Ranipet, Dist. North Arcot Ambedkar 6. M/s. TALCO Vaniyambadi Tanners Enviro Control Systems Ltd., Udayendiram, Vaniyambadi. Dist. North Arcot Ambedkar 7. M/s. TALCO Pernambut Tannery Effluent Treatment Company Ltd., Bakkalapalli, Pernambut. Dist. North Arcot Ambedkar. The CETPs mentioned at Sl. Nos. 5, 6 and 7 were commissioned in January 1996 and were on the date of report passing through stabilization period. The report indicates that so far as the above CETPs are concerned, although there is Improvement in the performance, they are still not operating at their optimal level and are not meeting the standards as laid down by the Ministry of Environment and Forests and the Tamil Nadu Pollution Control Board for inland surface water discharge. The NEERI has given various recommendations to be followed by the above mentioned units.
### Response:
1
### Explanation:
The report indicates that so far as the above CETPs are concerned, although there is Improvement in the performance, they are still not operating at their optimal level and are not meeting the standards as laid down by the Ministry of Environment and Forests and the Tamil Nadu Pollution Control Board for inland surface water discharge. The NEERI has given various recommendations to be followed by the above mentioned units.2. Apart from the tanneries which are connected with the above mentioned 7 units, there are large number of other tanneries operating in the 5 districts mentioned above which have not set up any satisfactory pollution control devices.It is mandatory for the tanneries to set up the pollution control Despite notices it has not been done. This Court has been monitoring these matters for the last about 4 years. There is no awakening or realisation to control the pollution which is being generated by these tanneries.3. The NEERI has indicated the physico-chemical characteristics of ground water from dug wells near tannery clusters. According to the report, water samples show that well-waters around the tanneries are unfit for drinking. The report also shows that the quality of water in Palar river down stream from the place where effluent is discharged, is highly polluted.9. There are large number of tanneries in the State of Tamil Nadu which have set up individual pollution control devices and which according to the Tamil Nadu Pollution Control Board, are operating satisfactorily. The fact, however, remains that all these tanneries are discharging the treated effluents within the factory precinct itself.
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VITHALDAS JAGANNATH KHATRI (D) THROUGH SMT. SHAKUNTALA ALIAS SUSHMI Vs. THE STATE OF MAHARASHTRA REVENUE AND FOREST DEPARTMENT | included even in the family unit in terms of the definition contained under Section 4, which reads as under: Section 4 - Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation :- A family unit means,- (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolution of marriage made by a Court after the 26th day of September, 1970, and all dissolutions of marriage by custom, or duly made, pronounced or declared on or after that date shall, for the purposes of determining the ceiling area to be held by a family unit, be ignored; and accordingly, the land held by each spouse shall be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is dissolved before or after that date), and shall be taken into consideration in determining the ceiling area of a family unit. The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas. 39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the same. The judgment of the Kerala High Court in Ponnu & Anr. v. Taluk Land Board, Chittur & Ors. (1981) KLT 780 may also be referred to, where, while dealing with the issue of a ceiling case, the conferring of rights on the son, under a partition deed, was held to be valid as being capable of being construed as a gift. The provisions of Section 122 of the Transfer of Property Act, 1882 (hereinafter referred to as the TP Act), read with Section 123, were discussed. A gift, being a transfer of property made voluntarily and without consideration, has to be made by a registered instrument. A gift is essentially a transfer. Thus, even if there were no pre-existing rights, it could be a valid gift, so long as the said requirements are met. In the facts of that case, the partition deed was not even between the joint owners or co-owners, but between the persons who owned the land exclusively and another person who held no existing title or right. It was held that a tribunal could go behind and look at the real nature of the transaction. Reliance was placed on Made Gouda v. Chenne Gowda, AIR 1925 Mad 1174 where a person who was not a co-owner was also a party to a transaction, and it was held that the transaction in regard to that particular item of property was really a gift and, thus, the requirements of a valid gift deed should be met. Similarly, in Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313 , on a proper understanding of a transaction, the document was construed as a composite deed of partition and assignment. Also, in Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. (1996) 9 SCC 388 , while deciding whether the document in question was a will or a settlement, it was held held that the nomenclature of the document is not conclusive, and instead its substance would be determinative . In a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction. 40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied. 41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation. 42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained. | 1[ds]19. The legislation in question is a beneficial piece of legislation and, indeed, must be given the widest amplitude, the object being to distribute land among the landless. The preamble quoted aforesaid sets forth the object of the said Act. But, it is equally true that in giving wider amplitude to such legislation, it cannot be that the Court interprets the words of the statute beyond its plain reading reflecting the intent of the legislation. A preamble has its limitations insofar as being treated as an aid for the interpretation of a statute. It cannot restrict or enlarge the provisions of the Act.(Raymond Ltd. v. State of Chattisgarh (2007) 3 SCC 79 ; State of West Bengal v. Union of India AIR 1963 SC 1241 ) Thus, the provisions have to be read, to see whether there is any ambiguity, requiring any further aid for construction of those sections, or whether they are explicit and clear in their meaning.(The Sussex Peerage Case (1844) 11 Cl & Fin 85 (HL).)20. On a reading of the provisions of Chapter III, including Sections 8, 10 & 11 of the said Act, there is no ambiguity as would require any aid to construct the meaning of those Sections21. The commencement date would be the date from which the provisions would come into force. However, the amendment of 1972 created a deemed fiction by inserting the provision for setting at naught transactions that may have occurred on a prior date, i.e., from 26.9.1970. The result is that the transactions or transfers in this window of about five years would also be hit by the provisions of the said Act insofar as the determination of surplus land is concerned. The object was to prevent circumvention by dubious and indirect methods.(Gurdit Singh v State of Punjab (1974) 2 SCC 260 )This is the view also adopted by this Court in Gurdit Singh v. State of Punjab, but then this Court had gone on to observe that that was no reason why a construction should be put on the Section which its language could hardly bear. The legislation in question in Gurdit Singh v. State of Punjab was a similar one, The Pepsu Tenancy and Agricultural Lands Act, 1955. It would be difficult to accept and countenance a situation where, irrespective of limitations imposed in considering the past time period, any transaction could be so assailed. In the wisdom of the legislature, the window of five years is provided as sufficient for scrutinizing transactions which could be called dubious and indirect methods to evade the result of the said ActThus, once again, it is clearly stated that the lands transferred between the period 26.9.1970 and the commencement date (2.10.1975) is what is to be ignored in calculating the ceiling area22. The effect of the aforesaid provision is that any land, even if it is obtained by partition or other transfer, after the date of 26.9.1970 would be included for the purposes of calculation of surplus land, as land of the person who so transferred the same23. The legislature has also taken another caution. The second Explanation to sub-section (1) of Section 10 also provides that documents evidencing such transfer even before 26.9.1970 would not be exempted if they are not registered on or before that date, or even if they are registered after that date, they are not presented for registration on or before that date. The requirement is for the transfer document to be, both executed and presented for registration before the cut-off date. Thus, the possibility of evading the land ceiling limits by creating documents on a back date and subsequently producing them for registration is obviated24. Section 11 specifically talks about the partition deed in a similar manner and, thus, not only transfers whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, are included, even the avenue by way of a partition deed has been shut out, unless it has been executed prior to the cut-off date. There is no doubt that in the present case, the partition deed was executed before the cut-off date of 26.9.1970 and registered even prior to that date25. On behalf of the appellants, a number of judgments have been referred to, on how a deemed fiction should be construed. Thus, a legal fiction is to be limited for the purpose for which it is created and should not be extended beyond that legitimate field Bengal Immunity Co Ltd. v. State of Bihar: (1955) 2 SCR 603 . There are a number of judgments referred to in the context of taxing statutes, but then the rules of interpretation of taxing statutes, to be construed strictly, would be different and there is no purpose in referring to these judicial pronouncements. In the context of the Kerala Land Reforms Act, 1964, the issue of legal fiction was, once again, examined Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver (1996) 6 SCC 185 . The same proposition was, once again, reiterated while observing that a legal fiction is not to be extended beyond the purpose for which it is created, and that it cannot be extended by importing another fiction. In the context of Section 4A of that Act, it was held to be circumscribed by express words – a mortgagee in possession was stated to be one who, for a continuous period of not less than 50 years immediately preceding the commencement of that Section held that capacity. The words immediately preceding the commencement were required to be given their ordinary and full meaning as reflecting the legislative intent and thus, only such type of cases where a mortgagee was in possession, immediately preceding the commencement of the Section, was extendable for a period of 50 years in the past alone. It was further observed as under:….However beneficial may be the scope and ambit of the legal fiction created by the legislature while enacting Section 4-A such fiction can arise only when the express language of the section laying down the conditions precedent for raising of such a fiction is complied with by the mortgagee-in-possession concerned seeking the benefit of such a deeming fiction. Such a fiction cannot be extended by the court on analogy or by addition or deleting words not contemplated by the legislature26. This judgment has found support in a subsequent judgment of this Court in Raj Kumar Johri v. State of M.P . (2002) 3 SCC 732 Thus, the aforesaid being the manner of interpreting a provision for deeming fiction, the relevant dates provided, of 26.9.1970 and 2.10.1975, giving a window of five years for the State to take action and prevent any dubious transaction during this period of time, cannot be expanded to an unlimited prior period of time27. This Court, in Uttar Chand v. State of Maharashtra, (1980) 2 SCC 292 while dealing with the very statute has opined that the cut-off date would be sacrosanct. The factual contours dealt with partition before the cut-off date, as also sale of land. Once the cut-off date is provided, it was observed that they fell completely outside the ambit of the provisions of the Act and, thus, the High Court would not be justified in presuming that the transfers made were either collusive or fraudulent28. The order passed by the competent authority, being the SDO, insofar as the two elder daughters are concerned, held in their favour as far as the lands vested in them, in pursuance of the Partition Deed. There was, thus, no occasion for them to file an appeal, nor did they so file an appeal. Other members of the family, who filed the appeal, did not implead them as parties. Once again, naturally so, as they would not be the interested parties, or even pro forma parties in that behalf. However, once the State decided to file cross-objections and, in that, impugned even that portion of the order of the SDO which held in favour of the two elder daughters, there is no hesitation in stating that they were necessary parties to those proceedings. It is no answer to say that since the effect of the land ceiling would be to restrict the area of their father, late Vithaldas, it is for Vithaldas to see how he can benefit his daughters. This fundamental defect cannot be cured in the subsequent proceedings, as the right of appeal is a statutory right and an important one. This aforesaid view is reinforced by a catena of judicial pronouncements. It has been held that the Code of Civil Procedure, 1908 does not contemplate filing of cross-objections against a party who is not a party to the appealRajendra Nath Chatterjee v. Moheshata Debi AIR 1926 Cal 533 . In case such objections have to be filed two distinct operations are necessary. He must implead the persons as parties qua whom he intends to file cross-objections then he must file the memorandum of cross-objections Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 . The position would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) . Thus, unqualified imprimatur can be lent to this view29. Thus, for the aforesaid reason also the cross-objection could not have disturbed the status of the two elder daughters30. It has already been observed that non-impleadment of the two elder daughters would be fatal to the appellate proceedings. But, they are fatal for more than that reason. In fact, the view taken by both the learned Single Judge and the Division Bench would equally fall foul of the legal treatise, enunciating the rights of an unmarried daughter. The view taken is that since these lands were given to minor unmarried daughters, they having no share in the HUF property, such grant is contrary to law at that point of time31. It may be noticed, of course, that the lis has been pending, and the current scenario is one where even daughters have been given rights in the ancestral/HUF property, in terms of the amendment made to Section 6 of the Hindu Succession Act, 1956. The State of Maharashtra, where the land is located was a step ahead inasmuch as vide Maharashtra Act 39 of 1994, which was brought into force on 22.6.1994, such rights were conferred on women by making them also a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated36. The legal view, thus, is verya. A provision for marriage of unmarried daughters can be made out of ancestral propertyb. Such provision can be made before, at the time, or even after the marriagec. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself37. If the facts of the present case are averted to, the aforesaid is exactly what has been done under the Partition Deed. A provision was made for the marriage of the daughters. In fact, the provision is for education and marriage purposes. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. It was sustainable in law then, and it is more than just merely sustainable in law now. Thus, there is no doubt that there was nothing prohibiting such a provision from being made. If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law38. It may also be noticed the fact that the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained under Section 4,The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the sameIn a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained | 1 | 8,793 | 2,758 | ### 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:
included even in the family unit in terms of the definition contained under Section 4, which reads as under: Section 4 - Land held by family unit (1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family unit, be deemed to be held by the family unit. Explanation :- A family unit means,- (a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses. (2) For the purposes of this section, all declarations of dissolution of marriage made by a Court after the 26th day of September, 1970, and all dissolutions of marriage by custom, or duly made, pronounced or declared on or after that date shall, for the purposes of determining the ceiling area to be held by a family unit, be ignored; and accordingly, the land held by each spouse shall be taken into consideration for that purpose, as if no dissolution had taken place. But, if a proceeding for dissolution of marriage has commenced before any Court before the aforesaid date, then the dissolution of marriage shall have full effect (whether the marriage is dissolved before or after that date), and shall be taken into consideration in determining the ceiling area of a family unit. The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas. 39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the same. The judgment of the Kerala High Court in Ponnu & Anr. v. Taluk Land Board, Chittur & Ors. (1981) KLT 780 may also be referred to, where, while dealing with the issue of a ceiling case, the conferring of rights on the son, under a partition deed, was held to be valid as being capable of being construed as a gift. The provisions of Section 122 of the Transfer of Property Act, 1882 (hereinafter referred to as the TP Act), read with Section 123, were discussed. A gift, being a transfer of property made voluntarily and without consideration, has to be made by a registered instrument. A gift is essentially a transfer. Thus, even if there were no pre-existing rights, it could be a valid gift, so long as the said requirements are met. In the facts of that case, the partition deed was not even between the joint owners or co-owners, but between the persons who owned the land exclusively and another person who held no existing title or right. It was held that a tribunal could go behind and look at the real nature of the transaction. Reliance was placed on Made Gouda v. Chenne Gowda, AIR 1925 Mad 1174 where a person who was not a co-owner was also a party to a transaction, and it was held that the transaction in regard to that particular item of property was really a gift and, thus, the requirements of a valid gift deed should be met. Similarly, in Ramaswami Pattamali v. Lakshmi AIR 1962 Ker 313 , on a proper understanding of a transaction, the document was construed as a composite deed of partition and assignment. Also, in Namburi Basava Subrahmanyam v. Alapati Hymavathi & Ors. (1996) 9 SCC 388 , while deciding whether the document in question was a will or a settlement, it was held held that the nomenclature of the document is not conclusive, and instead its substance would be determinative . In a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction. 40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied. 41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation. 42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained.
### Response:
1
### Explanation:
. In case such objections have to be filed two distinct operations are necessary. He must implead the persons as parties qua whom he intends to file cross-objections then he must file the memorandum of cross-objections Venkatapathi v. Veerayya AIR (30) 1943 Madras 609 . The position would be no different qua a judicial or quasi-judicial authority as a party to be effected must get a right of hearing Udit Narayan Singh Malpharia v. Additional Member, Board of Revenue, Bihar AIR 1963 SC 786 (WS) . Thus, unqualified imprimatur can be lent to this view29. Thus, for the aforesaid reason also the cross-objection could not have disturbed the status of the two elder daughters30. It has already been observed that non-impleadment of the two elder daughters would be fatal to the appellate proceedings. But, they are fatal for more than that reason. In fact, the view taken by both the learned Single Judge and the Division Bench would equally fall foul of the legal treatise, enunciating the rights of an unmarried daughter. The view taken is that since these lands were given to minor unmarried daughters, they having no share in the HUF property, such grant is contrary to law at that point of time31. It may be noticed, of course, that the lis has been pending, and the current scenario is one where even daughters have been given rights in the ancestral/HUF property, in terms of the amendment made to Section 6 of the Hindu Succession Act, 1956. The State of Maharashtra, where the land is located was a step ahead inasmuch as vide Maharashtra Act 39 of 1994, which was brought into force on 22.6.1994, such rights were conferred on women by making them also a coparcener by birth. However, even on the date when the Partition Deed was executed, the legal position was not as has been enunciated36. The legal view, thus, is verya. A provision for marriage of unmarried daughters can be made out of ancestral propertyb. Such provision can be made before, at the time, or even after the marriagec. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindu Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself37. If the facts of the present case are averted to, the aforesaid is exactly what has been done under the Partition Deed. A provision was made for the marriage of the daughters. In fact, the provision is for education and marriage purposes. In the context of where the society is today, such an endeavour should be commended as salutary, rather than be frowned upon. It was sustainable in law then, and it is more than just merely sustainable in law now. Thus, there is no doubt that there was nothing prohibiting such a provision from being made. If the law permits so, it can hardly be called fraudulent. Thus, the very premise of allowing the cross-objection has no sustenance in law38. It may also be noticed the fact that the two elder daughters, whose rights have been debated actually, even attained majority before the commencement date, i.e., they were major unmarried daughters on the date when the amendments came into force. They were, thus, not included even in the family unit in terms of the definition contained under Section 4,The question of including the daughters would only arise if the document of partition deed was found to be fraudulent. Thus, for this reason also, the property cannot be included and clubbed with the land of late Vithaldas39. As observed above, the form of the document is not important in this behalf. Such provision can be made in a partition deed. It may be in the nature of a gift. So what? None of the members of the family have ever sought to assail or challenge the same. It is with the consensus of the family, apart from the legality of the sameIn a nutshell, the view is that too much importance should not be attached to the nomenclature of a document and one can look behind the façade of the document to decipher the true nature of the transaction40. The aforesaid enunciation of the law reflects the correct legal position. In the given facts of the case it is not in dispute that the Deed was a registered document. Thus, even if one construes it as a partition- cum-gift deed, it would make no difference as the requirements of a gift deed, under Sections 122 & 123 of the TP Act stand satisfied41. Legal position in the context of the facts of the present case, thus, show that even if the document is effectively a gift deed, and Hindu Law permits the making of a provision for the daughter for her marriage, the execution of a partition deed, which has the effect of such a gift would not nullify the effect of the deed. This is so as a provision made for the daughter out of the ancestral property would be in compliance of the pious obligation42. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained
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Ballabhdas Agarwal Vs. State of Bihar | there were included tax-free articles such as fresh milk, meat, fish, green vegetables etc., which were exempt from Sales tax under S. 6 of the Act. His submission was that the excess amount assessed was Rs. 11,416-15-0 Against this order he took the usual appeals to the Sales tax Authorities and after the appeals were rejected he took a revision under S. 24 of the Act before the Board of Revenue, Bihar, where also he was unsuccessful. Under s. 25 of the Act he applied for referring 6 questions of law to the High Court and those questions were also follows:- (i) Whether upon the true construction of the agreement of 1945 between the State Government and the assessee which had been acted upon and not reviewed, the Department was legally entitled to tax petitioner on his gross turnover instead of 66 2/3% of the same? (ii) Whether the Member, Board of Revenue, having held that in the circumstances the petitioner had prima facie bona fide grounds for his belief that the arrangement which the Department had entered into, would continue could legally hold that the petitioner was not entitled to be assessed in terms of the said arrangement? (iii) Whether in the facts and circumstances of the case, it is open to the Department to challenge the continuance of the arrangement arrived at between the State Government and the petitioners especially so when the State Government by its own acts or omissions misled the petitioner into maintaining his accounts in a manner prejudicial to the petitioners claim for deductions on account of sale of tax-free goods during the period? (iv) Whether in the facts and circumstances of the case, the petitioner was entitled to the entire deduction on account of sale of meat and fish in terms of Notification No. 5564 Ft., dated 30-3-49 under Section 6 of the Bihar Sales Tax Act, 1947? (v) Whether the Member, Board of Revenue having held that meat and fish mentioned in Notification No. 5564 Ft. dated 30-3-49 under Section 6 of the Bihar Sales Tax Act, 1947, included boiled meat and fish and cold meat and fish, could legally hold that meat and fish cooked otherwise were not covered in the terms of said notification? (vi) Whether in terms of the Notification No. 5564 Ft. dated 30-3-49 cold meat and fish and boiled meat and fish could be distinguished from other preparation of meat and fish? But the Board of Revenue referred the following question to the High Court under S. 6 (S. 25 (?)):- Whether the following forms of meat and fish are covered by Notification No. 5564 Ft., dated 30-3-49, issued under Section 6 of the Bihar Sales Tax Act, 1947? (i) Raw (i.e. uncooked in any way) meat or fish. (ii) Boiled meat and fish, cooled or uncooled, meant for sale or consumption outside the petitioners premises. (iii) Fish or meat, which has been boiled or cooked in some other way served at the petitioners premises as separate dishes or part of a menu. (iv) Fish or meat, which has been boiled or cooked in some other way, served as separate dishes or part of a dish outside the petitioners premises. The High Court reframed the question as follows:- Whether the petitioner was entitled to exemption under Notification No. 5564 Ft., dated 30th March, 1949, issued under Section 6 of the Bihar Sales Tax Act, 1947 with regard to the sales of the preparations of meat and fish e. g., meat curry and fish curry served as separate dishes, or as part of the menu, at lunch or dinner, at the petitioners premises or outside? and answered it against the appellant. It is against the order of the Board of Revenue that the appellant has come in appeal by special leave but has not appealed against the judgment and order of the High Court. 3. This Court in Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central), Calcutta, AIR 1960 SC 280 , held that in cases where a reference is made to the High Court and the appeal is brought only against the order of the Income-tax Appellate Tribunal then the Supreme Court, if it interferred, would in fact be setting aside the judgment of the High Court without there being an appeal to this Court, and that this Court could not by-pass the normal procedure which was to be adopted for the purpose.In a later Judgment in Chandi Prasad v. State of Bihar, AIR 1961 SC 1708 , a similar view was taken that as the assessee had not obtained Special Leave in respect of any of the orders passed by the High Court under S. 25 those orders became final and binding and the assessee could not be allowed to by-pass or go behind the orders of the High Court and such exercise would be particularly inadvisable in a case where the result may be a conflict of the decision of two courts of competent jurisdiction, which was contrary to the object of Ss. 23, 24 and 25 of the Act. In this, view of the law the appellant is not entitled to agitate the correctness or otherwise of the decision given by the Tribunal in regard to the questions which were agitated before the High Court and were decided against the appellant and against which no appeal has been brought. 4. But he submits that there are three other questions which also arise, and on which the appellant wanted a reference to the High Court but which were not referred. It was open to the appellant to apply to the High Court for a reference under S. 25. That the appellant did not do, and it has not been shown that there was any such breach of the rules of natural justice or violation of any principle of law which would be a good ground for our interference direct with the orders of the Board of Revenue in an appeal under Art. 136 of the Constitution. | 0[ds]3. This Court in Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central), Calcutta, AIR 1960 SC 280 , held that in cases where a reference is made to the High Court and the appeal is brought only against the order of the Income-tax Appellate Tribunal then the Supreme Court, if it interferred, would in fact be setting aside the judgment of the High Court without there being an appeal to this Court, and that this Court could not by-pass the normal procedure which was to be adopted for the purpose.In a later Judgment in Chandi Prasad v. State of Bihar, AIR 1961 SC 1708 , a similar view was taken that as the assessee had not obtained Special Leave in respect of any of the orders passed by the High Court under S. 25 those orders became final and binding and the assessee could not be allowed to by-pass or go behind the orders of the High Court and such exercise would be particularly inadvisable in a case where the result may be a conflict of the decision of two courts of competent jurisdiction, which was contrary to the object of Ss. 23, 24 and 25 of the Act. In this, view of the law the appellant is not entitled to agitate the correctness or otherwise of the decision given by the Tribunal in regard to the questions which were agitated before the High Court and were decided against the appellant and against which no appeal has been brought4. But he submits that there are three other questions which also arise, and on which the appellant wanted a reference to the High Court but which were not referred. It was open to the appellant to apply to the High Court for a reference under S. 25. That the appellant did not do, and it has not been shown that there was any such breach of the rules of natural justice or violation of any principle of law which would be a good ground for our interference direct with the orders of the Board of Revenue in an appeal under Art. 136 of the Constitution. | 0 | 1,458 | 378 | ### 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:
there were included tax-free articles such as fresh milk, meat, fish, green vegetables etc., which were exempt from Sales tax under S. 6 of the Act. His submission was that the excess amount assessed was Rs. 11,416-15-0 Against this order he took the usual appeals to the Sales tax Authorities and after the appeals were rejected he took a revision under S. 24 of the Act before the Board of Revenue, Bihar, where also he was unsuccessful. Under s. 25 of the Act he applied for referring 6 questions of law to the High Court and those questions were also follows:- (i) Whether upon the true construction of the agreement of 1945 between the State Government and the assessee which had been acted upon and not reviewed, the Department was legally entitled to tax petitioner on his gross turnover instead of 66 2/3% of the same? (ii) Whether the Member, Board of Revenue, having held that in the circumstances the petitioner had prima facie bona fide grounds for his belief that the arrangement which the Department had entered into, would continue could legally hold that the petitioner was not entitled to be assessed in terms of the said arrangement? (iii) Whether in the facts and circumstances of the case, it is open to the Department to challenge the continuance of the arrangement arrived at between the State Government and the petitioners especially so when the State Government by its own acts or omissions misled the petitioner into maintaining his accounts in a manner prejudicial to the petitioners claim for deductions on account of sale of tax-free goods during the period? (iv) Whether in the facts and circumstances of the case, the petitioner was entitled to the entire deduction on account of sale of meat and fish in terms of Notification No. 5564 Ft., dated 30-3-49 under Section 6 of the Bihar Sales Tax Act, 1947? (v) Whether the Member, Board of Revenue having held that meat and fish mentioned in Notification No. 5564 Ft. dated 30-3-49 under Section 6 of the Bihar Sales Tax Act, 1947, included boiled meat and fish and cold meat and fish, could legally hold that meat and fish cooked otherwise were not covered in the terms of said notification? (vi) Whether in terms of the Notification No. 5564 Ft. dated 30-3-49 cold meat and fish and boiled meat and fish could be distinguished from other preparation of meat and fish? But the Board of Revenue referred the following question to the High Court under S. 6 (S. 25 (?)):- Whether the following forms of meat and fish are covered by Notification No. 5564 Ft., dated 30-3-49, issued under Section 6 of the Bihar Sales Tax Act, 1947? (i) Raw (i.e. uncooked in any way) meat or fish. (ii) Boiled meat and fish, cooled or uncooled, meant for sale or consumption outside the petitioners premises. (iii) Fish or meat, which has been boiled or cooked in some other way served at the petitioners premises as separate dishes or part of a menu. (iv) Fish or meat, which has been boiled or cooked in some other way, served as separate dishes or part of a dish outside the petitioners premises. The High Court reframed the question as follows:- Whether the petitioner was entitled to exemption under Notification No. 5564 Ft., dated 30th March, 1949, issued under Section 6 of the Bihar Sales Tax Act, 1947 with regard to the sales of the preparations of meat and fish e. g., meat curry and fish curry served as separate dishes, or as part of the menu, at lunch or dinner, at the petitioners premises or outside? and answered it against the appellant. It is against the order of the Board of Revenue that the appellant has come in appeal by special leave but has not appealed against the judgment and order of the High Court. 3. This Court in Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central), Calcutta, AIR 1960 SC 280 , held that in cases where a reference is made to the High Court and the appeal is brought only against the order of the Income-tax Appellate Tribunal then the Supreme Court, if it interferred, would in fact be setting aside the judgment of the High Court without there being an appeal to this Court, and that this Court could not by-pass the normal procedure which was to be adopted for the purpose.In a later Judgment in Chandi Prasad v. State of Bihar, AIR 1961 SC 1708 , a similar view was taken that as the assessee had not obtained Special Leave in respect of any of the orders passed by the High Court under S. 25 those orders became final and binding and the assessee could not be allowed to by-pass or go behind the orders of the High Court and such exercise would be particularly inadvisable in a case where the result may be a conflict of the decision of two courts of competent jurisdiction, which was contrary to the object of Ss. 23, 24 and 25 of the Act. In this, view of the law the appellant is not entitled to agitate the correctness or otherwise of the decision given by the Tribunal in regard to the questions which were agitated before the High Court and were decided against the appellant and against which no appeal has been brought. 4. But he submits that there are three other questions which also arise, and on which the appellant wanted a reference to the High Court but which were not referred. It was open to the appellant to apply to the High Court for a reference under S. 25. That the appellant did not do, and it has not been shown that there was any such breach of the rules of natural justice or violation of any principle of law which would be a good ground for our interference direct with the orders of the Board of Revenue in an appeal under Art. 136 of the Constitution.
### Response:
0
### Explanation:
3. This Court in Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central), Calcutta, AIR 1960 SC 280 , held that in cases where a reference is made to the High Court and the appeal is brought only against the order of the Income-tax Appellate Tribunal then the Supreme Court, if it interferred, would in fact be setting aside the judgment of the High Court without there being an appeal to this Court, and that this Court could not by-pass the normal procedure which was to be adopted for the purpose.In a later Judgment in Chandi Prasad v. State of Bihar, AIR 1961 SC 1708 , a similar view was taken that as the assessee had not obtained Special Leave in respect of any of the orders passed by the High Court under S. 25 those orders became final and binding and the assessee could not be allowed to by-pass or go behind the orders of the High Court and such exercise would be particularly inadvisable in a case where the result may be a conflict of the decision of two courts of competent jurisdiction, which was contrary to the object of Ss. 23, 24 and 25 of the Act. In this, view of the law the appellant is not entitled to agitate the correctness or otherwise of the decision given by the Tribunal in regard to the questions which were agitated before the High Court and were decided against the appellant and against which no appeal has been brought4. But he submits that there are three other questions which also arise, and on which the appellant wanted a reference to the High Court but which were not referred. It was open to the appellant to apply to the High Court for a reference under S. 25. That the appellant did not do, and it has not been shown that there was any such breach of the rules of natural justice or violation of any principle of law which would be a good ground for our interference direct with the orders of the Board of Revenue in an appeal under Art. 136 of the Constitution.
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Vaibhavi Enterprise and Ors Vs. Nobel Cera Coat & Ors | the bid / allocation of gas, in the writ petition neither the Ministry nor other applicants viz. Vaibhavi Enterprise and Tanish Cerachem Private Limited were impleaded as party respondents. From the impugned order passed by the High Court, it appears that the matter came up before the Division Bench on 19.08.2021 and Union of India was ordered to be arrayed as respondent no.3 and notice was made returnable on 26.08.2021. Thereafter, matter was heard by the Division Bench on 16.09.2021. Before the High Court, learned ASG appearing on behalf of the Union of India placed on record the communication dated 08.03.2021, which was directed to be taken on record. Thereafter, the matter was kept for further hearing on the very next date i.e. 20.09.2021. At the time of hearing of the writ petition, the writ applicant reduced days for lifting gas from 75 days to 65 days. Having noted the submissions on behalf of the ONGC that the writ applicant has agreed to lift the gas within 75 days, however, in view of the fact that one of the applicant was ready and willing to lift the gas within 65 days and therefore, the offer in favour of the writ applicant was not finalized and therefore, the ONGC was in dilemma. That thereafter by permitting the writ applicant to reduce the days for lifting gas from 75 days to 65 days, thereafter, the High Court by the impugned judgment and order has disposed of the said writ petition by directing the Corporation to finalize the contract with the writ applicant on the condition that the writ applicant shall lift the gas within 65 days from the date of allotment. Feeling aggrieved and dissatisfied with the impugned order passed by the High Court, the other to applicants viz. Tanish Cerachem Private Limited and Vaibhavi Enterprise have preferred present appeals. 3.0. We have heard Shri Santosh Krishnan, learned counsel appearing for the appellant and Shri Saurav Agrawal, learned counsel appearing for the original writ applicant who is on caveat and Shri Vikramjit Banerjee, learned ASG appearing on behalf of the ONGC. 4.0. Having heard the learned counsel for the respective parties and considering the impugned order passed by the High Court, we are of the opinion that the procedure which has been adopted by the High Court while disposing of the writ petition in favour of the writ applicant is unsustainable. The High Court has passed the impugned order ex-parte and without giving any opportunity of being heard to the other applicants – appellants herein. It is required to be noted that before the High Court it was brought on record that there are two other applicants who submitted their EOI and even one of the applicants was ready and willing to lift the gas within 65 days. At this stage, it is required to be noted that it appears that till writ petition was filed and the matter was heard by the Division Bench on 19.08.2021 and 16.09.2021, the original writ applicant offered to lift the gas within 75 days. Only at the time of hearing on 20.09.2021 and / or during the pendency of the petition, the original writ applicant revised its offer and unfortunately High Court allowed / permitted the original writ applicant to revise its offer to lift the gas from 75 days to 65 days and that too in exercise of powers under Article 226 of the Constitution of India. When High Court permitted / allowed the writ applicant to modify its offer, in that case, the opportunity ought to have been given to the other applicants. Either they might have objected to permitting such modification of the offer in exercise of powers under Article 226 of the Constitution of India or they also could have modified their offer further and reduce number of days for lifting gas. It is not in dispute that neither of the appellants were impleaded as party to the writ petition. Not only that even initially Union of India was also not joined as a party and for the first time Union of India was directed to be impleaded as respondent no.3 pursuant to the order dated 19.08.2021 and that too not at the instance of the writ applicant but as the High Court felt that presence of the Union of India is required. So the procedure adopted by the High Court while disposing of the writ petition by permitting / allowing the original writ applicant to modify its offer and that too in exercise of powers under Article 226 of the Constitution of India, as observed herein above, is unsustainable and unknown to law. We have our own doubt whether in exercise of powers under Article 226 of the Constitution of India, the High Court could have permitted one of the bidder to revise / modify its offer. Even in the facts and circumstances of the case, the High Court felt that instead of inviting fresh bids, the same could be allowed, in that case also, similar opportunity ought to have been given to the other applicants also. It is also required to be noted that though the High Court has, as such, directed and issued the writ of mandamus directing ONGC to finalize the contract with the writ applicant on the condition that the writ applicant shall lift gas within 65 days from the date of allotment, instead of allowing the writ petition and making the Rule absolute, High Court has used the word writ petition is disposed of. Once the writ of mandamus was issued, instead of disposing of the writ petition, the High Court ought to have allowed the writ petition. 5.0. Even otherwise also, the impugned order passed by the High Court is unsustainable in as such no reasons whatsoever have been assigned by the High Court on merits. Except narrating the prayer clause and two earlier orders passed on 19.08.2021 and 16.09.2021 there is no further discussion by the High Court on merits of the matter. | 1[ds]4.0. Having heard the learned counsel for the respective parties and considering the impugned order passed by the High Court, we are of the opinion that the procedure which has been adopted by the High Court while disposing of the writ petition in favour of the writ applicant is unsustainable. The High Court has passed the impugned order ex-parte and without giving any opportunity of being heard to the other applicants – appellants herein. It is required to be noted that before the High Court it was brought on record that there are two other applicants who submitted their EOI and even one of the applicants was ready and willing to lift the gas within 65 days. At this stage, it is required to be noted that it appears that till writ petition was filed and the matter was heard by the Division Bench on 19.08.2021 and 16.09.2021, the original writ applicant offered to lift the gas within 75 days. Only at the time of hearing on 20.09.2021 and / or during the pendency of the petition, the original writ applicant revised its offer and unfortunately High Court allowed / permitted the original writ applicant to revise its offer to lift the gas from 75 days to 65 days and that too in exercise of powers under Article 226 of the Constitution of India. When High Court permitted / allowed the writ applicant to modify its offer, in that case, the opportunity ought to have been given to the other applicants. Either they might have objected to permitting such modification of the offer in exercise of powers under Article 226 of the Constitution of India or they also could have modified their offer further and reduce number of days for lifting gas. It is not in dispute that neither of the appellants were impleaded as party to the writ petition. Not only that even initially Union of India was also not joined as a party and for the first time Union of India was directed to be impleaded as respondent no.3 pursuant to the order dated 19.08.2021 and that too not at the instance of the writ applicant but as the High Court felt that presence of the Union of India is required. So the procedure adopted by the High Court while disposing of the writ petition by permitting / allowing the original writ applicant to modify its offer and that too in exercise of powers under Article 226 of the Constitution of India, as observed herein above, is unsustainable and unknown to law. We have our own doubt whether in exercise of powers under Article 226 of the Constitution of India, the High Court could have permitted one of the bidder to revise / modify its offer. Even in the facts and circumstances of the case, the High Court felt that instead of inviting fresh bids, the same could be allowed, in that case also, similar opportunity ought to have been given to the other applicants also.It is also required to be noted that though the High Court has, as such, directed and issued the writ of mandamus directing ONGC to finalize the contract with the writ applicant on the condition that the writ applicant shall lift gas within 65 days from the date of allotment, instead of allowing the writ petition and making the Rule absolute, High Court has used the word writ petition is disposed of. Once the writ of mandamus was issued, instead of disposing of the writ petition, the High Court ought to have allowed the writ petition.5.0. Even otherwise also, the impugned order passed by the High Court is unsustainable in as such no reasons whatsoever have been assigned by the High Court on merits. Except narrating the prayer clause and two earlier orders passed on 19.08.2021 and 16.09.2021 there is no further discussion by the High Court on merits of the matter. | 1 | 1,648 | 689 | ### 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 bid / allocation of gas, in the writ petition neither the Ministry nor other applicants viz. Vaibhavi Enterprise and Tanish Cerachem Private Limited were impleaded as party respondents. From the impugned order passed by the High Court, it appears that the matter came up before the Division Bench on 19.08.2021 and Union of India was ordered to be arrayed as respondent no.3 and notice was made returnable on 26.08.2021. Thereafter, matter was heard by the Division Bench on 16.09.2021. Before the High Court, learned ASG appearing on behalf of the Union of India placed on record the communication dated 08.03.2021, which was directed to be taken on record. Thereafter, the matter was kept for further hearing on the very next date i.e. 20.09.2021. At the time of hearing of the writ petition, the writ applicant reduced days for lifting gas from 75 days to 65 days. Having noted the submissions on behalf of the ONGC that the writ applicant has agreed to lift the gas within 75 days, however, in view of the fact that one of the applicant was ready and willing to lift the gas within 65 days and therefore, the offer in favour of the writ applicant was not finalized and therefore, the ONGC was in dilemma. That thereafter by permitting the writ applicant to reduce the days for lifting gas from 75 days to 65 days, thereafter, the High Court by the impugned judgment and order has disposed of the said writ petition by directing the Corporation to finalize the contract with the writ applicant on the condition that the writ applicant shall lift the gas within 65 days from the date of allotment. Feeling aggrieved and dissatisfied with the impugned order passed by the High Court, the other to applicants viz. Tanish Cerachem Private Limited and Vaibhavi Enterprise have preferred present appeals. 3.0. We have heard Shri Santosh Krishnan, learned counsel appearing for the appellant and Shri Saurav Agrawal, learned counsel appearing for the original writ applicant who is on caveat and Shri Vikramjit Banerjee, learned ASG appearing on behalf of the ONGC. 4.0. Having heard the learned counsel for the respective parties and considering the impugned order passed by the High Court, we are of the opinion that the procedure which has been adopted by the High Court while disposing of the writ petition in favour of the writ applicant is unsustainable. The High Court has passed the impugned order ex-parte and without giving any opportunity of being heard to the other applicants – appellants herein. It is required to be noted that before the High Court it was brought on record that there are two other applicants who submitted their EOI and even one of the applicants was ready and willing to lift the gas within 65 days. At this stage, it is required to be noted that it appears that till writ petition was filed and the matter was heard by the Division Bench on 19.08.2021 and 16.09.2021, the original writ applicant offered to lift the gas within 75 days. Only at the time of hearing on 20.09.2021 and / or during the pendency of the petition, the original writ applicant revised its offer and unfortunately High Court allowed / permitted the original writ applicant to revise its offer to lift the gas from 75 days to 65 days and that too in exercise of powers under Article 226 of the Constitution of India. When High Court permitted / allowed the writ applicant to modify its offer, in that case, the opportunity ought to have been given to the other applicants. Either they might have objected to permitting such modification of the offer in exercise of powers under Article 226 of the Constitution of India or they also could have modified their offer further and reduce number of days for lifting gas. It is not in dispute that neither of the appellants were impleaded as party to the writ petition. Not only that even initially Union of India was also not joined as a party and for the first time Union of India was directed to be impleaded as respondent no.3 pursuant to the order dated 19.08.2021 and that too not at the instance of the writ applicant but as the High Court felt that presence of the Union of India is required. So the procedure adopted by the High Court while disposing of the writ petition by permitting / allowing the original writ applicant to modify its offer and that too in exercise of powers under Article 226 of the Constitution of India, as observed herein above, is unsustainable and unknown to law. We have our own doubt whether in exercise of powers under Article 226 of the Constitution of India, the High Court could have permitted one of the bidder to revise / modify its offer. Even in the facts and circumstances of the case, the High Court felt that instead of inviting fresh bids, the same could be allowed, in that case also, similar opportunity ought to have been given to the other applicants also. It is also required to be noted that though the High Court has, as such, directed and issued the writ of mandamus directing ONGC to finalize the contract with the writ applicant on the condition that the writ applicant shall lift gas within 65 days from the date of allotment, instead of allowing the writ petition and making the Rule absolute, High Court has used the word writ petition is disposed of. Once the writ of mandamus was issued, instead of disposing of the writ petition, the High Court ought to have allowed the writ petition. 5.0. Even otherwise also, the impugned order passed by the High Court is unsustainable in as such no reasons whatsoever have been assigned by the High Court on merits. Except narrating the prayer clause and two earlier orders passed on 19.08.2021 and 16.09.2021 there is no further discussion by the High Court on merits of the matter.
### Response:
1
### Explanation:
4.0. Having heard the learned counsel for the respective parties and considering the impugned order passed by the High Court, we are of the opinion that the procedure which has been adopted by the High Court while disposing of the writ petition in favour of the writ applicant is unsustainable. The High Court has passed the impugned order ex-parte and without giving any opportunity of being heard to the other applicants – appellants herein. It is required to be noted that before the High Court it was brought on record that there are two other applicants who submitted their EOI and even one of the applicants was ready and willing to lift the gas within 65 days. At this stage, it is required to be noted that it appears that till writ petition was filed and the matter was heard by the Division Bench on 19.08.2021 and 16.09.2021, the original writ applicant offered to lift the gas within 75 days. Only at the time of hearing on 20.09.2021 and / or during the pendency of the petition, the original writ applicant revised its offer and unfortunately High Court allowed / permitted the original writ applicant to revise its offer to lift the gas from 75 days to 65 days and that too in exercise of powers under Article 226 of the Constitution of India. When High Court permitted / allowed the writ applicant to modify its offer, in that case, the opportunity ought to have been given to the other applicants. Either they might have objected to permitting such modification of the offer in exercise of powers under Article 226 of the Constitution of India or they also could have modified their offer further and reduce number of days for lifting gas. It is not in dispute that neither of the appellants were impleaded as party to the writ petition. Not only that even initially Union of India was also not joined as a party and for the first time Union of India was directed to be impleaded as respondent no.3 pursuant to the order dated 19.08.2021 and that too not at the instance of the writ applicant but as the High Court felt that presence of the Union of India is required. So the procedure adopted by the High Court while disposing of the writ petition by permitting / allowing the original writ applicant to modify its offer and that too in exercise of powers under Article 226 of the Constitution of India, as observed herein above, is unsustainable and unknown to law. We have our own doubt whether in exercise of powers under Article 226 of the Constitution of India, the High Court could have permitted one of the bidder to revise / modify its offer. Even in the facts and circumstances of the case, the High Court felt that instead of inviting fresh bids, the same could be allowed, in that case also, similar opportunity ought to have been given to the other applicants also.It is also required to be noted that though the High Court has, as such, directed and issued the writ of mandamus directing ONGC to finalize the contract with the writ applicant on the condition that the writ applicant shall lift gas within 65 days from the date of allotment, instead of allowing the writ petition and making the Rule absolute, High Court has used the word writ petition is disposed of. Once the writ of mandamus was issued, instead of disposing of the writ petition, the High Court ought to have allowed the writ petition.5.0. Even otherwise also, the impugned order passed by the High Court is unsustainable in as such no reasons whatsoever have been assigned by the High Court on merits. Except narrating the prayer clause and two earlier orders passed on 19.08.2021 and 16.09.2021 there is no further discussion by the High Court on merits of the matter.
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Mangi Lal Vs. State of Maharashtra | was further convicted for contravening Buldana District Price Control Order, 1965, and sentenced to rigorous imprisonment for six months and fine of Rs. 500, in default rigorous imprisonment for six months. He was also convicted for contravening S. 3 of the Maharashtra Declaration of Stock Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500, in default further rigorous imprisonment for six months. The sentences of imprisonment on each account were directed to run concurrently. The Magistrate further ordered that the muddemal before the Court be confiscated to the Government.4. The appellant appealed unsuccessfully to the Sessions Judge. He then filed a revision before the High Court. The High Court set aside the conviction and sentence passed on the appellant in respect of contravention of Cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964. But while maintaining the conviction for the other order two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower Courts sentenced the accused to imprisonment already undergone and fine of Rs. 1,000 on each of the two count. The High Court observed:"The order regarding forfeiture of the juar seized from the house of the accused is maintained. The juar seized from the house in the occupation of Ratanlal will, however, be released."5. The learned counsel contends that the High Court having set aside the conviction and sentence in respect of contravention of Cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964, it was illegal to maintain the order regarding forfeiture of the juar seized from the house of the appellant because, he says, the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, and the Buldana District Juar (Price Control) Order, 1965, did not contain any provision authorising the Court to forfeit the juar, the subject-matter of the contravention of these two Orders.6. Rule 125 (9) provides:"(a) If any persons contravenes any provision of this rule or any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both: Provided(b) If any order made under this rule so provides, any Court trying a contravention of the order may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to Government."7.The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in R. 125 (9) (b).The only provision contained in the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of Jowar are found. This obviously does not enable the Court to order forfeiture of juar.8. The Buldana District juar (Price Control) Order, 1965,it is true, authorises the Collector to seize stocks but does not enable the Court to forfeit the juar.In the result, we hold that the order of the High Court maintaining the order of forfeiture is illegal and liable to be set aside.9. On the second point the learned counsel for the appellant contends that R. 141 (2) of the Defence of India Rules, 1962, is ultra vires because it lays down a rule of evidence contrary to the law contained in Section 114 of the Indian Evidence Act. Rule 141 (2) is in the following terms:"141 (2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules, compliance with sub-rule (1), or where the Order was notified, the notification of the Order shall be conclusive proof that he was so informed; but a failure to comply with sub-rule (1)-(i) shall not preclude proof by other means that he had information of the order,(ii) shall not affect the validity of the order.Section 3 of the Defence of India Act enables the Central Government, by notification in the official Gazette, to make such rules as appear to be necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. Sub-section (2) mentions various matters on which rules can be made, but this is without prejudice to the generality of the powers conferred by sub-section (1).10. It seems to us that R. 141 (2) is within the powers conferred by Section 3 (1) of the Defence of India Act. The fact that the rule is contrary to an existing Act does not matter because Section 43 of the Defence of India Act provides that"the provisions of this Actor any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act."The section contemplates that the rules may be inconsistent with existing legislation but by virtue of S. 43, if otherwise valid, they would have effect notwithstanding that they are inconsistent with existing legislation. We used the words if otherwise valid because the rules must fall within the powers given under S. 3 (1). Section 3 gives very wide powers. It seems to us that R. 141 (2) fall within Sec. 3 because it is essential to the scheme of the Defence of India Rules. The Rule must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication.11. The learned counsel has not been able to show us any case in which a rule like R. 141 (2) has been challenged, much less declared ultra vires, both in England and in India. | 1[ds]7.The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in R. 125 (9) (b).The only provision contained in the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of Jowar are found. This obviously does not enable the Court to order forfeiture of juar.8. The Buldana District juar (Price Control) Order, 1965,it is true, authorises the Collector to seize stocks but does not enable the Court to forfeit the juar.In the result, we hold that the order of the High Court maintaining the order of forfeiture is illegal and liable to be set aside.It seems to us that R. 141 (2) is within the powers conferred by Section 3 (1) of the Defence of India Act. The fact that the rule is contrary to an existing Act does not matter because Section 43 of the Defence of India Act provides that"the provisions of this Actor any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than thissection contemplates that the rules may be inconsistent with existing legislation but by virtue of S. 43, if otherwise valid, they would have effect notwithstanding that they are inconsistent with existing legislation. We used the words if otherwise valid because the rules must fall within the powers given under S. 3 (1). Section 3 gives very wide powers. It seems to us that R. 141 (2) fall within Sec. 3 because it is essential to the scheme of the Defence of India Rules. The Rule must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication.11. The learned counsel has not been able to show us any case in which a rule like R. 141 (2) has been challenged, much less declared ultra vires, both in England and in India. | 1 | 1,460 | 413 | ### Instruction:
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was further convicted for contravening Buldana District Price Control Order, 1965, and sentenced to rigorous imprisonment for six months and fine of Rs. 500, in default rigorous imprisonment for six months. He was also convicted for contravening S. 3 of the Maharashtra Declaration of Stock Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500, in default further rigorous imprisonment for six months. The sentences of imprisonment on each account were directed to run concurrently. The Magistrate further ordered that the muddemal before the Court be confiscated to the Government.4. The appellant appealed unsuccessfully to the Sessions Judge. He then filed a revision before the High Court. The High Court set aside the conviction and sentence passed on the appellant in respect of contravention of Cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964. But while maintaining the conviction for the other order two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower Courts sentenced the accused to imprisonment already undergone and fine of Rs. 1,000 on each of the two count. The High Court observed:"The order regarding forfeiture of the juar seized from the house of the accused is maintained. The juar seized from the house in the occupation of Ratanlal will, however, be released."5. The learned counsel contends that the High Court having set aside the conviction and sentence in respect of contravention of Cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964, it was illegal to maintain the order regarding forfeiture of the juar seized from the house of the appellant because, he says, the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, and the Buldana District Juar (Price Control) Order, 1965, did not contain any provision authorising the Court to forfeit the juar, the subject-matter of the contravention of these two Orders.6. Rule 125 (9) provides:"(a) If any persons contravenes any provision of this rule or any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both: Provided(b) If any order made under this rule so provides, any Court trying a contravention of the order may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to Government."7.The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in R. 125 (9) (b).The only provision contained in the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of Jowar are found. This obviously does not enable the Court to order forfeiture of juar.8. The Buldana District juar (Price Control) Order, 1965,it is true, authorises the Collector to seize stocks but does not enable the Court to forfeit the juar.In the result, we hold that the order of the High Court maintaining the order of forfeiture is illegal and liable to be set aside.9. On the second point the learned counsel for the appellant contends that R. 141 (2) of the Defence of India Rules, 1962, is ultra vires because it lays down a rule of evidence contrary to the law contained in Section 114 of the Indian Evidence Act. Rule 141 (2) is in the following terms:"141 (2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules, compliance with sub-rule (1), or where the Order was notified, the notification of the Order shall be conclusive proof that he was so informed; but a failure to comply with sub-rule (1)-(i) shall not preclude proof by other means that he had information of the order,(ii) shall not affect the validity of the order.Section 3 of the Defence of India Act enables the Central Government, by notification in the official Gazette, to make such rules as appear to be necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. Sub-section (2) mentions various matters on which rules can be made, but this is without prejudice to the generality of the powers conferred by sub-section (1).10. It seems to us that R. 141 (2) is within the powers conferred by Section 3 (1) of the Defence of India Act. The fact that the rule is contrary to an existing Act does not matter because Section 43 of the Defence of India Act provides that"the provisions of this Actor any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act."The section contemplates that the rules may be inconsistent with existing legislation but by virtue of S. 43, if otherwise valid, they would have effect notwithstanding that they are inconsistent with existing legislation. We used the words if otherwise valid because the rules must fall within the powers given under S. 3 (1). Section 3 gives very wide powers. It seems to us that R. 141 (2) fall within Sec. 3 because it is essential to the scheme of the Defence of India Rules. The Rule must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication.11. The learned counsel has not been able to show us any case in which a rule like R. 141 (2) has been challenged, much less declared ultra vires, both in England and in India.
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7.The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in R. 125 (9) (b).The only provision contained in the Maharashtra Jowar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of Jowar are found. This obviously does not enable the Court to order forfeiture of juar.8. The Buldana District juar (Price Control) Order, 1965,it is true, authorises the Collector to seize stocks but does not enable the Court to forfeit the juar.In the result, we hold that the order of the High Court maintaining the order of forfeiture is illegal and liable to be set aside.It seems to us that R. 141 (2) is within the powers conferred by Section 3 (1) of the Defence of India Act. The fact that the rule is contrary to an existing Act does not matter because Section 43 of the Defence of India Act provides that"the provisions of this Actor any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than thissection contemplates that the rules may be inconsistent with existing legislation but by virtue of S. 43, if otherwise valid, they would have effect notwithstanding that they are inconsistent with existing legislation. We used the words if otherwise valid because the rules must fall within the powers given under S. 3 (1). Section 3 gives very wide powers. It seems to us that R. 141 (2) fall within Sec. 3 because it is essential to the scheme of the Defence of India Rules. The Rule must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication.11. The learned counsel has not been able to show us any case in which a rule like R. 141 (2) has been challenged, much less declared ultra vires, both in England and in India.
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SHANKARLAL NADANI Vs. SOHANLAL JAIN | suit for proceedings filed and pending. The relevant clause reads as under: 13-A- no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of clause 13. 25. The dispute in the said case was in respect of an open plot. As per the landlord, the tenancy was deemed to have expired on 10.4.1986 in view of Section 106 of the TP Act before Section 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 came into force. The High Court held that no appeal was pending against the tenant when Section 13-A was introduced. This Court remanded the matter back to the High Court as the High Court has not examined the question as to whether the amendment was retrospective or prospective. This Court held as under: 8. The High Court further concluded that the amendments have no retrospective effect. The provision came into force when the appeal was pending. Therefore, though the provision is prospective in force, has retroactive effect. This provision merely provides for a limitation to be imposed for the future which in no way affects anything done by a party in the past and statutes providing for new remedies for enforcement of an existing right will apply to future as well as past causes of action. The reason being that the said statutes do not affect existing rights and in the present case, the insistence is upon obtaining of permission of the Controller to enforce a decree for eviction and it is, therefore, not retrospective in effect at all, since it has only retroactive force. xx xx xx 10. The High Court further took the view that the expression premises in the Act (sic Order) does not state as to when the amendment was to be effective as it does not state whether the amendment was retrospective or prospective. The same is on the statute-book on the date on which the suit or proceeding is pending for purpose of eviction and cannot ignore the provision on the statute-book. Therefore, the view of the High Court on this aspect of the matter also, is incorrect. The arguments advanced on behalf of the respondents that these amendments are retrospective in character and could not have been made in the absence of an authority under the main enactment by virtue of which such order is made are untenable. 26. The facts of the said case do not go to the extent to say that the decree of the civil court cannot be executed if the Act has been extended to an urban area. 27. Mr. Sankaranarayanan has also referred to the judgment of this Court reported as Subhash Chander & Ors. v. Bharat Petroleum Corporation Ltd. (BPCL) & Anr. 2022 SCC OnLine SC 98 wherein the landlord had filed a civil suit for possession though the premises was situated in the urban area governed by the Haryana Rent Act. It has been held that such civil suit is not maintainable as the remedy lies under the Haryana Rent Act. This Court held as under: 25. In the given circumstances, we are of the considered view that no error was committed by the High Court in arriving to a conclusion that even after the expiry of the lease term of the lease deed, the respondents became a statutory tenant and jurisdiction of the Civil Court is impliedly barred and could be evicted only under the provisions of the Act 1973. 28. Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the civil court from the date the Act became applicable. The Act has come into force in respect of the premises in question on 11.5.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the area in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit. 29. Still further, one of the principles is that the rights of the parties have to be determined on the date when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Recently, this Bench in a judgment reported as ECGC Limited v. Mokul Shriram EPC JV 2022 SCC OnLine SC 184 was examining the question as to whether the condition of deposit while filing appeal under the Consumer Protection Act, 2019 would be applicable or the provisions as it existed under the Consumer Protection Act, 1986 when the complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N. Subbiah Choudhry & Ors. AIR 1957 SC 540 , Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur AIR 1967 SC 344 and Hardeodas Jagannath v. The State of Assam AIR 1970 SC 724 held that the provisions of the Consumer Protection Act, 2019 would not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the Judgement and Decree passed in the suit for possession does not suffer from any illegality. | 0[ds]8. The civil court ceases to have jurisdiction to hear and decide the petitions as only the Rent Tribunal would have jurisdiction to decide such dispute but it does not deal with the suits and proceedings initiated and pending on the date of applicability of the Act to the municipal area. There is no express or implied provision in the Act in respect of the decrees passed prior to the applicability of the Act to the area in question. The notification issued cannot have any retrospective application or the Act contemplates the applicability of the Act with retrospective effect.9. We are of the opinion that whether or not the decree of eviction can be passed after the Act became applicable would depend upon the language of the statute.11. In Om Prakash Gupta v. DIG Vijendrapal Gupta (1982) 2 SCC 61, a question arose whether the Rent Act would be applicable to a building which was constructed prior to the applicability of the Rent Act and whether the exemption granted to newly constructed buildings would be available to such building. It was held that the Rent Act is not applicable to a building which does not have a standing for ten years, even if the building was constructed prior to the applicability of the State Urban Rent Act to the area in question. However, in a later judgment reported as Vineet Kumar v. Mangal Sain Wadhera (1984) 3 SCC 352, it was held that under the U.P. Rent Act, even if the suit was filed within the exemption period and if the decree is not passed, the decree would be not executable after the Rent Act will became applicable. This Court held as under:17. The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be not given to the appellant. Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section. Sub-section (4) of Section 20 stipulates that in any suit for eviction on the grounds mentioned in clause (a) to sub-section (2) viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlords cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be given to the tenant if the conditions contemplated in those sections are satisfied. Section 39 also indicates that the parties are entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary.14. In Mani Subrat Jain v. Raja Ram Vohra (1980) 1 SCC 1, the provisions of East Punjab Rent Restriction Act, 1949 (For short, the Punjab Rent Act) were being examined. It was a case where a consent decree was passed by the civil court but before the decree could be executed, the Punjab Rent Act was extended to the urban area of Chandigarh. Section 13 of the said Act is to the effect that a tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of the Act or otherwise, before or after the termination of the tenancy, except in accordance with the provisions of this section. Considering the said provision, this Court held that a person who has suffered a decree of the civil court continues to be tenant and since he was in possession on the date when the Punjab Rent Act was extended to Chandigarh, therefore, the tenant is not liable to be evicted after the commencement of the Punjab Rent Act. Such judgment was in view of Section 13 of the Punjab Rent Act which bars the execution of a decree passed before or after the commencement of the Punjab Rent Act which reads thus:13. Eviction of tenants. - (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Section, [or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amended].16. A perusal of the said provisions goes to show that the tenant cannot be evicted except in accordance with the provisions of the said Act. Considering the said provisions, this Court in a judgment reported as Atma Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 held that if the suit has been filed within the exemption period of ten years, the decree could be executed. This Court held as under:8. It is well-settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim actus curiae neminem gravabit — an act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.9. xxx xxx If the immunity from the operation of the Rent Act is made and depended upon that ultimate disposal of the case within the period of exemption of ten years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well-settled principle that the rights of the parties crystallise to (sic on) the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Digvijendrapal Gupta [(1982) 2 SCC 61 : (1982) 3 SCR 491 ] , the meaningful construction must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of ten years. Once rights crystallise the adjudication must be in accordance with law.17. In a three-judge Bench judgment reported as Shri Kishan & Ors. v. Manoj Kumar & Ors. (1998) 2 SCC 710, the judgment of this Court in Vineet Kumar was specifically overruled. This Court held as under:20. Thus it is seen that this Court has been consistently taking the view that a suit instituted during the period of exemption could be continued and a decree passed therein could be executed even though the period of exemption came to an end during the pendency of the suit. The only discordant note was struck in Vineet Kumar v. Mangal Sain Wadhera [(1984) 3 SCC 352] . We have noticed that several decisions subsequent thereto have held that Vineet Kumar [(1984) 3 SCC 352] is not good law. We have already construed the relevant provisions of the Act and pointed out that there is nothing in the Act which prevents the civil court from continuing the suit and passing a decree which could be executed.18. Thus, under the Punjab Rent Act, the provision is explicit that no decree for eviction passed before or after the commencement of the Act can be executed whereas under the Haryana Rent Act, a tenant cannot be evicted except in accordance with the provisions of the Haryana Rent Act. It has also been held in the judgments referred to above that in a suit filed within the exemption period, the decree could be passed by the civil court even if the premises are located within the urban area to which the Act is applicable. The consistent view of this Court is that the decree can be validly executed if the suit was filed within the exemption period, except Vineet Kumar, which was specifically held to be not laying good law.20. Out of the various judgments referred to by the learned counsel for the appellants, the judgment relied upon in Rajender Bansal & Ors. v. Bhuru (Dead) through Legal Representatives & Ors. (2017) 4 SCC 202 was dealing with Haryana Rent Act. The landlords were the appellants who had filed suit for eviction of the respondents, their tenants. The suit was filed in the civil court. The premises in question were outside the ambit of rent legislation on the day the suit was filed. However, during the pendency of the suit and before it could be finally decided, the area in question was brought within the sweep of rent legislations by requisite notifications. This Court concluded the issue against the tenants wherein it was held as under:18. From the aforesaid discussion in Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284] , Vineet Kumar [Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352] , Ram Saroop Rai [Ram Saroop Rai v. Lilavati, (1980) 3 SCC 452] , Ramesh Chandra [Ramesh Chandra v. III Addl. District Judge, (1992) 1 SCC 751] and Shri Kishan [Shri Kishan v. Manoj Kumar, (1998) 2 SCC 710] cases, the apparent principles which can be culled out, forming the ratio decidendi of those cases, are as under:18.1. Rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the law applicable on the date of filing of the suit will continue to apply until the suit is disposed of or adjudicated.18.2. If during the pendency of the suit, the Rent Act becomes applicable to the premises in question, that would be of no consequence and it would not take away the jurisdiction of the civil court to dispose of a suit validly instituted.18.3. In order to oust the jurisdiction of the civil court, there must be a specific provision in the Act taking away the jurisdiction of the civil court in respect of those cases also which were validly instituted before the date when protection of the Rent Act became available in respect of the said area/premises/tenancy.18.4. In case the aforesaid position is not accepted and the protection of the Rent Act is extended even in respect of suit validly instituted prior in point of time when there was no such protection under the Act, it will have the consequence of making the decree, that is obtained prior to the Rent Act becoming applicable to the said area/premises, unexecutable after the application of these Rent Acts in respect of such premises. This would not be in consonance with the legislative intent.23. When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284] and Mansoor Khan [Mansoor Khan v. Motiram Harebhan Kharat, (2002) 5 SCC 462] , etc. as under the scheme of the Rent Act, no protection to the ex-tenants is provided and no provision is made excluding the jurisdiction of the civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately the suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where the suit premises are situate under the Rent Act. It will be travesty of justice if the appellant landlords are deprived of the fruits of the said decree.24. We are, thus, unable to accept the view taken by the High Court. Accordingly, this appeal is allowed and the judgment of the first appellate court as well as the High Court is set aside. As the only contention which was taken by the respondents before the first appellate court, challenging the decree of the trial court, was that the civil court ceased to have jurisdiction, the said first appeal preferred by the respondents stands dismissed thereby restoring the decree passed by the trial court. There shall, however, be no order as to costs.21. In the aforesaid case, the Haryana Rent Act provided that no decree could be executed after the commencement of the Haryana Rent Act whereas, the Act herein has no such or similar provision. Therefore, this Court in the said judgment held that decree for eviction can be executed if suit has been filed when the Act was not applicable to the premises in question. We have our reservations in respect of such finding in the context of Haryana Rent Act but such question may be examined in an appropriate case. The Haryana Rent Act was enacted after repeal of Punjab Rent Act, which provides that a tenant in possession of a building shall not be evicted except in accordance with the provisions of Section 13 of the said Act.24. Reference has been made to Dilip v. Mohd. Azizul Haq & Anr. (2000) 3 SCC 607 wherein Section 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 as amended on 26.10.1989 barred the passing of a decree of eviction in a suit for proceedings filed and pending. The relevant clause reads as under:13-A- no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of clause 13.25. The dispute in the said case was in respect of an open plot. As per the landlord, the tenancy was deemed to have expired on 10.4.1986 in view of Section 106 of the TP Act before Section 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 came into force. The High Court held that no appeal was pending against the tenant when Section 13-A was introduced. This Court remanded the matter back to the High Court as the High Court has not examined the question as to whether the amendment was retrospective or prospective. This Court held as under:8. The High Court further concluded that the amendments have no retrospective effect. The provision came into force when the appeal was pending. Therefore, though the provision is prospective in force, has retroactive effect. This provision merely provides for a limitation to be imposed for the future which in no way affects anything done by a party in the past and statutes providing for new remedies for enforcement of an existing right will apply to future as well as past causes of action. The reason being that the said statutes do not affect existing rights and in the present case, the insistence is upon obtaining of permission of the Controller to enforce a decree for eviction and it is, therefore, not retrospective in effect at all, since it has only retroactive force.10. The High Court further took the view that the expression premises in the Act (sic Order) does not state as to when the amendment was to be effective as it does not state whether the amendment was retrospective or prospective. The same is on the statute-book on the date on which the suit or proceeding is pending for purpose of eviction and cannot ignore the provision on the statute-book. Therefore, the view of the High Court on this aspect of the matter also, is incorrect. The arguments advanced on behalf of the respondents that these amendments are retrospective in character and could not have been made in the absence of an authority under the main enactment by virtue of which such order is made are untenable.26. The facts of the said case do not go to the extent to say that the decree of the civil court cannot be executed if the Act has been extended to an urban area.28. Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the civil court from the date the Act became applicable. The Act has come into force in respect of the premises in question on 11.5.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the area in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit.29. Still further, one of the principles is that the rights of the parties have to be determined on the date when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Recently, this Bench in a judgment reported as ECGC Limited v. Mokul Shriram EPC JV 2022 SCC OnLine SC 184 was examining the question as to whether the condition of deposit while filing appeal under the Consumer Protection Act, 2019 would be applicable or the provisions as it existed under the Consumer Protection Act, 1986 when the complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N. Subbiah Choudhry & Ors. AIR 1957 SC 540 , Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur AIR 1967 SC 344 and Hardeodas Jagannath v. The State of Assam AIR 1970 SC 724 held that the provisions of the Consumer Protection Act, 2019 would not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the Judgement and Decree passed in the suit for possession does not suffer from any illegality. | 0 | 6,839 | 3,568 | ### Instruction:
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suit for proceedings filed and pending. The relevant clause reads as under: 13-A- no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of clause 13. 25. The dispute in the said case was in respect of an open plot. As per the landlord, the tenancy was deemed to have expired on 10.4.1986 in view of Section 106 of the TP Act before Section 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 came into force. The High Court held that no appeal was pending against the tenant when Section 13-A was introduced. This Court remanded the matter back to the High Court as the High Court has not examined the question as to whether the amendment was retrospective or prospective. This Court held as under: 8. The High Court further concluded that the amendments have no retrospective effect. The provision came into force when the appeal was pending. Therefore, though the provision is prospective in force, has retroactive effect. This provision merely provides for a limitation to be imposed for the future which in no way affects anything done by a party in the past and statutes providing for new remedies for enforcement of an existing right will apply to future as well as past causes of action. The reason being that the said statutes do not affect existing rights and in the present case, the insistence is upon obtaining of permission of the Controller to enforce a decree for eviction and it is, therefore, not retrospective in effect at all, since it has only retroactive force. xx xx xx 10. The High Court further took the view that the expression premises in the Act (sic Order) does not state as to when the amendment was to be effective as it does not state whether the amendment was retrospective or prospective. The same is on the statute-book on the date on which the suit or proceeding is pending for purpose of eviction and cannot ignore the provision on the statute-book. Therefore, the view of the High Court on this aspect of the matter also, is incorrect. The arguments advanced on behalf of the respondents that these amendments are retrospective in character and could not have been made in the absence of an authority under the main enactment by virtue of which such order is made are untenable. 26. The facts of the said case do not go to the extent to say that the decree of the civil court cannot be executed if the Act has been extended to an urban area. 27. Mr. Sankaranarayanan has also referred to the judgment of this Court reported as Subhash Chander & Ors. v. Bharat Petroleum Corporation Ltd. (BPCL) & Anr. 2022 SCC OnLine SC 98 wherein the landlord had filed a civil suit for possession though the premises was situated in the urban area governed by the Haryana Rent Act. It has been held that such civil suit is not maintainable as the remedy lies under the Haryana Rent Act. This Court held as under: 25. In the given circumstances, we are of the considered view that no error was committed by the High Court in arriving to a conclusion that even after the expiry of the lease term of the lease deed, the respondents became a statutory tenant and jurisdiction of the Civil Court is impliedly barred and could be evicted only under the provisions of the Act 1973. 28. Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the civil court from the date the Act became applicable. The Act has come into force in respect of the premises in question on 11.5.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the area in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit. 29. Still further, one of the principles is that the rights of the parties have to be determined on the date when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Recently, this Bench in a judgment reported as ECGC Limited v. Mokul Shriram EPC JV 2022 SCC OnLine SC 184 was examining the question as to whether the condition of deposit while filing appeal under the Consumer Protection Act, 2019 would be applicable or the provisions as it existed under the Consumer Protection Act, 1986 when the complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N. Subbiah Choudhry & Ors. AIR 1957 SC 540 , Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur AIR 1967 SC 344 and Hardeodas Jagannath v. The State of Assam AIR 1970 SC 724 held that the provisions of the Consumer Protection Act, 2019 would not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the Judgement and Decree passed in the suit for possession does not suffer from any illegality.
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Act whereas, the Act herein has no such or similar provision. Therefore, this Court in the said judgment held that decree for eviction can be executed if suit has been filed when the Act was not applicable to the premises in question. We have our reservations in respect of such finding in the context of Haryana Rent Act but such question may be examined in an appropriate case. The Haryana Rent Act was enacted after repeal of Punjab Rent Act, which provides that a tenant in possession of a building shall not be evicted except in accordance with the provisions of Section 13 of the said Act.24. Reference has been made to Dilip v. Mohd. Azizul Haq & Anr. (2000) 3 SCC 607 wherein Section 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 as amended on 26.10.1989 barred the passing of a decree of eviction in a suit for proceedings filed and pending. The relevant clause reads as under:13-A- no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of clause 13.25. The dispute in the said case was in respect of an open plot. As per the landlord, the tenancy was deemed to have expired on 10.4.1986 in view of Section 106 of the TP Act before Section 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 came into force. The High Court held that no appeal was pending against the tenant when Section 13-A was introduced. This Court remanded the matter back to the High Court as the High Court has not examined the question as to whether the amendment was retrospective or prospective. This Court held as under:8. The High Court further concluded that the amendments have no retrospective effect. The provision came into force when the appeal was pending. Therefore, though the provision is prospective in force, has retroactive effect. This provision merely provides for a limitation to be imposed for the future which in no way affects anything done by a party in the past and statutes providing for new remedies for enforcement of an existing right will apply to future as well as past causes of action. The reason being that the said statutes do not affect existing rights and in the present case, the insistence is upon obtaining of permission of the Controller to enforce a decree for eviction and it is, therefore, not retrospective in effect at all, since it has only retroactive force.10. The High Court further took the view that the expression premises in the Act (sic Order) does not state as to when the amendment was to be effective as it does not state whether the amendment was retrospective or prospective. The same is on the statute-book on the date on which the suit or proceeding is pending for purpose of eviction and cannot ignore the provision on the statute-book. Therefore, the view of the High Court on this aspect of the matter also, is incorrect. The arguments advanced on behalf of the respondents that these amendments are retrospective in character and could not have been made in the absence of an authority under the main enactment by virtue of which such order is made are untenable.26. The facts of the said case do not go to the extent to say that the decree of the civil court cannot be executed if the Act has been extended to an urban area.28. Under the Act in question, Section 18 does not talk about the validity of any decree of the civil court but only restricts the jurisdiction of the civil court from the date the Act became applicable. The Act has come into force in respect of the premises in question on 11.5.2015 i.e., after the civil suit was filed, therefore, the decree could validly be passed and executed. After the applicability of the Act to the area in question, the landlord and tenant dispute can be raised only before the Rent Tribunal but not before the civil court. However, a suit filed before the civil court prior to the applicability of the Act has to be decided by the civil court. A decree passed by the civil court is valid and executable which is not interdicted by the applicability of the Act to the area in question. The Act is applicable to the area in question from the date the notification came into force and it does not bar the decree of the civil court or the pendency of such civil suit.29. Still further, one of the principles is that the rights of the parties have to be determined on the date when lis commences i.e., on the date of filing of the suit. The plaintiff is entitled to decree on that day when he initiated the proceedings, therefore, rights of the parties have to be examined as on the said day. Recently, this Bench in a judgment reported as ECGC Limited v. Mokul Shriram EPC JV 2022 SCC OnLine SC 184 was examining the question as to whether the condition of deposit while filing appeal under the Consumer Protection Act, 2019 would be applicable or the provisions as it existed under the Consumer Protection Act, 1986 when the complaint was filed would be applicable. This Bench considering the Constitution Bench judgments in Garikapati Veeraya v. N. Subbiah Choudhry & Ors. AIR 1957 SC 540 , Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P., Nagpur AIR 1967 SC 344 and Hardeodas Jagannath v. The State of Assam AIR 1970 SC 724 held that the provisions of the Consumer Protection Act, 2019 would not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the Judgement and Decree passed in the suit for possession does not suffer from any illegality.
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New India Assurance Co.Ltd Vs. Bismillah Bai | the amount of Rs.25,000/-, deposited with the Tribunal by an interim order, from the claimants with interest at the rate of 9% per annum. However, an award for a sum of Rs.3,12,000/- was passed against the driver and owner of the truck in question. 7. Claimants, however, preferred an appeal against the said award. 8. The High Court by reason of the impugned judgment set aside that part of the order of the Tribunal whereby the appellant herein was exonerated from payment of any liability for reimbursement of the claim so far as the driver and owner of the jeep were concerned, stating: "7. So far as finding in relation exonerating of Insurance Company is concerned, we are inclined to reverse the same in favour of claimants. Firstly, no evidence in rebuttal was led by the Company and then for all practical purposes remained exparte in the sense that except to file written statement, they did nothing. On the other hand, the claimants led evidence and discharged their initial burden. Israel was neither owner of the offending Jeep, not insurer. He was, therefore, third party, as one of the person sitting in Jeep. Ajij was the driver. 9. There is nothing on record to hold that Jeep was responsible for causing accident and hence, claimants are not entitled to get any compensation. The driver of Truck was not examined. We cannot conclude on the strength of evidence that Jeep was responsible for the accident. " In this view of the matter, we set aside the finding of the Tribunal on this issue and modify the impugned award by passing the same also against the insurance company i.e. respondent No.3/non applicant No.3." 10. A bare perusal of the order clearly shows that no reason whatsoever has been assigned in support thereof. The finding of the learned Tribunal and the material noticed by it for the said purpose has not been considered by the High Court. 11. The question as to whether the driver of the jeep or the truck and/or both of them were responsible for negligence in driving their respective vehicles, which led to the said accident is essentially a question of fact. While reversing the said finding of fact, so as to fasten the liability on the insurance company, the High Court was required to assign sufficient and cogent reasons. No such finding to the effect that both driver as also the jeep contributed to the negligence having been recorded by the High Court, the question of fastening the joint liability by the insurance company did not arise. Only because the truck was not insured, the same by itself did not mean that the appellant-insurance company can be held liable to reimburse the claim to the claimants wherefor liability had been incurred by the owner and driver of the truck and, thereofore, no liability has been incurred by the driver and owner of the jeep is concerned. The Tribunal has categorically recorded a finding that the driver of the jeep was not driving his jeep rashly and negligently and he was not at fault and that the accident occurred due to rash and negligent driving of truck by its driver. 12. Since, the High Court has not reversed this finding of the Tribunal, fastening of the liability on the insurance company which is the insurer of the jeep did not arise. 13. Even otherwise, the insurance company cannot be held liable to pay compensation to the claimants in view of the decision of this Court in Oriental Insurance Company Limited v. Sudhakaran K.V. & Ors. [(2008) 7 SCC 428] wherein this Court opined: "11. This Court in a catena of decisions has categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. [See New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 ]12. A Division Bench of this Court in United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. extended the said principle to all other categories of vehicles also, stating as under:In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger." It was held: "14. The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract.15. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle.16. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was traveling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other relative. In the sense of the term which is used in common parlance, she might not be even a passenger.In view of the terms of the contract of insurance, however, she would not be covered thereby." 14. | 1[ds]While reversing the said finding of fact, so as to fasten the liability on the insurance company, the High Court was required to assign sufficient and cogent reasons. No such finding to the effect that both driver as also the jeep contributed to the negligence having been recorded by the High Court, the question of fastening the joint liability by the insurance company did not arise. Only because the truck was not insured, the same by itself did not mean that the appellant-insurance company can be held liable to reimburse the claim to the claimants wherefor liability had been incurred by the owner and driver of the truck and, thereofore, no liability has been incurred by the driver and owner of the jeep is concerned. The Tribunal has categorically recorded a finding that the driver of the jeep was not driving his jeep rashly and negligently and he was not at fault and that the accident occurred due to rash and negligent driving of truck by itsthe High Court has not reversed this finding of the Tribunal, fastening of the liability on the insurance company which is the insurer of the jeep did nototherwise, the insurance company cannot be held liable to pay compensation to the claimants in view of the decision of this Court in Oriental Insurance Company Limited v. Sudhakaran K.V. & Ors. [(2008) 7 SCC 428] wherein this CourtThis Court in a catena of decisions has categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. [See New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 ]12. A Division Bench of this Court in United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. extended the said principle to all other categories of vehicles also, stating as under:In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous4. The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract.15. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle.16. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was traveling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other relative. In the sense of the term which is used in common parlance, she might not be even a passenger.In view of the terms of the contract of insurance, however, she would not be covered thereby." | 1 | 1,548 | 685 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the amount of Rs.25,000/-, deposited with the Tribunal by an interim order, from the claimants with interest at the rate of 9% per annum. However, an award for a sum of Rs.3,12,000/- was passed against the driver and owner of the truck in question. 7. Claimants, however, preferred an appeal against the said award. 8. The High Court by reason of the impugned judgment set aside that part of the order of the Tribunal whereby the appellant herein was exonerated from payment of any liability for reimbursement of the claim so far as the driver and owner of the jeep were concerned, stating: "7. So far as finding in relation exonerating of Insurance Company is concerned, we are inclined to reverse the same in favour of claimants. Firstly, no evidence in rebuttal was led by the Company and then for all practical purposes remained exparte in the sense that except to file written statement, they did nothing. On the other hand, the claimants led evidence and discharged their initial burden. Israel was neither owner of the offending Jeep, not insurer. He was, therefore, third party, as one of the person sitting in Jeep. Ajij was the driver. 9. There is nothing on record to hold that Jeep was responsible for causing accident and hence, claimants are not entitled to get any compensation. The driver of Truck was not examined. We cannot conclude on the strength of evidence that Jeep was responsible for the accident. " In this view of the matter, we set aside the finding of the Tribunal on this issue and modify the impugned award by passing the same also against the insurance company i.e. respondent No.3/non applicant No.3." 10. A bare perusal of the order clearly shows that no reason whatsoever has been assigned in support thereof. The finding of the learned Tribunal and the material noticed by it for the said purpose has not been considered by the High Court. 11. The question as to whether the driver of the jeep or the truck and/or both of them were responsible for negligence in driving their respective vehicles, which led to the said accident is essentially a question of fact. While reversing the said finding of fact, so as to fasten the liability on the insurance company, the High Court was required to assign sufficient and cogent reasons. No such finding to the effect that both driver as also the jeep contributed to the negligence having been recorded by the High Court, the question of fastening the joint liability by the insurance company did not arise. Only because the truck was not insured, the same by itself did not mean that the appellant-insurance company can be held liable to reimburse the claim to the claimants wherefor liability had been incurred by the owner and driver of the truck and, thereofore, no liability has been incurred by the driver and owner of the jeep is concerned. The Tribunal has categorically recorded a finding that the driver of the jeep was not driving his jeep rashly and negligently and he was not at fault and that the accident occurred due to rash and negligent driving of truck by its driver. 12. Since, the High Court has not reversed this finding of the Tribunal, fastening of the liability on the insurance company which is the insurer of the jeep did not arise. 13. Even otherwise, the insurance company cannot be held liable to pay compensation to the claimants in view of the decision of this Court in Oriental Insurance Company Limited v. Sudhakaran K.V. & Ors. [(2008) 7 SCC 428] wherein this Court opined: "11. This Court in a catena of decisions has categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. [See New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 ]12. A Division Bench of this Court in United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. extended the said principle to all other categories of vehicles also, stating as under:In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger." It was held: "14. The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract.15. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle.16. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was traveling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other relative. In the sense of the term which is used in common parlance, she might not be even a passenger.In view of the terms of the contract of insurance, however, she would not be covered thereby." 14.
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### Explanation:
While reversing the said finding of fact, so as to fasten the liability on the insurance company, the High Court was required to assign sufficient and cogent reasons. No such finding to the effect that both driver as also the jeep contributed to the negligence having been recorded by the High Court, the question of fastening the joint liability by the insurance company did not arise. Only because the truck was not insured, the same by itself did not mean that the appellant-insurance company can be held liable to reimburse the claim to the claimants wherefor liability had been incurred by the owner and driver of the truck and, thereofore, no liability has been incurred by the driver and owner of the jeep is concerned. The Tribunal has categorically recorded a finding that the driver of the jeep was not driving his jeep rashly and negligently and he was not at fault and that the accident occurred due to rash and negligent driving of truck by itsthe High Court has not reversed this finding of the Tribunal, fastening of the liability on the insurance company which is the insurer of the jeep did nototherwise, the insurance company cannot be held liable to pay compensation to the claimants in view of the decision of this Court in Oriental Insurance Company Limited v. Sudhakaran K.V. & Ors. [(2008) 7 SCC 428] wherein this CourtThis Court in a catena of decisions has categorically held that a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into by and between the insurer and the owner of the vehicle in terms of Section 147 of the Act. [See New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223 ]12. A Division Bench of this Court in United India Insurance Co. Ltd., Shimla v. Tilak Singh and Ors. extended the said principle to all other categories of vehicles also, stating as under:In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous4. The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract.15. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle.16. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was traveling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other relative. In the sense of the term which is used in common parlance, she might not be even a passenger.In view of the terms of the contract of insurance, however, she would not be covered thereby."
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Commissioner Of Income Tax, Hyd Vs. M/S. P.J. Chemicals Ltd | to the character and nature of a subsidy whether it was really intended to subsidise the cost of the capital or was intended as an incentive to encourage entrepreneurs to move to backward areas and establish industries, the specified percentage of the fixed capital cost which is the basis for determining the subsidy being only a measure adopted under the scheme to quantify the financial aid. The contention is that it is not a payment, directly or indirectly, to meet any portion of the "actual cost" but intended as an incentive to entrepreneurs, its quantification determined at a percentage of the fixed capital cost 17. In Godavari Plywoods case, the Andhra Pradesh High Court, adopting this view, observed "Nowhere had the scheme provided as to how the subsidy should be utilised and for which assets. It was open to the assessee to legitimately reduce the cost of land in its books of account to the full extent of the subsidy, in which case the cost of plant and machinery would remain at invoice price uninfluenced by the amount of subsidy. The amount received by way of subsidy could be utilised for any purpose such as acquiring land on which no depreciation was admissible or on plant and machinery or for erection of buildings or for working capital or for repaying the loans already borrowed. Hence, unless the subsidy received had a nexus, direct or indirect, to meet a portion of the actual cost of any specific capital asset, it could not be brought within the purview of Section 43(1) of the Act. Therefore, the subsidy could not be deducted from the actual cost of the assets to the assessee and depreciation should be allowed without reducing the same by the amount of subsidy granted." * In CIT v. Grace Paper Industries (P) Ltd. the Gujarat High Court said : (ITR headnote) "The dictionary meaning of subsidy is a grant of money from a Government to a private enterprise considered as beneficial to the public. The Government, in order to determine the amount of cash subsidy, decided to follow one of the recognised methods of working it out on the basis of the amount invested by an entrepreneur in acquiring capital assets and specified a certain percentage of the amount so invested in the capital assets as cash subsidy. The basis adopted for determining the cash subsidy with reference to the cost or value of fixed assets was only a measure for quantifying the subsidy and the subsidy was not given for the specific purpose of meeting any portion of the cost of the fixed assets. Consequently, the subsidy did not form part of the actual cost of plant and machinery within the meaning of Section 43 of the Income Tax Act, 1961. It cannot be deducted from the cost of assets in computing depreciation, development rebate and investment allowance." * 18. On the contrary in CIT v. Jindal Brothers Rice Mills the Punjab & Haryana High Court has said "When it is specified in the incentive policy that 15 per cent of the cost of plant, machinery and building would be provided by the State Government, the underlying object is to reduce the value of the plant, machinery and building by 15 per cent of the actual cost. The actual cost would so stand reduced within the meaning of Section 43(1) of the Act.... We are equally not impressed by the reasoning that the basis adopted for determining the cash subsidy with reference to the fixed capital cost is only a measure adopted and cannot make the subsidy as given only for the specific purpose of meeting any portion of the fixed capital costThe incentive by way of subsidy is given for each item separately and it would not be open to the assessee to appropriate the subsidy for a purpose other than that for which it was given to him. Even if the assessee wrongly maintains the account books and utilises the entire subsidy against the value of the land to reduce its cost, the Income Tax Officer would not overlook the matter and would appropriate the subsidy in reducing the cost of the machinery, plant and building for which the subsidy was specifically granted. There is a nexus between the cost of each item and the subsidy-under each head." 19. On a consideration of the matter the view that commends itself as acceptable is the one which has commended itself to the majority of the High Courts. It is, of course, not the numerical strength that prevails - though the fact that a particular view has commended itself to a majority of the High Courts in the country is a matter for consideration - but the tensile strength of the acceptable logic in those decisions. It is aptly said that a Judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result". In the present case the reasoning underlying, and implicit in, the conclusion reached by the majority of the High Courts cannot be said to be an unreasonable view and on a preponderance of preferability that view commends itself particularly in the context of a taxing statute. The expression "actual cost" needs to be interpreted liberally. The subsidy of the nature, we are concerned with, does not partake of the incidents which attract the conditions for their deductibility from "actual cost" 20. Government subsidy, it is not unreasonable to say, is an incentive not for the specific purpose of meeting a portion of the cost of the assets though quantified as or geared to a percentage of such cost. If that be so, it does not partake of the character of a payment intended either directly or indirectly to meet the "actual cost". We should prefer the reasoning of the majority of the High Courts to the one found acceptable by the High Court of Punjab and Haryana | 0[ds]11. Such rebate as obtains on the point turns on the definition of "actual cost" in Section 43(1) of the Income Tax Act, 1961. Section 43(1) provides definitions of certain terms and inter alia stipulates that for purposes of Sections 28 to 41 and 43, "actual cost" means "the actual cost of the assets to the assessee, reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority". Thus, if a portion of the cost is met directly or indirectly by any person or authority, the "actual cost" would, for the purposes of the aforesaid sections, be cost minus the subsidies. The "actual cost" of an asset which should be given meaning in a commercial sense, logically includes whatever even any other person or authority has met; but the legislative intent is that the assessee should not have the benefit of a depreciation on a cost which he did not himself payThe contention is that it is not a payment, directly or indirectly, to meet any portion of the "actual cost" but intended as an incentive to entrepreneurs, its quantification determined at a percentage of the fixed capital cost19. On a consideration of the matter the view that commends itself as acceptable is the one which has commended itself to the majority of the High Courts. It is, of course, not the numerical strength that prevailsthough the fact that a particular view has commended itself to a majority of the High Courts in the country is a matter for considerationbut the tensile strength of the acceptable logic in those decisions. It is aptly said that a Judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result". In the present case the reasoning underlying, and implicit in, the conclusion reached by the majority of the High Courts cannot be said to be an unreasonable view and on a preponderance of preferability that view commends itself particularly in the context of a taxing statute. The expression "actual cost" needs to be interpreted liberally. The subsidy of the nature, we are concerned with, does not partake of the incidents which attract the conditions for their deductibility from "actual cost"20. Government subsidy, it is not unreasonable to say, is an incentive not for the specific purpose of meeting a portion of the cost of the assets though quantified as or geared to a percentage of such cost. If that be so, it does not partake of the character of a payment intended either directly or indirectly to meet the "actual cost". We should prefer the reasoning of the majority of the High Courts to the one found acceptable by the High Court of Punjab and Haryana | 0 | 3,877 | 541 | ### 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:
to the character and nature of a subsidy whether it was really intended to subsidise the cost of the capital or was intended as an incentive to encourage entrepreneurs to move to backward areas and establish industries, the specified percentage of the fixed capital cost which is the basis for determining the subsidy being only a measure adopted under the scheme to quantify the financial aid. The contention is that it is not a payment, directly or indirectly, to meet any portion of the "actual cost" but intended as an incentive to entrepreneurs, its quantification determined at a percentage of the fixed capital cost 17. In Godavari Plywoods case, the Andhra Pradesh High Court, adopting this view, observed "Nowhere had the scheme provided as to how the subsidy should be utilised and for which assets. It was open to the assessee to legitimately reduce the cost of land in its books of account to the full extent of the subsidy, in which case the cost of plant and machinery would remain at invoice price uninfluenced by the amount of subsidy. The amount received by way of subsidy could be utilised for any purpose such as acquiring land on which no depreciation was admissible or on plant and machinery or for erection of buildings or for working capital or for repaying the loans already borrowed. Hence, unless the subsidy received had a nexus, direct or indirect, to meet a portion of the actual cost of any specific capital asset, it could not be brought within the purview of Section 43(1) of the Act. Therefore, the subsidy could not be deducted from the actual cost of the assets to the assessee and depreciation should be allowed without reducing the same by the amount of subsidy granted." * In CIT v. Grace Paper Industries (P) Ltd. the Gujarat High Court said : (ITR headnote) "The dictionary meaning of subsidy is a grant of money from a Government to a private enterprise considered as beneficial to the public. The Government, in order to determine the amount of cash subsidy, decided to follow one of the recognised methods of working it out on the basis of the amount invested by an entrepreneur in acquiring capital assets and specified a certain percentage of the amount so invested in the capital assets as cash subsidy. The basis adopted for determining the cash subsidy with reference to the cost or value of fixed assets was only a measure for quantifying the subsidy and the subsidy was not given for the specific purpose of meeting any portion of the cost of the fixed assets. Consequently, the subsidy did not form part of the actual cost of plant and machinery within the meaning of Section 43 of the Income Tax Act, 1961. It cannot be deducted from the cost of assets in computing depreciation, development rebate and investment allowance." * 18. On the contrary in CIT v. Jindal Brothers Rice Mills the Punjab & Haryana High Court has said "When it is specified in the incentive policy that 15 per cent of the cost of plant, machinery and building would be provided by the State Government, the underlying object is to reduce the value of the plant, machinery and building by 15 per cent of the actual cost. The actual cost would so stand reduced within the meaning of Section 43(1) of the Act.... We are equally not impressed by the reasoning that the basis adopted for determining the cash subsidy with reference to the fixed capital cost is only a measure adopted and cannot make the subsidy as given only for the specific purpose of meeting any portion of the fixed capital costThe incentive by way of subsidy is given for each item separately and it would not be open to the assessee to appropriate the subsidy for a purpose other than that for which it was given to him. Even if the assessee wrongly maintains the account books and utilises the entire subsidy against the value of the land to reduce its cost, the Income Tax Officer would not overlook the matter and would appropriate the subsidy in reducing the cost of the machinery, plant and building for which the subsidy was specifically granted. There is a nexus between the cost of each item and the subsidy-under each head." 19. On a consideration of the matter the view that commends itself as acceptable is the one which has commended itself to the majority of the High Courts. It is, of course, not the numerical strength that prevails - though the fact that a particular view has commended itself to a majority of the High Courts in the country is a matter for consideration - but the tensile strength of the acceptable logic in those decisions. It is aptly said that a Judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result". In the present case the reasoning underlying, and implicit in, the conclusion reached by the majority of the High Courts cannot be said to be an unreasonable view and on a preponderance of preferability that view commends itself particularly in the context of a taxing statute. The expression "actual cost" needs to be interpreted liberally. The subsidy of the nature, we are concerned with, does not partake of the incidents which attract the conditions for their deductibility from "actual cost" 20. Government subsidy, it is not unreasonable to say, is an incentive not for the specific purpose of meeting a portion of the cost of the assets though quantified as or geared to a percentage of such cost. If that be so, it does not partake of the character of a payment intended either directly or indirectly to meet the "actual cost". We should prefer the reasoning of the majority of the High Courts to the one found acceptable by the High Court of Punjab and Haryana
### Response:
0
### Explanation:
11. Such rebate as obtains on the point turns on the definition of "actual cost" in Section 43(1) of the Income Tax Act, 1961. Section 43(1) provides definitions of certain terms and inter alia stipulates that for purposes of Sections 28 to 41 and 43, "actual cost" means "the actual cost of the assets to the assessee, reduced by that portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority". Thus, if a portion of the cost is met directly or indirectly by any person or authority, the "actual cost" would, for the purposes of the aforesaid sections, be cost minus the subsidies. The "actual cost" of an asset which should be given meaning in a commercial sense, logically includes whatever even any other person or authority has met; but the legislative intent is that the assessee should not have the benefit of a depreciation on a cost which he did not himself payThe contention is that it is not a payment, directly or indirectly, to meet any portion of the "actual cost" but intended as an incentive to entrepreneurs, its quantification determined at a percentage of the fixed capital cost19. On a consideration of the matter the view that commends itself as acceptable is the one which has commended itself to the majority of the High Courts. It is, of course, not the numerical strength that prevailsthough the fact that a particular view has commended itself to a majority of the High Courts in the country is a matter for considerationbut the tensile strength of the acceptable logic in those decisions. It is aptly said that a Judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result". In the present case the reasoning underlying, and implicit in, the conclusion reached by the majority of the High Courts cannot be said to be an unreasonable view and on a preponderance of preferability that view commends itself particularly in the context of a taxing statute. The expression "actual cost" needs to be interpreted liberally. The subsidy of the nature, we are concerned with, does not partake of the incidents which attract the conditions for their deductibility from "actual cost"20. Government subsidy, it is not unreasonable to say, is an incentive not for the specific purpose of meeting a portion of the cost of the assets though quantified as or geared to a percentage of such cost. If that be so, it does not partake of the character of a payment intended either directly or indirectly to meet the "actual cost". We should prefer the reasoning of the majority of the High Courts to the one found acceptable by the High Court of Punjab and Haryana
|
THE ELECTRONIC CORPORATION OF INDIA LIMITED Vs. M. SHIVANI | different Trades. The last date for submission of applications through online is 05.01.2018. The upper age limited prescribed is 28 years as on 30.11.2017. However, the relaxation of maximum age limit is allowed up to 40 years for those who worked or working with ECIL as Senior Artisan/Junior Artisan with ITI qualification plus NAC or ITI qualification plus experience of tenure based contract. The present Writ Petition is filed seeking extension of the same benefit of age relaxation to the petitioners also, as they worked through an outsourcing agency. The notification was issued long back and the applications were sought to be accepted from 20.12.2017. Though there is some grievance to be redressed in relation to the petitioners, since the procedure for acceptance of applications is through online basis, no relief can be granted to the petitioners who approached this Court at the last moment seeking relaxation of age limit. Obviously, the software so far developed does not accept the applications which did not contain any code number which is available for the persons who worked or working with ECIL on tenure based contract. In the circumstances, no relief can be granted to the petitioners. The Writ Petition is, accordingly dismissed at the admission stage. There shall be no order as to costs. As a sequel thereto, the miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.?5. The Respondents, being aggrieved, challenged the decision of the Single Judge by filing Writ Appeal No. 94 of 2018. A counter affidavit was filed on behalf of the Appellants in said Writ Appeal submitting:-?……that in Electronics Corporation of India Limited there are two types of contract employees. The first category is those employees who are directly employed by ECIL, who work for some time and for whom an employee code is allotted and a Service Certificate will also be given by ECIL. The Corporation has an employer and employee relationship with such employees for the period of contract. The second category is those employees who are engaged through Manpower Supplying Agencies, who work in short durations in projects undertaken by ECIL. For such employees no employee code will be allotted and the Corporation does not issue any Service Certificate to those employees, they being the employees of the Manpower Supplying Agencies. The Corporation engages hundred of such employees through the Manpower Supplying Agencies depending upon the temporary need. With such employees there is no employer and employee relationship with the Corporation and they work as per the terms and conditions of their employer i.e. Manpower Supply Agency, with whom they are employed as per the advertisement issued by the Corporation the first category of employees are eligible for age relaxation, but the second category of employees are not entitled to such age relaxation and since the appellants herein belong to the second category, they are not entitled to claim any age relaxation in this case. If age relaxation to those appellants is extended, then there will be hundreds of such applicants, who are employed through Manpower Supply Agency and they also will seek such age relaxation and in such a case it will be difficult for the Corporation to conduct selection.?6. The Division Bench of the High Court by its judgment and order dated 08.03.2018 allowed the appeal and passed following directions:-?In view of the above, we are of the considered opinion that the petitioners are entitled to be considered for the posts in question and also entitled for the age relaxation up to the age of 40 years. Consequently, we hereby set aside the order dated 04.01.2018 passed in WP No.382 of 2018. Accordingly, the Writ Appeal is allowed. Consequently, the respondents shall permit the petitioners to participate in the selection process to be conducted on 11.03.2018. The petitioners are directed to file their applications by tomorrow 5 PM.?7. The decision of the Division Bench of the High Court is presently under appeal. While issuing notice, the operation and implementation of judgment and order under appeal was stayed. Though the service was effected on the Respondents, none entered appearance on their behalf and the matter was repeatedly adjourned to enable the Respondents to enter appearance and contest the matter, as is clear from the following:- a) On 30.11.2018 it was recorded that, according to the office report, the Respondents had been served in the matter and by way of last chance the matter was directed to be listed on 07.12.2018. b) On 07.12.2018 since none had entered appearance, fresh notices were directed to be issued. In addition, dasti service was also permitted. c) On 18.02.2019 the matter was called and this Court noticed that according to the office report dated 16.02.2019 Respondents were served in the matter and yet none had appeared on their behalf. It was, therefore, directed:- ?By way of last chance, we adjourn the matter to 05.03.2019. If the respondents choose not to enter appearance, the matter shall be disposed of ex-parte on the next date of hearing.? Despite repeated opportunities, the Respondents have chosen not to appear. We, therefore, proceed with the matter ex-parte. 8. Two features emerge in the matter. First is about the nature of engagement of the Respondents. The record indicates that they were engaged through an outsourcing agency. Going by the terms of the advertisement the Respondents were, therefore, not entitled to have any age relaxation. Secondly, the advertisement was issued on 19.12.2017 and the last date for submission of applications was 05.01.2018. Challenge itself was raised by the Respondents by filing Writ Petition No.382 of 2018 on 02.01.2018. The Single Judge of the High Court was, therefore, right and justified in rejecting the challenge. By the time the matter came up before the Division Bench, the period was already over. The Division Bench did not consider the submissions whether the Respondents could, as a matter of right, claim relaxation in age limit. Without considering said aspect of the matter, the Division Bench proceeded to pass the directions as quoted above. | 1[ds]While issuing notice, the operation and implementation of judgment and order under appeal was stayed. Though the service was effected on the Respondents, none entered appearance on their behalf and the matter was repeatedly adjourned to enable the Respondents to enter appearance and contest the matter, as is clear from theOn 30.11.2018 it was recorded that, according to the office report, the Respondents had been served in the matter and by way of last chance the matter was directed to be listed onOn 07.12.2018 since none had entered appearance, fresh notices were directed to be issued. In addition, dasti service was alsoOn 18.02.2019 the matter was called and this Court noticed that according to the office report dated 16.02.2019 Respondents were served in the matter and yet none had appeared on their behalf. It was, therefore,y way of last chance, we adjourn the matter to 05.03.2019. If the respondents choose not to enter appearance, the matter shall be disposed of ex-parte on the next date of hearing.?repeated opportunities, the Respondents have chosen not to appear. We, therefore, proceed with the matter ex-parte.Two features emerge in the matter. First is about the nature of engagement of the Respondents. The record indicates that they were engaged through an outsourcing agency. Going by the terms of the advertisement the Respondents were, therefore, not entitled to have any age relaxation. Secondly, the advertisement was issued on 19.12.2017 and the last date for submission of applications was 05.01.2018. Challenge itself was raised by the Respondents by filing Writ Petition No.382 of 2018 on 02.01.2018. The Single Judge of the High Court was, therefore, right and justified in rejecting the challenge. By the time the matter came up before the Division Bench, the period was already over. The Division Bench did not consider the submissions whether the Respondents could, as a matter of right, claim relaxation in age limit. Without considering said aspect of the matter, the Division Bench proceeded to pass the directions as quoted above. | 1 | 1,532 | 377 | ### 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:
different Trades. The last date for submission of applications through online is 05.01.2018. The upper age limited prescribed is 28 years as on 30.11.2017. However, the relaxation of maximum age limit is allowed up to 40 years for those who worked or working with ECIL as Senior Artisan/Junior Artisan with ITI qualification plus NAC or ITI qualification plus experience of tenure based contract. The present Writ Petition is filed seeking extension of the same benefit of age relaxation to the petitioners also, as they worked through an outsourcing agency. The notification was issued long back and the applications were sought to be accepted from 20.12.2017. Though there is some grievance to be redressed in relation to the petitioners, since the procedure for acceptance of applications is through online basis, no relief can be granted to the petitioners who approached this Court at the last moment seeking relaxation of age limit. Obviously, the software so far developed does not accept the applications which did not contain any code number which is available for the persons who worked or working with ECIL on tenure based contract. In the circumstances, no relief can be granted to the petitioners. The Writ Petition is, accordingly dismissed at the admission stage. There shall be no order as to costs. As a sequel thereto, the miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.?5. The Respondents, being aggrieved, challenged the decision of the Single Judge by filing Writ Appeal No. 94 of 2018. A counter affidavit was filed on behalf of the Appellants in said Writ Appeal submitting:-?……that in Electronics Corporation of India Limited there are two types of contract employees. The first category is those employees who are directly employed by ECIL, who work for some time and for whom an employee code is allotted and a Service Certificate will also be given by ECIL. The Corporation has an employer and employee relationship with such employees for the period of contract. The second category is those employees who are engaged through Manpower Supplying Agencies, who work in short durations in projects undertaken by ECIL. For such employees no employee code will be allotted and the Corporation does not issue any Service Certificate to those employees, they being the employees of the Manpower Supplying Agencies. The Corporation engages hundred of such employees through the Manpower Supplying Agencies depending upon the temporary need. With such employees there is no employer and employee relationship with the Corporation and they work as per the terms and conditions of their employer i.e. Manpower Supply Agency, with whom they are employed as per the advertisement issued by the Corporation the first category of employees are eligible for age relaxation, but the second category of employees are not entitled to such age relaxation and since the appellants herein belong to the second category, they are not entitled to claim any age relaxation in this case. If age relaxation to those appellants is extended, then there will be hundreds of such applicants, who are employed through Manpower Supply Agency and they also will seek such age relaxation and in such a case it will be difficult for the Corporation to conduct selection.?6. The Division Bench of the High Court by its judgment and order dated 08.03.2018 allowed the appeal and passed following directions:-?In view of the above, we are of the considered opinion that the petitioners are entitled to be considered for the posts in question and also entitled for the age relaxation up to the age of 40 years. Consequently, we hereby set aside the order dated 04.01.2018 passed in WP No.382 of 2018. Accordingly, the Writ Appeal is allowed. Consequently, the respondents shall permit the petitioners to participate in the selection process to be conducted on 11.03.2018. The petitioners are directed to file their applications by tomorrow 5 PM.?7. The decision of the Division Bench of the High Court is presently under appeal. While issuing notice, the operation and implementation of judgment and order under appeal was stayed. Though the service was effected on the Respondents, none entered appearance on their behalf and the matter was repeatedly adjourned to enable the Respondents to enter appearance and contest the matter, as is clear from the following:- a) On 30.11.2018 it was recorded that, according to the office report, the Respondents had been served in the matter and by way of last chance the matter was directed to be listed on 07.12.2018. b) On 07.12.2018 since none had entered appearance, fresh notices were directed to be issued. In addition, dasti service was also permitted. c) On 18.02.2019 the matter was called and this Court noticed that according to the office report dated 16.02.2019 Respondents were served in the matter and yet none had appeared on their behalf. It was, therefore, directed:- ?By way of last chance, we adjourn the matter to 05.03.2019. If the respondents choose not to enter appearance, the matter shall be disposed of ex-parte on the next date of hearing.? Despite repeated opportunities, the Respondents have chosen not to appear. We, therefore, proceed with the matter ex-parte. 8. Two features emerge in the matter. First is about the nature of engagement of the Respondents. The record indicates that they were engaged through an outsourcing agency. Going by the terms of the advertisement the Respondents were, therefore, not entitled to have any age relaxation. Secondly, the advertisement was issued on 19.12.2017 and the last date for submission of applications was 05.01.2018. Challenge itself was raised by the Respondents by filing Writ Petition No.382 of 2018 on 02.01.2018. The Single Judge of the High Court was, therefore, right and justified in rejecting the challenge. By the time the matter came up before the Division Bench, the period was already over. The Division Bench did not consider the submissions whether the Respondents could, as a matter of right, claim relaxation in age limit. Without considering said aspect of the matter, the Division Bench proceeded to pass the directions as quoted above.
### Response:
1
### Explanation:
While issuing notice, the operation and implementation of judgment and order under appeal was stayed. Though the service was effected on the Respondents, none entered appearance on their behalf and the matter was repeatedly adjourned to enable the Respondents to enter appearance and contest the matter, as is clear from theOn 30.11.2018 it was recorded that, according to the office report, the Respondents had been served in the matter and by way of last chance the matter was directed to be listed onOn 07.12.2018 since none had entered appearance, fresh notices were directed to be issued. In addition, dasti service was alsoOn 18.02.2019 the matter was called and this Court noticed that according to the office report dated 16.02.2019 Respondents were served in the matter and yet none had appeared on their behalf. It was, therefore,y way of last chance, we adjourn the matter to 05.03.2019. If the respondents choose not to enter appearance, the matter shall be disposed of ex-parte on the next date of hearing.?repeated opportunities, the Respondents have chosen not to appear. We, therefore, proceed with the matter ex-parte.Two features emerge in the matter. First is about the nature of engagement of the Respondents. The record indicates that they were engaged through an outsourcing agency. Going by the terms of the advertisement the Respondents were, therefore, not entitled to have any age relaxation. Secondly, the advertisement was issued on 19.12.2017 and the last date for submission of applications was 05.01.2018. Challenge itself was raised by the Respondents by filing Writ Petition No.382 of 2018 on 02.01.2018. The Single Judge of the High Court was, therefore, right and justified in rejecting the challenge. By the time the matter came up before the Division Bench, the period was already over. The Division Bench did not consider the submissions whether the Respondents could, as a matter of right, claim relaxation in age limit. Without considering said aspect of the matter, the Division Bench proceeded to pass the directions as quoted above.
|
Rajinder Singh Vs. State Of Punjab | cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935 ] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15)"15. ... Soon before is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term soon before is not synonymous with the term immediately before and is opposite of the expression soon after as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be soon before death if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law." 22. In another recent judgment in Sher Singh v. State of Haryana, 2015 (1) SCALE 250 , this Court said: "We are aware that the word soon finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt." (at page 262) 23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B. 24. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana, 2014 (5) SCALE 641 in which the law was stated thus: "The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case." (at page 646) 25. We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before". | 0[ds]8. A perusal of this Section shows that this definition can be broken into six distinctDowry must first consist of any property or valuable security - the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.3) Such property or security can be given or agreed to be given either directly or indirectly.4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said todeath of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;(b) such death must have occurred within seven years of her marriage;(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and(d) such cruelty or harassment must be in connection with the demand for dowry.Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament, we feel that the judgment in Appasahebs case followed by the judgment of Kulwant Singh do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. | 0 | 6,275 | 514 | ### 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:
cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935 ] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15)"15. ... Soon before is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term soon before is not synonymous with the term immediately before and is opposite of the expression soon after as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be soon before death if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law." 22. In another recent judgment in Sher Singh v. State of Haryana, 2015 (1) SCALE 250 , this Court said: "We are aware that the word soon finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt." (at page 262) 23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B. 24. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana, 2014 (5) SCALE 641 in which the law was stated thus: "The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case." (at page 646) 25. We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before".
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8. A perusal of this Section shows that this definition can be broken into six distinctDowry must first consist of any property or valuable security - the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.3) Such property or security can be given or agreed to be given either directly or indirectly.4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said todeath of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;(b) such death must have occurred within seven years of her marriage;(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and(d) such cruelty or harassment must be in connection with the demand for dowry.Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament, we feel that the judgment in Appasahebs case followed by the judgment of Kulwant Singh do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.
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V. Guruviah Naidu And Sons Etc Vs. State Of Tamil Nadu And Anr. Etc | the case of Hajee Abdul Shukoor 15 STC 719 S.C. because in that case the sales tax was found to have been charged at a higher rate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins. The position in the present case is materially different. For here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 per cent. It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and the lower price of raw hides and skins. No material has been brought on the record to show that despite the lower rate of sales tax for dressed hides and skins, the imported hides and skins are being subjected to discrimination. The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appellant. The appellant, we find, has failed to discharge such onus. 9. Art. 304(a) does not prevent levy of tax on goods. What it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State. The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter-State trade and commerce. The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied. The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State. When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the rate of 3 per cent when they were purchased in raw form. As against that, in the case of hides and skins which have been imported from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 11/2 per cent at the point of first sale in the State of the dressed hide and skins. This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins. It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins. The legislature, it seems calculated the price of hides and skins in dressed condition to be double the price of such hides and skins in raw state. To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skins. 10. Lastly, it has been argued that dressed hides and skins are a commodity distinct and separate from raw hides and skins and that item 7(b) of the Second Schedule makes a discrimination between the sales of locally processed dressed hides and skins and those imported from other States. In this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu. On the contrary, the case of the appellants is that what they import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins. In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimination between imported dressed hides and skins and the dressed hides and skins produced and manufactured within the State. 11. Apart from that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form. So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in cl. (iii) of s. 14. It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins. Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirmity in a legislative provision which while levying tax on the sale of dressed hides and skins has taken into account the levy of tax in respect of the purchase of raw hides and skins. Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins. | 0[ds]This is clear from the language used in the item specially the words purchase in the State. Assuming that the language of item 7(a) is ambiguous, it should be so construed as would sustain the constitutional validity of the said item. Considered in this light the occasion for the levy of tax under the above item would arise only when there is intra-State sale and not inter-State saleNone of the circumstances which led this Court to strike down the relevant provisions in the above mentioned two cases exists in the present case. In Mehtabs case 14 STC 355 S.C. discrimination was found to exist because of the fact that tax was being levied at the same rate in respect of both raw hides and skins as well as dressed hides and skins, even though the price of dressed hides and skins was much higher. The position was worse in the case of Hajee Abdul Shukoor 15 STC 719 S.C. because in that case the sales tax was found to have been charged at a higher rate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins. The position in the present case is materially different. For here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 per cent. It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and the lower price of raw hides and skins. No material has been brought on the record to show that despite the lower rate of sales tax for dressed hides and skins, the imported hides and skins are being subjected to discrimination. The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appellant. The appellant, we find, has failed to discharge such onus9. Art. 304(a) does not prevent levy of tax on goods. What it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State. The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter-State trade and commerce. The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied. The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State. When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the rate of 3 per cent when they were purchased in raw form. As against that, in the case of hides and skins which have been imported from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 11/2 per cent at the point of first sale in the State of the dressed hide and skins. This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins. It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins. The legislature, it seems calculated the price of hides and skins in dressed condition to be double the price of such hides and skins in raw state. To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skinsIn this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu. On the contrary, the case of the appellants is that what they import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins. In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimination between imported dressed hides and skins and the dressed hides and skins produced and manufactured within the State11. Apart from that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form. So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in cl. (iii) of s. 14. It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins. Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirmity in a legislative provision which while levying tax on the sale of dressed hides and skins has taken into account the levy of tax in respect of the purchase of raw hides and skins. Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins. | 0 | 3,278 | 1,169 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the case of Hajee Abdul Shukoor 15 STC 719 S.C. because in that case the sales tax was found to have been charged at a higher rate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins. The position in the present case is materially different. For here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 per cent. It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and the lower price of raw hides and skins. No material has been brought on the record to show that despite the lower rate of sales tax for dressed hides and skins, the imported hides and skins are being subjected to discrimination. The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appellant. The appellant, we find, has failed to discharge such onus. 9. Art. 304(a) does not prevent levy of tax on goods. What it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State. The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter-State trade and commerce. The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied. The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State. When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the rate of 3 per cent when they were purchased in raw form. As against that, in the case of hides and skins which have been imported from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 11/2 per cent at the point of first sale in the State of the dressed hide and skins. This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins. It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins. The legislature, it seems calculated the price of hides and skins in dressed condition to be double the price of such hides and skins in raw state. To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skins. 10. Lastly, it has been argued that dressed hides and skins are a commodity distinct and separate from raw hides and skins and that item 7(b) of the Second Schedule makes a discrimination between the sales of locally processed dressed hides and skins and those imported from other States. In this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu. On the contrary, the case of the appellants is that what they import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins. In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimination between imported dressed hides and skins and the dressed hides and skins produced and manufactured within the State. 11. Apart from that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form. So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in cl. (iii) of s. 14. It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins. Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirmity in a legislative provision which while levying tax on the sale of dressed hides and skins has taken into account the levy of tax in respect of the purchase of raw hides and skins. Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins.
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### Explanation:
S.C. discrimination was found to exist because of the fact that tax was being levied at the same rate in respect of both raw hides and skins as well as dressed hides and skins, even though the price of dressed hides and skins was much higher. The position was worse in the case of Hajee Abdul Shukoor 15 STC 719 S.C. because in that case the sales tax was found to have been charged at a higher rate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins. The position in the present case is materially different. For here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 per cent. It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and the lower price of raw hides and skins. No material has been brought on the record to show that despite the lower rate of sales tax for dressed hides and skins, the imported hides and skins are being subjected to discrimination. The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appellant. The appellant, we find, has failed to discharge such onus9. Art. 304(a) does not prevent levy of tax on goods. What it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State. The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter-State trade and commerce. The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied. The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State. When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the rate of 3 per cent when they were purchased in raw form. As against that, in the case of hides and skins which have been imported from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 11/2 per cent at the point of first sale in the State of the dressed hide and skins. This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins. It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins. The legislature, it seems calculated the price of hides and skins in dressed condition to be double the price of such hides and skins in raw state. To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skinsIn this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu. On the contrary, the case of the appellants is that what they import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins. In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimination between imported dressed hides and skins and the dressed hides and skins produced and manufactured within the State11. Apart from that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form. So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in cl. (iii) of s. 14. It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins. Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirmity in a legislative provision which while levying tax on the sale of dressed hides and skins has taken into account the levy of tax in respect of the purchase of raw hides and skins. Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins.
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Jawaharmal Vs. State Of Rajasthan And Others | it imposes enhanced tax duty retrospectively. His argument is, where a taxing Statue purports to impose a tax retrospectively, it necessarily involves an element of unreasonableness and that virtually amounts to contravention of the citizens fundamental rights guaranteed under Art. 19 (1) (f) or (g) of the Constitution. 26. For the purpose of the present writ petition, we will assume that notwithstanding the proclamation of emergency issued by the President under Art. 352, the constitutional bar created by Art. 358 does not operate against the petitioner inasmuch as he relies upon the contravention of his fundamental right prior to the date of the proclamation. It is on that assumption that we wish to deal with the contention raised by Mr. Tiwari, In our opinion, the said contention is plainly unsound. We have already stated that the power to make laws involves the power to make them effective prospectively as well as retrospectively, and tax laws are no exception to this rule. So, it would be idle to contend that merely because a taxing statute purports to operate retrospectively, the retrospective operation per se involves contravention of the fundamental right of the citizen taxed under Art. 19 (1) (f) or (g). It is true that cases may conceivably occur where the Court may have to consider the question as to whether excessive retrospective operation prescribed by a taxing statute amounts to the contravention of the citizens fundamental right; and in dealing with such a question, the Court may have to take into account all the relevant and surrounding facts and circumstances in relation to the taxation. In the present case, having regard to the legislative background of the provision prescribed by S. 2 there can be little doubt that there is no element of unreasonableness involved in the retrospective operation of Cl. (b) of the proviso added by the said section to S. 3 (1) of the principal Act. 27. The result is that S. 2 of the Act is valid and the tax in question can be recovered from the petitioner for the periods covered by Cls. (a) and (b) of the proviso as therein prescribed. In this connection, it will be recalled that the provision prescribed by Cl. (a) of the proviso is really superfluous, because the same tax could have been validly recovered at the prescribed rates under the notification issued on April 30, 1959 under S. 3 of the principal Act. But as we have already pointed out, the period between March 26, 1962 to September 9, 1964 is not covered by the provisions inserted by S. 2 in S. 3 (1) of the principal Act; and so, the provisions of S. 2 are of no assistance to the respondents in imposing a tax against the petitioner at the enhanced rates initially prescribed by S. 9 of the Finance Act 11 of 1962. 28. If we had held that S. 4 of the Act was valid, then the imposition of the tax at the enhanced rates prescribed by the said S. 9 would also have been valid; but in view of the fact that we have come to the conclusion that S. 4 is invalid, it follows that the tax which can be legitimately and validly imposed against the petitioner for the said period must be levied under the notification issued on April 30, 1959 under S. 3 of the principal Act. No doubt, Mr. Tiwari attempted to argue that in view of the fact that the said S. 3 had been amended by S. 9 of the Finance Act 11 of 1962, the notification issued under the original S. 3 of the principal Act ceases to be operative. This contention is clearly misconceived. If the said Finance Act is unenforceable and the notification issued thereunder is of no effect, then S. 3 of the principal Act would remain unamended for the period in question and the notification initially issued under it would be operative. 29. As a consequence of this conclusion, it follows that the petitioner is entitled to claim that the tax assessed against him in respect of his vehicles for the period between 26th March 1962 and the 9th September 1964 at the enhanced rates is invalid, and that the taxing authorities concerned will have to levy the tax at the rates prescribed by the notification issued on the 30th April 1959 under S. 3 of the principal Act as it originally stood. It is true that this result sounds very anomalous, because for the period immediately preceding the period in question, the tax is validly recoverable at the enhanced rates, whereas for the period in question, it has to be recovered at a lower rate; but, for this anomaly, the defective drafting of S. 2 and S. 4 of the Act is entirely responsible. 30. Before we part with this petition, we would like to refer briefly to two decisions of this Court to which reference was made during the course of the arguments before us. In Rai Ramkrishna v. State of Bihar, (1964) 1 SCR 897 : (AIR 1963 SC 1667 ), the validity of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (No. 17 of 1961) was challenged on the ground that it sought to validate taxes already recovered under an invalid Finance Act. Rejecting the argument that such retrospective validation of tax illegally recovered amounts to the contravention of the citizens fundamental right under Art. 19 (1) (f) or (g), this Court held that if in its essential features a taxing statute is within the competence of the Legislature which passed it, its character is not necessarily changed merely by its retrospective operation so as to make the said retrospective operation either unreasonable or outside its legislative competence. 31. A similar view has been expressed by this Court in Jaora Sugar Mills (Pvt.) Ltd. v. State of Madhya Pradesh, Civil Appeal No. 531 of 1964, dated 19-8-1965: (AIR 1966 SC 416 ). 32. | 1[ds]We made it clear to the learned Advocate-General that our decision in the present writ petition would cover the decision of the said appeals in so far as it would relate to the validity of the provisions of the Act which are impugned before us by the present petitioner and not to that part which covered the question of penaltyIn the first place, it is not clear that the Rajasthan High Court has held that the said earlier Finance Acts are void ab inito: in fact, as we have already pointed out, the said High Court thought it unnecessary to pronounce its considered opinion on that aspect of the matter, because it held that the Act of 1964 with which it was primarily dealing the said proceedings not merely amended or cured the earlier Finance Acts, but re-enacted the provisions of the said Acts, and so, the provisions of the said Acts became operative by their own force. Therefore, factually, it is not correct to say that the said earlier Acts have been struck down as void ab initio by any Court of competent jurisdiction. Besides, in assessing the validity of this argument, it is necessary to remember that the Act was passed on September 8, 1964 and the judgment of the Rajasthan High Court was pronounced on November 30, 1964; and so, it is clear that at the time when the Act was passed the earlier Finance Acts had not been struck down at allThere are two answers to this question. Article 255 provides, inter alia, that no Act of the Legislature of a State and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to the Act was given by the President later. The position with regard to the laws to which Art. 255 applies, therefore, is that if the assent in question is given even after the Act is passed, it serves to cure the infirmity arising from the initial non-compliance with its provisions. In other words, if an Act is passed without obtaining the previous assent of the President, it does not become void by reason of the said infirmity; it may be said to be unenforceable until the assent is secured. Assuming that such a law is otherwise valid, its validity cannot be challenged only on the ground that the assent of the President was not obtained earlier as required by the other relevant provisions of the Constitution. The said infirmity is cured by the subsequent assent and the law becomes enforceable. It is unnecessary for the purpose of the present proceedings to consider when such a law becomes enforceable, whether subsequent assent makes it enforceable form the date when the said law purported to come into force, or whether it becomes enforceable from the date of its subsequent assent. Besides, it is plain that the Legislature may, in a suitable case, adopt the course of passing a subsequent law re-introducing the provisions of the earlier law which had not received the assent of the President, and obtaining his assent thereto as prescribed by the Constitution. We see no substance in the argument that an Act which has not complied with the provisions of Art. 255, cannot be validated by subsequent legislation even where such subsequent Act complies with Art. 255 and obtains the requisite assent of the President as prescribed by the Constitution. Whether the infirmity in the Act which has failed to comply with the provisions of Art. 255, should be cured by obtaining the subsequent assent of the President or by passing a subsequent Act re-enacting the provisions of the earlier law and securing the assent of the President to such Act, is a matter which the Legislature can decide in the circumstances of a given case. Legally, there is no bar to the legislature adopting either of the said to courses. Therefore, the preliminary objection raised by Mr. Tiwari against the validity of the Act fails18. It is well recognised that the power to legislate includes the power to legislate prospectively as well as retrospectively, and in that behalf, tax legislation is no different from any other legislation. If the Legislature decides to levy a tax, it may levy such tax either prospectively or even retrospectively. When retrospective legislation is passed imposing a tax, it may, in conceivable cases, become necessary to consider whether such retrospective taxation is reasonable or not. But apart from this theoretical aspect of the matter, the power to tax can be competently exercised by the legislature either prospectively or retrospectively; and that is precisely what S. 2 has done in the present case. Therefore, there is no substance in the argument that S. 2 of the Act is invalidIn our opinion, the Legislature is incompetent to declare that the failure to comply with Art. 255 is of no consequence; and, with respect, the assent of the President to such declaration also does not serve the purpose which subsequent assent by the President can serve under Art. 255In our opinion, even the assent of the President cannot alter the true constitutional position under Art. 255. The assent of the President cannot, by any legislative process, be deemed to have been given to an earlier Act at a time when in fact it was not so given. In this context there is no scope for a retrospective deeming provision in regard to the assent of the President. It is somewhat unfortunate that the casual drafting of S. 2 leaves the period covered by Act. 11 of 1962 and the notification issued thereunder as unenforceable as before and the omnibus and general provisions of S. 4 are of no help in regard to the said periodWe have given our anxious consideration to the problem raised by the wording of S. 4 and we have come to the conclusion that it would not be possible to uphold its validity. On many occasions, this Court has tried to look at the substance of the matter and determine the issue in spite of the fact that the words or expressions used in the relevant provisions are either slovenly inappropriate or unhappy. But in the present case, however benevolently or favourably we look at the provisions of S. 4, we see no escape from the conclusion that in enacting it, the Legislature appears to have clearly assumed that it can by itself cure the infirmity resulting from the non-compliance with Art. 255 and all that it has to do in such a case is to obtain the assent of the President to its own view about its power to cure such an infirmity. We are satisfied that it is necessary that the true position in regard to the scope and effect of Art. 255 must be clearly brought out in order to avoid any misapprehension in futureIn the present case, having regard to the legislative background of the provision prescribed by S. 2 there can be little doubt that there is no element of unreasonableness involved in the retrospective operation of Cl. (b) of the proviso added by the said section to S. 3 (1) of the principal ActThe result is that S. 2 of the Act is valid and the tax in question can be recovered from the petitioner for the periods covered by Cls. (a) and (b) of the proviso as therein prescribed. In this connection, it will be recalled that the provision prescribed by Cl. (a) of the proviso is really superfluous, because the same tax could have been validly recovered at the prescribed rates under the notification issued on April 30, 1959 under S. 3 of the principal Act. But as we have already pointed out, the period between March 26, 1962 to September 9, 1964 is not covered by the provisions inserted by S. 2 in S. 3 (1) of the principal Act; and so, the provisions of S. 2 are of no assistance to the respondents in imposing a tax against the petitioner at the enhanced rates initially prescribed by S. 9 of the Finance Act 11 of 1962.If we had held that S. 4 of the Act was valid, then the imposition of the tax at the enhanced rates prescribed by the said S. 9 would also have been valid; but in view of the fact that we have come to the conclusion that S. 4 is invalid, it follows that the tax which can be legitimately and validly imposed against the petitioner for the said period must be levied under the notification issued on April 30, 1959 under S. 3 of the principal ActThis contention is clearly misconceived. If the said Finance Act is unenforceable and the notification issued thereunder is of no effect, then S. 3 of the principal Act would remain unamended for the period in question and the notification initially issued under it would be operativeAs a consequence of this conclusion, it follows that the petitioner is entitled to claim that the tax assessed against him in respect of his vehicles for the period between 26th March 1962 and the 9th September 1964 at the enhanced rates is invalid, and that the taxing authorities concerned will have to levy the tax at the rates prescribed by the notification issued on the 30th April 1959 under S. 3 of the principal Act as it originally stood. It is true that this result sounds very anomalous, because for the period immediately preceding the period in question, the tax is validly recoverable at the enhanced rates, whereas for the period in question, it has to be recovered at a lower rate; but, for this anomaly, the defective drafting of S. 2 and S. 4 of the Act is entirely responsible. | 1 | 7,424 | 1,776 | ### Instruction:
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it imposes enhanced tax duty retrospectively. His argument is, where a taxing Statue purports to impose a tax retrospectively, it necessarily involves an element of unreasonableness and that virtually amounts to contravention of the citizens fundamental rights guaranteed under Art. 19 (1) (f) or (g) of the Constitution. 26. For the purpose of the present writ petition, we will assume that notwithstanding the proclamation of emergency issued by the President under Art. 352, the constitutional bar created by Art. 358 does not operate against the petitioner inasmuch as he relies upon the contravention of his fundamental right prior to the date of the proclamation. It is on that assumption that we wish to deal with the contention raised by Mr. Tiwari, In our opinion, the said contention is plainly unsound. We have already stated that the power to make laws involves the power to make them effective prospectively as well as retrospectively, and tax laws are no exception to this rule. So, it would be idle to contend that merely because a taxing statute purports to operate retrospectively, the retrospective operation per se involves contravention of the fundamental right of the citizen taxed under Art. 19 (1) (f) or (g). It is true that cases may conceivably occur where the Court may have to consider the question as to whether excessive retrospective operation prescribed by a taxing statute amounts to the contravention of the citizens fundamental right; and in dealing with such a question, the Court may have to take into account all the relevant and surrounding facts and circumstances in relation to the taxation. In the present case, having regard to the legislative background of the provision prescribed by S. 2 there can be little doubt that there is no element of unreasonableness involved in the retrospective operation of Cl. (b) of the proviso added by the said section to S. 3 (1) of the principal Act. 27. The result is that S. 2 of the Act is valid and the tax in question can be recovered from the petitioner for the periods covered by Cls. (a) and (b) of the proviso as therein prescribed. In this connection, it will be recalled that the provision prescribed by Cl. (a) of the proviso is really superfluous, because the same tax could have been validly recovered at the prescribed rates under the notification issued on April 30, 1959 under S. 3 of the principal Act. But as we have already pointed out, the period between March 26, 1962 to September 9, 1964 is not covered by the provisions inserted by S. 2 in S. 3 (1) of the principal Act; and so, the provisions of S. 2 are of no assistance to the respondents in imposing a tax against the petitioner at the enhanced rates initially prescribed by S. 9 of the Finance Act 11 of 1962. 28. If we had held that S. 4 of the Act was valid, then the imposition of the tax at the enhanced rates prescribed by the said S. 9 would also have been valid; but in view of the fact that we have come to the conclusion that S. 4 is invalid, it follows that the tax which can be legitimately and validly imposed against the petitioner for the said period must be levied under the notification issued on April 30, 1959 under S. 3 of the principal Act. No doubt, Mr. Tiwari attempted to argue that in view of the fact that the said S. 3 had been amended by S. 9 of the Finance Act 11 of 1962, the notification issued under the original S. 3 of the principal Act ceases to be operative. This contention is clearly misconceived. If the said Finance Act is unenforceable and the notification issued thereunder is of no effect, then S. 3 of the principal Act would remain unamended for the period in question and the notification initially issued under it would be operative. 29. As a consequence of this conclusion, it follows that the petitioner is entitled to claim that the tax assessed against him in respect of his vehicles for the period between 26th March 1962 and the 9th September 1964 at the enhanced rates is invalid, and that the taxing authorities concerned will have to levy the tax at the rates prescribed by the notification issued on the 30th April 1959 under S. 3 of the principal Act as it originally stood. It is true that this result sounds very anomalous, because for the period immediately preceding the period in question, the tax is validly recoverable at the enhanced rates, whereas for the period in question, it has to be recovered at a lower rate; but, for this anomaly, the defective drafting of S. 2 and S. 4 of the Act is entirely responsible. 30. Before we part with this petition, we would like to refer briefly to two decisions of this Court to which reference was made during the course of the arguments before us. In Rai Ramkrishna v. State of Bihar, (1964) 1 SCR 897 : (AIR 1963 SC 1667 ), the validity of the Bihar Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 (No. 17 of 1961) was challenged on the ground that it sought to validate taxes already recovered under an invalid Finance Act. Rejecting the argument that such retrospective validation of tax illegally recovered amounts to the contravention of the citizens fundamental right under Art. 19 (1) (f) or (g), this Court held that if in its essential features a taxing statute is within the competence of the Legislature which passed it, its character is not necessarily changed merely by its retrospective operation so as to make the said retrospective operation either unreasonable or outside its legislative competence. 31. A similar view has been expressed by this Court in Jaora Sugar Mills (Pvt.) Ltd. v. State of Madhya Pradesh, Civil Appeal No. 531 of 1964, dated 19-8-1965: (AIR 1966 SC 416 ). 32.
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Legislature can decide in the circumstances of a given case. Legally, there is no bar to the legislature adopting either of the said to courses. Therefore, the preliminary objection raised by Mr. Tiwari against the validity of the Act fails18. It is well recognised that the power to legislate includes the power to legislate prospectively as well as retrospectively, and in that behalf, tax legislation is no different from any other legislation. If the Legislature decides to levy a tax, it may levy such tax either prospectively or even retrospectively. When retrospective legislation is passed imposing a tax, it may, in conceivable cases, become necessary to consider whether such retrospective taxation is reasonable or not. But apart from this theoretical aspect of the matter, the power to tax can be competently exercised by the legislature either prospectively or retrospectively; and that is precisely what S. 2 has done in the present case. Therefore, there is no substance in the argument that S. 2 of the Act is invalidIn our opinion, the Legislature is incompetent to declare that the failure to comply with Art. 255 is of no consequence; and, with respect, the assent of the President to such declaration also does not serve the purpose which subsequent assent by the President can serve under Art. 255In our opinion, even the assent of the President cannot alter the true constitutional position under Art. 255. The assent of the President cannot, by any legislative process, be deemed to have been given to an earlier Act at a time when in fact it was not so given. In this context there is no scope for a retrospective deeming provision in regard to the assent of the President. It is somewhat unfortunate that the casual drafting of S. 2 leaves the period covered by Act. 11 of 1962 and the notification issued thereunder as unenforceable as before and the omnibus and general provisions of S. 4 are of no help in regard to the said periodWe have given our anxious consideration to the problem raised by the wording of S. 4 and we have come to the conclusion that it would not be possible to uphold its validity. On many occasions, this Court has tried to look at the substance of the matter and determine the issue in spite of the fact that the words or expressions used in the relevant provisions are either slovenly inappropriate or unhappy. But in the present case, however benevolently or favourably we look at the provisions of S. 4, we see no escape from the conclusion that in enacting it, the Legislature appears to have clearly assumed that it can by itself cure the infirmity resulting from the non-compliance with Art. 255 and all that it has to do in such a case is to obtain the assent of the President to its own view about its power to cure such an infirmity. We are satisfied that it is necessary that the true position in regard to the scope and effect of Art. 255 must be clearly brought out in order to avoid any misapprehension in futureIn the present case, having regard to the legislative background of the provision prescribed by S. 2 there can be little doubt that there is no element of unreasonableness involved in the retrospective operation of Cl. (b) of the proviso added by the said section to S. 3 (1) of the principal ActThe result is that S. 2 of the Act is valid and the tax in question can be recovered from the petitioner for the periods covered by Cls. (a) and (b) of the proviso as therein prescribed. In this connection, it will be recalled that the provision prescribed by Cl. (a) of the proviso is really superfluous, because the same tax could have been validly recovered at the prescribed rates under the notification issued on April 30, 1959 under S. 3 of the principal Act. But as we have already pointed out, the period between March 26, 1962 to September 9, 1964 is not covered by the provisions inserted by S. 2 in S. 3 (1) of the principal Act; and so, the provisions of S. 2 are of no assistance to the respondents in imposing a tax against the petitioner at the enhanced rates initially prescribed by S. 9 of the Finance Act 11 of 1962.If we had held that S. 4 of the Act was valid, then the imposition of the tax at the enhanced rates prescribed by the said S. 9 would also have been valid; but in view of the fact that we have come to the conclusion that S. 4 is invalid, it follows that the tax which can be legitimately and validly imposed against the petitioner for the said period must be levied under the notification issued on April 30, 1959 under S. 3 of the principal ActThis contention is clearly misconceived. If the said Finance Act is unenforceable and the notification issued thereunder is of no effect, then S. 3 of the principal Act would remain unamended for the period in question and the notification initially issued under it would be operativeAs a consequence of this conclusion, it follows that the petitioner is entitled to claim that the tax assessed against him in respect of his vehicles for the period between 26th March 1962 and the 9th September 1964 at the enhanced rates is invalid, and that the taxing authorities concerned will have to levy the tax at the rates prescribed by the notification issued on the 30th April 1959 under S. 3 of the principal Act as it originally stood. It is true that this result sounds very anomalous, because for the period immediately preceding the period in question, the tax is validly recoverable at the enhanced rates, whereas for the period in question, it has to be recovered at a lower rate; but, for this anomaly, the defective drafting of S. 2 and S. 4 of the Act is entirely responsible.
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K.S. Abdul Azeez Vs. Ramanathan Chettiar & Ors | 4000 and odd votes in excess of those of his nearest rival. Four other candidates had filed nomination papers and they included respondents 3 to 5 in this appeal. One of the candidates withdrew and the nomination paper of the 5th respondent (Peyathevar) was rejected at the scrutiny. He had shown in his nomination paper only one symbol in one of the spaces provided for three symbols and that was the star which is reserved for the Swatantra Party. He was not the accredited candidate of the Swatantra Party and as he had not shown any other symbol, the nomination paper was held to contain a defect of substance.2. After the election was over two voters (who are respondents 1 and 2 in this appeal) filed an election petition against the appellant and one of the grounds urged against him was that as the rejection of the nomination paper of Peyathevar was improper, under S. 100 (1) (c) of the Representation of the People Act the election was void. Other grounds on which the election was challenged need not concern us because nothing turns upon them in this appeal. The Election Tribunal held that the nomination paper was rightly rejected and dismissed the election petition negativing the other allegations to the election at the same time. On appeal by the two voters the decision of the Tribunal was reversed and it was held the, the nomination paper was improperly rejected and the election of the appellant was, therefore, void. On hearing Mr. Ganapathy Iyer and looking into the relevant provisions on the subject of symbols we are satisfied that the decision of the High Court was right.3. The matter has to be considered in relation to the Conduct of Election Rules, 1961. Sub-rule (1) of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject. By virtue of this power the Election Commission issued a notification No. SO 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections. Some of these symbols were reserved for recognised political parties and the name of the party was mentioned in brackets against the reserved symbol. Symbols which were not reserved were "free symbols" and an independent candidate, such as the appellant could choose one of them. If two or more independent candidates chose the same free symbols lots were to be drawn. These rules were in the notification and detailed reference to them is hardly necessary because the matter is perfectly plain.4. The question is whether by choosing a symbol reserved for a political party and by leaving blank the space where he could have shown two other symbols as his alternative choice, Peyathevars nomination paper became so defective that it was rightly rejected. In this connection we have to see the provision of S. 36 (4) of the Representation of the People Act, 1951. Subsection (4) provides:"The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character".This sub-section must be read with Rule 4 of the Conduct of Election Rules. It provides as follows:-"Every nomination paper presented under sub-section (1) of section 33 shall be completed in such one of the Forms 2-A to 2-E as may be appropriate."The form appropriate to this election had a blank space where a candidate could show three symbols in order of preference as symbols of his choice. The appellant showed only the star in the first space and left blank the other two places. The nomination paper, therefore, did not comply with S. 33 read with Rule 4. The nomination paper was, however, saved by the proviso to Rule 4 which reads :"Provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of section 36."5. The Tribunal held that mentioning a reserved symbol and leaving blank the space for alternative symbols, did not come within this proviso and was a defect of substance. The High Court held otherwise and, in our opinion, rightly. In so far as the blank space is concerned it showed a failure to complete the declaration as to symbols and where the star was shown as the symbol it amounted to a defect in completing the declaration as to symbol in the nomination paper. In other words taking the proviso as a whole the mention of the star and leaving blank rest of the space was covered by the composite phrase "failure to complete or defect in completing the declaration as to symbols".6. Mr. Ganapathy Iyer contends that a defect in completing the symbol is something like putting down "two bullocks" but omitting the words "with yoke on" or mentioning the "ears of corn" without mentioning "the sickle" in describing the reserved symbols for the Congress and the Communist Parties respectively. We do not agree, If an independent candidate named "star", "bicycle" and "flower" as his preferences there would be no defect in the nomination paper except one namely, that he included the "star" a reserved symbol to which he was not entitled. The phrase "defect in completing the declaration as to symbols" would obviously cover such a case and there is no difference between that case and this where the star is shown in the first space and the rest of the space is left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled during the interval.7. On the whole the decision of the High Court was right in the circumstances of this case and we see no reason to reverse it. | 0[ds]On hearing Mr. Ganapathy Iyer and looking into the relevant provisions on the subject of symbols we are satisfied that the decision of the High Court was right.3. The matter has to be considered in relation to the Conduct of Election Rules, 1961. Sub-rule (1) of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject. By virtue of this power the Election Commission issued a notification No. SO 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections. Some of these symbols were reserved for recognised political parties and the name of the party was mentioned in brackets against the reserved symbol. Symbols which were not reserved were "free symbols" and an independent candidate, such as the appellant could choose one of them. If two or more independent candidates chose the same free symbols lots were to be drawn. These rules were in the notification and detailed reference to them is hardly necessary because the matter is perfectly plain.The Tribunal held that mentioning a reserved symbol and leaving blank the space for alternative symbols, did not come within this proviso and was a defect of substance. The High Court held otherwise and, in our opinion, rightly. In so far as the blank space is concerned it showed a failure to complete the declaration as to symbols and where the star was shown as the symbol it amounted to a defect in completing the declaration as to symbol in the nomination paper. In other words taking the proviso as a whole the mention of the star and leaving blank rest of the space was covered by the composite phrase "failure to complete or defect in completing the declaration as todo not agree, If an independent candidate named "star", "bicycle" and "flower" as his preferences there would be no defect in the nomination paper except one namely, that he included the "star" a reserved symbol to which he was not entitled. The phrase "defect in completing the declaration as to symbols" would obviously cover such a case and there is no difference between that case and this where the star is shown in the first space and the rest of the space is left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled during the interval.7. On the whole the decision of the High Court was right in the circumstances of this case and we see no reason to reverse it. | 0 | 1,159 | 497 | ### Instruction:
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4000 and odd votes in excess of those of his nearest rival. Four other candidates had filed nomination papers and they included respondents 3 to 5 in this appeal. One of the candidates withdrew and the nomination paper of the 5th respondent (Peyathevar) was rejected at the scrutiny. He had shown in his nomination paper only one symbol in one of the spaces provided for three symbols and that was the star which is reserved for the Swatantra Party. He was not the accredited candidate of the Swatantra Party and as he had not shown any other symbol, the nomination paper was held to contain a defect of substance.2. After the election was over two voters (who are respondents 1 and 2 in this appeal) filed an election petition against the appellant and one of the grounds urged against him was that as the rejection of the nomination paper of Peyathevar was improper, under S. 100 (1) (c) of the Representation of the People Act the election was void. Other grounds on which the election was challenged need not concern us because nothing turns upon them in this appeal. The Election Tribunal held that the nomination paper was rightly rejected and dismissed the election petition negativing the other allegations to the election at the same time. On appeal by the two voters the decision of the Tribunal was reversed and it was held the, the nomination paper was improperly rejected and the election of the appellant was, therefore, void. On hearing Mr. Ganapathy Iyer and looking into the relevant provisions on the subject of symbols we are satisfied that the decision of the High Court was right.3. The matter has to be considered in relation to the Conduct of Election Rules, 1961. Sub-rule (1) of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject. By virtue of this power the Election Commission issued a notification No. SO 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections. Some of these symbols were reserved for recognised political parties and the name of the party was mentioned in brackets against the reserved symbol. Symbols which were not reserved were "free symbols" and an independent candidate, such as the appellant could choose one of them. If two or more independent candidates chose the same free symbols lots were to be drawn. These rules were in the notification and detailed reference to them is hardly necessary because the matter is perfectly plain.4. The question is whether by choosing a symbol reserved for a political party and by leaving blank the space where he could have shown two other symbols as his alternative choice, Peyathevars nomination paper became so defective that it was rightly rejected. In this connection we have to see the provision of S. 36 (4) of the Representation of the People Act, 1951. Subsection (4) provides:"The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character".This sub-section must be read with Rule 4 of the Conduct of Election Rules. It provides as follows:-"Every nomination paper presented under sub-section (1) of section 33 shall be completed in such one of the Forms 2-A to 2-E as may be appropriate."The form appropriate to this election had a blank space where a candidate could show three symbols in order of preference as symbols of his choice. The appellant showed only the star in the first space and left blank the other two places. The nomination paper, therefore, did not comply with S. 33 read with Rule 4. The nomination paper was, however, saved by the proviso to Rule 4 which reads :"Provided that a failure to complete, or defect in completing, the declaration as to symbols in a nomination paper in Form 2-A or Form 2-B shall not be deemed to be a defect of a substantial character within the meaning of sub-section (4) of section 36."5. The Tribunal held that mentioning a reserved symbol and leaving blank the space for alternative symbols, did not come within this proviso and was a defect of substance. The High Court held otherwise and, in our opinion, rightly. In so far as the blank space is concerned it showed a failure to complete the declaration as to symbols and where the star was shown as the symbol it amounted to a defect in completing the declaration as to symbol in the nomination paper. In other words taking the proviso as a whole the mention of the star and leaving blank rest of the space was covered by the composite phrase "failure to complete or defect in completing the declaration as to symbols".6. Mr. Ganapathy Iyer contends that a defect in completing the symbol is something like putting down "two bullocks" but omitting the words "with yoke on" or mentioning the "ears of corn" without mentioning "the sickle" in describing the reserved symbols for the Congress and the Communist Parties respectively. We do not agree, If an independent candidate named "star", "bicycle" and "flower" as his preferences there would be no defect in the nomination paper except one namely, that he included the "star" a reserved symbol to which he was not entitled. The phrase "defect in completing the declaration as to symbols" would obviously cover such a case and there is no difference between that case and this where the star is shown in the first space and the rest of the space is left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled during the interval.7. On the whole the decision of the High Court was right in the circumstances of this case and we see no reason to reverse it.
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### Explanation:
On hearing Mr. Ganapathy Iyer and looking into the relevant provisions on the subject of symbols we are satisfied that the decision of the High Court was right.3. The matter has to be considered in relation to the Conduct of Election Rules, 1961. Sub-rule (1) of Rule 5 enables the Election Commission to specify the symbols that may be chosen by candidates at elections and the restrictions to which their choice shall be subject. By virtue of this power the Election Commission issued a notification No. SO 2316 dated 19th September, 1961 which showed in a table the symbols for the Madras Legislative Assembly elections. Some of these symbols were reserved for recognised political parties and the name of the party was mentioned in brackets against the reserved symbol. Symbols which were not reserved were "free symbols" and an independent candidate, such as the appellant could choose one of them. If two or more independent candidates chose the same free symbols lots were to be drawn. These rules were in the notification and detailed reference to them is hardly necessary because the matter is perfectly plain.The Tribunal held that mentioning a reserved symbol and leaving blank the space for alternative symbols, did not come within this proviso and was a defect of substance. The High Court held otherwise and, in our opinion, rightly. In so far as the blank space is concerned it showed a failure to complete the declaration as to symbols and where the star was shown as the symbol it amounted to a defect in completing the declaration as to symbol in the nomination paper. In other words taking the proviso as a whole the mention of the star and leaving blank rest of the space was covered by the composite phrase "failure to complete or defect in completing the declaration as todo not agree, If an independent candidate named "star", "bicycle" and "flower" as his preferences there would be no defect in the nomination paper except one namely, that he included the "star" a reserved symbol to which he was not entitled. The phrase "defect in completing the declaration as to symbols" would obviously cover such a case and there is no difference between that case and this where the star is shown in the first space and the rest of the space is left blank. The intention seems to be that the question of symbols should not play an important part because symbols can be assigned by political parties till the date for withdrawal and nomination paper should not be cancelled during the interval.7. On the whole the decision of the High Court was right in the circumstances of this case and we see no reason to reverse it.
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State Of Punjab Vs. Nokia India Pvt Ltd | 4%. Cell phone is mentioned in the said schedule and it finds further place at Serial No.6(g) under Entry 60 and is thereby liable to be charged at the rate of 4%. 13. According to the counsel for the respondent, charger is an integral part of the cell phone and the cell phone cannot be operated without the charger and when any person comes for cell phone, he purchases the cell phone and then automatically takes away the charger for which no separate money is charged. However, it is admitted that whenever Company sells chargers separately then 12.5% tax is charged which is applicable to goods in residuary Schedule F of Act. 14. On behalf of the State it was rightly argued that when Entry 60(6)(g) of Schedule B of the Act does not mention accessories for the purpose of taxing the item/product at the rate of 4%, they need to be charged at 12.5% as per Schedule F. It was contended that the battery chargers are not covered under Entry 60(6)(g) and even otherwise there is no mention of the charger in HMS Code 8525.20.17 under the Excise Act, and therefore, charger is liable to be taxed at the rate of 12.5%. 15. Sub-sub heading code 8525 and tariff no.8525.20.17 of the Central Excise Duty Act, is as under: Chapter 85Sub-heading Code 8525Sub-sub heading Code 8525.20.17Tariff No.8525.20.17 Electrical machinery and equipment and parts thereof, radio-telegraphs sound recorders and reproducers and parts and accessories of such articles.Transmission apparatus for radiotelephony, radiobroadcasting or television, whether or not incorp.“Transmission apparatus incorporating reception apparatusCellular Telephones Cellular telephone is in schedule B at Entry No.60(6)(g) vide HSN Code No.8525.20.17. The Tariff No.8525.20.17 only relates to cellular telephone and not the accessories. The Schedule B does not indicate that the cellular phone includes the accessories like the chargers either in the HSN Code or by elaborating in words. 16. The Assessing Authority, Appellate Authority and the Tribunal rightly held that the battery charger is not a part of the mobile/cell phone. If the charger was a part of cell phone, then cell phone could not have been operated without using the battery charger. But in reality, it is not required at the time of operation. Further, the battery in the cell phone can be charged directly from the other means also like laptop without employing the battery charger, implying thereby, that it is nothing but an accessory to the mobile phone. The Tribunal noticed that as per the information available on the website of Nokia, the Company has invariably put the mobile battery charger in the category of an accessory which means that in the common parlance also, the mobile battery charger is understood as an accessory. It has also been noticed by the Tribunal that a Nokia make battery charger is compatible to many models of Nokia mobile phones and also many models of Nokia make battery chargers which are compatible to a particular model of Nokia mobile phone, imparting various levels of effectiveness and convenience to the users. 17. Learned counsel for the respondent referred to General Rules for interpretation of the First Schedule of the Import Tariff under the Customs Tariff Act, 1975. The classification of the goods in the Schedule for the purpose of Rule 3(b) in the general rules for interpretation of import tariff reads as follows: "3(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material of component which gives them their essential character, insofar as this criterion is applicable." It was contended that composite goods being used consisting of different materials and different components, and goods put up in sets for retail sale, cannot be classified by reference to clause (a). However, such submission cannot be accepted as it cannot be held that charger is an integral part of the mobile phone making it a composite good. Merely, making a composite package of cell phone charger will not make it composite good for the purpose of interpretation of the provisions. The word accessory as defined in the Websters Comprehensive Dictionary (International) Volume-I is defined as: "a person or thing that aids subordinately; an adjunct; appurtenance; accompaniment (2) such items of apparel as complete an outfit, as gloves, a scarf, hat or handbag.(3) A person who, even if not present, is concerned, either before or after, in the perpetration of a felony below the crime of treason. Adj.(1) Aiding the principal design, or assisting subordinately the chief agent, as in the commission of a crime.(2) contributory; supplemental; additional: accessory nerves". 18. In M/s. Annapurna Carbon Industries Co. vs. State of Andhra Pradesh, (1976)2 SCC 273 , this Court while examining the question whether "Arc Carbon" is an accessory to cinema projectors or whether comes under other cinematography equipments under Entry 4 of Schedule I to the A.P. General Sales Tax Act, 1957, defined accessories as: "an object or device that is not essential in itself but that adds to the beauty, convenience or effectiveness of something else". 19. In view of the aforesaid facts, we find that the Assessing Authority, Appellate Authority and the Tribunal rightly held that the mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone. We further hold that the battery charger cannot be held to be a composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone. The High Court failed to appreciate the aforesaid fact and wrongly held that the battery charger is a part of the cell phone. 20. In view of the finding recorded above, we have no other option but to set aside the impugned orders dated 17th November, 2010 in VAT Appeal Nos.54 & 55 (O&M) of 2010 passed by the High Court of Punjab and Haryana at Chandigarh. | 1[ds]In view of the aforesaid facts, we find that the Assessing Authority, Appellate Authority and the Tribunal rightly held that the mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone. We further hold that the battery charger cannot be held to be a composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone. The High Court failed to appreciate the aforesaid fact and wrongly held that the battery charger is a part of the cellview of the finding recorded above, we have no other option but to set aside the impugned orders dated 17th November, 2010 in VAT Appeal Nos.54 & 55 (O&M) of 2010 passed by the High Court of Punjab and Haryana at Chandigarh. | 1 | 2,445 | 153 | ### 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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4%. Cell phone is mentioned in the said schedule and it finds further place at Serial No.6(g) under Entry 60 and is thereby liable to be charged at the rate of 4%. 13. According to the counsel for the respondent, charger is an integral part of the cell phone and the cell phone cannot be operated without the charger and when any person comes for cell phone, he purchases the cell phone and then automatically takes away the charger for which no separate money is charged. However, it is admitted that whenever Company sells chargers separately then 12.5% tax is charged which is applicable to goods in residuary Schedule F of Act. 14. On behalf of the State it was rightly argued that when Entry 60(6)(g) of Schedule B of the Act does not mention accessories for the purpose of taxing the item/product at the rate of 4%, they need to be charged at 12.5% as per Schedule F. It was contended that the battery chargers are not covered under Entry 60(6)(g) and even otherwise there is no mention of the charger in HMS Code 8525.20.17 under the Excise Act, and therefore, charger is liable to be taxed at the rate of 12.5%. 15. Sub-sub heading code 8525 and tariff no.8525.20.17 of the Central Excise Duty Act, is as under: Chapter 85Sub-heading Code 8525Sub-sub heading Code 8525.20.17Tariff No.8525.20.17 Electrical machinery and equipment and parts thereof, radio-telegraphs sound recorders and reproducers and parts and accessories of such articles.Transmission apparatus for radiotelephony, radiobroadcasting or television, whether or not incorp.“Transmission apparatus incorporating reception apparatusCellular Telephones Cellular telephone is in schedule B at Entry No.60(6)(g) vide HSN Code No.8525.20.17. The Tariff No.8525.20.17 only relates to cellular telephone and not the accessories. The Schedule B does not indicate that the cellular phone includes the accessories like the chargers either in the HSN Code or by elaborating in words. 16. The Assessing Authority, Appellate Authority and the Tribunal rightly held that the battery charger is not a part of the mobile/cell phone. If the charger was a part of cell phone, then cell phone could not have been operated without using the battery charger. But in reality, it is not required at the time of operation. Further, the battery in the cell phone can be charged directly from the other means also like laptop without employing the battery charger, implying thereby, that it is nothing but an accessory to the mobile phone. The Tribunal noticed that as per the information available on the website of Nokia, the Company has invariably put the mobile battery charger in the category of an accessory which means that in the common parlance also, the mobile battery charger is understood as an accessory. It has also been noticed by the Tribunal that a Nokia make battery charger is compatible to many models of Nokia mobile phones and also many models of Nokia make battery chargers which are compatible to a particular model of Nokia mobile phone, imparting various levels of effectiveness and convenience to the users. 17. Learned counsel for the respondent referred to General Rules for interpretation of the First Schedule of the Import Tariff under the Customs Tariff Act, 1975. The classification of the goods in the Schedule for the purpose of Rule 3(b) in the general rules for interpretation of import tariff reads as follows: "3(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material of component which gives them their essential character, insofar as this criterion is applicable." It was contended that composite goods being used consisting of different materials and different components, and goods put up in sets for retail sale, cannot be classified by reference to clause (a). However, such submission cannot be accepted as it cannot be held that charger is an integral part of the mobile phone making it a composite good. Merely, making a composite package of cell phone charger will not make it composite good for the purpose of interpretation of the provisions. The word accessory as defined in the Websters Comprehensive Dictionary (International) Volume-I is defined as: "a person or thing that aids subordinately; an adjunct; appurtenance; accompaniment (2) such items of apparel as complete an outfit, as gloves, a scarf, hat or handbag.(3) A person who, even if not present, is concerned, either before or after, in the perpetration of a felony below the crime of treason. Adj.(1) Aiding the principal design, or assisting subordinately the chief agent, as in the commission of a crime.(2) contributory; supplemental; additional: accessory nerves". 18. In M/s. Annapurna Carbon Industries Co. vs. State of Andhra Pradesh, (1976)2 SCC 273 , this Court while examining the question whether "Arc Carbon" is an accessory to cinema projectors or whether comes under other cinematography equipments under Entry 4 of Schedule I to the A.P. General Sales Tax Act, 1957, defined accessories as: "an object or device that is not essential in itself but that adds to the beauty, convenience or effectiveness of something else". 19. In view of the aforesaid facts, we find that the Assessing Authority, Appellate Authority and the Tribunal rightly held that the mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone. We further hold that the battery charger cannot be held to be a composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone. The High Court failed to appreciate the aforesaid fact and wrongly held that the battery charger is a part of the cell phone. 20. In view of the finding recorded above, we have no other option but to set aside the impugned orders dated 17th November, 2010 in VAT Appeal Nos.54 & 55 (O&M) of 2010 passed by the High Court of Punjab and Haryana at Chandigarh.
### Response:
1
### Explanation:
In view of the aforesaid facts, we find that the Assessing Authority, Appellate Authority and the Tribunal rightly held that the mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone. We further hold that the battery charger cannot be held to be a composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone. The High Court failed to appreciate the aforesaid fact and wrongly held that the battery charger is a part of the cellview of the finding recorded above, we have no other option but to set aside the impugned orders dated 17th November, 2010 in VAT Appeal Nos.54 & 55 (O&M) of 2010 passed by the High Court of Punjab and Haryana at Chandigarh.
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The Commissioner Of Income-Tax, Madras Vs. Chari And Chari Ltd | that a particular remuneration stipulated to be paid is not bona fide, or is unreasonable, the High Court in exercising its advisory jurisdiction has no power to interfere with that opinion. But the material circumstances relating to the nature of the contract, the services to be performed and the nature of the duties by the employee were not at all taken into account by the Tribunal and the income-tax authorities. We therefore agree with the High Court that the first question should be answered in the negative. 10. The contract under which respondent company was appointed managing agent for the Nellore Power and Light Company Ltd. was to ensure till 1960, but it had to be prematurely terminated because the Government of Madras exercising its powers under the Madras Electrical Undertakings Acquisition Act, 1949 had compulsorily acquired the electricity undertaking. With the acquisition of that undertaking the right of the respondent as managing agent ceased. Under Sec. 15 of the Electrical Undertakings Acquisition Act, the Government was bound to pay compensation which would include compensation for termination of the managing agency agreement. The respondent received Rs.17,346 as compensation for termination of the agency, computed in the manner laid down in S. 15 of that Act. Prima facie, such a receipt being in lieu of extinction of an asset of the assessee, is a capital receipt. It was urged, however, on behalf of the revenue that the respondent was carrying on business of taking up managing agencies and that by the extinction of one of the managing agencies, the business structure of the respondent was not impaired. In a recent judgment delivered by this Court in Kettlewell Bullen and Co. Ltd. v. Commissioner of Income-tax, Calcutta, 1964-53 ITR 261 : (AIR 1965 SC 65 ) it was pointed out that :"It may be broadly stated that what is received for loss of capital is a capital receipt: what is received as profit in a trading transaction is taxable income. But the difficulty arises in ascertaining whether what is received in a given case is compensation for loss of a source of income, or profit in a trading transaction". The Court further observed:"It cannot be said as a general rule, that what is determinative of the nature of the receipt is extinction or compulsory cessation of an agency or office. Nor can it be said that compensation received for extinction of an agency may always be equated with price received on sale of goodwill of a business. The test applicable to contracts for termination of agencies is; what has the assessee parted with in lieu of money or moneys worth received by him which is sought be taxed? If compensation is paid for cancellation of the contract of agency, which does not affect the trading structure of the business of the recipient, or involve loss of an enduring asset, leaving the taxpayer free to carry on his trade released from the contract which is cancelled, the receipt will be a trading receipt; where the cancellation of a contract of agency impairs the trading structure, or involves loss of an enduring asset, the amount paid for compensating the loss is capital." 11. Turning to the facts of the present case, it must in the first instance be observed that it is for the revenue to establish that a particular receipt is income liable to tax, and beyond stating that the respondent was the managing agent of the Nellore Power and Light Company Ltd., and of two other Companies, there is no other evidence about the nature of the business of the two other Companies of which the respondent was the managing agent, about their relative importance qua the managing agency of the Nellore Power and Light Company Ltd. and whether by reason of the extinction of the managing agency of the Nellore Power and Light Company Ltd., any enduring asset was lost to the respondent, or its trading organisation was adversely affected. The Income-tax Officer observed that the "Companys business of Managing Agency as such had not come to an end" the Company still continues as "meaning agents of other companies. Even after surrender of one of the agencies, the Company carries on business as before its structure not being affected" and thereafter "the receipt is to be considered as revenue, in accordance with the decision in Kelsall Parsons and Co. v. Commr. of Inland Revenue, (1937) 21 Tax Case 608 and with that view the Appellate Assistant Commissioner and the Tribunal agreed. But in the absence of evidence as to what effect the determination of the managing agency of the Nellore Power and Light Company Ltd. had upon the business of the respondent, the mere circumstances that the respondent had managing agencies of two other companies without more will not bring the case within (1937) 21 Tax Case 608. In Kettlewell Bullen and Co.s case, 1964-53 ITR 261 : (AIR 1965 SC 65 ) this Court pointed out that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but the rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue and not capital Kelsal Parsons and Co.s case, (1937) 21 Tax Case 608 falls within the exception to the ordinary rule and circumstances which brought the case of the respondent within the exception must be clearly established. The High Court was of the opinion that compensation received for taking over the Nellore Power and Light Company Ltd. was a capital receipt not liable to be taxed, and on the materials placed before us, we are unable to disagree with the High Court on this question. | 0[ds]11. Turning to the facts of the present case, it must in the first instance be observed that it is for the revenue to establish that a particular receipt is income liable to tax, and beyond stating that the respondent was the managing agent of the Nellore Power and Light Company Ltd., and of two other Companies, there is no other evidence about the nature of the business of the two other Companies of which the respondent was the managing agent, about their relative importance qua the managing agency of the Nellore Power and Light Company Ltd. and whether by reason of the extinction of the managing agency of the Nellore Power and Light Company Ltd., any enduring asset was lost to the respondent, or its trading organisation was adversely affected. The Income-tax Officer observed that the "Companys business of Managing Agency as such had not come to an end" the Company still continues as "meaning agents of other companies. Even after surrender of one of the agencies, the Company carries on business as before its structure not being affected" and thereafter "the receipt is to be considered as revenue, in accordance with the decision in Kelsall Parsons and Co. v. Commr. of Inland Revenue, (1937) 21 Tax Case 608 and with that view the Appellate Assistant Commissioner and the Tribunal agreed. But in the absence of evidence as to what effect the determination of the managing agency of the Nellore Power and Light Company Ltd. had upon the business of the respondent, the mere circumstances that the respondent had managing agencies of two other companies without more will not bring the case within (1937) 21 Tax Case 608. In Kettlewell Bullen and Co.s case, 1964-53 ITR 261 : (AIR 1965 SC 65 ) this Court pointed out that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but the rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue and not capital Kelsal Parsons and Co.s case, (1937) 21 Tax Case 608 falls within the exception to the ordinary rule and circumstances which brought the case of the respondent within the exception must be clearly established. The High Court was of the opinion that compensation received for taking over the Nellore Power and Light Company Ltd. was a capital receipt not liable to be taxed, and on the materials placed before us, we are unable to disagree with the High Court on this question. | 0 | 3,018 | 518 | ### Instruction:
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that a particular remuneration stipulated to be paid is not bona fide, or is unreasonable, the High Court in exercising its advisory jurisdiction has no power to interfere with that opinion. But the material circumstances relating to the nature of the contract, the services to be performed and the nature of the duties by the employee were not at all taken into account by the Tribunal and the income-tax authorities. We therefore agree with the High Court that the first question should be answered in the negative. 10. The contract under which respondent company was appointed managing agent for the Nellore Power and Light Company Ltd. was to ensure till 1960, but it had to be prematurely terminated because the Government of Madras exercising its powers under the Madras Electrical Undertakings Acquisition Act, 1949 had compulsorily acquired the electricity undertaking. With the acquisition of that undertaking the right of the respondent as managing agent ceased. Under Sec. 15 of the Electrical Undertakings Acquisition Act, the Government was bound to pay compensation which would include compensation for termination of the managing agency agreement. The respondent received Rs.17,346 as compensation for termination of the agency, computed in the manner laid down in S. 15 of that Act. Prima facie, such a receipt being in lieu of extinction of an asset of the assessee, is a capital receipt. It was urged, however, on behalf of the revenue that the respondent was carrying on business of taking up managing agencies and that by the extinction of one of the managing agencies, the business structure of the respondent was not impaired. In a recent judgment delivered by this Court in Kettlewell Bullen and Co. Ltd. v. Commissioner of Income-tax, Calcutta, 1964-53 ITR 261 : (AIR 1965 SC 65 ) it was pointed out that :"It may be broadly stated that what is received for loss of capital is a capital receipt: what is received as profit in a trading transaction is taxable income. But the difficulty arises in ascertaining whether what is received in a given case is compensation for loss of a source of income, or profit in a trading transaction". The Court further observed:"It cannot be said as a general rule, that what is determinative of the nature of the receipt is extinction or compulsory cessation of an agency or office. Nor can it be said that compensation received for extinction of an agency may always be equated with price received on sale of goodwill of a business. The test applicable to contracts for termination of agencies is; what has the assessee parted with in lieu of money or moneys worth received by him which is sought be taxed? If compensation is paid for cancellation of the contract of agency, which does not affect the trading structure of the business of the recipient, or involve loss of an enduring asset, leaving the taxpayer free to carry on his trade released from the contract which is cancelled, the receipt will be a trading receipt; where the cancellation of a contract of agency impairs the trading structure, or involves loss of an enduring asset, the amount paid for compensating the loss is capital." 11. Turning to the facts of the present case, it must in the first instance be observed that it is for the revenue to establish that a particular receipt is income liable to tax, and beyond stating that the respondent was the managing agent of the Nellore Power and Light Company Ltd., and of two other Companies, there is no other evidence about the nature of the business of the two other Companies of which the respondent was the managing agent, about their relative importance qua the managing agency of the Nellore Power and Light Company Ltd. and whether by reason of the extinction of the managing agency of the Nellore Power and Light Company Ltd., any enduring asset was lost to the respondent, or its trading organisation was adversely affected. The Income-tax Officer observed that the "Companys business of Managing Agency as such had not come to an end" the Company still continues as "meaning agents of other companies. Even after surrender of one of the agencies, the Company carries on business as before its structure not being affected" and thereafter "the receipt is to be considered as revenue, in accordance with the decision in Kelsall Parsons and Co. v. Commr. of Inland Revenue, (1937) 21 Tax Case 608 and with that view the Appellate Assistant Commissioner and the Tribunal agreed. But in the absence of evidence as to what effect the determination of the managing agency of the Nellore Power and Light Company Ltd. had upon the business of the respondent, the mere circumstances that the respondent had managing agencies of two other companies without more will not bring the case within (1937) 21 Tax Case 608. In Kettlewell Bullen and Co.s case, 1964-53 ITR 261 : (AIR 1965 SC 65 ) this Court pointed out that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but the rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue and not capital Kelsal Parsons and Co.s case, (1937) 21 Tax Case 608 falls within the exception to the ordinary rule and circumstances which brought the case of the respondent within the exception must be clearly established. The High Court was of the opinion that compensation received for taking over the Nellore Power and Light Company Ltd. was a capital receipt not liable to be taxed, and on the materials placed before us, we are unable to disagree with the High Court on this question.
### Response:
0
### Explanation:
11. Turning to the facts of the present case, it must in the first instance be observed that it is for the revenue to establish that a particular receipt is income liable to tax, and beyond stating that the respondent was the managing agent of the Nellore Power and Light Company Ltd., and of two other Companies, there is no other evidence about the nature of the business of the two other Companies of which the respondent was the managing agent, about their relative importance qua the managing agency of the Nellore Power and Light Company Ltd. and whether by reason of the extinction of the managing agency of the Nellore Power and Light Company Ltd., any enduring asset was lost to the respondent, or its trading organisation was adversely affected. The Income-tax Officer observed that the "Companys business of Managing Agency as such had not come to an end" the Company still continues as "meaning agents of other companies. Even after surrender of one of the agencies, the Company carries on business as before its structure not being affected" and thereafter "the receipt is to be considered as revenue, in accordance with the decision in Kelsall Parsons and Co. v. Commr. of Inland Revenue, (1937) 21 Tax Case 608 and with that view the Appellate Assistant Commissioner and the Tribunal agreed. But in the absence of evidence as to what effect the determination of the managing agency of the Nellore Power and Light Company Ltd. had upon the business of the respondent, the mere circumstances that the respondent had managing agencies of two other companies without more will not bring the case within (1937) 21 Tax Case 608. In Kettlewell Bullen and Co.s case, 1964-53 ITR 261 : (AIR 1965 SC 65 ) this Court pointed out that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but the rule is subject to an exception that payment received even for termination of an agency agreement, where the agency is one of many which the assessee holds, and the termination of the agency does not impair the profit-making structure of the assessee, but is within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated, and fresh agencies may be taken, is revenue and not capital Kelsal Parsons and Co.s case, (1937) 21 Tax Case 608 falls within the exception to the ordinary rule and circumstances which brought the case of the respondent within the exception must be clearly established. The High Court was of the opinion that compensation received for taking over the Nellore Power and Light Company Ltd. was a capital receipt not liable to be taxed, and on the materials placed before us, we are unable to disagree with the High Court on this question.
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Dalmia Dadri Cement, Limited Vs. Avtar Narain Gujral and Others | his examination in-chief "our scales and grades are higher than those prevailing in other cement factories." But in cross-examination he admitted that he had got no personal knowledge about the wages prevailing in other cement concerns. As examination of the evidence let in by the appellant clearly shown that it was chiefly directed to showing that the company losses and that, therefore, it would not be able to bear the burden of an increase in the wages. It seems probable that before the tribunal the appellant did not place much reliance on the contention that the scale of wages in this factory compare favourably with those prevailing in other cement concerns and that what it seriously pressed was the contention that the industry was not in a position to pay more wages. Having examined the evidence we are satisfied that the appellant has no real cause for complaint on this score.That this revision has not in fact resulted in any injustice could be seen from the following statement showing the position before and under the award : SEMI-SKILLED Existing Revised DEMAND A Rs. 40-2-60 Rs. 45-2 1/2-80 Merged into one grade B Rs. 55-2 1/2-85 Rs. 45-3 1/2-77 1/2-4-97 Rs. 45-2 1/2-80-3-95 SKILLED WORKMEN B Rs. 70-3-110 Rs. 70-3-110 Merged into one grade A Rs. 80-4-125 Rs. 80-4-125 Rs. 80-4-125 JUNIOR CLERKS Rs. 50-4-80 Rs. 60-5-85-7 1/2-122- Rs. 50-5-90-6-120 10-173 1/2 SENIOR CLERKS Rs. 80-4-100-5- Rs. 90-7 1/2-120-10-220- Rs. 90-6-120-8-160- 125 15-310 EB-10-210 What the tribunal has done is simply to amalgamate different categories into one and to made consequential changes. The reason for this is thus stated in the award : "If I fix the scales of semi-skilled and skilled workmen as such, it will give rise to a number of industrial disputes when the management would be required to fix these categories in these classes." 6. The tribunal also refers to the fact that the number of unskilled workmen is not very high and that a slight increase in their wages would be justified. As regards the skilled workmen it takes into account the rates which are in vogue in other industries. In view of these facts, the revision of the grades and scales of wages of the workmen by the tribunal must be held to be justified and just. 7. A contention was also advanced that in recessing the scale of wages of junior clerks, the tribunal had taken into account the award made by it in the case of the Punjab Cloth Mills, Bhiwani, that the said award had not been admitted as evidence in the present case, and as it has been relied on for reaching the finding that the scale of wages of junior clerks required revision, the award is illegal, and must be set aside. The decision of this Court in Burn & Co., Ltd. v. Their workmen [1959 - I L.L.J. 450] is cited as a precedent directly supporting this contention. But, that however, is a decision on its facts, which were that an award had been given by an industrial tribunal fixing the wage structure in. An industry, and both the parties had agreed to accept the award. Subsequently the workmen wanted a revision of the wages, and the dispute was referred to a tribunal for adjudication. There was no evidence that the had been any change in the circumstances since the date of the previous award. But the tribunal revised the wages-structure on the strength of an award made in another reference, which had not been admitted as evidence in the case. It was with reference to these facts that this court observed :"It was points out to us that the tribunal had referred to some award in connexion with Martin Burn & Co., of the existence of which there was no evidence in the record and it was conceded on behalf of the workmen that this was so, It is patent, therefore, that so far as the workmen are concerned the award of the tribunal is based on some material which both parties concede does not exist in the record. There is no other reason given for altering the scales of pay and dearness allowance so far as the workmen are concerned." 8. Thus the award was set aside on the ground that apart from the award in Martin Burn & Co. case which was not in evidence, there was no other material in support of it. That is no other material in support of it. That is not the position here. The award given in the case of the Punjab Cloth Mills, Bhiwani, was not the only evidence before the tribunal, and even it that is rules out, there was on record other evidence supporting the demand for revision, on which the finding of the tribunal could be sustained. It should also be mentioned that the tribunal has not fully adopted the scale fixed in Punjab Cloth Mills case. It has modified it so as to suit the present case. The reference to the award in Punjab Cloth Mills case had not resulted in any prejudice to the appellant, and we must therefore, decline to interfere on this ground. 9. The last point urged for the appellants relates to the extra allowances of Rs. 5 per mensem directed to be paid to the shift workers. It is contended that shift working is incidental to service in this establishment and must be taken to be one of its service conditions and the workmen who had got into employment with full knowledge of it, cannot now be permitted to claim more on this account. But them there was evidence - and indeed this was admitted - that the clerks working in the shifts have to work for more hours than those working in the offices. Under the circumstances the grant of an workmen cannot be said to be unjust.A contention was also raised that there was no justification for increasing the dearness allowances but this was expressly abandoned before us. | 0[ds]The question whether a person who has attained the age of sixty could validly be appointed as a member of the tribunal under S. 7(3)(c) came up for consideration before this Court in Atlas Cycle Industries, Ltd. v. Its workmen in Civil Appeal No. 188 of 1961, decided on 8 February 1962 [Since reported in p. 250 (infra)] where also the validity of the appointment of Sri A. N. Gujral under the notification, dated 28 April 1953 aforesaid, was in question. The present appeal was heard along with Civil appeal No. 188 of 1961 and but our judgment in that appeal we have held that on the construction of S. 7(3)(c), a person who had attained the age of sixty could validly he appointed as a member. Following that decision we must hold that Sri A. N. Gujral was validly appointed to the industrial tribunal on 28 April 1953, and that in consequence, he was duly qualified to be appointed as presiding officer of the tribunal under S. 7A(3)(b).(2)On the very principle of it, this decision can have application only where there is an adjudication by the tribunal on the merits. In the present case there has been no adjudication by any tribunal but only a settlement between the parties. That would, of course, be binding on them but only to the extent provided in the agreement itself. Here the agreement was to be in operation for two years. It provides for the revision of the terms even earlier in accordance with the decision of the wage board. The agreement, therefore, becomes spent on its one terms, on 8 April 1957, and that is how the parties understood it as is clear from their conduct in referring the disputes including the one for revision of grades, first to the decision of arbitrators and then that failing, to the Government of Punjab, under S.10(2) of the Act. We must accordingly hold that it was competent to the tribunal to revised the grades for the period subsequent to the agreement event if there was no proof of change in circumstancesIt is true that the tribunal does not expressly deal with this point in its award. In view of this we have examined the record with a view to satisfy ourselves whether that had resulted in failure of justice. The union has adduced considerable body of evidence as to the grades and scales of wages in this industry with a view to show that the existing scales required revision. Exhibits A1, A2 and A5 are statements of the scales of wages in the cement industry. The secretary of the union, Madanlal, has also given evidence on this matter as A.W. 3. Besides filing the above documents, he stated that the wages for some of the skilled workmen were less than what were paid in other factories. He also filed Ex. A10 which is a comparative chart of wages prevailing in certain industries. As against this there was practically no evidence on the side of the appellant. R. L. Agrawal, R.W. 2, who has been the manager of the appellants concern for the last nine months stated in his examination in-chief "our scales and grades are higher than those prevailing in other cement factories." But in cross-examination he admitted that he had got no personal knowledge about the wages prevailing in other cement concerns. As examination of the evidence let in by the appellant clearly shown that it was chiefly directed to showing that the company losses and that, therefore, it would not be able to bear the burden of an increase in the wages. It seems probable that before the tribunal the appellant did not place much reliance on the contention that the scale of wages in this factory compare favourably with those prevailing in other cement concerns and that what it seriously pressed was the contention that the industry was not in a position to pay more wages. Having examined the evidence we are satisfied that the appellant has no real cause for complaint on this score.That this revision has not in fact resulted in any injustice6. The tribunal also refers to the fact that the number of unskilled workmen is not very high and that a slight increase in their wages would be justified. As regards the skilled workmen it takes into account the rates which are in vogue in other industries. In view of these facts, the revision of the grades and scales of wages of the workmen by the tribunal must be held to be justified and just8. Thus the award was set aside on the ground that apart from the award in Martin Burn & Co. case which was not in evidence, there was no other material in support of it. That is no other material in support of it. That is not the position here. The award given in the case of the Punjab Cloth Mills, Bhiwani, was not the only evidence before the tribunal, and even it that is rules out, there was on record other evidence supporting the demand for revision, on which the finding of the tribunal could be sustained. It should also be mentioned that the tribunal has not fully adopted the scale fixed in Punjab Cloth Mills case. It has modified it so as to suit the present case. The reference to the award in Punjab Cloth Mills case had not resulted in any prejudice to the appellant, and we must therefore, decline to interfere on this groundBut them there was evidence - and indeed this was admitted - that the clerks working in the shifts have to work for more hours than those working in the offices. Under the circumstances the grant of an workmen cannot be said to be unjustA contention was also raised that there was no justification for increasing the dearness allowances but this was expressly abandoned before us. | 0 | 3,247 | 1,090 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
his examination in-chief "our scales and grades are higher than those prevailing in other cement factories." But in cross-examination he admitted that he had got no personal knowledge about the wages prevailing in other cement concerns. As examination of the evidence let in by the appellant clearly shown that it was chiefly directed to showing that the company losses and that, therefore, it would not be able to bear the burden of an increase in the wages. It seems probable that before the tribunal the appellant did not place much reliance on the contention that the scale of wages in this factory compare favourably with those prevailing in other cement concerns and that what it seriously pressed was the contention that the industry was not in a position to pay more wages. Having examined the evidence we are satisfied that the appellant has no real cause for complaint on this score.That this revision has not in fact resulted in any injustice could be seen from the following statement showing the position before and under the award : SEMI-SKILLED Existing Revised DEMAND A Rs. 40-2-60 Rs. 45-2 1/2-80 Merged into one grade B Rs. 55-2 1/2-85 Rs. 45-3 1/2-77 1/2-4-97 Rs. 45-2 1/2-80-3-95 SKILLED WORKMEN B Rs. 70-3-110 Rs. 70-3-110 Merged into one grade A Rs. 80-4-125 Rs. 80-4-125 Rs. 80-4-125 JUNIOR CLERKS Rs. 50-4-80 Rs. 60-5-85-7 1/2-122- Rs. 50-5-90-6-120 10-173 1/2 SENIOR CLERKS Rs. 80-4-100-5- Rs. 90-7 1/2-120-10-220- Rs. 90-6-120-8-160- 125 15-310 EB-10-210 What the tribunal has done is simply to amalgamate different categories into one and to made consequential changes. The reason for this is thus stated in the award : "If I fix the scales of semi-skilled and skilled workmen as such, it will give rise to a number of industrial disputes when the management would be required to fix these categories in these classes." 6. The tribunal also refers to the fact that the number of unskilled workmen is not very high and that a slight increase in their wages would be justified. As regards the skilled workmen it takes into account the rates which are in vogue in other industries. In view of these facts, the revision of the grades and scales of wages of the workmen by the tribunal must be held to be justified and just. 7. A contention was also advanced that in recessing the scale of wages of junior clerks, the tribunal had taken into account the award made by it in the case of the Punjab Cloth Mills, Bhiwani, that the said award had not been admitted as evidence in the present case, and as it has been relied on for reaching the finding that the scale of wages of junior clerks required revision, the award is illegal, and must be set aside. The decision of this Court in Burn & Co., Ltd. v. Their workmen [1959 - I L.L.J. 450] is cited as a precedent directly supporting this contention. But, that however, is a decision on its facts, which were that an award had been given by an industrial tribunal fixing the wage structure in. An industry, and both the parties had agreed to accept the award. Subsequently the workmen wanted a revision of the wages, and the dispute was referred to a tribunal for adjudication. There was no evidence that the had been any change in the circumstances since the date of the previous award. But the tribunal revised the wages-structure on the strength of an award made in another reference, which had not been admitted as evidence in the case. It was with reference to these facts that this court observed :"It was points out to us that the tribunal had referred to some award in connexion with Martin Burn & Co., of the existence of which there was no evidence in the record and it was conceded on behalf of the workmen that this was so, It is patent, therefore, that so far as the workmen are concerned the award of the tribunal is based on some material which both parties concede does not exist in the record. There is no other reason given for altering the scales of pay and dearness allowance so far as the workmen are concerned." 8. Thus the award was set aside on the ground that apart from the award in Martin Burn & Co. case which was not in evidence, there was no other material in support of it. That is no other material in support of it. That is not the position here. The award given in the case of the Punjab Cloth Mills, Bhiwani, was not the only evidence before the tribunal, and even it that is rules out, there was on record other evidence supporting the demand for revision, on which the finding of the tribunal could be sustained. It should also be mentioned that the tribunal has not fully adopted the scale fixed in Punjab Cloth Mills case. It has modified it so as to suit the present case. The reference to the award in Punjab Cloth Mills case had not resulted in any prejudice to the appellant, and we must therefore, decline to interfere on this ground. 9. The last point urged for the appellants relates to the extra allowances of Rs. 5 per mensem directed to be paid to the shift workers. It is contended that shift working is incidental to service in this establishment and must be taken to be one of its service conditions and the workmen who had got into employment with full knowledge of it, cannot now be permitted to claim more on this account. But them there was evidence - and indeed this was admitted - that the clerks working in the shifts have to work for more hours than those working in the offices. Under the circumstances the grant of an workmen cannot be said to be unjust.A contention was also raised that there was no justification for increasing the dearness allowances but this was expressly abandoned before us.
### Response:
0
### Explanation:
The question whether a person who has attained the age of sixty could validly be appointed as a member of the tribunal under S. 7(3)(c) came up for consideration before this Court in Atlas Cycle Industries, Ltd. v. Its workmen in Civil Appeal No. 188 of 1961, decided on 8 February 1962 [Since reported in p. 250 (infra)] where also the validity of the appointment of Sri A. N. Gujral under the notification, dated 28 April 1953 aforesaid, was in question. The present appeal was heard along with Civil appeal No. 188 of 1961 and but our judgment in that appeal we have held that on the construction of S. 7(3)(c), a person who had attained the age of sixty could validly he appointed as a member. Following that decision we must hold that Sri A. N. Gujral was validly appointed to the industrial tribunal on 28 April 1953, and that in consequence, he was duly qualified to be appointed as presiding officer of the tribunal under S. 7A(3)(b).(2)On the very principle of it, this decision can have application only where there is an adjudication by the tribunal on the merits. In the present case there has been no adjudication by any tribunal but only a settlement between the parties. That would, of course, be binding on them but only to the extent provided in the agreement itself. Here the agreement was to be in operation for two years. It provides for the revision of the terms even earlier in accordance with the decision of the wage board. The agreement, therefore, becomes spent on its one terms, on 8 April 1957, and that is how the parties understood it as is clear from their conduct in referring the disputes including the one for revision of grades, first to the decision of arbitrators and then that failing, to the Government of Punjab, under S.10(2) of the Act. We must accordingly hold that it was competent to the tribunal to revised the grades for the period subsequent to the agreement event if there was no proof of change in circumstancesIt is true that the tribunal does not expressly deal with this point in its award. In view of this we have examined the record with a view to satisfy ourselves whether that had resulted in failure of justice. The union has adduced considerable body of evidence as to the grades and scales of wages in this industry with a view to show that the existing scales required revision. Exhibits A1, A2 and A5 are statements of the scales of wages in the cement industry. The secretary of the union, Madanlal, has also given evidence on this matter as A.W. 3. Besides filing the above documents, he stated that the wages for some of the skilled workmen were less than what were paid in other factories. He also filed Ex. A10 which is a comparative chart of wages prevailing in certain industries. As against this there was practically no evidence on the side of the appellant. R. L. Agrawal, R.W. 2, who has been the manager of the appellants concern for the last nine months stated in his examination in-chief "our scales and grades are higher than those prevailing in other cement factories." But in cross-examination he admitted that he had got no personal knowledge about the wages prevailing in other cement concerns. As examination of the evidence let in by the appellant clearly shown that it was chiefly directed to showing that the company losses and that, therefore, it would not be able to bear the burden of an increase in the wages. It seems probable that before the tribunal the appellant did not place much reliance on the contention that the scale of wages in this factory compare favourably with those prevailing in other cement concerns and that what it seriously pressed was the contention that the industry was not in a position to pay more wages. Having examined the evidence we are satisfied that the appellant has no real cause for complaint on this score.That this revision has not in fact resulted in any injustice6. The tribunal also refers to the fact that the number of unskilled workmen is not very high and that a slight increase in their wages would be justified. As regards the skilled workmen it takes into account the rates which are in vogue in other industries. In view of these facts, the revision of the grades and scales of wages of the workmen by the tribunal must be held to be justified and just8. Thus the award was set aside on the ground that apart from the award in Martin Burn & Co. case which was not in evidence, there was no other material in support of it. That is no other material in support of it. That is not the position here. The award given in the case of the Punjab Cloth Mills, Bhiwani, was not the only evidence before the tribunal, and even it that is rules out, there was on record other evidence supporting the demand for revision, on which the finding of the tribunal could be sustained. It should also be mentioned that the tribunal has not fully adopted the scale fixed in Punjab Cloth Mills case. It has modified it so as to suit the present case. The reference to the award in Punjab Cloth Mills case had not resulted in any prejudice to the appellant, and we must therefore, decline to interfere on this groundBut them there was evidence - and indeed this was admitted - that the clerks working in the shifts have to work for more hours than those working in the offices. Under the circumstances the grant of an workmen cannot be said to be unjustA contention was also raised that there was no justification for increasing the dearness allowances but this was expressly abandoned before us.
|
New India Assurance Co. Ltd Vs. G.N.Sainani | not, before or at the time of so doing expressly or impliedly agreed to assign the policy, any subsequent assignment of the policy is in operative :Provided that nothing in this section affects the assignment of a policy after loss." No doubt the policy can be assigned either before or after the loss. But then the assignee must have insurable interest in the subject-matter as provided in para 11.1 of the policy. The provisions of the Marine Insurance Act and terms of the policy have to be read in the context of definition of "consumer" as contained in clause (d) of Section 2 of the Act. The relevant part of this clause is as under : "(d) `consumer means any person who, -(i) . . . . . . . . . . . . . . . .(ii) hires or avails of any services for a consideration which has been paid or promised partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person :" 12. The question that arises is if the assignee in the facts and circumstances of the present case could be said to be beneficiary so as to stake his claim under the policy. If we see the definition of "service" as provided under the Act it means and includes the provision of facilities in connection with the insurance as well. The complaint under the Act in the present case has to show that the service hired or availed of or agreed to be hired or availed of by the complainant suffers from deficiency in any respect. The complainant, of course, means a consumer and as we have seen above includes any beneficiary. "Deficiency" has been defined in clause (g) of Section 2 of the Act as under : "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service :" The interest of the insured must exist in the case of marine insurance at the time of loss and the assured must have some relation to or concern in, the subject of the insurance. The service which the insurer offers is with reference to the goods and the insurable interest has to be in respect of the goods. To put it in other words, insurable interest in property would be such interest as shall make the loss of the property to cause pecuniary damage to the assured. To come under the scope of the word "consumer" as defined in the Act it should be possible for the assured to assign his insurable interest in the goods subject-matter of the policy for the assignee as a consumer to enjoy the benefit of the policy with reference to the goods which are insured. What has been assigned in the present case is the amount of loss suffered by the assured on account of shortlanding of the goods, meaning thereby that right to recover the loss is assigned to the assignee and not that any service is to be rendered under the policy by the insurer with reference to the goods. We are looking at the whole thing from the point of the consumer under the Act with reference to certain relevant provisions of the Marine Insurance Act. Unless the assignee has some insurable interest in the property subject-matter of the insurance until the time the policy terminates he cannot be beneficiary of any service required to be rendered by the insurer under the policy. Admittedly it was much after the goods had reached the port of destination and appropriated that the policy was transferred by the insured to the complainant to recover the amount of loss suffered by the assured. Thus, what is assigned is in effect a mere right to sue for the loss on account of shortlanding of the goods. It is difficult to see as to how it could be said that the respondent, that is the assignee, is the beneficiary of any service under the policy. He may, however, have right to recover the loss from the insurer by filing a suit in a civil court but certainly to seek remedy under the Act he must be a consumer. If the policy had been assigned during the course of its validity and before the goods were appropriated after their arrival at the port of destination, it could perhaps be said that the assignee had beneficial interest therein but not otherwise. By not extending the policy beyond a particular period, that is 60 days, the insurer acted within the terms of the contract of insurance and on that account it could not be said that there was deficiency in service to be provided by the insurer under the policy. 13. It is not necessary for us to examine in depth various provisions of the Marine Insurance Act as in the present case we are primarily concerned with the provisions of the Consumer Protection Act. The policy in question is though designated as Marine Insurance Policy but we think it is more a question of interpretation of relevant clauses of the policy. The Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. To succeed in the present case the complainant must show that he is a consumer and that there has been deficiency in service by the insurer. This he has been unable to show. He, therefore, could not maintain complaint under the Act. 14. | 1[ds]The interest of the insured must exist in the case of marine insurance at the time of loss and the assured must have some relation to or concern in, the subject of the insurance. The service which the insurer offers is with reference to the goods and the insurable interest has to be in respect of the goods. To put it in other words, insurable interest in property would be such interest as shall make the loss of the property to cause pecuniary damage to the assured. To come under the scope of the word "consumer" as defined in the Act it should be possible for the assured to assign his insurable interest in the goods subject-matter of the policy for the assignee as a consumer to enjoy the benefit of the policy with reference to the goods which are insured. What has been assigned in the present case is the amount of loss suffered by the assured on account of shortlanding of the goods, meaning thereby that right to recover the loss is assigned to the assignee and not that any service is to be rendered under the policy by the insurer with reference to the goods. We are looking at the whole thing from the point of the consumer under the Act with reference to certain relevant provisions of the Marine Insurance Act. Unless the assignee has some insurable interest in the property subject-matter of the insurance until the time the policy terminates he cannot be beneficiary of any service required to be rendered by the insurer under the policy. Admittedly it was much after the goods had reached the port of destination and appropriated that the policy was transferred by the insured to the complainant to recover the amount of loss suffered by the assured. Thus, what is assigned is in effect a mere right to sue for the loss on account of shortlanding of the goods. It is difficult to see as to how it could be said that the respondent, that is the assignee, is the beneficiary of any service under the policy. He may, however, have right to recover the loss from the insurer by filing a suit in a civil court but certainly to seek remedy under the Act he must be a consumer. If the policy had been assigned during the course of its validity and before the goods were appropriated after their arrival at the port of destination, it could perhaps be said that the assignee had beneficial interest therein but not otherwise. By not extending the policy beyond a particular period, that is 60 days, the insurer acted within the terms of the contract of insurance and on that account it could not be said that there was deficiency in service to be provided by the insurer under the policy.It is not necessary for us to examine in depth various provisions of the Marine Insurance Act as in the present case we are primarily concerned with the provisions of the Consumer Protection Act. The policy in question is though designated as Marine Insurance Policy but we think it is more a question of interpretation of relevant clauses of the policy. The Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. To succeed in the present case the complainant must show that he is a consumer and that there has been deficiency in service by the insurer. This he has been unable to show. He, therefore, could not maintain complaint under the Act. | 1 | 4,311 | 634 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
not, before or at the time of so doing expressly or impliedly agreed to assign the policy, any subsequent assignment of the policy is in operative :Provided that nothing in this section affects the assignment of a policy after loss." No doubt the policy can be assigned either before or after the loss. But then the assignee must have insurable interest in the subject-matter as provided in para 11.1 of the policy. The provisions of the Marine Insurance Act and terms of the policy have to be read in the context of definition of "consumer" as contained in clause (d) of Section 2 of the Act. The relevant part of this clause is as under : "(d) `consumer means any person who, -(i) . . . . . . . . . . . . . . . .(ii) hires or avails of any services for a consideration which has been paid or promised partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person :" 12. The question that arises is if the assignee in the facts and circumstances of the present case could be said to be beneficiary so as to stake his claim under the policy. If we see the definition of "service" as provided under the Act it means and includes the provision of facilities in connection with the insurance as well. The complaint under the Act in the present case has to show that the service hired or availed of or agreed to be hired or availed of by the complainant suffers from deficiency in any respect. The complainant, of course, means a consumer and as we have seen above includes any beneficiary. "Deficiency" has been defined in clause (g) of Section 2 of the Act as under : "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service :" The interest of the insured must exist in the case of marine insurance at the time of loss and the assured must have some relation to or concern in, the subject of the insurance. The service which the insurer offers is with reference to the goods and the insurable interest has to be in respect of the goods. To put it in other words, insurable interest in property would be such interest as shall make the loss of the property to cause pecuniary damage to the assured. To come under the scope of the word "consumer" as defined in the Act it should be possible for the assured to assign his insurable interest in the goods subject-matter of the policy for the assignee as a consumer to enjoy the benefit of the policy with reference to the goods which are insured. What has been assigned in the present case is the amount of loss suffered by the assured on account of shortlanding of the goods, meaning thereby that right to recover the loss is assigned to the assignee and not that any service is to be rendered under the policy by the insurer with reference to the goods. We are looking at the whole thing from the point of the consumer under the Act with reference to certain relevant provisions of the Marine Insurance Act. Unless the assignee has some insurable interest in the property subject-matter of the insurance until the time the policy terminates he cannot be beneficiary of any service required to be rendered by the insurer under the policy. Admittedly it was much after the goods had reached the port of destination and appropriated that the policy was transferred by the insured to the complainant to recover the amount of loss suffered by the assured. Thus, what is assigned is in effect a mere right to sue for the loss on account of shortlanding of the goods. It is difficult to see as to how it could be said that the respondent, that is the assignee, is the beneficiary of any service under the policy. He may, however, have right to recover the loss from the insurer by filing a suit in a civil court but certainly to seek remedy under the Act he must be a consumer. If the policy had been assigned during the course of its validity and before the goods were appropriated after their arrival at the port of destination, it could perhaps be said that the assignee had beneficial interest therein but not otherwise. By not extending the policy beyond a particular period, that is 60 days, the insurer acted within the terms of the contract of insurance and on that account it could not be said that there was deficiency in service to be provided by the insurer under the policy. 13. It is not necessary for us to examine in depth various provisions of the Marine Insurance Act as in the present case we are primarily concerned with the provisions of the Consumer Protection Act. The policy in question is though designated as Marine Insurance Policy but we think it is more a question of interpretation of relevant clauses of the policy. The Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. To succeed in the present case the complainant must show that he is a consumer and that there has been deficiency in service by the insurer. This he has been unable to show. He, therefore, could not maintain complaint under the Act. 14.
### Response:
1
### Explanation:
The interest of the insured must exist in the case of marine insurance at the time of loss and the assured must have some relation to or concern in, the subject of the insurance. The service which the insurer offers is with reference to the goods and the insurable interest has to be in respect of the goods. To put it in other words, insurable interest in property would be such interest as shall make the loss of the property to cause pecuniary damage to the assured. To come under the scope of the word "consumer" as defined in the Act it should be possible for the assured to assign his insurable interest in the goods subject-matter of the policy for the assignee as a consumer to enjoy the benefit of the policy with reference to the goods which are insured. What has been assigned in the present case is the amount of loss suffered by the assured on account of shortlanding of the goods, meaning thereby that right to recover the loss is assigned to the assignee and not that any service is to be rendered under the policy by the insurer with reference to the goods. We are looking at the whole thing from the point of the consumer under the Act with reference to certain relevant provisions of the Marine Insurance Act. Unless the assignee has some insurable interest in the property subject-matter of the insurance until the time the policy terminates he cannot be beneficiary of any service required to be rendered by the insurer under the policy. Admittedly it was much after the goods had reached the port of destination and appropriated that the policy was transferred by the insured to the complainant to recover the amount of loss suffered by the assured. Thus, what is assigned is in effect a mere right to sue for the loss on account of shortlanding of the goods. It is difficult to see as to how it could be said that the respondent, that is the assignee, is the beneficiary of any service under the policy. He may, however, have right to recover the loss from the insurer by filing a suit in a civil court but certainly to seek remedy under the Act he must be a consumer. If the policy had been assigned during the course of its validity and before the goods were appropriated after their arrival at the port of destination, it could perhaps be said that the assignee had beneficial interest therein but not otherwise. By not extending the policy beyond a particular period, that is 60 days, the insurer acted within the terms of the contract of insurance and on that account it could not be said that there was deficiency in service to be provided by the insurer under the policy.It is not necessary for us to examine in depth various provisions of the Marine Insurance Act as in the present case we are primarily concerned with the provisions of the Consumer Protection Act. The policy in question is though designated as Marine Insurance Policy but we think it is more a question of interpretation of relevant clauses of the policy. The Act is not a general law for all remedies. It is for the protection of the consumer as defined in the Act. To succeed in the present case the complainant must show that he is a consumer and that there has been deficiency in service by the insurer. This he has been unable to show. He, therefore, could not maintain complaint under the Act.
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Janak Sinha Vs. Mahant Ram Kishore Das | mentioned earlier, the High Court has considered and discussed the various incidents which took place at booth No. 57 at Dharampur. We do not think it necessary to go into the aspects raised by Dr. Singhvi because the evidence clearly discloses that there has been one instance of a voter being prevented from exercising his vote and even on the basis of the contention of Dr. Singhvi, the matter will come squarely under S. 123 (2) read with S. 79 (d) of the Act. We have in mind the evidence of P. W. 44 Makhan Singh. He was a resident of Dharampur and he was a voter in the mid-term election and he had to cast his vote at the Dharampur polling booth. On the date when the voting was scheduled to take place i.e. February 9, 1969, the witness went and exercised his vote but later in the day as there was serious disturbance, voting was stopped. On February 12, 1969, the date of repoll at that booth, the witness went to the booth at about 10 A. M. He saw the appellant already near the booth and he also saw the respondent coming to the booth at about 10 A. M. accompanied by three or four of his workers and supporters. He speaks to the assault made on the respondent by the appellant, but it is not necessary for us to refer to that part of his evidence. The witness further proceeds to state that he was having the symbol of Fish in his hand, which is the symbol of the Soshit Dal. On seeing this the workers of the appellant turned him out and prevented him from going into the polling booth to exercise his franchise. In consequence the witness states that he could not cast his vote on that day. He further refers to the appellant being present at the booth at that time when he was being so prevented by his workers from exercising his franchise. 65. In cross-examination, many questions had been put to the witness regarding the assault said to have been committed by the appellant on the respondent at about that time. But so far as his evidence regarding his being prevented from exercising his vote is concerned, he has stated that he went to cast his vote and as he was prevented he had to go away. He has further stated that there were several people near the polling booth and that he did not file any petition anywhere that he was not allowed to vote. The evidence of this witness has been believed by the learned Judge. it will also be seen that in Schedule I to the election petition, regarding Dharampur, booth No. 57, the respondent has clearly stated in column No. 4 that P. W. 44 Makhan Singh of village Dharapur was one of the persons against whom corrupt practice of undue influence was committed. In column No. 1 he included the names of the appellant as well as his various supporters and workers, who have figured as witnesses on the side of the appellant as the persons who committed undue influence. That the appellant and the respondent were in the polling booth No. 57 at Dharampur at about 10 A. M. on February 12, 1969 is borne out by the evidence on the side of the appellant himself. Therefore, it is not necessary for us to refer to the evidence adduced by the respondent in this behalf. 66. D. W. 20 Ramchandra Jha the Inspector of Police, was deputed to be on duty at Dharmpur polling booth on February 12, 1969. He was present at the booth from 8.30 A. M. and remained there till about 4 or 5 P. M. He has spoken to the fact that the respondent came to the booth at about 10 A. M. and that he had to escort him from the booth to his car which was outside the booth area as the respondent was complaining that his life was in danger. Here again this witness speaks to various other matters with which we are not concerned. We are only referring to the evidence of this witness for the limited purpose of finding corroboration to the evidence of P. W. 44 that when he went to the polling booth at about 10 a. m. on Feb. 12, 1969 he found both the appellant and the respondent and that there was an incident. In answer to the question put by the Court D. W. 20 has stated that at 10.30 or 10.45 A.M. he found both the appellant and the respondent having a very heated discussion and they were about to come to blows and this incident took place just within the polling booth where ballot boxes had been kept. This incident again corroborates the version of P. W. 44 that when he was in the polling booth at about 10 A. M. he must have witnessed some incident that took place between the appellant and the respondent. 67. There is no. attempt to discredit the evidence of P. W. 44 regarding his categorical statement that he was prevented from exercising his vote by the workers of the appellant and that prevention took place in the presence of the appellant. When a voter is prevented from exercising his vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from so doing, the only inference is that P. W. 44 was prevented from voting by the supporters of the appellant with the latters consent. If that is so, it follows that there has been a direct interference with the free exercise by P. W. 44 of his electoral right. As this one instance clearly establishes that the appellant has committed the corrupt practice of undue influence under S. 123 (2), it follows that it must be held that his election has to be set aside on this ground also. | 0[ds]29. A reading of the evidence of D. Ws. 27, 48 and 52 clearly shows that they have absolutely no. personal knowledge about the working of the Janhit Press and that they are only giving evidence about the financial interest of the respondent in the said press to support the appellant. Their evidence is worthless to establish any connection of the respondent with the Janhit Press. In our opinion, their evidence has been quite rightly rejected by the learned JudgeDr. Singhvi no. doubt attempted to explain away this circumstance by saying that polling agent Naulakh Prasad may be a person different from Naulakh Prasad spoken to by P. Ws. 39 and 67. We cannot accept this contention of the learned counsel. The attempt of the appellant to establish that the respondent was financier of the Janhit Press has miserably failed. The finding of the learned Judge that Naulakh Prasad, who was the polling agent of the appellant got the pamphlet printed at the Janhit Press is perfectly correct. But, in our opinion, the further finding of the learned Judge that there is no. sufficient evidence to hold that the pamphlet was got printed at the instance or with the consent of the appellant is not very satisfactory. That finding, in our opinion, is a very halting one. On the other hand, the evidence discussed by us earlier and to be discussed later in connection with the distribution of the pamphlet, will clearly show that the pamphlet has been got printed by Naulakh Prasad at the instance or with the consent and knowledge of the appellant. That pamphlet admittedly contains an appeal to vote for the appellant on the basis of caste. Therefore, it follows that the pamphlet has been got printed for being used in the election campaign of the appellantThis discrepancy, in our opinion, is of a very minor character, because when there are 6 or 7 persons in a group canvassing for vote, it is very likely that the witnesses may make slight mistake regarding the actual person from that group who gave the pamphlet. They have given a common version that the appellant made an oral appeal in the name of caste to vote in his favour as he was a Rajput. Whatever discrepancy there may be regarding the distribution of the pamphlet by the appellant himself or by D. W. 5, both the witnesses P. Ws. 20 and 21 have categorically stated that the appellant was present when D. W. 5 distributed the pamphlet containing the caste appeal42. Therefore, from the evidence of P. Ws. 11, 20 and 21 it is clear that the distribution of the pamphlet appealing for votes in the name of caste was made in the presence of the appellant and the letter had, apart from distributing the pamphlet, also made an oral appeal to vote for him on the basis of caste, he being a Rajput. Therefore, the making of appeal on the basis of caste by means of the pamphlet and orally by the appellant and by his agent or supporter D.W. 5, with his consent, is clearly established43. We are not inclined to accept the contention of Dr. Singhvi that the presence of P. Ws. 20 and 21 in the village of Uphraolia at the time when the appellant and others visited the same for election purposes has not been properly explained. In this connection it is significant to note that Dr. Chandeshwar Prasad Singh, whom P. W. 21 had gone to meet had been summoned by the appellant, but was not examined44. The evidence of witnesses, who have given evidence on the side of the appellant stating that they never visited the village either by themselves or in the company of the appellant and that they never distributed the pamphlet or made any oral appeal to vote on the basis of caste has been rightly disbelieved by the learned Judge and we agree with the reasons given by him in that regard45. Before we close the discussion on this aspect it is necessary to refer to a slight mistake committed by the learned Judge while discussing the evidence of D. W. 59, Jaldhari Sahni. The learned Judge has understood the evidence of this witness to the effect that he has admitted that Naulakh Prasad was issuing the pamphlet in themidterm electionand that such distribution must have been made on behalf of the appellant. It may be that the learned Judge was not prepared to accept the evidence given by the said witness when he speaks to Naulakh Prasad being the polling agent not of the appellant but of the respondent. Actually, the evidence of the said witness is to the effect that he belongs to Mauza Kharar and that Naulakh prasad was the polling agent of the respondent and that Kailash Prasad was the polling agent of the appellant. He claims to know Naulakh Prasad as both of them reside in the same village. He further states that Naulakh Prasad was not the polling agent of the appellant. Inn he has stated that Naulakh Prasad gave him the pamphlet in his house and that he was not working as the polling agent of the appellant. A reading of the evidence of this witness clearly shows that this evidence is absolutely false. Even the appellant does not claim that there was no. person by name Naulakh Prasad, who acted as his polling agent. On the other hand, we have already referred to Ex. 1/H, under which the appellant has appointed Naulakh Prasad as his polling agent. We have already referred to the evidence of P. W. 67 to the effect that while he was the polling agent at the polling booth at Kharar on the behalf of the respondent, Naulakh Prasad at the same booth was the polling agent of the appellant. The evidence of D.W. 59 is only an attempt to make out a case that the pamphlet was distributed by the agent of the respondent himself. That evidence of D. W. 59 has to be read only to be rejected. the mistake made by the learned Judge regarding the nature of the evidence given by D. W. 59 does not in any manner vitiate the finding recorded by the learned Judge, which has been referred to above and accepted by us50. A reading of their evidence clearly shows that they are all active workers of the appellant and as such are interested in denying the allegations made against the appellant and his workers, which include those witnesses. We have already referred to the fact that P. W. 22 speaks to D. W. 65 Jamuna Sahi also having gone to the village Harka along with the appellant and was present when the appellant made a request for vote on the basis of caste. There is nothing elicited in then of D. W. 65 that he did not visit P. W. 22 along with the appellant, nor has any answer been elicited from him inn that he was not present when the appellant requested P. W. 22 to accompany him to go and persuade P. W. 15 to support the appellant as he is a Rajput. We are only referring to the total absence of any suggestion in then of D. W. 65 that what P. W. 22 has sated is false58. From the above discussion it follows that the election petitioner, the respondent herein, has adduced reliable oral and documentary evidence to show that the pamphlet, copies of which are Exs. 2E and 2F, containing an appeal to vote on the basis of caste, were got printed by the appellant through his polling agent Naulakh Prasad at the Janhit Press. The said evidence further establishes that the pamphlets were distributed to the voters in the three villages, namely, Uphraolia, Harka and Gorigama, not only by the appellant but also by some of his workers with the consent of the appellant. The evidence further establishes that in the said three villages oral appeal to vote on the basis of caste was also made not only by the appellant but also by other persons, referred to above, in the presence and with the consent of the appellant. Therefore, it follows that the appellant has committed the corrupt practice under Section 123 (3) of the Act59. The second ground on which the election of the appellant was sought to be set aside was that the appellant has committed the corrupt practice of undue influence under Section 123 (2) of the Act, in that, on the date of poll, the appellant, his agents and other persons with his consent or the consent of his election agent interfered with the free exercise of electoral right. In view of our finding that the appellant is guilty of the corrupt practice under Section 123 (3), which by itself is enough to declare the election of the appellant void under Section 100 (1) (b) of the Act, it may not be really necessary for us to elaborately consider the allegation of undue influence made in the election petitionThis finding of the learned Judge is on the basis that so far as these villages are concerned, oral evidence adduced on behalf of the respondent is fully corroborated by contemporaneous documentary evidence. Here again the attack made by Dr. Singhvi against the finding recorded by the learned Judge is that there is no. finding by the learned Judge that the corrupt practice of undue influence has been committed by the candidate or his agent and that there is no. further finding that the persons who are found to have committed this corrupt practice did so with the consent of the appellant or his election agent. Mr. Goburdhun, learned counsel for the respondent has accepted the position that excepting Dharampur he will not be able to satisfy this Court that corrupt practice of undue influence has been committed with the consent of the appellant or his election agent. Therefore, it is absolutely unnecessary for us to consider the discussion of the learned Judge regarding, maksudpur, Sitalpatti, Uhraolia and Ali Neora. Mr. Goburdhun further urged that the findings of the learned Judge in respect of the village Dharampur are fully supported by the evidence on record67. There is no. attempt to discredit the evidence of P. W. 44 regarding his categorical statement that he was prevented from exercising his vote by the workers of the appellant and that prevention took place in the presence of the appellant. When a voter is prevented from exercising his vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from so doing, the only inference is that P. W. 44 was prevented from voting by the supporters of the appellant with the latters consent. If that is so, it follows that there has been a direct interference with the free exercise by P. W. 44 of his electoral right. As this one instance clearly establishes that the appellant has committed the corrupt practice of undue influence under S. 123 (2), it follows that it must be held that his election has to be set aside on this ground also. | 0 | 13,976 | 2,013 | ### 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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mentioned earlier, the High Court has considered and discussed the various incidents which took place at booth No. 57 at Dharampur. We do not think it necessary to go into the aspects raised by Dr. Singhvi because the evidence clearly discloses that there has been one instance of a voter being prevented from exercising his vote and even on the basis of the contention of Dr. Singhvi, the matter will come squarely under S. 123 (2) read with S. 79 (d) of the Act. We have in mind the evidence of P. W. 44 Makhan Singh. He was a resident of Dharampur and he was a voter in the mid-term election and he had to cast his vote at the Dharampur polling booth. On the date when the voting was scheduled to take place i.e. February 9, 1969, the witness went and exercised his vote but later in the day as there was serious disturbance, voting was stopped. On February 12, 1969, the date of repoll at that booth, the witness went to the booth at about 10 A. M. He saw the appellant already near the booth and he also saw the respondent coming to the booth at about 10 A. M. accompanied by three or four of his workers and supporters. He speaks to the assault made on the respondent by the appellant, but it is not necessary for us to refer to that part of his evidence. The witness further proceeds to state that he was having the symbol of Fish in his hand, which is the symbol of the Soshit Dal. On seeing this the workers of the appellant turned him out and prevented him from going into the polling booth to exercise his franchise. In consequence the witness states that he could not cast his vote on that day. He further refers to the appellant being present at the booth at that time when he was being so prevented by his workers from exercising his franchise. 65. In cross-examination, many questions had been put to the witness regarding the assault said to have been committed by the appellant on the respondent at about that time. But so far as his evidence regarding his being prevented from exercising his vote is concerned, he has stated that he went to cast his vote and as he was prevented he had to go away. He has further stated that there were several people near the polling booth and that he did not file any petition anywhere that he was not allowed to vote. The evidence of this witness has been believed by the learned Judge. it will also be seen that in Schedule I to the election petition, regarding Dharampur, booth No. 57, the respondent has clearly stated in column No. 4 that P. W. 44 Makhan Singh of village Dharapur was one of the persons against whom corrupt practice of undue influence was committed. In column No. 1 he included the names of the appellant as well as his various supporters and workers, who have figured as witnesses on the side of the appellant as the persons who committed undue influence. That the appellant and the respondent were in the polling booth No. 57 at Dharampur at about 10 A. M. on February 12, 1969 is borne out by the evidence on the side of the appellant himself. Therefore, it is not necessary for us to refer to the evidence adduced by the respondent in this behalf. 66. D. W. 20 Ramchandra Jha the Inspector of Police, was deputed to be on duty at Dharmpur polling booth on February 12, 1969. He was present at the booth from 8.30 A. M. and remained there till about 4 or 5 P. M. He has spoken to the fact that the respondent came to the booth at about 10 A. M. and that he had to escort him from the booth to his car which was outside the booth area as the respondent was complaining that his life was in danger. Here again this witness speaks to various other matters with which we are not concerned. We are only referring to the evidence of this witness for the limited purpose of finding corroboration to the evidence of P. W. 44 that when he went to the polling booth at about 10 a. m. on Feb. 12, 1969 he found both the appellant and the respondent and that there was an incident. In answer to the question put by the Court D. W. 20 has stated that at 10.30 or 10.45 A.M. he found both the appellant and the respondent having a very heated discussion and they were about to come to blows and this incident took place just within the polling booth where ballot boxes had been kept. This incident again corroborates the version of P. W. 44 that when he was in the polling booth at about 10 A. M. he must have witnessed some incident that took place between the appellant and the respondent. 67. There is no. attempt to discredit the evidence of P. W. 44 regarding his categorical statement that he was prevented from exercising his vote by the workers of the appellant and that prevention took place in the presence of the appellant. When a voter is prevented from exercising his vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from so doing, the only inference is that P. W. 44 was prevented from voting by the supporters of the appellant with the latters consent. If that is so, it follows that there has been a direct interference with the free exercise by P. W. 44 of his electoral right. As this one instance clearly establishes that the appellant has committed the corrupt practice of undue influence under S. 123 (2), it follows that it must be held that his election has to be set aside on this ground also.
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reading of the evidence of this witness clearly shows that this evidence is absolutely false. Even the appellant does not claim that there was no. person by name Naulakh Prasad, who acted as his polling agent. On the other hand, we have already referred to Ex. 1/H, under which the appellant has appointed Naulakh Prasad as his polling agent. We have already referred to the evidence of P. W. 67 to the effect that while he was the polling agent at the polling booth at Kharar on the behalf of the respondent, Naulakh Prasad at the same booth was the polling agent of the appellant. The evidence of D.W. 59 is only an attempt to make out a case that the pamphlet was distributed by the agent of the respondent himself. That evidence of D. W. 59 has to be read only to be rejected. the mistake made by the learned Judge regarding the nature of the evidence given by D. W. 59 does not in any manner vitiate the finding recorded by the learned Judge, which has been referred to above and accepted by us50. A reading of their evidence clearly shows that they are all active workers of the appellant and as such are interested in denying the allegations made against the appellant and his workers, which include those witnesses. We have already referred to the fact that P. W. 22 speaks to D. W. 65 Jamuna Sahi also having gone to the village Harka along with the appellant and was present when the appellant made a request for vote on the basis of caste. There is nothing elicited in then of D. W. 65 that he did not visit P. W. 22 along with the appellant, nor has any answer been elicited from him inn that he was not present when the appellant requested P. W. 22 to accompany him to go and persuade P. W. 15 to support the appellant as he is a Rajput. We are only referring to the total absence of any suggestion in then of D. W. 65 that what P. W. 22 has sated is false58. From the above discussion it follows that the election petitioner, the respondent herein, has adduced reliable oral and documentary evidence to show that the pamphlet, copies of which are Exs. 2E and 2F, containing an appeal to vote on the basis of caste, were got printed by the appellant through his polling agent Naulakh Prasad at the Janhit Press. The said evidence further establishes that the pamphlets were distributed to the voters in the three villages, namely, Uphraolia, Harka and Gorigama, not only by the appellant but also by some of his workers with the consent of the appellant. The evidence further establishes that in the said three villages oral appeal to vote on the basis of caste was also made not only by the appellant but also by other persons, referred to above, in the presence and with the consent of the appellant. Therefore, it follows that the appellant has committed the corrupt practice under Section 123 (3) of the Act59. The second ground on which the election of the appellant was sought to be set aside was that the appellant has committed the corrupt practice of undue influence under Section 123 (2) of the Act, in that, on the date of poll, the appellant, his agents and other persons with his consent or the consent of his election agent interfered with the free exercise of electoral right. In view of our finding that the appellant is guilty of the corrupt practice under Section 123 (3), which by itself is enough to declare the election of the appellant void under Section 100 (1) (b) of the Act, it may not be really necessary for us to elaborately consider the allegation of undue influence made in the election petitionThis finding of the learned Judge is on the basis that so far as these villages are concerned, oral evidence adduced on behalf of the respondent is fully corroborated by contemporaneous documentary evidence. Here again the attack made by Dr. Singhvi against the finding recorded by the learned Judge is that there is no. finding by the learned Judge that the corrupt practice of undue influence has been committed by the candidate or his agent and that there is no. further finding that the persons who are found to have committed this corrupt practice did so with the consent of the appellant or his election agent. Mr. Goburdhun, learned counsel for the respondent has accepted the position that excepting Dharampur he will not be able to satisfy this Court that corrupt practice of undue influence has been committed with the consent of the appellant or his election agent. Therefore, it is absolutely unnecessary for us to consider the discussion of the learned Judge regarding, maksudpur, Sitalpatti, Uhraolia and Ali Neora. Mr. Goburdhun further urged that the findings of the learned Judge in respect of the village Dharampur are fully supported by the evidence on record67. There is no. attempt to discredit the evidence of P. W. 44 regarding his categorical statement that he was prevented from exercising his vote by the workers of the appellant and that prevention took place in the presence of the appellant. When a voter is prevented from exercising his vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from so doing, the only inference is that P. W. 44 was prevented from voting by the supporters of the appellant with the latters consent. If that is so, it follows that there has been a direct interference with the free exercise by P. W. 44 of his electoral right. As this one instance clearly establishes that the appellant has committed the corrupt practice of undue influence under S. 123 (2), it follows that it must be held that his election has to be set aside on this ground also.
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Dattatraya Govind Mahajan and Others Etc Vs. State of Maharashtra and Another | proviso, to clause (1) of Article 31A. But since full and detailed arguments were advanced before us on this question, we do not think it would be right if we refrain from expressing our opinion upon it. We fail to see how any violation of the seconded proviso. to clause (1) of Article 31 A is at all involved in so far as the Act creates an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit. The inhibition imposed by the second proviso. to clause (1) of Article 31A is against acquisition by the. State of any portion of land held by a person under his personal cultivation which is within the ceiling limit applicable to; him, unless the law relating to such acquisition provides for payment of full market value as compensation. There are two basic conditions which must exist before this inhibition is attracted. One is that land must be. held by a person under his personal cultivation and the other is that there must be a ceiling limit applicable to such person. Where these two conditions are satisfied, the State is prohibited from acquiring any portion of the land within the ceiling limit unless the law authorising such acquisition provides for payment of compensation at a rate not less than the market value. Now in the present case, the Act has created an artificial concept of a family unit and aggregated the land held by each member of the family unit for the purpose of applying the limitation of ceiling areas. It could not be disputed by the appellants that the State Legislature had legislative competence to do so. The only argument advanced on behalf of the appellants was that this device adopted by the State Legislature of clubbing together the land held by each member of the family unit and supplying the limitation of ceiling area to the aggregation of such land, would in many cases have the effect of taking away without payment of full market value as compensation the land held by the wife or minor son minor unmarried daughter, even though it is within the ceiling area applicable to the wife or minor son or minor was married daughter and hence the Act, in so far as it adopted this device, falls foul of the second proviso to clause (1) of Article 31 A. But this argument ignores the scheme determination of ceiling area adopted in the Act. There are, as already pointed out by us, two units recognised by the Act for the purpose of fixing ceiling on holding o f agricultural land. One is person and the other is family unit. Where there is a family unit as defined in the Explanation to clauses (1) to section 4., it has to be taken as a unit for the purpose of determining whether land is held in excess of the ceiling area and for this purpose all land held by each member of the family unit, whether jointly or separately, is required to be aggregated and it is deemed to be held by the family unit. There, an individual member of the family unit is not regarded as a unit for the purposes of applying the limitation of ceiling area. The ceiling limit in such a case is applicable only to the family unit and not to an individual member of the family unit. It would not, therefore, be possible to. say in the case of an individual member of the family unit that, when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit, the acquisition is of any land "within the ceiling limit applicable to him" and hence in such a case there would be no question of any violation of the provision enacted in the second proviso to clause (1) of Articles 31A in so far as t he land held by him is concerned. It may be that by reason of the creation of an artificial concept of a family unit and the clubbing together of the land held by each member of the family unit, one or more of the members of the family unit may lose the land held by them, but that cannot be helped because, having regard to the social and economic realities of our rural life and with a view to nullifying transfers affected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area. It is possible that by reason of this provision some genuine holders of land may suffer, some women and minors may lose the land legitimately belonging to them, but that is inevitable when major schemes of agrarian reform are adopted for wiping out socio-economic injustice. It must be remembered that the legislature can only deal with the generality of cases and it cannot possibly make provision for every kind of exceptional situation . Otherwise the law would be as loaded with qualifications and exceptions that it will cases to be intelligible and become of fertile source of mischief. Moreover, it is entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court cannot assume the role of an economic adviser or censor competent to pronounce upon the wisdom of such policy. That would be a matter outside the orbit of judicial review, being a blend of policy, politics and economics ordinarily beyond the expertise and proper function of the Court. We must accordingly hold that the Act does not conflict with the second proviso to clause (1) of Article 31A and cannot be held to be bad on that account. | 0[ds]The determination of this question turns on the true interpretation of Article 31-B and its applicability in relation to the second proviso to clause (1) of Articledo not think this contention is well founded. It is plainly erroneous. It flies in the face of the express language of Article 31-B and also ignores the true meaning and effect of the second proviso to clause ( 1 ) of Article 31 A.Whilst interpreting Article 31-B it is necessary to bear in mind the object and purpose of the enactment of that Article by the Constitution (First Amendment) Act, 1951. This article was introduced in the Constitution within almost eighteen months of the commencement of the Constitution, because it was found that agrarian reform legislation was running into rough weather and the policy of agrarian reform was being frustrated. Without a dynamic programme of agrarian reform, it was not possible to change the face of rural India and to upgrade the standard of living of the large masses of people living in the villages. In fact the promise of agrarian reform is implicit in the Preamble and the Directive Principles of State Policy and it is one of the economic foundations of the Constitution. It was, therefore felt that laws enacted for the purpose of bringing about agrarian reform in its widest sense-agrarian reform which would be directed against gross inequalities in land ownership, disincentives to production and desparate backwardness of rural life and which would cover not only abolition of intermediary tenures zamindaris and the like but restructuring of village life itself taking in its broad embrace the entire rural population--should be saved from invalidation. It was with this end in view that Article 31-B was introduced in the Constitution along with Article 31A. The object and purpose of introducing Articles 31A and 31-B was to protect agrarian reform legislation from invalidation. We shall consider the provisions of Article 31A a little later when we examine the true meaning and effect of the second proviso to clause (1) of that , article. But so far as Article 31-B is concerned, it is clear on its plain terms that it saves from invalidation an enactment specified in the Ninth Schedule even if it happens to be "inconsistent with or takes away or abridges any of the rights conferred by, any provisions, of Part III". It is immaterial whether such enactment is inconsistent with any provisions of Part III or takes away or abridges any of the rights conferred by any such provisions, for both infirmities are cured. by Article 31-B. The words "such Act, Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by, any provisions of this Part" in .Article 31-B are clearly an echo of the language of clauses (1) and (2) of Article 13 and they have obviously been employed because the enactment specified in the Ninth Schedule may be pre-Constitution as well as post-Constitution laws. But it would not be right to introduce an artificial dichotomy in Article 31-B by correlating the first part of the expression, namely, "is inconsistent with--any provisions, of this Part" and confining its applicability to pre- Constitution legislation and correlating and confining the applicability of the other part of the expression, namely, "takes away or abridges any of the rights conferred by, any provisions of this Part to post-Constitution legislation. That would be a highly unnatural construction unjustified by the language of Article 31-B. Both the parts of the expression, on a plain natural construction of the language of Article 31-B, apply equally to. post-Constitution legislation as welt as pre-Constitution legislation. It must be remembered that the aim and objective of Article 31-B is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part 111 and it must, therefore. be so interpreted as to have the necessary sweep and coverage. It is an elementary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation. Moreover, we must not forget as pointed out by Mr. Justice Holmes, that it is the Constitution that we are expanding. Our Constitution has a social purpose and an economic mission and every article of the Constitution must therefore be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomplish. The Court must place an expansive interpretation on the language of Article 31-B so as to carry out the object and purpose of enacting that article. We must, in the circumstances, hold that Article 31-B is sufficiently wide to protect legislation not only where it takes away or abridges any the fights conferred by any provisions of Part III, but also where it is inconsistent with any such provisions. It must follow a fortiori that even if the second proviso to clause (1) of Article 31A is construed as not conferring any fundamental right but merely imposing a restriction on legislative competence, the Act, in so far as it contravenes or is inconsistent with the second proviso to clause (1) of article 31A would still be saved from invalidation by Article 31-B.But we are clearly of the view that the second proviso to clause(1) of Article 31A does confer a fundamental right. This conclusion is inevitable if we look at the conspectus of the provisions contained in Article 31 and 31A. These provisions occur under the heading "Right to Property" and they define and delimit the right to property guarantied under Part III of the Constitution. Article 31, clause (1) protects property against deprivation by executive action which is not supported by law. It is couched in negative language, but, as pointed out by S.R. Das, J., in State of Bihar v. Kameshwar Singh([1952] S.C.R. 889 at 988.) it confers a fundamental right in so far as it protects private property from State action. The only limitation put upon the State action is the requirement that the authority of law is pr e-requisite for the exercise of its power to deprive a person of his property. This confers some protection on the owner, in that, he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right. It is to emphasise this immunity from State action as a fundamental right that the clause has been worded in negative language". Article 31, clause (1) thus , by giving limited immunity from State action, confers a fundamental right. Clause (2) of Article 31 then proceeds to impose limitation on the exercise of legislative power by providing that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitioning of property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. This clause is also couched in negative language, but it confers a fundamental right of property on an individual by declaring that his property shall not be liable to be compulsorily acquired or requisitioned except for a public purpose and the law which authorises such acquisition or requisitioning must provide for "payment of an a mount which may be either fixed by such law or which may be determined in accordance with the principles and given in the manner specified in such law". The limitation imposed on the power of the legislature to make a law authorising acquisition or requisitioning of property is the measure of the fundamental right conferred by the clause. It was for this reason pointed out by this Court in R.C. Copper v. Union of India([1970] 3 S.C.R. 530 atfunction of the two clauses--clauses (1) and (2) of Article 31 is to impose limitations on the power of the State and to declare the corresponding guarantee of the individual to his right to property. Limitation on the power of the State and the guarantee of right are plainly complementary" (Emphasis supplied).Article 31A carves out an exception to the applicability of Article 31--and also Articles 14 and 19--and immunises certain categories of agrarian reform legislation from attack on the ground that they violate any, of these three articles. Even if any agrarian reform legislation falling within the specified categories infringes Articles 14, 19 and 31, it would not be invalid. Having regard to the high objective of bringing about agrarian reform in the country with a view tO improving the life conditions of the common man, such agrarian reform legislation is not required to meet the challenge of any of these three articles. But, in order to earn this immunity, the first proviso requires that such agrarian reform legislation when made by a State must receive the assent of the President. That is a condition for the applicability of the exception contained in Article 31 A. Th en follows the second proviso which enacts an exception to this exception. It says that even where a law makes any provision for acquisition by the State. of any estate and thus falls within one of the categories" specified in Article 31A, it would not qualify for immunity under me provisions of that article, if it seeks to acquire any portion of the land held by a person under his personal cultivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law, in order to be valid, would have to provide for payment of compensation at a rate which shall not be less than the market value of the land s ought to be acquired. This provision is also couched in negative language like clauses (1) and (2) of Article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held by a person under his personal cultivation within the ceiling limit applicable to him, unless the law provides for payment of compensation at a r ate not less than the market value. This limitation on the legislative power of the State is the measure of the fundamental right conferred on the owner of the land. It is by imposing limitation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit. Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other. They are merely two different facets of the same provision. What is limitation of legislative power from the point of view of the State is conferment o f right from the point of view of the holder of land within the ceiling limit. The former secures the latter. The second proviso in effect guarantees protection to the holder against acquisition of that portion of his land which is within the ceiling limit except on payment of the market value of such land. It will, thus, be seen that the second proviso clearly confers a right of property on a person holding land under his personal cultivation. This interpretation was, however, assailed by the appellants on the ground that it would convert the second proviso. into a substantive provision and that would be contrary to the well recognised canon of construction that a proviso must be read so. as to. carve out from the main provision something which would otherwise fall within it. Now, it is true that the proper function of a proviso is to except or qualify something enacted in the substantive clause, which, but for the provision would be within that clause but ultimately, as pointed out by this Court in Ishverlal Thakorelal Almaula v. Motibai Naglibhai ([1966] 1 S.C.R. 367 at 373.)question is one of interpretation of the proviso: and there is no rule that the proviso must always be restricted to the ambit of the main enactment".Here, the intention of the legislature in enacting the second proviso is very clear and that is to ensure payment of full market value as compensation to a person in personal cultivation of his land where a portion of the land within the ceiling limit applicable to him is acquired by the State Government. But for the second proviso, even if a law authorising acquisition of land within the ceiling limit did not provide for payment of compensation, it would be protected from invalidation under Article 31A. That was not a result which the Parliament favoured. Parliament was anxious to protect the interest of the small holder, the common man who holds land within the ceiling limit and therefore enacted the second proviso requiring that a law which permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value. The second proviso in fact restores the right of property with added vigour in case of small holdings of land. it goes much further than Article 31, clause (2) and provides a larger protection, in that, clause (2) of Article 31. merely requires that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner in which it may be given--and this may be very much less than the market value--while the second proviso insists that at the least, full market value must be paid for the acquisition. Thus, there can be no doubt that the second proviso confers a right--and this right is higher than the one under clause (2) of Article 31---on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him and if the Act, by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural land by such family unit, enables land within the ceiling limit to be acquired with out payment of full market value, it would be taking away or abridging the right conferred by the second proviso. In that event too, it would be protected by Article 31-B since it is included in the Ninth Schedule.Before we part with this contention based on Article 31-B, we must refer to one other argument advanced on behalf of the appellants with a view to repelling the applicability of Article 31-B. The appellants leaned heavily on the Explanation to. section 3 of the Constitution (Seventeenth Amendment), Act, 1964 and urged that this Explanation shows that an acquisition made in contravention of the second proviso to clause ( 1) of Article 31A is void and does not have the protection of Article 31-B, even if the law under which such acquisition is made is included in the Ninth Schedule. We do not think this contention is well rounded and in fact not much argument is needed to negative it. The Constitution (Seventeenth Amendment) Act, 1964 was enacted by the Parliament with a view to. expanding the scope of Article 31A by enlarging the meaning of the expression estate and while doing so, the parliament added the second proviso to clause (1) of Article 31A. The Ninth Schedule was also amended by including certain State enactments relating to agrarian reform in order to remove any uncertainty or doubt that may arise in regard to their validity. One of the State enactments included in the Ninth Schedule by this amendment was the Rajasthan Tenancy Act, 1955 which was added as Entrymust be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations. The Explanation does no more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of Article 31A, it shall, to the extent of the contravention, be void. Obviously, this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Tenancy Act, 1955, even if in contravention of the second proviso to clause (1) of Article 31A, would have been valid under Article 31-B and that result the Parliament did not wish to produce. It was manifestly not the intention of the Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where it conflicts with the second proviso to clause (1) of Article 31A and that Article 31-B should not protect it from invalidation. If such had been the intention of the Parliament, it would have been expressed in clear and unambiguous terms by providing that an acquisition made under any enactment included in the Ninth Schedule, in contravention of the second proviso to clause (1) of Article 31A shall, to the extent of the contravention, be void. Parliament would not have resorted to the device of picking out one legislation from the enactments specified in the Ninth Schedule and declared only in relation to that legislation that any acquisition made under it in contravention of the second proviso to clause ( 1 ) of Article 31A shall be void. The Explanation, in our view, far from supporting the construction contended for on behalf of the appellants, militates against it. We may also in the passing refer to the view taken by t he Allahabad High Court in regard to the true meaning and effect of Article 31-B in relation to the second proviso to clause (1 ) of Article 31A. The Allahabad High Court took the view in a decision given on 14th November, 1975 which is the subject-matter of Civil Appeal No. 1307 of 1976 in this Court that the second proviso to clause (1) of Article 31A places restriction only on executive action and not on legislative action and since Article 31-B validates merely enactments specified in the Ninth Schedule: and not the executive action taken under those enactments, the placing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acquisition under the Act should conform to. the restriction set out in the second proviso to clause (1) of Article 31A. This view taken by the Allahabad High Court is a little difficult to understand. The protection afforded by the second proviso to clause (1) of Article 31A is undoubtedly against acquisition by the. State but this protection is secured by imposing limitation on exercise of legislative power and it is the law under the authority of which the acquisition is made which has to conform to the requirement of this proviso. If the law authorising acquisition does not conform with this requirement, it would be void and the acquisition made under it would be unlawful, but for Article 31-B. It is indeed difficult to see how the law authorising acquisition can be valid and yet acquisition mane under it can be void as offending the second proviso to clause (1) of Article 31A. The view taken by the Allahabad High Court is plainly erroneous and must be rejected.We are, therefore, of the view that even if the Act, in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (1) of Article 31A, it is protected by Article 31-B by reason of its inclusion in the Ninth | 0 | 9,225 | 3,671 | ### Instruction:
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proviso, to clause (1) of Article 31A. But since full and detailed arguments were advanced before us on this question, we do not think it would be right if we refrain from expressing our opinion upon it. We fail to see how any violation of the seconded proviso. to clause (1) of Article 31 A is at all involved in so far as the Act creates an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit. The inhibition imposed by the second proviso. to clause (1) of Article 31A is against acquisition by the. State of any portion of land held by a person under his personal cultivation which is within the ceiling limit applicable to; him, unless the law relating to such acquisition provides for payment of full market value as compensation. There are two basic conditions which must exist before this inhibition is attracted. One is that land must be. held by a person under his personal cultivation and the other is that there must be a ceiling limit applicable to such person. Where these two conditions are satisfied, the State is prohibited from acquiring any portion of the land within the ceiling limit unless the law authorising such acquisition provides for payment of compensation at a rate not less than the market value. Now in the present case, the Act has created an artificial concept of a family unit and aggregated the land held by each member of the family unit for the purpose of applying the limitation of ceiling areas. It could not be disputed by the appellants that the State Legislature had legislative competence to do so. The only argument advanced on behalf of the appellants was that this device adopted by the State Legislature of clubbing together the land held by each member of the family unit and supplying the limitation of ceiling area to the aggregation of such land, would in many cases have the effect of taking away without payment of full market value as compensation the land held by the wife or minor son minor unmarried daughter, even though it is within the ceiling area applicable to the wife or minor son or minor was married daughter and hence the Act, in so far as it adopted this device, falls foul of the second proviso to clause (1) of Article 31 A. But this argument ignores the scheme determination of ceiling area adopted in the Act. There are, as already pointed out by us, two units recognised by the Act for the purpose of fixing ceiling on holding o f agricultural land. One is person and the other is family unit. Where there is a family unit as defined in the Explanation to clauses (1) to section 4., it has to be taken as a unit for the purpose of determining whether land is held in excess of the ceiling area and for this purpose all land held by each member of the family unit, whether jointly or separately, is required to be aggregated and it is deemed to be held by the family unit. There, an individual member of the family unit is not regarded as a unit for the purposes of applying the limitation of ceiling area. The ceiling limit in such a case is applicable only to the family unit and not to an individual member of the family unit. It would not, therefore, be possible to. say in the case of an individual member of the family unit that, when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit, the acquisition is of any land "within the ceiling limit applicable to him" and hence in such a case there would be no question of any violation of the provision enacted in the second proviso to clause (1) of Articles 31A in so far as t he land held by him is concerned. It may be that by reason of the creation of an artificial concept of a family unit and the clubbing together of the land held by each member of the family unit, one or more of the members of the family unit may lose the land held by them, but that cannot be helped because, having regard to the social and economic realities of our rural life and with a view to nullifying transfers affected in favour of close relations for the purpose of avoiding the impact of ceiling legislation, a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area. It is possible that by reason of this provision some genuine holders of land may suffer, some women and minors may lose the land legitimately belonging to them, but that is inevitable when major schemes of agrarian reform are adopted for wiping out socio-economic injustice. It must be remembered that the legislature can only deal with the generality of cases and it cannot possibly make provision for every kind of exceptional situation . Otherwise the law would be as loaded with qualifications and exceptions that it will cases to be intelligible and become of fertile source of mischief. Moreover, it is entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court cannot assume the role of an economic adviser or censor competent to pronounce upon the wisdom of such policy. That would be a matter outside the orbit of judicial review, being a blend of policy, politics and economics ordinarily beyond the expertise and proper function of the Court. We must accordingly hold that the Act does not conflict with the second proviso to clause (1) of Article 31A and cannot be held to be bad on that account.
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Act, by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural land by such family unit, enables land within the ceiling limit to be acquired with out payment of full market value, it would be taking away or abridging the right conferred by the second proviso. In that event too, it would be protected by Article 31-B since it is included in the Ninth Schedule.Before we part with this contention based on Article 31-B, we must refer to one other argument advanced on behalf of the appellants with a view to repelling the applicability of Article 31-B. The appellants leaned heavily on the Explanation to. section 3 of the Constitution (Seventeenth Amendment), Act, 1964 and urged that this Explanation shows that an acquisition made in contravention of the second proviso to clause ( 1) of Article 31A is void and does not have the protection of Article 31-B, even if the law under which such acquisition is made is included in the Ninth Schedule. We do not think this contention is well rounded and in fact not much argument is needed to negative it. The Constitution (Seventeenth Amendment) Act, 1964 was enacted by the Parliament with a view to. expanding the scope of Article 31A by enlarging the meaning of the expression estate and while doing so, the parliament added the second proviso to clause (1) of Article 31A. The Ninth Schedule was also amended by including certain State enactments relating to agrarian reform in order to remove any uncertainty or doubt that may arise in regard to their validity. One of the State enactments included in the Ninth Schedule by this amendment was the Rajasthan Tenancy Act, 1955 which was added as Entrymust be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur. Therefore, even though the provision in question has been called an Explanation, we must construe it according to its plain language and not on any a priori considerations. The Explanation does no more than provide that so far as the Rajasthan Tenancy Act, 1955 is concerned, if any acquisition is made under it in contravention of the second proviso to clause (1) of Article 31A, it shall, to the extent of the contravention, be void. Obviously, this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Tenancy Act, 1955, even if in contravention of the second proviso to clause (1) of Article 31A, would have been valid under Article 31-B and that result the Parliament did not wish to produce. It was manifestly not the intention of the Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where it conflicts with the second proviso to clause (1) of Article 31A and that Article 31-B should not protect it from invalidation. If such had been the intention of the Parliament, it would have been expressed in clear and unambiguous terms by providing that an acquisition made under any enactment included in the Ninth Schedule, in contravention of the second proviso to clause (1) of Article 31A shall, to the extent of the contravention, be void. Parliament would not have resorted to the device of picking out one legislation from the enactments specified in the Ninth Schedule and declared only in relation to that legislation that any acquisition made under it in contravention of the second proviso to clause ( 1 ) of Article 31A shall be void. The Explanation, in our view, far from supporting the construction contended for on behalf of the appellants, militates against it. We may also in the passing refer to the view taken by t he Allahabad High Court in regard to the true meaning and effect of Article 31-B in relation to the second proviso to clause (1 ) of Article 31A. The Allahabad High Court took the view in a decision given on 14th November, 1975 which is the subject-matter of Civil Appeal No. 1307 of 1976 in this Court that the second proviso to clause (1) of Article 31A places restriction only on executive action and not on legislative action and since Article 31-B validates merely enactments specified in the Ninth Schedule: and not the executive action taken under those enactments, the placing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acquisition under the Act should conform to. the restriction set out in the second proviso to clause (1) of Article 31A. This view taken by the Allahabad High Court is a little difficult to understand. The protection afforded by the second proviso to clause (1) of Article 31A is undoubtedly against acquisition by the. State but this protection is secured by imposing limitation on exercise of legislative power and it is the law under the authority of which the acquisition is made which has to conform to the requirement of this proviso. If the law authorising acquisition does not conform with this requirement, it would be void and the acquisition made under it would be unlawful, but for Article 31-B. It is indeed difficult to see how the law authorising acquisition can be valid and yet acquisition mane under it can be void as offending the second proviso to clause (1) of Article 31A. The view taken by the Allahabad High Court is plainly erroneous and must be rejected.We are, therefore, of the view that even if the Act, in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit, is violative of the second proviso to clause (1) of Article 31A, it is protected by Article 31-B by reason of its inclusion in the Ninth
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Narender Singh Vs. The State of Haryana & Ors | no stretch of imagination, it can be said that there was any delay and/or lapse or fault on the part of the appellant. The advertisement for 1647 posts was issued by the Haryana Public Service Commission on 16.02.2016. The last date to submit the form online was 15.03.2016. As per the advertisement, the appellant was required to submit the NOC from his employer, which in the present case is District Elementary Education Officer, at the time of interview. The appellant applied for issuance of NOC on 22.03.2016 well in advance. The said application was received vide Receipt No. 4223 dated 04.04.2016 in the office of District Elementary Education Officer, Jhajjar. The appellant appeared for the written examination for the post in question on 05.03.2017. The result of the written examination was declared on 06.11.2017 and the appellant also cleared the written examination. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education. 7.2 It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer – District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant. 7.3 Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4. 7.4 Now, so far as the submission on behalf of the respondent No.4, not to disturb and/or cancel the appointment of respondent No.4 and to continue him in service is concerned, it cannot be disputed that he has been working as the Assistant Professor (History) since 12.07.2018, i.e., for more than three years. It is nobodys case that he got the appointment in connivance with the authority. At the relevant time, he was appointed as per merits. Thus, he has been appointed after following due procedure of selection. It is also reported that the respondent No.4 is a Ph.D. and is around 40 years of age. It is also reported that after the impugned selection, there was a fresh selection, however, the respondent No.4 did not apply as he was already selected and appointed on 15.12.2017. Had the respondent No.4 not been selected on 15.12.2017, in that case, he would have applied in the forms, which were issued for Assistant Professor by Haryana Public Service Commission by advertisement No. R.G 17/2017 and the last date for submitting the application was 15.03.2019. It is also reported that by now he has also become age bar. It is also reported that if the appointment of the respondent No.4 is cancelled and the respondent No.4 is disturbed, his entire family would have to suffer. It is reported that respondent No.4 has two daughters one aged three years and other one and a half years and wife and an old mother and that he is the sole bread earner in the family. It is also reported that there are in all around 244 sanctioned posts for Assistant Professor (History) and there is still requirement of 93. Therefore, it is prayed to not to disturb the respondent No.4 and to direct the State to accommodate him on another vacant post of Assistant Professor (History). | 1[ds]7.1 From the chronological dates and events reproduced herein above by no stretch of imagination, it can be said that there was any delay and/or lapse or fault on the part of the appellant. The advertisement for 1647 posts was issued by the Haryana Public Service Commission on 16.02.2016. The last date to submit the form online was 15.03.2016. As per the advertisement, the appellant was required to submit the NOC from his employer, which in the present case is District Elementary Education Officer, at the time of interview. The appellant applied for issuance of NOC on 22.03.2016 well in advance. The said application was received vide Receipt No. 4223 dated 04.04.2016 in the office of District Elementary Education Officer, Jhajjar. The appellant appeared for the written examination for the post in question on 05.03.2017. The result of the written examination was declared on 06.11.2017 and the appellant also cleared the written examination. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education.7.2 It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer – District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant.7.3 Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4.7.4 Now, so far as the submission on behalf of the respondent No.4, not to disturb and/or cancel the appointment of respondent No.4 and to continue him in service is concerned, it cannot be disputed that he has been working as the Assistant Professor (History) since 12.07.2018, i.e., for more than three years. It is nobodys case that he got the appointment in connivance with the authority. At the relevant time, he was appointed as per merits. Thus, he has been appointed after following due procedure of selection. It is also reported that the respondent No.4 is a Ph.D. and is around 40 years of age. It is also reported that after the impugned selection, there was a fresh selection, however, the respondent No.4 did not apply as he was already selected and appointed on 15.12.2017. Had the respondent No.4 not been selected on 15.12.2017, in that case, he would have applied in the forms, which were issued for Assistant Professor by Haryana Public Service Commission by advertisement No. R.G 17/2017 and the last date for submitting the application was 15.03.2019. It is also reported that by now he has also become age bar. It is also reported that if the appointment of the respondent No.4 is cancelled and the respondent No.4 is disturbed, his entire family would have to suffer. It is reported that respondent No.4 has two daughters one aged three years and other one and a half years and wife and an old mother and that he is the sole bread earner in the family. It is also reported that there are in all around 244 sanctioned posts for Assistant Professor (History) and there is still requirement of 93. Therefore, it is prayed to not to disturb the respondent No.4 and to direct the State to accommodate him on another vacant post of Assistant Professor (History). | 1 | 3,070 | 1,103 | ### 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:
no stretch of imagination, it can be said that there was any delay and/or lapse or fault on the part of the appellant. The advertisement for 1647 posts was issued by the Haryana Public Service Commission on 16.02.2016. The last date to submit the form online was 15.03.2016. As per the advertisement, the appellant was required to submit the NOC from his employer, which in the present case is District Elementary Education Officer, at the time of interview. The appellant applied for issuance of NOC on 22.03.2016 well in advance. The said application was received vide Receipt No. 4223 dated 04.04.2016 in the office of District Elementary Education Officer, Jhajjar. The appellant appeared for the written examination for the post in question on 05.03.2017. The result of the written examination was declared on 06.11.2017 and the appellant also cleared the written examination. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education. 7.2 It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer – District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant. 7.3 Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4. 7.4 Now, so far as the submission on behalf of the respondent No.4, not to disturb and/or cancel the appointment of respondent No.4 and to continue him in service is concerned, it cannot be disputed that he has been working as the Assistant Professor (History) since 12.07.2018, i.e., for more than three years. It is nobodys case that he got the appointment in connivance with the authority. At the relevant time, he was appointed as per merits. Thus, he has been appointed after following due procedure of selection. It is also reported that the respondent No.4 is a Ph.D. and is around 40 years of age. It is also reported that after the impugned selection, there was a fresh selection, however, the respondent No.4 did not apply as he was already selected and appointed on 15.12.2017. Had the respondent No.4 not been selected on 15.12.2017, in that case, he would have applied in the forms, which were issued for Assistant Professor by Haryana Public Service Commission by advertisement No. R.G 17/2017 and the last date for submitting the application was 15.03.2019. It is also reported that by now he has also become age bar. It is also reported that if the appointment of the respondent No.4 is cancelled and the respondent No.4 is disturbed, his entire family would have to suffer. It is reported that respondent No.4 has two daughters one aged three years and other one and a half years and wife and an old mother and that he is the sole bread earner in the family. It is also reported that there are in all around 244 sanctioned posts for Assistant Professor (History) and there is still requirement of 93. Therefore, it is prayed to not to disturb the respondent No.4 and to direct the State to accommodate him on another vacant post of Assistant Professor (History).
### Response:
1
### Explanation:
herein above by no stretch of imagination, it can be said that there was any delay and/or lapse or fault on the part of the appellant. The advertisement for 1647 posts was issued by the Haryana Public Service Commission on 16.02.2016. The last date to submit the form online was 15.03.2016. As per the advertisement, the appellant was required to submit the NOC from his employer, which in the present case is District Elementary Education Officer, at the time of interview. The appellant applied for issuance of NOC on 22.03.2016 well in advance. The said application was received vide Receipt No. 4223 dated 04.04.2016 in the office of District Elementary Education Officer, Jhajjar. The appellant appeared for the written examination for the post in question on 05.03.2017. The result of the written examination was declared on 06.11.2017 and the appellant also cleared the written examination. As observed hereinabove, the appellant was to produce an NOC at the time of interview. Therefore, in anticipation that non-receipt of the NOC may come in his way in getting the appointment therefore, the appellant filed the writ petition before the High Court being CWP No.27864 of 2017 on 05.12.2017 for issuance of the direction to the employer to release the NOC. The learned Single Judge passed the interim order in favour of the appellant in the aforesaid CWP No.27864 of 2017 vide order dated 07.12.2017 directing that if he falls within the zone of consideration for being called for an interview for the post in question, shall be provisionally interviewed, regardless of the fact that an NOC has not been issued so far by the Department of Elementary Education.7.2 It is not in dispute that pursuant to the interim order dated 07.12.2017, the appellant was interviewed provisionally. However, his result was kept in a sealed cover. Thus, during pendency of the aforesaid writ petition and despite the fact that pursuant to the interim order dated 07.12.2017, the appellant was provisionally interviewed, the Public Service Commission declared the result of final selection in respect of the interviews conducted from 12th to 14th December, 2017 on 15.12.2017 and the actual appointments were made on 12.07.2018. In the meantime, the appellant received the NOC on 06.06.2018 from his employer – District Elementary Education Officer and immediately on receipt of the same, the same was produced by him before the Public Service Commission on 08.06.2018, i.e., even before the actual appointments were made by the Public Service Commission, which were made on 12.07.2018. Thus, from the aforesaid, it can be seen that there was no delay and/or any fault on the part of the appellant. Whatever was the lapse and/or the delay was, it was on the part of the employer of the appellant, who did not issue the NOC though applied on 22.03.2016 and which was issued only on 06.06.2018 and that too after the intervention of the High Court. Even the learned Single Judge also noted that there was a delay and/or lapse on the part of the District Elementary Education Officer, and therefore, even the learned Single Judge also imposed the cost of Rs.50,000/- on the employer of the appellant.7.3 Once it is found that there was no lapse and/or delay on the part of the appellant and /or there was no fault of the appellant in not producing the NOC at the relevant time and when it was produced immediately on receipt of the same and that too before the appointments were made and when it is found that the last candidate, who is appointed, i.e., respondent No.4 herein is having less marks than the appellant and thus the appellant is a more meritorious candidate than the last candidate appointed, i.e., respondent No.4, to deny him the appointment is not justifiable at all. He cannot be punished for no fault of him. Both, the learned Single Judge as well as the Division Bench of the High Court have committed grave error in not exercising the jurisdiction vested in it and in not directing the respondents to appoint the appellant though he is found to be more meritorious candidate than the last candidate appointed, i.e., respondent No.4.7.4 Now, so far as the submission on behalf of the respondent No.4, not to disturb and/or cancel the appointment of respondent No.4 and to continue him in service is concerned, it cannot be disputed that he has been working as the Assistant Professor (History) since 12.07.2018, i.e., for more than three years. It is nobodys case that he got the appointment in connivance with the authority. At the relevant time, he was appointed as per merits. Thus, he has been appointed after following due procedure of selection. It is also reported that the respondent No.4 is a Ph.D. and is around 40 years of age. It is also reported that after the impugned selection, there was a fresh selection, however, the respondent No.4 did not apply as he was already selected and appointed on 15.12.2017. Had the respondent No.4 not been selected on 15.12.2017, in that case, he would have applied in the forms, which were issued for Assistant Professor by Haryana Public Service Commission by advertisement No. R.G 17/2017 and the last date for submitting the application was 15.03.2019. It is also reported that by now he has also become age bar. It is also reported that if the appointment of the respondent No.4 is cancelled and the respondent No.4 is disturbed, his entire family would have to suffer. It is reported that respondent No.4 has two daughters one aged three years and other one and a half years and wife and an old mother and that he is the sole bread earner in the family. It is also reported that there are in all around 244 sanctioned posts for Assistant Professor (History) and there is still requirement of 93. Therefore, it is prayed to not to disturb the respondent No.4 and to direct the State to accommodate him on another vacant post of Assistant Professor (History).
|
B. Basavalingappa Vs. D. Munichinnappa | by the word "Bhovi" used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956.8. Let us then turn to the evidence which has been given in this case to prove that it was Voddar caste which was meant by the word "Bhovi" included in the Order. In this connection reliance has been placed on a communication made to the then Government of Mysore as far back as 1944 on behalf of Voddar caste and the order of the then Government of Mysore in February 1946.It seems that a resolution was passed by the Voddar caste at a conference in July 1944 in which it was resolved that the name of that caste be changed from Voddar to Bovi.This resolution was processed in the Secretariat. Eventually an order passed on February 2, 1946 in these terms:"Government are pleased to direct that the community known as vodda be in future called Boyi in all Government communications and records."9. Since then it seems that in all Government records the Voddar caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same. It seems, therefore, reasonable to inter when the President made the Order in 1950 after consultation with the Rajpramukh of Mysore whom be was bound to consult under the Constitution before passing the Order with respect to the State of Mysore that the caste Vodda was included in the Order as Bhovi because of the order of the then Government of Mysore of February 1946.We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the Order because the name of that caste was changed in 1946 for all Government purposes by the order of the then Government of Mysore. Therefore, if the Order had mentioned the caste as Boyi there would have been no difficulty in holding that it meant the Voddar caste in view of the order of the then Mysore Government of February 1946 to the effect that the Voddars had given up their original name and had changed it to Boyis from 1946.10. It is, however, urged that the Order does not mention the caste Boyi but the caste Bhovi and that wherever there is a difference in spelling of the same caste, the Order has provided for that also; (see for example, Bhambi, Bhambhi; Shenva, Chenva; etc.). Therefore, when the Order provided the inclusion of the caste Bhovi therein it could not refer to Voddar caste, for the change of name that was sanctioned by the then Government of Mysore in 1946 was from Voddar to Boyi. Here again there is force in the contention that where the same caste was spelt differently the different spellings have been provided in the Order as illustrated already. But the same difficulty which faced us in considering the question whether Voddar caste was meant by the caste Bhovi included in the Order arises when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the Order was passed. As the President could not have included in the Order a non-existent caste, it means the word "Bhovi relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same. The High Court, therefore, has not attached any importance to the change in the English spelling in the peculiar circumstances of this case. In this connection attention may be drawn to the notification of the then Government of Mysore dated February 2, 1946 where Voddar caste is spelt in three ways in the same notification; at one place it is spelt as Voddara, at another place as Voddar and at two places as Vodda. It seems, therefore, that we cannot attach undue importance to the spelling in English in this ease when we know that there was no specific caste known as Bhovi in Mysore State as it was before 1956 and we have to determine which was the caste which was meant by the use of that term in the Order. In this connection we may also draw attention to another copy of the same notification which was issued by another department of the Government. In that copy Voddara has been spelt as Vaddara and Boyies as Bovis. It seems to us, therefore, that the High Court was right in the peculiar circumstances of the present case in not attaching any importance to difference in spelling in English, and to treat Bhovis as the same as Bovis. We do not think it necessary to refer to the various census reports, which have been referred to by the Tribunal and the High Court for they only show how the same caste has been differently spelt. In the circumstances, therefore, we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out, therefore, which caste was meant by the word "Bhovi as used in the Order. But for this fact it would not have been open to any party to give evidence to the effect that (for example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies. | 0[ds]Clearly, therefore, Article 341 provides for a notification and for its finality except when altered by Parliament by law. The argument on behalf of the appellant is based on the provisions of Art. 341 and it is urged that a notification once made is final and cannot even be revised by the President and can only be modified by inclusion or exclusion by law by Parliament. Therefore, in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to anyone to include any caste as coming within the notification on the basis of evidence-oral or documentary- if the caste in question does not find specific mention in the terms of the notification. It is, therefore, urged that the Tribunal was wrong in allowing evidence to show that Voddar caste was the same as the Bhovi caste mentioned in the Order and that the High Court was in error when it held on the basis of such evidence that Voddar caste was the same as the Bhovi caste specified in the Order and therefore, respondent No. 1 was entitled to stand for election because he belonged to Voddar caste which was the same as the Bhovi caste.But that in our opinion does not conclude the matter in the peculiar circumstances of the present case. The difficulty in the present case arises from the fact (which was not disputed before the High Court) that in the Mysore State as it was before the re-organisation of 1956 there was no caste known as Bhovi at all. The order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and, therefore, it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which caste was meant by Bhovi is to take evidence in that behalf.If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mention as Bhovi in the order, one has to determine which was the caste which was meant by that word on its inclusion in the Order. It is this peculiar circumstance, therefore, which necessitated the taking of evidence to determine which was the caste which was meant by the word "Bhovi" used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956.Since then it seems that in all Government records the Voddar caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same. It seems, therefore, reasonable to inter when the President made the Order in 1950 after consultation with the Rajpramukh of Mysore whom be was bound to consult under the Constitution before passing the Order with respect to the State of Mysore that the caste Vodda was included in the Order as Bhovi because of the order of the then Government of Mysore of February 1946.We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the Order because the name of that caste was changed in 1946 for all Government purposes by the order of the then Government of Mysore. Therefore, if the Order had mentioned the caste as Boyi there would have been no difficulty in holding that it meant the Voddar caste in view of the order of the then Mysore Government of February 1946 to the effect that the Voddars had given up their original name and had changed it to Boyis fromagain there is force in the contention that where the same caste was spelt differently the different spellings have been provided in the Order as illustrated already. But the same difficulty which faced us in considering the question whether Voddar caste was meant by the caste Bhovi included in the Order arises when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the Order was passed. As the President could not have included in the Order a non-existent caste, it means the word "Bhovi relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same. The High Court, therefore, has not attached any importance to the change in the English spelling in the peculiar circumstances of this case. In this connection attention may be drawn to the notification of the then Government of Mysore dated February 2, 1946 where Voddar caste is spelt in three ways in the same notification; at one place it is spelt as Voddara, at another place as Voddar and at two places as Vodda. It seems, therefore, that we cannot attach undue importance to the spelling in English in this ease when we know that there was no specific caste known as Bhovi in Mysore State as it was before 1956 and we have to determine which was the caste which was meant by the use of that term in the Order. In this connection we may also draw attention to another copy of the same notification which was issued by another department of the Government. In that copy Voddara has been spelt as Vaddara and Boyies as Bovis. It seems to us, therefore, that the High Court was right in the peculiar circumstances of the present case in not attaching any importance to difference in spelling in English, and to treat Bhovis as the same as Bovis. We do not think it necessary to refer to the various census reports, which have been referred to by the Tribunal and the High Court for they only show how the same caste has been differently spelt. In the circumstances, therefore, we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out, therefore, which caste was meant by the word "Bhovi as used in the Order. But for this fact it would not have been open to any party to give evidence to the effect that (for example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies. | 0 | 2,920 | 1,361 | ### 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:
by the word "Bhovi" used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956.8. Let us then turn to the evidence which has been given in this case to prove that it was Voddar caste which was meant by the word "Bhovi" included in the Order. In this connection reliance has been placed on a communication made to the then Government of Mysore as far back as 1944 on behalf of Voddar caste and the order of the then Government of Mysore in February 1946.It seems that a resolution was passed by the Voddar caste at a conference in July 1944 in which it was resolved that the name of that caste be changed from Voddar to Bovi.This resolution was processed in the Secretariat. Eventually an order passed on February 2, 1946 in these terms:"Government are pleased to direct that the community known as vodda be in future called Boyi in all Government communications and records."9. Since then it seems that in all Government records the Voddar caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same. It seems, therefore, reasonable to inter when the President made the Order in 1950 after consultation with the Rajpramukh of Mysore whom be was bound to consult under the Constitution before passing the Order with respect to the State of Mysore that the caste Vodda was included in the Order as Bhovi because of the order of the then Government of Mysore of February 1946.We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the Order because the name of that caste was changed in 1946 for all Government purposes by the order of the then Government of Mysore. Therefore, if the Order had mentioned the caste as Boyi there would have been no difficulty in holding that it meant the Voddar caste in view of the order of the then Mysore Government of February 1946 to the effect that the Voddars had given up their original name and had changed it to Boyis from 1946.10. It is, however, urged that the Order does not mention the caste Boyi but the caste Bhovi and that wherever there is a difference in spelling of the same caste, the Order has provided for that also; (see for example, Bhambi, Bhambhi; Shenva, Chenva; etc.). Therefore, when the Order provided the inclusion of the caste Bhovi therein it could not refer to Voddar caste, for the change of name that was sanctioned by the then Government of Mysore in 1946 was from Voddar to Boyi. Here again there is force in the contention that where the same caste was spelt differently the different spellings have been provided in the Order as illustrated already. But the same difficulty which faced us in considering the question whether Voddar caste was meant by the caste Bhovi included in the Order arises when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the Order was passed. As the President could not have included in the Order a non-existent caste, it means the word "Bhovi relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same. The High Court, therefore, has not attached any importance to the change in the English spelling in the peculiar circumstances of this case. In this connection attention may be drawn to the notification of the then Government of Mysore dated February 2, 1946 where Voddar caste is spelt in three ways in the same notification; at one place it is spelt as Voddara, at another place as Voddar and at two places as Vodda. It seems, therefore, that we cannot attach undue importance to the spelling in English in this ease when we know that there was no specific caste known as Bhovi in Mysore State as it was before 1956 and we have to determine which was the caste which was meant by the use of that term in the Order. In this connection we may also draw attention to another copy of the same notification which was issued by another department of the Government. In that copy Voddara has been spelt as Vaddara and Boyies as Bovis. It seems to us, therefore, that the High Court was right in the peculiar circumstances of the present case in not attaching any importance to difference in spelling in English, and to treat Bhovis as the same as Bovis. We do not think it necessary to refer to the various census reports, which have been referred to by the Tribunal and the High Court for they only show how the same caste has been differently spelt. In the circumstances, therefore, we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out, therefore, which caste was meant by the word "Bhovi as used in the Order. But for this fact it would not have been open to any party to give evidence to the effect that (for example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies.
### Response:
0
### Explanation:
Bhovi in the Mysore State as it was before 1956 and, therefore, it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which caste was meant by Bhovi is to take evidence in that behalf.If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mention as Bhovi in the order, one has to determine which was the caste which was meant by that word on its inclusion in the Order. It is this peculiar circumstance, therefore, which necessitated the taking of evidence to determine which was the caste which was meant by the word "Bhovi" used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956.Since then it seems that in all Government records the Voddar caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same. It seems, therefore, reasonable to inter when the President made the Order in 1950 after consultation with the Rajpramukh of Mysore whom be was bound to consult under the Constitution before passing the Order with respect to the State of Mysore that the caste Vodda was included in the Order as Bhovi because of the order of the then Government of Mysore of February 1946.We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the Order because the name of that caste was changed in 1946 for all Government purposes by the order of the then Government of Mysore. Therefore, if the Order had mentioned the caste as Boyi there would have been no difficulty in holding that it meant the Voddar caste in view of the order of the then Mysore Government of February 1946 to the effect that the Voddars had given up their original name and had changed it to Boyis fromagain there is force in the contention that where the same caste was spelt differently the different spellings have been provided in the Order as illustrated already. But the same difficulty which faced us in considering the question whether Voddar caste was meant by the caste Bhovi included in the Order arises when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the Order was passed. As the President could not have included in the Order a non-existent caste, it means the word "Bhovi relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same. The High Court, therefore, has not attached any importance to the change in the English spelling in the peculiar circumstances of this case. In this connection attention may be drawn to the notification of the then Government of Mysore dated February 2, 1946 where Voddar caste is spelt in three ways in the same notification; at one place it is spelt as Voddara, at another place as Voddar and at two places as Vodda. It seems, therefore, that we cannot attach undue importance to the spelling in English in this ease when we know that there was no specific caste known as Bhovi in Mysore State as it was before 1956 and we have to determine which was the caste which was meant by the use of that term in the Order. In this connection we may also draw attention to another copy of the same notification which was issued by another department of the Government. In that copy Voddara has been spelt as Vaddara and Boyies as Bovis. It seems to us, therefore, that the High Court was right in the peculiar circumstances of the present case in not attaching any importance to difference in spelling in English, and to treat Bhovis as the same as Bovis. We do not think it necessary to refer to the various census reports, which have been referred to by the Tribunal and the High Court for they only show how the same caste has been differently spelt. In the circumstances, therefore, we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out, therefore, which caste was meant by the word "Bhovi as used in the Order. But for this fact it would not have been open to any party to give evidence to the effect that (for example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies.
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Bodh Raj @ Bodha & Others Vs. State of Jammu & Kashmir | and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumar (PW-18) for the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemist (PW-22) was examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singh (PW-7) is concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence of PW-18 cannot be lost sight of.(30) The evidence of Nainu (PW-9) was also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was no cross-examination on the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased, A-1 and A-2 were seen together by witnesses, i.e. PWs-14, 15 and 18, in addition to the evidence of PWs-1 and 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khan (PW-38) was an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharma (PW-42) was asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate on 5-8-1994) cannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise. | 0[ds]Since their presence is doubtful, identification, if any, done by them becomes ipso facto doubtful. The recoveries purported to have done pursuant to the disclosure made by the accused persons is highly improbable and requisite safeguards have not been adopted while making alleged recoveries. The case against four of the accused persons who were acquitted by the trial Court rests on circumstantial evidence. The approach to be adopted by the Court while dealing with circumstantial evidence was kept in view by the trial Court. Unfortunately, the High Court did not do so. It was further submitted that there was no complete chain of circumstances established which ruled out even any remote possibility of anybody else than the accused persons being the authors of the crime. The examination ofs P.Ws. 1 and 2 was belated and, therefore, should not have been accepted. The evidence of P.Ws.accused persons is so improbable that no credence should be put on it. The High Court should not have disturbed the findings of innocence of four accused persons without any plausibleprincipal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts.To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred orstatement which is admissible under S. 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in S. 27 of the Evidence Act is the Doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional orin nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor, is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.(19) Coming to evidence brought on record to substantiate the accusations, it is at least clear that accused Nos. 1 and 2 left in the company of the deceased. Some evidence has also been brought to establish the motive i.e. the indebtedness of the accused to the deceased. In addition to this is the evidence ofand 2. So far as accused No. 2 is concerned, he almost stands on the same footing as accused No. 1. Additionally, Hari Kumarhas stated that accused No. 2 came to his shop and took sweets and left in car No. 566 JK02B belonging to accused No. 1. He has also stated about the return of accused No. 2 to the shop and a demand for aIn view of the circumstances noticed and highlighted by the trial Court and the High Court and in our considered opinion rightly the appeals filed by accused Ravinder Kumar and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumarfor the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemistwas examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singhis concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence ofcannot be lost sight of.(30) The evidence of Nainuwas also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was noon the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased,were seen together by witnesses, i.e.15 and 18, in addition to the evidence ofand 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khanwas an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharmawas asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate oncannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise. | 0 | 7,508 | 1,875 | ### Instruction:
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and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumar (PW-18) for the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemist (PW-22) was examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singh (PW-7) is concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence of PW-18 cannot be lost sight of.(30) The evidence of Nainu (PW-9) was also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was no cross-examination on the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased, A-1 and A-2 were seen together by witnesses, i.e. PWs-14, 15 and 18, in addition to the evidence of PWs-1 and 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khan (PW-38) was an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharma (PW-42) was asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate on 5-8-1994) cannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise.
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the circumstances noticed and highlighted by the trial Court and the High Court and in our considered opinion rightly the appeals filed by accused Ravinder Kumar and Ashok Kumar are devoid of merit and deserve dismissal, which we direct.(29) Coming to the appeals filed by four appellants who were acquitted by the trial Court but convicted by the High Court, it has been argued with emphasis that even if it is accepted the two views are possible on the evidence, the one in favour of the accused was to be accepted and their acquittals should not have been rightly interfered with. It is to be noticed that the trial Court placed reliance on the evidence of Hari Kumarfor the purpose of convicting accused Rajesh Kumar, but so far as the other four accused are concerned, it was not held to be reliable. There was no cogent reason indicated as to why the same was termed to be unreliable. Additionally, recoveries were made pursuant to the disclosure made by them. Though, arguments were advanced that due procedure was not followed, in view of the evidence of the witnesses examined by the prosecution in that regard, we find nothing illegal ruling out its acceptance. There are certain additional features also. A pant was recovered from the house of Subash Kumar which had holes indicating passage of bullet. However, a chemistwas examined to show when he had gone to purchase the medicine to be applied to the injury. It was submitted that so far as Santokh Singhis concerned, his evidence was held to be not reliable. Therefore, the identification of accused No. 5, Subash Kumar by Santokh Singh was not of any consequence. Even if it is accepted, the evidence relating to recovery established by the evidence ofcannot be lost sight of.(30) The evidence of Nainuwas also described to be unreliable and it was said that he stood at par with Santokh Singh. Similar was the criticism in respect of Surjit Singh. Their evidence has been analysed in great detail by the High Court and has been held to be reliable. It is of significance that practically there was noon the recovery aspect. We do not find any reason to differ with the High Court in that regard. There can be no dispute with the proposition as urged by learned counsel for the appellants that two views are possible, the one in favour of the accused has to be preferred. But where the relevant materials have not been considered to arrive at a view by the trial Court, certainly High Court has a duty to arrive at a correct conclusion taking a view different from the one adopted by the trial Court. In the case at hand, the course adopted by the High Court is proper.(31) Judged in the aforesaid background, conviction by the High Court of those four who were acquitted by the High Court does not warrant any interference.(32) The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that deceased,were seen together by witnesses, i.e.15 and 18, in addition to the evidence ofand 2.(33) It was submitted that there was unexplained delay in sending the FIR. This point was urged before the trial Court and also the High Court. It was noticed by the High Court that Showkat Khanwas an investigating officer on 3/08/1994 for a day only. He had taken steps from 5.30 evening onwards to 9.00 p.m. on the spot. Thereafter, Gian Chand Sharmawas asked to investigate into the matter. It was also noticed that the road between Bari Brahmana and Samba where the Court was located was closed due to traffic on account of heavy rains. Though, the road was open from Jammu to Bari Brahmana but it was closed from Bari Brahmana to Samba. The days delay for the aforesaid purpose (the FIR has reached the Magistrate oncannot be said to be unusual when proper explanation has been offered for the delay. The plea of delayed dispatch has been rightly held to be without any substance.(34) Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion.(35) As was observed by this Court in Ranbir and others v. State of Punjab, AIR 1973 SC 1409 the investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raised a plea that there was unusual delay in the examination of the witnesses. In the instant case however the situation does not arise.
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Dr. B.L. Asawa Vs. State of Rajasthan and Others | the High Court should issue an appropriate writ or direction cancelling the interview and selection conducte d by the Commission as well as the consequential appointments given by the State Government to respondents 3 and 4 as Lecturers in Forensic Medicine.The short point to be considered is whether the Commission was right in law in excludin g the appellant from consideration on the ground that he did not possess the academic qualification prescribed by clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances for the post of Lecturer in Forensic Medicine.7. The qualifications prescribed for the said post by clause (vii) of Ordinance No. 65 are:(1) A basic University (Degree ?) or equivalent qualification entered in Schedules to the Indian Medical Council Act, 1956.(2) Registration under the State/Central Medical Registration Act.(3) Post-graduate qualification in the concerned subject.(4) Two Years experience of Medico-legal work.8. The appellant is admittedly t he holder of the basic Degree of M.B.B.S. from the Rajasthan University, which is a qualification entered in the First Schedule to the Indian Medical Council Act. It is also not in dispute that he is duly registered under the Medical Registration A ct. The sole ground on which the appellant was treated by the Commission as ineligible for consideration was that the Post-graduate degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the said Degree has also not been recognised by the University of Rajasthan as an equivalent qualification.9. The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degree s. The Degree of Doctor of Medicine (Forensic Medicine)-M.D. (Forensic Medicine)-of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly establis hed by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absen ce of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to a ny post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be t reated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is common ground be fore us that the University of Rajasthan does not conduct Post-graduate examinations in the subject of Forensic Medicine and it does not award the degree of M.L. (Forensic Medicine). In order that there should be scope for declaration of equivalence of a qualification obtained from another body, there should be a corresponding qualification that can be earned by virtue of passing an examination or test conducted by the concerned University. There can be declaration o f equivalence only as between a degree etc. awarded by the concerned University and one obtained from a body different from the concerned University. When the University of Rajasthan does not conduct any examination for the award o f the degree of M.L. (Forensic Medicine), there cannot be any question of declaration of equivalence in respect of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of equivalence referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ord inances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned subject awarded by a s tatutory Indian University, no recognition or declaration of equivalence by any other University is called for. This is all the more so in the case of a medical degree-basic as well as Post-graduate-that is awarded by a statutory Indian Universit y and which has been specifically recognised by the Indian Medical Council.Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medic o- legal work", we dont find any force in the said plea. The certificates from the Principal and Heads of Departments of Forensic Medicine in the concerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medico-legal work in Dr. S. N. Medical College and in the Dharbhanga Medical College, pri or to the last date fixed by the Commission for receipt of the applications.10. The conclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for appointment to the two posts of Lecturers in Forensic Medicine advertised by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him fro m consideration on the said ground.11. | 1[ds]The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degree s. The Degree of Doctor of Medicineof the University of Bihar is included in the Schedule tothe Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly establis hed by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absen ce of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to a ny post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be t reated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the saidng it as an equivalent qualification. It is common ground be fore us that the University of Rajasthan does not conduct Post-graduate examinations in the subject ofand it does not award the degree of M.L.. In order that there should be scope for declaration of equivalence of a qualification obtained from another body, there should be a corresponding qualification that can be earned by virtue of passing an examination or test conducted by the concerned University. There can be declaration o f equivalence only as between a degree etc. awarded by the concerned University and one obtained from a body different from the concerned University. When the University of Rajasthan does not conduct any examination for the award o f the degree of M.L., there cannot be any question of declaration of equivalence in respect of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of equivalence referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ord inances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduatein the concerned subjectawarded by a s tatutory Indian University, no recognition or declaration of equivalence by any other University is called for. This is all the more so in the case of a medical degree-basic as well as Post-graduate-that is awarded by a statutory Indian Universit y and which has been specifically recognised by the Indian Medical Council.Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medic o- legal work", we dont find anyid plea. The certificates from the Principal and Heads of Departments ofe in theconcerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medico-legal work in Dr. S. N. Medical College and in the Dharbhanga Medical College, pri or to the last date fixed by the Commission for receipt of theconclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for appointment to the two posts of Lecturers ined by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him fro m consideration on the said ground. | 1 | 2,498 | 760 | ### 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 High Court should issue an appropriate writ or direction cancelling the interview and selection conducte d by the Commission as well as the consequential appointments given by the State Government to respondents 3 and 4 as Lecturers in Forensic Medicine.The short point to be considered is whether the Commission was right in law in excludin g the appellant from consideration on the ground that he did not possess the academic qualification prescribed by clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances for the post of Lecturer in Forensic Medicine.7. The qualifications prescribed for the said post by clause (vii) of Ordinance No. 65 are:(1) A basic University (Degree ?) or equivalent qualification entered in Schedules to the Indian Medical Council Act, 1956.(2) Registration under the State/Central Medical Registration Act.(3) Post-graduate qualification in the concerned subject.(4) Two Years experience of Medico-legal work.8. The appellant is admittedly t he holder of the basic Degree of M.B.B.S. from the Rajasthan University, which is a qualification entered in the First Schedule to the Indian Medical Council Act. It is also not in dispute that he is duly registered under the Medical Registration A ct. The sole ground on which the appellant was treated by the Commission as ineligible for consideration was that the Post-graduate degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the said Degree has also not been recognised by the University of Rajasthan as an equivalent qualification.9. The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degree s. The Degree of Doctor of Medicine (Forensic Medicine)-M.D. (Forensic Medicine)-of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly establis hed by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absen ce of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to a ny post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be t reated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is common ground be fore us that the University of Rajasthan does not conduct Post-graduate examinations in the subject of Forensic Medicine and it does not award the degree of M.L. (Forensic Medicine). In order that there should be scope for declaration of equivalence of a qualification obtained from another body, there should be a corresponding qualification that can be earned by virtue of passing an examination or test conducted by the concerned University. There can be declaration o f equivalence only as between a degree etc. awarded by the concerned University and one obtained from a body different from the concerned University. When the University of Rajasthan does not conduct any examination for the award o f the degree of M.L. (Forensic Medicine), there cannot be any question of declaration of equivalence in respect of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of equivalence referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ord inances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned subject awarded by a s tatutory Indian University, no recognition or declaration of equivalence by any other University is called for. This is all the more so in the case of a medical degree-basic as well as Post-graduate-that is awarded by a statutory Indian Universit y and which has been specifically recognised by the Indian Medical Council.Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medic o- legal work", we dont find any force in the said plea. The certificates from the Principal and Heads of Departments of Forensic Medicine in the concerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medico-legal work in Dr. S. N. Medical College and in the Dharbhanga Medical College, pri or to the last date fixed by the Commission for receipt of the applications.10. The conclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for appointment to the two posts of Lecturers in Forensic Medicine advertised by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him fro m consideration on the said ground.11.
### Response:
1
### Explanation:
The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degree s. The Degree of Doctor of Medicineof the University of Bihar is included in the Schedule tothe Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly establis hed by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absen ce of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to a ny post in such a State. The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post-graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be t reated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the saidng it as an equivalent qualification. It is common ground be fore us that the University of Rajasthan does not conduct Post-graduate examinations in the subject ofand it does not award the degree of M.L.. In order that there should be scope for declaration of equivalence of a qualification obtained from another body, there should be a corresponding qualification that can be earned by virtue of passing an examination or test conducted by the concerned University. There can be declaration o f equivalence only as between a degree etc. awarded by the concerned University and one obtained from a body different from the concerned University. When the University of Rajasthan does not conduct any examination for the award o f the degree of M.L., there cannot be any question of declaration of equivalence in respect of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of equivalence referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ord inances can only be in respect of qualifications other than basic or Post-graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduatein the concerned subjectawarded by a s tatutory Indian University, no recognition or declaration of equivalence by any other University is called for. This is all the more so in the case of a medical degree-basic as well as Post-graduate-that is awarded by a statutory Indian Universit y and which has been specifically recognised by the Indian Medical Council.Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medic o- legal work", we dont find anyid plea. The certificates from the Principal and Heads of Departments ofe in theconcerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medico-legal work in Dr. S. N. Medical College and in the Dharbhanga Medical College, pri or to the last date fixed by the Commission for receipt of theconclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for appointment to the two posts of Lecturers ined by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him fro m consideration on the said ground.
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Union of India and Anr Vs. Vijay Chand Jain | GUPTA, J. 1. This appeal on certificate of fitness turns on the meaning of the words " in respect of " occurring in section 23(1B) of the Foreign Exchange Regulation Act, 1947. For a proper appreciation of the question it is necessary to refer to two other sections of the Act, section 4(1) and section 23(1)(a), before we turn to section 23(1B).Section 4(1) lays down :" Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India and no person resident in India other than an authorised dealer shall outside India, buy or otherwise acquire or borrow from, or sell or otherwise transfer or lend to, or exchange with, any person not being an authorised dealer any foreign exchange." Section 23(1)(a) provides :" If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, section 17, section 18A or section 18B or any rule, direction or order made thereunder, he shall-- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or ........." The part of section 23(1B) material for the present purpose reads :" Any court trying a contravention under sub-section (1) or sub-section (1A) and the authority adjudging any contravention under clause (a) of sub-section (1) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, in respect of which the contravention has taken place, shall be confiscated to the Central Government ..........." There is an Explanation to this sub-section which says :" Explanation.--For the purposes of this sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where the said property is converted into such deposits. " 2. These are the facts on which the question of construction of section 23(1B) arises. On the morning of January 28, 1966, the respondent who resides and carries on business in Delhi arrived at Palam Airport by I.A.C. Flight No. 181. A customs officer recovered from his possession Indian currency amounting to Rs. 78, 481 which sum, the respondent admitted, was the sale proceeds of the foreign currency entrusted to him for sale by someone else. On February 14, 1966, the second appellant, Director, Enforcement Directorate, Ministry of Finance, asked the respondent to show cause why the Indian currency recovered from his possession, which admittedly was the sale proceeds of foreign currency, should not be confiscated. The second appellant was the authority adjudging under section 23(1)(a) an alleged contravention of the provisions of section 4. On October 14, 1966, the second appellant held on the evidence before him that the respondent was guilty of contravening the provisions of section 4(1) and imposed a penalty of Rs. 50, 000 under section 23(1)(a). He further directed the sum of Rs. 78, 481 seized from the respondent to be confiscated under section 23(1B). The respondent moved the High Court of Delhi under article 226 of the Constitution seeking an appropriate writ quashing the order of confiscation. The High Court viewed the matter as follows: " What has happened is that foreign currency had been sold for Indian currency. In other words, a contravention under section 23(1)(a) had taken place in respect of some foreign currency and not in respect of the Indian currency seized. " Accordingly, the High Court held that the Director of Enforcement " had no competence to order the confiscation of the Indian currency in question " and quashed the impugned order.The contravention alleged is of section 4(1) which prohibits, inter alia, sale of any foreign exchange. Foreign exchange as defined in section 2(d) means foreign currency. Under section 23(1B) any currency, security, gold or silver, or goods or any other money or property " in respect of which " the contravention has taken place is liable to be confiscated to the Central Government. The currency confiscated in this case was Indian currency. The question is whether the Indian currency constituting the sale proceeds of foreign exchange seized from the respondent was currency in respect of which the contravention had taken place. The words " in respect of " admit of a wide connotation ; Lord Greene M.R. in Cunards Trustees v. Inland Revenue Commissioners [1946] 1 All ER 159 (CA) calls them colourless words. This court in S. S. Light Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. [1960] 2 SCR 926 (SC), construing these words in section 3(14) of the Indian Railways Act, 1890, has held that they are very wide. It seems to us that in the context of section 23(1B) " in respect of " has been used in the sense of being " connected with ", and we have no difficulty in holding that the currency in respect of which there has been contravention covers the sale proceeds of foreign currency, sale of which is prohibited under section 4(1). The intention of the legislature is clear from the Explanation to sub-section (1B) of section 23 which provides that " for the purposes of the sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where such property is converted into such deposits ". If for this sub-section any property in respect of which a contravention has taken place includes deposits into which the property may be converted and can be reached even where the deposits are in a bank, it is not reasonable to think that the sale proceeds in Indian currency of any foreign exchange would be outside the scope of section 23(1B) and, therefore, not liable to be confiscated. 3. | 1[ds]It seems to us that in the context of section 23(1B) " in respect of " has been used in the sense of being " connected with ", and we have no difficulty in holding that the currency in respect of which there has been contravention covers the sale proceeds of foreign currency, sale of which is prohibited under section 4(1). The intention of the legislature is clear from the Explanation to sub-section (1B) of section 23 which provides that " for the purposes of the sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where such property is converted into such deposits ". If for this sub-section any property in respect of which a contravention has taken place includes deposits into which the property may be converted and can be reached even where the deposits are in a bank, it is not reasonable to think that the sale proceeds in Indian currency of any foreign exchange would be outside the scope of section 23(1B) and, therefore, not liable to be confiscated. | 1 | 1,197 | 204 | ### 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:
GUPTA, J. 1. This appeal on certificate of fitness turns on the meaning of the words " in respect of " occurring in section 23(1B) of the Foreign Exchange Regulation Act, 1947. For a proper appreciation of the question it is necessary to refer to two other sections of the Act, section 4(1) and section 23(1)(a), before we turn to section 23(1B).Section 4(1) lays down :" Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall in India and no person resident in India other than an authorised dealer shall outside India, buy or otherwise acquire or borrow from, or sell or otherwise transfer or lend to, or exchange with, any person not being an authorised dealer any foreign exchange." Section 23(1)(a) provides :" If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12, section 17, section 18A or section 18B or any rule, direction or order made thereunder, he shall-- (a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or ........." The part of section 23(1B) material for the present purpose reads :" Any court trying a contravention under sub-section (1) or sub-section (1A) and the authority adjudging any contravention under clause (a) of sub-section (1) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, in respect of which the contravention has taken place, shall be confiscated to the Central Government ..........." There is an Explanation to this sub-section which says :" Explanation.--For the purposes of this sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where the said property is converted into such deposits. " 2. These are the facts on which the question of construction of section 23(1B) arises. On the morning of January 28, 1966, the respondent who resides and carries on business in Delhi arrived at Palam Airport by I.A.C. Flight No. 181. A customs officer recovered from his possession Indian currency amounting to Rs. 78, 481 which sum, the respondent admitted, was the sale proceeds of the foreign currency entrusted to him for sale by someone else. On February 14, 1966, the second appellant, Director, Enforcement Directorate, Ministry of Finance, asked the respondent to show cause why the Indian currency recovered from his possession, which admittedly was the sale proceeds of foreign currency, should not be confiscated. The second appellant was the authority adjudging under section 23(1)(a) an alleged contravention of the provisions of section 4. On October 14, 1966, the second appellant held on the evidence before him that the respondent was guilty of contravening the provisions of section 4(1) and imposed a penalty of Rs. 50, 000 under section 23(1)(a). He further directed the sum of Rs. 78, 481 seized from the respondent to be confiscated under section 23(1B). The respondent moved the High Court of Delhi under article 226 of the Constitution seeking an appropriate writ quashing the order of confiscation. The High Court viewed the matter as follows: " What has happened is that foreign currency had been sold for Indian currency. In other words, a contravention under section 23(1)(a) had taken place in respect of some foreign currency and not in respect of the Indian currency seized. " Accordingly, the High Court held that the Director of Enforcement " had no competence to order the confiscation of the Indian currency in question " and quashed the impugned order.The contravention alleged is of section 4(1) which prohibits, inter alia, sale of any foreign exchange. Foreign exchange as defined in section 2(d) means foreign currency. Under section 23(1B) any currency, security, gold or silver, or goods or any other money or property " in respect of which " the contravention has taken place is liable to be confiscated to the Central Government. The currency confiscated in this case was Indian currency. The question is whether the Indian currency constituting the sale proceeds of foreign exchange seized from the respondent was currency in respect of which the contravention had taken place. The words " in respect of " admit of a wide connotation ; Lord Greene M.R. in Cunards Trustees v. Inland Revenue Commissioners [1946] 1 All ER 159 (CA) calls them colourless words. This court in S. S. Light Railway Co. Ltd. v. Upper Doab Sugar Mills Ltd. [1960] 2 SCR 926 (SC), construing these words in section 3(14) of the Indian Railways Act, 1890, has held that they are very wide. It seems to us that in the context of section 23(1B) " in respect of " has been used in the sense of being " connected with ", and we have no difficulty in holding that the currency in respect of which there has been contravention covers the sale proceeds of foreign currency, sale of which is prohibited under section 4(1). The intention of the legislature is clear from the Explanation to sub-section (1B) of section 23 which provides that " for the purposes of the sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where such property is converted into such deposits ". If for this sub-section any property in respect of which a contravention has taken place includes deposits into which the property may be converted and can be reached even where the deposits are in a bank, it is not reasonable to think that the sale proceeds in Indian currency of any foreign exchange would be outside the scope of section 23(1B) and, therefore, not liable to be confiscated. 3.
### Response:
1
### Explanation:
It seems to us that in the context of section 23(1B) " in respect of " has been used in the sense of being " connected with ", and we have no difficulty in holding that the currency in respect of which there has been contravention covers the sale proceeds of foreign currency, sale of which is prohibited under section 4(1). The intention of the legislature is clear from the Explanation to sub-section (1B) of section 23 which provides that " for the purposes of the sub-section, property in respect of which contravention has taken place shall include deposits in a bank, where such property is converted into such deposits ". If for this sub-section any property in respect of which a contravention has taken place includes deposits into which the property may be converted and can be reached even where the deposits are in a bank, it is not reasonable to think that the sale proceeds in Indian currency of any foreign exchange would be outside the scope of section 23(1B) and, therefore, not liable to be confiscated.
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NIRBHAY KUMAR Vs. THE STATE OF BIHAR | counsel submits that this was only in pursuance to orders passed by the High Court and this Court. We do not find any justification in taking a different stand in the case of 133 candidates who also have cleared the physical efficiency test in the year 2006. Therefore, at the time of their process of appointment in the year 2017/2018, they need only to be subjected to the same test undergone by 186 candidates... 15. Further in its order dated 24.10.2018, this Court in Contempt Petition No.1711 of 2018 in Contempt Petition(C) No.22 of 2018 in C.A.No.2805 of 2017 passed following order in paragraph 4: - 4. Therefore, we do not find any justification to reopen the order and permit the State and the Selection Commission to subject those 133 candidates to another written test and physical efficiency test, which, of course, is the normal procedure. This Court having carved out and classified 133 candidates into a specific category and placed them along with 186 candidates, there cannot be any other procedure than the medical examination. Therefore, to remove any doubt on this aspect, we make it clear that the only remaining process to be undergone by the 133 candidates is the process to which the 186 candidates were subjected to. The State and the Selection Commission are directed to complete the process positively on or before 01.11.2018 and issue the appointment orders subject, of course, to candidates passing the medical fitness test. We make it clear that this order and all the earlier orders regarding the selection and appointment of the 133 candidates are passed in the peculiar background of the litigation starting from the advertisement in the year 2004 and several rounds of litigations during the past fourteen years, in exercise of our jurisdiction under Article 142 of the Constitution of India and the same shall not be treated as a precedent. 16. This Court made it very clear that order of this Court regarding selection and appointment of 133 candidates are passed in peculiar background of litigation in exercise of jurisdiction under Article 142 and the same shall not be treated as a Precedent. 17. The petitioners are claiming that they should be extended the same benefit of not being subjected to physical test as the exemption was granted with regard to 133 candidates. There is more than one reason for not accepting the claim of the petitioner. Firstly, there has been specific order with regard to 133 candidates for not subjecting them to the physical test and directing their appointment without physical test which this Court had categorically held to be not treated as Precedent. The order when specifically held that it may not be treated as Precedent, no benefit can be claimed of the said order by the writ petitioner in the present writ petitions especially when otherwise the writ petitioners are not able to satisfy this Court that when they have either not undertaken the physical test or failed in the physical test, why they should be given appointment as Sub-Inspector of Police at this stage. 18. The Counter affidavit filed by the Commission categorically states that for selection against 299 posts, 2192 candidates turned up for selection and only 232 cleared the physical test. The order dated 14.09.2017 of this Court passed in C.A.Nos.2795- 2797 of 2017 has also noticed the number of the candidates who were to subjected to the process of selection for 299 posts which number was mentioned 2479 candidates. From the order dated 14.09.2017 of this Court, it is further clear that 1035 candidates did not turned up for selection, this Court directed for them also to be subjected to physical test, thus, there are large number of candidates who did not take physical test or took the physical test and failed. Directing for appointment of all those candidates which includes the petitioners also who did not take the physical test or took the physical test and failed shall be an unending process and there are more than thousand of such candidates who may claim that although they did not take physical test or failed in physical test in pursuance of selection of 299 posts, they should be appointed they being similarly situated to 133 candidates. 19. This Court has further passed an order on 01.11.2018. It is also relevant to notice that several candidates some of which are petitioners before us has also filed the impleadment application in Contempt Petition No.1711 of 2018 in C.A.No.2805 of 2017 which application were rejected on 01.11.2018 and in order dated 01.11.2018, it had although been observed that the applicants are free to make representation appealing to the good conscience of the State of Bihar and the State of Bihar is free to consider the same but in event if the representation are rejected, it shall not give rise to any proceeding/appeal in any of the Courts. Following observations are made in this regard: - ...Mr. S.Nagamuthu, learned senior counsel, and other counsel appearing for some of the intervenors/applicants, pray for the same relief which is granted to 133 candidates. The said applicants are free to make representations appealing to the good conscience of the State of Bihar. The State of Bihar is free to consider the same and pass appropriate orders in accordance with law. In case such representations are made by the intervenors/applicants within one month from today, appropriate orders may be passed by the state on those representations within three months thereafter. However, we make it clear that even if their representations are rejected, it will not give rise to any proceedings/appeal in any of the Courts. 20. The Court thus by order dated 01.11.2018 clearly indicated that in event the State of Bihar does not accede to the representation of applicants claiming similar relief to 133 candidates that shall not give rise to any proceedings in any of the Courts. We are not persuaded to grant the said relief in these proceedings under Article 32 of the Constitution. | 0[ds]14. All the writ petitioners are claiming appointment to the post of Sub-Inspector in pursuance of Advertisement dated 28.06.2011 for 299 posts of Sub- Inspector of Police. The Commission has categorically pleaded that all the petitioners in this batch of writ petitions are candidates who either did not participate in the physical test for the selection against 299 posts or they participated and failed.16. This Court made it very clear that order of this Court regarding selection and appointment of 133 candidates are passed in peculiar background of litigation in exercise of jurisdiction under Article 142 and the same shall not be treated as a Precedent.17. The petitioners are claiming that they should be extended the same benefit of not being subjected to physical test as the exemption was granted with regard to 133 candidates. There is more than one reason for not accepting the claim of the petitioner. Firstly, there has been specific order with regard to 133 candidates for not subjecting them to the physical test and directing their appointment without physical test which this Court had categorically held to be not treated as Precedent. The order when specifically held that it may not be treated as Precedent, no benefit can be claimed of the said order by the writ petitioner in the present writ petitions especially when otherwise the writ petitioners are not able to satisfy this Court that when they have either not undertaken the physical test or failed in the physical test, why they should be given appointment as Sub-Inspector of Police at this stage.18. The Counter affidavit filed by the Commission categorically states that for selection against 299 posts, 2192 candidates turned up for selection and only 232 cleared the physical test. The order dated 14.09.2017 of this Court passed in C.A.Nos.2795- 2797 of 2017 has also noticed the number of the candidates who were to subjected to the process of selection for 299 posts which number was mentioned 2479 candidates. From the order dated 14.09.2017 of this Court, it is further clear that 1035 candidates did not turned up for selection, this Court directed for them also to be subjected to physical test, thus, there are large number of candidates who did not take physical test or took the physical test and failed. Directing for appointment of all those candidates which includes the petitioners also who did not take the physical test or took the physical test and failed shall be an unending process and there are more than thousand of such candidates who may claim that although they did not take physical test or failed in physical test in pursuance of selection of 299 posts, they should be appointed they being similarly situated to 133 candidates.19. This Court has further passed an order on 01.11.2018. It is also relevant to notice that several candidates some of which are petitioners before us has also filed the impleadment application in Contempt Petition No.1711 of 2018 in C.A.No.2805 of 2017 which application were rejected on 01.11.2018 and in order dated 01.11.2018, it had although been observed that the applicants are free to make representation appealing to the good conscience of the State of Bihar and the State of Bihar is free to consider the same but in event if the representation are rejected, it shall not give rise to any proceeding/appeal in any of the Courts. Following observations are made in this regard: -...Mr. S.Nagamuthu, learned senior counsel, and other counsel appearing for some of the intervenors/applicants, pray for the same relief which is granted to 133 candidates.The said applicants are free to make representations appealing to the good conscience of the State of Bihar. The State of Bihar is free to consider the same and pass appropriate orders in accordance with law. In case such representations are made by the intervenors/applicants within one month from today, appropriate orders may be passed by the state on those representations within three months thereafter. However, we make it clear that even if their representations are rejected, it will not give rise to any proceedings/appeal in any of the Courts.20. The Court thus by order dated 01.11.2018 clearly indicated that in event the State of Bihar does not accede to the representation of applicants claiming similar relief to 133 candidates that shall not give rise to any proceedings in any of the Courts. We are not persuaded to grant the said relief in these proceedings under Article 32 of the Constitution. | 0 | 3,693 | 787 | ### 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:
counsel submits that this was only in pursuance to orders passed by the High Court and this Court. We do not find any justification in taking a different stand in the case of 133 candidates who also have cleared the physical efficiency test in the year 2006. Therefore, at the time of their process of appointment in the year 2017/2018, they need only to be subjected to the same test undergone by 186 candidates... 15. Further in its order dated 24.10.2018, this Court in Contempt Petition No.1711 of 2018 in Contempt Petition(C) No.22 of 2018 in C.A.No.2805 of 2017 passed following order in paragraph 4: - 4. Therefore, we do not find any justification to reopen the order and permit the State and the Selection Commission to subject those 133 candidates to another written test and physical efficiency test, which, of course, is the normal procedure. This Court having carved out and classified 133 candidates into a specific category and placed them along with 186 candidates, there cannot be any other procedure than the medical examination. Therefore, to remove any doubt on this aspect, we make it clear that the only remaining process to be undergone by the 133 candidates is the process to which the 186 candidates were subjected to. The State and the Selection Commission are directed to complete the process positively on or before 01.11.2018 and issue the appointment orders subject, of course, to candidates passing the medical fitness test. We make it clear that this order and all the earlier orders regarding the selection and appointment of the 133 candidates are passed in the peculiar background of the litigation starting from the advertisement in the year 2004 and several rounds of litigations during the past fourteen years, in exercise of our jurisdiction under Article 142 of the Constitution of India and the same shall not be treated as a precedent. 16. This Court made it very clear that order of this Court regarding selection and appointment of 133 candidates are passed in peculiar background of litigation in exercise of jurisdiction under Article 142 and the same shall not be treated as a Precedent. 17. The petitioners are claiming that they should be extended the same benefit of not being subjected to physical test as the exemption was granted with regard to 133 candidates. There is more than one reason for not accepting the claim of the petitioner. Firstly, there has been specific order with regard to 133 candidates for not subjecting them to the physical test and directing their appointment without physical test which this Court had categorically held to be not treated as Precedent. The order when specifically held that it may not be treated as Precedent, no benefit can be claimed of the said order by the writ petitioner in the present writ petitions especially when otherwise the writ petitioners are not able to satisfy this Court that when they have either not undertaken the physical test or failed in the physical test, why they should be given appointment as Sub-Inspector of Police at this stage. 18. The Counter affidavit filed by the Commission categorically states that for selection against 299 posts, 2192 candidates turned up for selection and only 232 cleared the physical test. The order dated 14.09.2017 of this Court passed in C.A.Nos.2795- 2797 of 2017 has also noticed the number of the candidates who were to subjected to the process of selection for 299 posts which number was mentioned 2479 candidates. From the order dated 14.09.2017 of this Court, it is further clear that 1035 candidates did not turned up for selection, this Court directed for them also to be subjected to physical test, thus, there are large number of candidates who did not take physical test or took the physical test and failed. Directing for appointment of all those candidates which includes the petitioners also who did not take the physical test or took the physical test and failed shall be an unending process and there are more than thousand of such candidates who may claim that although they did not take physical test or failed in physical test in pursuance of selection of 299 posts, they should be appointed they being similarly situated to 133 candidates. 19. This Court has further passed an order on 01.11.2018. It is also relevant to notice that several candidates some of which are petitioners before us has also filed the impleadment application in Contempt Petition No.1711 of 2018 in C.A.No.2805 of 2017 which application were rejected on 01.11.2018 and in order dated 01.11.2018, it had although been observed that the applicants are free to make representation appealing to the good conscience of the State of Bihar and the State of Bihar is free to consider the same but in event if the representation are rejected, it shall not give rise to any proceeding/appeal in any of the Courts. Following observations are made in this regard: - ...Mr. S.Nagamuthu, learned senior counsel, and other counsel appearing for some of the intervenors/applicants, pray for the same relief which is granted to 133 candidates. The said applicants are free to make representations appealing to the good conscience of the State of Bihar. The State of Bihar is free to consider the same and pass appropriate orders in accordance with law. In case such representations are made by the intervenors/applicants within one month from today, appropriate orders may be passed by the state on those representations within three months thereafter. However, we make it clear that even if their representations are rejected, it will not give rise to any proceedings/appeal in any of the Courts. 20. The Court thus by order dated 01.11.2018 clearly indicated that in event the State of Bihar does not accede to the representation of applicants claiming similar relief to 133 candidates that shall not give rise to any proceedings in any of the Courts. We are not persuaded to grant the said relief in these proceedings under Article 32 of the Constitution.
### Response:
0
### Explanation:
14. All the writ petitioners are claiming appointment to the post of Sub-Inspector in pursuance of Advertisement dated 28.06.2011 for 299 posts of Sub- Inspector of Police. The Commission has categorically pleaded that all the petitioners in this batch of writ petitions are candidates who either did not participate in the physical test for the selection against 299 posts or they participated and failed.16. This Court made it very clear that order of this Court regarding selection and appointment of 133 candidates are passed in peculiar background of litigation in exercise of jurisdiction under Article 142 and the same shall not be treated as a Precedent.17. The petitioners are claiming that they should be extended the same benefit of not being subjected to physical test as the exemption was granted with regard to 133 candidates. There is more than one reason for not accepting the claim of the petitioner. Firstly, there has been specific order with regard to 133 candidates for not subjecting them to the physical test and directing their appointment without physical test which this Court had categorically held to be not treated as Precedent. The order when specifically held that it may not be treated as Precedent, no benefit can be claimed of the said order by the writ petitioner in the present writ petitions especially when otherwise the writ petitioners are not able to satisfy this Court that when they have either not undertaken the physical test or failed in the physical test, why they should be given appointment as Sub-Inspector of Police at this stage.18. The Counter affidavit filed by the Commission categorically states that for selection against 299 posts, 2192 candidates turned up for selection and only 232 cleared the physical test. The order dated 14.09.2017 of this Court passed in C.A.Nos.2795- 2797 of 2017 has also noticed the number of the candidates who were to subjected to the process of selection for 299 posts which number was mentioned 2479 candidates. From the order dated 14.09.2017 of this Court, it is further clear that 1035 candidates did not turned up for selection, this Court directed for them also to be subjected to physical test, thus, there are large number of candidates who did not take physical test or took the physical test and failed. Directing for appointment of all those candidates which includes the petitioners also who did not take the physical test or took the physical test and failed shall be an unending process and there are more than thousand of such candidates who may claim that although they did not take physical test or failed in physical test in pursuance of selection of 299 posts, they should be appointed they being similarly situated to 133 candidates.19. This Court has further passed an order on 01.11.2018. It is also relevant to notice that several candidates some of which are petitioners before us has also filed the impleadment application in Contempt Petition No.1711 of 2018 in C.A.No.2805 of 2017 which application were rejected on 01.11.2018 and in order dated 01.11.2018, it had although been observed that the applicants are free to make representation appealing to the good conscience of the State of Bihar and the State of Bihar is free to consider the same but in event if the representation are rejected, it shall not give rise to any proceeding/appeal in any of the Courts. Following observations are made in this regard: -...Mr. S.Nagamuthu, learned senior counsel, and other counsel appearing for some of the intervenors/applicants, pray for the same relief which is granted to 133 candidates.The said applicants are free to make representations appealing to the good conscience of the State of Bihar. The State of Bihar is free to consider the same and pass appropriate orders in accordance with law. In case such representations are made by the intervenors/applicants within one month from today, appropriate orders may be passed by the state on those representations within three months thereafter. However, we make it clear that even if their representations are rejected, it will not give rise to any proceedings/appeal in any of the Courts.20. The Court thus by order dated 01.11.2018 clearly indicated that in event the State of Bihar does not accede to the representation of applicants claiming similar relief to 133 candidates that shall not give rise to any proceedings in any of the Courts. We are not persuaded to grant the said relief in these proceedings under Article 32 of the Constitution.
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M/s. Sri Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar | on the grounds of wilful default in payment of rent, commission of acts of nuisance, denial of title and requirement of the premised for the respondents own use and occupation in connection with a dyeing factory which he proposed to set up and expansion of the existing business. All the grounds were negatived, concurrently, by the Rent Controller and the appellate authority. On a revision petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the High Court allowed the application for eviction on the last of the grounds, setting aside the concurrent finding of the Rent Controller and the appellate authority on that question. The principal submission of Dr. Y. S. Chitale, learned counsel for the appellant, was that the High Court exceeded its jurisdiction in interfering, in the exercise of its revisional powers, with the concurrent finding of fact arrived at by the subordinate tribunal. The submission of Shri T. S. Krishna Moorthy Iyer, learned counsel for the respondent, was that jurisdiction under Section 25 of the Tamil Nadu Act was very wide and that a question regarding the bona fide requirement of a landlord was always a mixed question of fact and law and the High Court, therefore, had ample jurisdiction to interfere even with a concurrent finding of the subordinate tribunal. 2, Appeal and revisional are expressions of common usage in Indian statute and the distinction between appellate jurisdiction and revisional jurisdiction is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it where, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. 3. Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, enables any person aggrieved by an order passed by Controller to prefer an appeal to the appellate authority having jurisdiction. Section 25 provides that : The High Court may on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration it may pass orders accordingly. The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions appeal and revision are employed in the statute. Quite obviously, the expression revision is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression appeal. In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval ((1975) 2 SCC 246 ), "it is not wide enough to make the High Court a second court of first appeal". 4. Some argument was advanced whether a finding as to the bona fide requirement of a landlord is or not a mixed question of fact and law. Reference was made to Madan Lal Puri v. Sain Das Berry ((1971) 2 SCC 535 ) and Kamla Soni v. Rup Lal Mehra (AIR 1969 NSC 186 : (1969) 2 SCWR 679) on the one hand and I. B. Sarvate v. Nemichand (1966 MPLJ 26 : 1965 Jab LJ 973 (SC) and Mattulal v. Radhe Lal (AIR 1974 SC 1596 : (1974) 2 SCC 365 ) on the other hand. We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. | 1[ds]2, Appeal and revisional are expressions of common usage in Indian statute and the distinction between appellate jurisdiction and revisional jurisdiction is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it where, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute4. Some argument was advanced whether a finding as to the bona fide requirement of a landlord is or not a mixed question of fact and law. Reference was made to Madan Lal Puri v. Sain Das Berry ((1971) 2 SCC 535 ) and Kamla Soni v. Rup Lal Mehra (AIR 1969 NSC 186 : (1969) 2 SCWR 679) on the one hand and I. B. Sarvate v. Nemichand (1966 MPLJ 26 : 1965 Jab LJ 973 (SC) and Mattulal v. Radhe Lal (AIR 1974 SC 1596 : (1974) 2 SCC 365 ) on the other hand. We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. | 1 | 1,169 | 481 | ### 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:
on the grounds of wilful default in payment of rent, commission of acts of nuisance, denial of title and requirement of the premised for the respondents own use and occupation in connection with a dyeing factory which he proposed to set up and expansion of the existing business. All the grounds were negatived, concurrently, by the Rent Controller and the appellate authority. On a revision petition filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the High Court allowed the application for eviction on the last of the grounds, setting aside the concurrent finding of the Rent Controller and the appellate authority on that question. The principal submission of Dr. Y. S. Chitale, learned counsel for the appellant, was that the High Court exceeded its jurisdiction in interfering, in the exercise of its revisional powers, with the concurrent finding of fact arrived at by the subordinate tribunal. The submission of Shri T. S. Krishna Moorthy Iyer, learned counsel for the respondent, was that jurisdiction under Section 25 of the Tamil Nadu Act was very wide and that a question regarding the bona fide requirement of a landlord was always a mixed question of fact and law and the High Court, therefore, had ample jurisdiction to interfere even with a concurrent finding of the subordinate tribunal. 2, Appeal and revisional are expressions of common usage in Indian statute and the distinction between appellate jurisdiction and revisional jurisdiction is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it where, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute. 3. Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, enables any person aggrieved by an order passed by Controller to prefer an appeal to the appellate authority having jurisdiction. Section 25 provides that : The High Court may on the application of any person aggrieved by an order of the appellate authority, call for and examine the record of appellate authority, to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed therein and if, in any case it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration it may pass orders accordingly. The language of Section 25 is indeed very wide. But we must attach some significance to the circumstance that both the expressions appeal and revision are employed in the statute. Quite obviously, the expression revision is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression appeal. In fact it has to be noticed that under Section 25 the High Court calls for and examines the record of the appellate authority in order to satisfy itself. The dominant idea conveyed by the incorporation of the words to satisfy itself under Section 25 appears to be that the power conferred on the High Court under Section 25 is essentially a power of superintendence. Therefore, despite the wide language employed in Section 25 the High Court quite obviously should not interfere with findings of fact merely because it does not agree with the finding of the subordinate authority. The power conferred on the High Court under Section 25 of the Tamil Nadu Buildings (Lease and Control) Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure but in the words of Untwalia, J., in Dattonpant Gopalvarao Devakate v. Vithalrao Maruthirao Janagaval ((1975) 2 SCC 246 ), "it is not wide enough to make the High Court a second court of first appeal". 4. Some argument was advanced whether a finding as to the bona fide requirement of a landlord is or not a mixed question of fact and law. Reference was made to Madan Lal Puri v. Sain Das Berry ((1971) 2 SCC 535 ) and Kamla Soni v. Rup Lal Mehra (AIR 1969 NSC 186 : (1969) 2 SCWR 679) on the one hand and I. B. Sarvate v. Nemichand (1966 MPLJ 26 : 1965 Jab LJ 973 (SC) and Mattulal v. Radhe Lal (AIR 1974 SC 1596 : (1974) 2 SCC 365 ) on the other hand. We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
### Response:
1
### Explanation:
2, Appeal and revisional are expressions of common usage in Indian statute and the distinction between appellate jurisdiction and revisional jurisdiction is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it where, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute4. Some argument was advanced whether a finding as to the bona fide requirement of a landlord is or not a mixed question of fact and law. Reference was made to Madan Lal Puri v. Sain Das Berry ((1971) 2 SCC 535 ) and Kamla Soni v. Rup Lal Mehra (AIR 1969 NSC 186 : (1969) 2 SCWR 679) on the one hand and I. B. Sarvate v. Nemichand (1966 MPLJ 26 : 1965 Jab LJ 973 (SC) and Mattulal v. Radhe Lal (AIR 1974 SC 1596 : (1974) 2 SCC 365 ) on the other hand. We do not think it is necessary for the purposes of this case to enter into a discussion of this question. Merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power. It must, however, be shown that there was a taint of such unreasonableness resulting in a miscarriage of justice. A concurrent finding, based on evidence, that the landlord did not bona fide require the premises for his own use and occupation is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
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Sulekhan Singh & Co. & Others Vs. State of U.P. & Others | revenue and was consistent with the decisions of this Court in Article 14 of the Constitution. The validity thereof was upheld by the High Court in Nar Narain Mishra (supra). The said judgment applied to the mineral in question as specifically laid down by the High Court. The High Court upheld the stand of the State that pendency of application did not create any right in favour of the appellants. All applications pending as on 31st May, 2012 stood rejected including the application of the appellants. Admittedly, the appellants did not make an application after the changed policy dated 22nd October, 2014 and thus the said G.O. had no application to the present case. We are not called upon to decide validity of order dated 22nd October, 2014 in cancelling order dated 31st May, 2012. This question can be gone into as and when raised.21. In Hind Stone (supra), this Court observed: “13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist. 22. Reiterating the decision in Hind Stone (supra), this Court in Monnet Ispat & Energy Ltd. vs. Union of India (2012 (11) SCC 1 )held as under: “132. ……Minerals—like rivers and forests—are a valuable natural resource. Minerals constitute our national wealth and are vital raw material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilisation of minerals is not only the need of the day but is also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in the country’s economic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For the proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather the nation’s natural wealth has to be used judiciously so that it may not be exhausted within a few years.133.…………..No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in Hind Stone (SCC p. 213, para 6) albeit in the context of minor mineral,“6. … The public interest which induced Parliament to make the declaration contained in Section 2 … has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals”.He went on to say: (Hind Stone case, SCC p. 217, para 10)“10. … The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed … at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present.” 23. It was further observed : “182.7. The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the court must consider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, assurance or representation.”xxxx188.3 Where the decision of an authority is founded in public interest as per executive policy or law, the court would be reluctant to interfere with such decision by invoking the doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so.” 24. In view of the above, we do not find any merit in these appeals. We also do not approve the stand of the State of U.P. in supporting the appellants, as already mentioned. | 0[ds]19. We have considered the rival submissions and perused the record.20. The plea of the appellants that they had acquired a vested right prior to G.O. dated 31st May, 2012 cannot be accepted. Order dated 31st May, 2012 was issued by the State of U.P. to bring about transparency and to safeguard the Government revenue and was consistent with the decisions of this Court in Article 14 of the Constitution. The validity thereof was upheld by the High Court in Nar Narain Mishra (supra). The said judgment applied to the mineral in question as specifically laid down by the High Court. The High Court upheld the stand of the State that pendency of application did not create any right in favour of the appellants. All applications pending as on 31st May, 2012 stood rejected including the application of the appellants. Admittedly, the appellants did not make an application after the changed policy dated 22nd October, 2014 and thus the said G.O. had no application to the present case. We are not called upon to decide validity of order dated 22nd October, 2014 in cancelling order dated 31st May, 2012. This question can be gone into as and when raised.21. In Hind Stone (supra), this CourtAnother submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist.Reiterating the decision in Hind Stone (supra), this Court in Monnet Ispat & Energy Ltd. vs. Union of India (2012 (11) SCC 1 )held as……Minerals—like rivers and forests—are a valuable natural resource. Minerals constitute our national wealth and are vital raw material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilisation of minerals is not only the need of the day but is also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in theeconomic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For the proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather thenatural wealth has to be used judiciously so that it may not be exhausted within a few years.133.…………..No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in Hind Stone (SCC p. 213, para 6) albeit in the context of minor… The public interest which induced Parliament to make the declaration contained in Section 2 … has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development ofwent on to say: (Hind Stone case, SCC p. 217, para… The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed … at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present.The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the court must consider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, assurance orWhere the decision of an authority is founded in public interest as per executive policy or law, the court would be reluctant to interfere with such decision by invoking the doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so.In view of the above, we do not find any merit in these appeals. We also do not approve the stand of the State of U.P. in supporting the appellants, as already mentioned. | 0 | 4,296 | 1,123 | ### Instruction:
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revenue and was consistent with the decisions of this Court in Article 14 of the Constitution. The validity thereof was upheld by the High Court in Nar Narain Mishra (supra). The said judgment applied to the mineral in question as specifically laid down by the High Court. The High Court upheld the stand of the State that pendency of application did not create any right in favour of the appellants. All applications pending as on 31st May, 2012 stood rejected including the application of the appellants. Admittedly, the appellants did not make an application after the changed policy dated 22nd October, 2014 and thus the said G.O. had no application to the present case. We are not called upon to decide validity of order dated 22nd October, 2014 in cancelling order dated 31st May, 2012. This question can be gone into as and when raised.21. In Hind Stone (supra), this Court observed: “13. Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist. 22. Reiterating the decision in Hind Stone (supra), this Court in Monnet Ispat & Energy Ltd. vs. Union of India (2012 (11) SCC 1 )held as under: “132. ……Minerals—like rivers and forests—are a valuable natural resource. Minerals constitute our national wealth and are vital raw material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilisation of minerals is not only the need of the day but is also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in the country’s economic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For the proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather the nation’s natural wealth has to be used judiciously so that it may not be exhausted within a few years.133.…………..No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in Hind Stone (SCC p. 213, para 6) albeit in the context of minor mineral,“6. … The public interest which induced Parliament to make the declaration contained in Section 2 … has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development of minerals”.He went on to say: (Hind Stone case, SCC p. 217, para 10)“10. … The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed … at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present.” 23. It was further observed : “182.7. The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the court must consider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, assurance or representation.”xxxx188.3 Where the decision of an authority is founded in public interest as per executive policy or law, the court would be reluctant to interfere with such decision by invoking the doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so.” 24. In view of the above, we do not find any merit in these appeals. We also do not approve the stand of the State of U.P. in supporting the appellants, as already mentioned.
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to G.O. dated 31st May, 2012 cannot be accepted. Order dated 31st May, 2012 was issued by the State of U.P. to bring about transparency and to safeguard the Government revenue and was consistent with the decisions of this Court in Article 14 of the Constitution. The validity thereof was upheld by the High Court in Nar Narain Mishra (supra). The said judgment applied to the mineral in question as specifically laid down by the High Court. The High Court upheld the stand of the State that pendency of application did not create any right in favour of the appellants. All applications pending as on 31st May, 2012 stood rejected including the application of the appellants. Admittedly, the appellants did not make an application after the changed policy dated 22nd October, 2014 and thus the said G.O. had no application to the present case. We are not called upon to decide validity of order dated 22nd October, 2014 in cancelling order dated 31st May, 2012. This question can be gone into as and when raised.21. In Hind Stone (supra), this CourtAnother submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of GOMs No. 1312 (December 2, 1977) should be dealt with as if Rule 8-C had not come into force. It was also contended that even applications for grant of leases made long before the date of GOMs No. 1312 should be dealt with as if Rule 8-C had not come into force. The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of GOMs No. 1312 should be dealt with as if Rule 8-C did not exist.Reiterating the decision in Hind Stone (supra), this Court in Monnet Ispat & Energy Ltd. vs. Union of India (2012 (11) SCC 1 )held as……Minerals—like rivers and forests—are a valuable natural resource. Minerals constitute our national wealth and are vital raw material for infrastructure, capital goods and basic industries. The conservation, preservation and intelligent utilisation of minerals is not only the need of the day but is also very important in the interest of mankind and succeeding generations. Management of minerals should be in a way that helps in theeconomic development and which also leaves for future generations to conserve and develop the natural resources of the nation in the best possible way. For the proper development of economy and industry, the exploitation of natural resources cannot be permitted indiscriminately; rather thenatural wealth has to be used judiciously so that it may not be exhausted within a few years.133.…………..No person has any fundamental right to claim that he should be granted mining lease or prospecting licence or permitted reconnaissance operation in any land belonging to the Government. It is apt to quote the following statement of O. Chinnappa Reddy, J. in Hind Stone (SCC p. 213, para 6) albeit in the context of minor… The public interest which induced Parliament to make the declaration contained in Section 2 … has naturally to be the paramount consideration in all matters concerning the regulation of mines and the development ofwent on to say: (Hind Stone case, SCC p. 217, para… The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed … at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present.The doctrine of promissory estoppel cannot be invoked in abstract. When it is sought to be invoked, the court must consider all aspects including the result sought to be achieved and the public good at large. The fundamental principle of equity must forever be present to the mind of the court. Absence of it must not hold the Government or the public authority to its promise, assurance orWhere the decision of an authority is founded in public interest as per executive policy or law, the court would be reluctant to interfere with such decision by invoking the doctrine of legitimate expectation. The legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so.In view of the above, we do not find any merit in these appeals. We also do not approve the stand of the State of U.P. in supporting the appellants, as already mentioned.
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B.D. Shetty and ors Vs. M/s Ceat Ltd. and anr | Sometimes Court was vacant, sometimes the proceedings were adjourned by the consent of the parties and sometimes for other reasons. The learned counsel for the appellants complained that there was delay on the part of the respondent also after issuing suspension orders to the appellants on May 8, 1996; the appellants replied to the suspension orders on August 6, 1996; no action was taken upto October 7, 1996 on which date charge-sheets were received by the appellants; the appellants filed reply to the charge-sheets on October 15, 1996 and the domestic inquiry commenced only on January 25, 1997.14. We are not impressed by the submission of the learned counsel for the respondent that once there is delay on account of the conduct of the workman whatever may be the reason for delay, it is good enough to attract Section 10-A(1)(b) to deny the workman subsistence allowance at 75% after 90 days of suspension. According to him, no distinction can be made to exclude delay caused on account of stay order granted by a Court at the instance of workman. He contended that no words can be added or excluded to the said provision to avoid the mischief of it. In our view, a plain reading and clear understanding of Section 10-A(1)(b) as already discussed above, excludes the delay in completion of disciplinary proceedings caused on account of order granted by a competent Court from the mischief of the said provision. It is only the delay that is directly attributable to the workman is covered by the said provision. For what is stated above, the question raised in the beginning is answered in the negative.15. The argument of the learned counsel for the appellants that looking to the Model Standing Orders appearing in Schedule I appended to the Bombay Industrial Employment (Standing Orders) Rules, 1959, which are more beneficial, the appellants are entitled for 100% subsistence allowance equivalent to their wages, dearness allowance and other compensatory allowance in case inquiry is not completed within the period of 180 days is based on Section 10-A(3) is untenable. The learned senior counsel for the respondent pointed out that Model Standing Orders contained in Schedule I, are the part of Bombay Industrial Employment (Standing Orders) Rules, 1959 and these rules are framed in exercise of the powers conferred by Section 15 of the Act. Hence, it cannot be said that the said Model Standing Orders comes within the meaning of such other law covered by Section 10-A(3). He drew our attention to a Division Bench judgment of Bombay High Court in May & Baker Ltd. v. Kishore Jaikishandas Icchaporia 1994-III-LLJ (Suppl)-237 (Bom), in which it is clearly held that Model Standing Orders were not "other laws". Para 9 of the said judgment reads as under at p. 241 of LLJ : "There is no dispute that the payment that was made by the appellant to the 1st respondent was in accord not only with the provisions of the Certified Standing Orders applicable to their industrial establishment but also with those of Section 10-A. It was urged by Ms. Dsouza, learned counsel for the 1st respondent that the 1st respondent was entitled to subsistence allowance as provided by the Model Standing Orders by reason of sub-section (3) of Section 10-A because the Model Standing Orders were "other laws" within the meaning of sub-section (3). We find this argument difficult to accept. The Model Standing Orders, as also Certified Standing Orders, are laws no doubt, but they are laws made under the provisions of the Act. They are not provisions "under any other law". In our view, therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders." * 16. We have every good reason to accept the said view. It is plain from the very language of Section 10-A(3) that the words provisions of such other law necessarily refer to the law other than one covered by the very Act and Rules made thereunder. In this view, we reject the contention of the learned counsel for the appellants. Similarly, his argument that there is a practice with the respondent to make 100% subsistence allowance if inquiry is not completed within 180 days, and as such the appellants are also entitled accordingly cannot be accepted in view of the specific provision contained in Section 10-A of the Act. In view of submissions made by both learned counsels that the revisional authority may be directed to dispose of the revision petitions pending before the Industrial Tribunal within the given time-frame and looking to the facts and circumstances of the case, we also think it just and appropriate to direct the Industrial Tribunal, Thane, to dispose of the revisions pending before it within two months from the date of receipt of copy of this order. It is open to both the parties to urge all the contentions available to them including that there is no need to continue the stay order at this length of time and that no prejudice will be caused to appellants when they have already disclosed their defence in the domestic inquiry.17. The learned senior counsel for the respondent submitted that in the event we hold against the respondent and reverse the impugned order, the payment of subsistence allowance at the rate of 75% may be ordered prospectively. Having regard to the facts and circumstances of the case and the view we have taken, it is not possible to accept the request made on behalf of the respondent that payment of subsistence allowance at the rate of 75% may be ordered prospectively. In view of the interpretation we have placed on Section 10-A(1)(b) in regard to delay and answered the question in the negative, the impugned order does call for interference. For what is stated above, the impugned order cannot be sustained. We set aside the same and hold that the appellants are entitled to subsistence allowance at the rate of 75%.18. | 1[ds]In our view, therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders." *We have every good reason to accept the said view. It is plain from the very language of Section 10-A(3) that the words provisions of such other law necessarily refer to the law other than one covered by the very Act and Rules made thereunder. In this view, we reject the contention of the learned counsel for the appellants. Similarly, his argument that there is a practice with the respondent to make 100% subsistence allowance if inquiry is not completed within 180 days, and as such the appellants are also entitled accordingly cannot be accepted in view of the specific provision contained in Section 10-A of the Act. In view of submissions made by both learned counsels that the revisional authority may be directed to dispose of the revision petitions pending before the Industrial Tribunal within the given time-frame and looking to the facts and circumstances of the case, we also think it just and appropriate to direct the Industrial Tribunal, Thane, to dispose of the revisions pending before it within two months from the date of receipt of copy of this order. It is open to both the parties to urge all the contentions available to them including that there is no need to continue the stay order at this length of time and that no prejudice will be caused to appellants when they have already disclosed their defence in the domesticlearned senior counsel for the respondent submitted that in the event we hold against the respondent and reverse the impugned order, the payment of subsistence allowance at the rate of 75% may be ordered prospectively. Having regard to the facts and circumstances of the case and the view we have taken, it is not possible to accept the request made on behalf of the respondent that payment of subsistence allowance at the rate of 75% may be ordered prospectively. In view of the interpretation we have placed on Section 10-A(1)(b) in regard to delay and answered the question in the negative, the impugned order does call for interference. For what is stated above, the impugned order cannot be sustained. We set aside the same and hold that the appellants are entitled to subsistence allowance at the rate of 75%. | 1 | 4,289 | 441 | ### Instruction:
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Sometimes Court was vacant, sometimes the proceedings were adjourned by the consent of the parties and sometimes for other reasons. The learned counsel for the appellants complained that there was delay on the part of the respondent also after issuing suspension orders to the appellants on May 8, 1996; the appellants replied to the suspension orders on August 6, 1996; no action was taken upto October 7, 1996 on which date charge-sheets were received by the appellants; the appellants filed reply to the charge-sheets on October 15, 1996 and the domestic inquiry commenced only on January 25, 1997.14. We are not impressed by the submission of the learned counsel for the respondent that once there is delay on account of the conduct of the workman whatever may be the reason for delay, it is good enough to attract Section 10-A(1)(b) to deny the workman subsistence allowance at 75% after 90 days of suspension. According to him, no distinction can be made to exclude delay caused on account of stay order granted by a Court at the instance of workman. He contended that no words can be added or excluded to the said provision to avoid the mischief of it. In our view, a plain reading and clear understanding of Section 10-A(1)(b) as already discussed above, excludes the delay in completion of disciplinary proceedings caused on account of order granted by a competent Court from the mischief of the said provision. It is only the delay that is directly attributable to the workman is covered by the said provision. For what is stated above, the question raised in the beginning is answered in the negative.15. The argument of the learned counsel for the appellants that looking to the Model Standing Orders appearing in Schedule I appended to the Bombay Industrial Employment (Standing Orders) Rules, 1959, which are more beneficial, the appellants are entitled for 100% subsistence allowance equivalent to their wages, dearness allowance and other compensatory allowance in case inquiry is not completed within the period of 180 days is based on Section 10-A(3) is untenable. The learned senior counsel for the respondent pointed out that Model Standing Orders contained in Schedule I, are the part of Bombay Industrial Employment (Standing Orders) Rules, 1959 and these rules are framed in exercise of the powers conferred by Section 15 of the Act. Hence, it cannot be said that the said Model Standing Orders comes within the meaning of such other law covered by Section 10-A(3). He drew our attention to a Division Bench judgment of Bombay High Court in May & Baker Ltd. v. Kishore Jaikishandas Icchaporia 1994-III-LLJ (Suppl)-237 (Bom), in which it is clearly held that Model Standing Orders were not "other laws". Para 9 of the said judgment reads as under at p. 241 of LLJ : "There is no dispute that the payment that was made by the appellant to the 1st respondent was in accord not only with the provisions of the Certified Standing Orders applicable to their industrial establishment but also with those of Section 10-A. It was urged by Ms. Dsouza, learned counsel for the 1st respondent that the 1st respondent was entitled to subsistence allowance as provided by the Model Standing Orders by reason of sub-section (3) of Section 10-A because the Model Standing Orders were "other laws" within the meaning of sub-section (3). We find this argument difficult to accept. The Model Standing Orders, as also Certified Standing Orders, are laws no doubt, but they are laws made under the provisions of the Act. They are not provisions "under any other law". In our view, therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders." * 16. We have every good reason to accept the said view. It is plain from the very language of Section 10-A(3) that the words provisions of such other law necessarily refer to the law other than one covered by the very Act and Rules made thereunder. In this view, we reject the contention of the learned counsel for the appellants. Similarly, his argument that there is a practice with the respondent to make 100% subsistence allowance if inquiry is not completed within 180 days, and as such the appellants are also entitled accordingly cannot be accepted in view of the specific provision contained in Section 10-A of the Act. In view of submissions made by both learned counsels that the revisional authority may be directed to dispose of the revision petitions pending before the Industrial Tribunal within the given time-frame and looking to the facts and circumstances of the case, we also think it just and appropriate to direct the Industrial Tribunal, Thane, to dispose of the revisions pending before it within two months from the date of receipt of copy of this order. It is open to both the parties to urge all the contentions available to them including that there is no need to continue the stay order at this length of time and that no prejudice will be caused to appellants when they have already disclosed their defence in the domestic inquiry.17. The learned senior counsel for the respondent submitted that in the event we hold against the respondent and reverse the impugned order, the payment of subsistence allowance at the rate of 75% may be ordered prospectively. Having regard to the facts and circumstances of the case and the view we have taken, it is not possible to accept the request made on behalf of the respondent that payment of subsistence allowance at the rate of 75% may be ordered prospectively. In view of the interpretation we have placed on Section 10-A(1)(b) in regard to delay and answered the question in the negative, the impugned order does call for interference. For what is stated above, the impugned order cannot be sustained. We set aside the same and hold that the appellants are entitled to subsistence allowance at the rate of 75%.18.
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In our view, therefore, the provisions of Section 10-A supervene in relation to the payment of subsistence allowance over the provisions of the Model Standing Orders." *We have every good reason to accept the said view. It is plain from the very language of Section 10-A(3) that the words provisions of such other law necessarily refer to the law other than one covered by the very Act and Rules made thereunder. In this view, we reject the contention of the learned counsel for the appellants. Similarly, his argument that there is a practice with the respondent to make 100% subsistence allowance if inquiry is not completed within 180 days, and as such the appellants are also entitled accordingly cannot be accepted in view of the specific provision contained in Section 10-A of the Act. In view of submissions made by both learned counsels that the revisional authority may be directed to dispose of the revision petitions pending before the Industrial Tribunal within the given time-frame and looking to the facts and circumstances of the case, we also think it just and appropriate to direct the Industrial Tribunal, Thane, to dispose of the revisions pending before it within two months from the date of receipt of copy of this order. It is open to both the parties to urge all the contentions available to them including that there is no need to continue the stay order at this length of time and that no prejudice will be caused to appellants when they have already disclosed their defence in the domesticlearned senior counsel for the respondent submitted that in the event we hold against the respondent and reverse the impugned order, the payment of subsistence allowance at the rate of 75% may be ordered prospectively. Having regard to the facts and circumstances of the case and the view we have taken, it is not possible to accept the request made on behalf of the respondent that payment of subsistence allowance at the rate of 75% may be ordered prospectively. In view of the interpretation we have placed on Section 10-A(1)(b) in regard to delay and answered the question in the negative, the impugned order does call for interference. For what is stated above, the impugned order cannot be sustained. We set aside the same and hold that the appellants are entitled to subsistence allowance at the rate of 75%.
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Jarnail Singh Vs. State of Haryana | the prosecutrix VW-PW6. The deposition of Satpal-PW4 has not been contested. Therefore, the date of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW - PW6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor. 22. Since the judgment relied upon by the learned counsel for the appellant is distinguishable on facts. And since the judgment relied upon, had not made any reference to the 2007 Rules, we are of the view that the same would not be relevant for the purposes of determining the age of the prosecutrix VW - PW6, specially in the background of the evidence led by the prosecution through Satpal (PW4) to establish. 23. The next contention advanced at the hands of the learned counsel for the accused-appellant Jarnail Singh was, that the oral testimony of the prosecutrix VW - PW6 ought not to be accepted as sufficient to return a finding of guilt against the accused-appellant Jarnail Singh. Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is pointed that there were a number of discrepancies and contradictions therein. It was submitted, that such discrepancies can be seen on a comparison of her deposition before the trial Court, with the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure on 6.4.1993, as also, the statement of the prosecutrix recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure on 29.3.1993. 24. We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra-PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. The serologist’s report also disclose, medium and small blood stains on her “salwar”. In her own deposition, she had mentioned that, when she was raped by the accused-appellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross-examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused-appellant Jarnail Singh. 25. | 0[ds]We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from herresidence on 25.3.1993, and after her father Jagdish Chandra-PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. Thereport also disclose, medium and small blood stains on herIn her own deposition, she had mentioned that, when she was raped by the accused-appellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross-examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused-appellant Jarnail Singh. | 0 | 6,948 | 746 | ### 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 prosecutrix VW-PW6. The deposition of Satpal-PW4 has not been contested. Therefore, the date of birth of the prosecutrix VW - PW6 (indicated in Exhibit P.G., as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW - PW6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor. 22. Since the judgment relied upon by the learned counsel for the appellant is distinguishable on facts. And since the judgment relied upon, had not made any reference to the 2007 Rules, we are of the view that the same would not be relevant for the purposes of determining the age of the prosecutrix VW - PW6, specially in the background of the evidence led by the prosecution through Satpal (PW4) to establish. 23. The next contention advanced at the hands of the learned counsel for the accused-appellant Jarnail Singh was, that the oral testimony of the prosecutrix VW - PW6 ought not to be accepted as sufficient to return a finding of guilt against the accused-appellant Jarnail Singh. Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is pointed that there were a number of discrepancies and contradictions therein. It was submitted, that such discrepancies can be seen on a comparison of her deposition before the trial Court, with the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure on 6.4.1993, as also, the statement of the prosecutrix recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure on 29.3.1993. 24. We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra-PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. The serologist’s report also disclose, medium and small blood stains on her “salwar”. In her own deposition, she had mentioned that, when she was raped by the accused-appellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross-examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused-appellant Jarnail Singh. 25.
### Response:
0
### Explanation:
We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from herresidence on 25.3.1993, and after her father Jagdish Chandra-PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. Thereport also disclose, medium and small blood stains on herIn her own deposition, she had mentioned that, when she was raped by the accused-appellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross-examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused-appellant Jarnail Singh.
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D.Sampath Vs. United India Ins.Co.Ltd | H.L. Dattu, J. 1. Leave granted. 2. This appeal is directed against the Judgment and Order passed by the High Court of Judicature at Madras in Civil Miscellaneous Appeal No. 2099 of 2002 dated 12.04.2010. By the impugned judgment, the Court has modified the compensation awarded by the Motor Accident Claims Tribunal, Chennai (for short, “the Tribunal”) in MCOP No.1971 of 1998 dated 12.02.2002. 3. The facts are not in dispute. Claimant was a pillion rider of a motor cycle which was driven by one A. Sridhar. It met with an accident due to oil spill on the road on 14.01.1998 at about 7.10 P.M. The claimant and the driver of the vehicle sustained injuries. Both of them were treated in the hospital for the injuries sustained by them. The vehicle was insured with United India Insurance Company Ltd. - respondent No.1 by the owner of the vehicle - respondent No.2. The claimant filed claim petition before the Tribunal inter-alia requesting to award compensation at a sum of `12,00,000/- (Rupees Twelve lakhs only) under various heads. Claimant had examined himself as PW-2 and other witnesses, including Dr. J.R.R. Thiagarajan - PW-3, who had assessed the disability sustained by the claimant at 75%. The Tribunal, after considering the various factors, including the medical evidence, had quantified the compensation payable by the Insurance Company at a sum of `3,50,000/-. Being aggrieved by the compensation so awarded by the Tribunal, the claimant had preferred Civil Miscellaneous Appeal No.2099 of 2002, before the High Court of judicature at Madras. The Court, after re- considering the claim of the claimant and re-appreciating the evidence on record, has enhanced the compensation to `4,90,000/- from `3,50,000/- awarded by the Tribunal. It is this judgment and order which is called in question in this appeal. 4. We have heard learned counsel for the parties to the lis and perused the records. 5. We do not intend to disturb the judgment and order passed by the High Court except to a limited extent. The High Court, while assessing the compensation payable to the claimant, has arrived at the loss of earning capacity in a sum of ` 8,16,000/- and, thereafter, though the Doctor has assessed 75% disability, has taken into account 50% disability while calculating the loss of income without any rhyme or reason. In our view, this is a mistake committed by the High Court. It is no doubt true that, while making assessment, there is an element of guess work, but that guess work again must have reasonable nexus to the available material/evidence and the quantification made. In the instant case, the claimant had not only examined himself to sustain the claim made in the petition but also Dr. J.R.R. Thiagarajan, PW-3, who has stated that the claimant has suffered 75% disability, by referring to the Disability Certificate issued by a competent Doctor who had treated the claimant. Though the Doctor is cross- examined at length by learned Advocate for the Insurance Company, nothing adverse to the interest of the claimant is elicited. Therefore, the Tribunal has rightly accepted the evidence of the Doctor-PW-3. However, the High Court has taken 50% disability into account while calculating the loss of income. This, in our view, is the mistake committed by the High Court. We hastened to add that we are not saying that under all circumstances, the Court has to blindly accept the Disability Certificate produced by the claimant. The Court has the discretion to accept either totally or partially or reject the Certificate so produced and marked in the trial but, that, can be done only by assigning cogent and acceptable reasons. In this view of the matter, we take the disability suffered by the claimant at 75% and calculate the loss of income of the claimant keeping in view the loss of earning capacity of the claimant assessed by the High Court. Accordingly, we arrive at the loss of earning capacity of the claimant at `6,12,000/-. 6. | 1[ds]We do not intend to disturb the judgment and order passed by the High Court except to a limited extent. The High Court, while assessing the compensation payable to the claimant, has arrived at the loss of earning capacity in a sum of ` 8,16,000/- and, thereafter, though the Doctor has assessed 75% disability, has taken into account 50% disability while calculating the loss of income without any rhyme or reason. In our view, this is a mistake committed by the High Court. It is no doubt true that, while making assessment, there is an element of guess work, but that guess work again must have reasonable nexus to the available material/evidence and the quantification made. In the instant case, the claimant had not only examined himself to sustain the claim made in the petition but also Dr. J.R.R. Thiagarajan, PW-3, who has stated that the claimant has suffered 75% disability, by referring to the Disability Certificate issued by a competent Doctor who had treated the claimant. Though the Doctor is cross- examined at length by learned Advocate for the Insurance Company, nothing adverse to the interest of the claimant is elicited. Therefore, the Tribunal has rightly accepted the evidence of the Doctor-PW-3. However, the High Court has taken 50% disability into account while calculating the loss of income. This, in our view, is the mistake committed by the High Court. We hastened to add that we are not saying that under all circumstances, the Court has to blindly accept the Disability Certificate produced by the claimant. The Court has the discretion to accept either totally or partially or reject the Certificate so produced and marked in the trial but, that, can be done only by assigning cogent and acceptable reasons. In this view of the matter, we take the disability suffered by the claimant at 75% and calculate the loss of income of the claimant keeping in view the loss of earning capacity of the claimant assessed by the High Court. Accordingly, we arrive at the loss of earning capacity of the claimant at `6,12,000/-. | 1 | 754 | 393 | ### 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:
H.L. Dattu, J. 1. Leave granted. 2. This appeal is directed against the Judgment and Order passed by the High Court of Judicature at Madras in Civil Miscellaneous Appeal No. 2099 of 2002 dated 12.04.2010. By the impugned judgment, the Court has modified the compensation awarded by the Motor Accident Claims Tribunal, Chennai (for short, “the Tribunal”) in MCOP No.1971 of 1998 dated 12.02.2002. 3. The facts are not in dispute. Claimant was a pillion rider of a motor cycle which was driven by one A. Sridhar. It met with an accident due to oil spill on the road on 14.01.1998 at about 7.10 P.M. The claimant and the driver of the vehicle sustained injuries. Both of them were treated in the hospital for the injuries sustained by them. The vehicle was insured with United India Insurance Company Ltd. - respondent No.1 by the owner of the vehicle - respondent No.2. The claimant filed claim petition before the Tribunal inter-alia requesting to award compensation at a sum of `12,00,000/- (Rupees Twelve lakhs only) under various heads. Claimant had examined himself as PW-2 and other witnesses, including Dr. J.R.R. Thiagarajan - PW-3, who had assessed the disability sustained by the claimant at 75%. The Tribunal, after considering the various factors, including the medical evidence, had quantified the compensation payable by the Insurance Company at a sum of `3,50,000/-. Being aggrieved by the compensation so awarded by the Tribunal, the claimant had preferred Civil Miscellaneous Appeal No.2099 of 2002, before the High Court of judicature at Madras. The Court, after re- considering the claim of the claimant and re-appreciating the evidence on record, has enhanced the compensation to `4,90,000/- from `3,50,000/- awarded by the Tribunal. It is this judgment and order which is called in question in this appeal. 4. We have heard learned counsel for the parties to the lis and perused the records. 5. We do not intend to disturb the judgment and order passed by the High Court except to a limited extent. The High Court, while assessing the compensation payable to the claimant, has arrived at the loss of earning capacity in a sum of ` 8,16,000/- and, thereafter, though the Doctor has assessed 75% disability, has taken into account 50% disability while calculating the loss of income without any rhyme or reason. In our view, this is a mistake committed by the High Court. It is no doubt true that, while making assessment, there is an element of guess work, but that guess work again must have reasonable nexus to the available material/evidence and the quantification made. In the instant case, the claimant had not only examined himself to sustain the claim made in the petition but also Dr. J.R.R. Thiagarajan, PW-3, who has stated that the claimant has suffered 75% disability, by referring to the Disability Certificate issued by a competent Doctor who had treated the claimant. Though the Doctor is cross- examined at length by learned Advocate for the Insurance Company, nothing adverse to the interest of the claimant is elicited. Therefore, the Tribunal has rightly accepted the evidence of the Doctor-PW-3. However, the High Court has taken 50% disability into account while calculating the loss of income. This, in our view, is the mistake committed by the High Court. We hastened to add that we are not saying that under all circumstances, the Court has to blindly accept the Disability Certificate produced by the claimant. The Court has the discretion to accept either totally or partially or reject the Certificate so produced and marked in the trial but, that, can be done only by assigning cogent and acceptable reasons. In this view of the matter, we take the disability suffered by the claimant at 75% and calculate the loss of income of the claimant keeping in view the loss of earning capacity of the claimant assessed by the High Court. Accordingly, we arrive at the loss of earning capacity of the claimant at `6,12,000/-. 6.
### Response:
1
### Explanation:
We do not intend to disturb the judgment and order passed by the High Court except to a limited extent. The High Court, while assessing the compensation payable to the claimant, has arrived at the loss of earning capacity in a sum of ` 8,16,000/- and, thereafter, though the Doctor has assessed 75% disability, has taken into account 50% disability while calculating the loss of income without any rhyme or reason. In our view, this is a mistake committed by the High Court. It is no doubt true that, while making assessment, there is an element of guess work, but that guess work again must have reasonable nexus to the available material/evidence and the quantification made. In the instant case, the claimant had not only examined himself to sustain the claim made in the petition but also Dr. J.R.R. Thiagarajan, PW-3, who has stated that the claimant has suffered 75% disability, by referring to the Disability Certificate issued by a competent Doctor who had treated the claimant. Though the Doctor is cross- examined at length by learned Advocate for the Insurance Company, nothing adverse to the interest of the claimant is elicited. Therefore, the Tribunal has rightly accepted the evidence of the Doctor-PW-3. However, the High Court has taken 50% disability into account while calculating the loss of income. This, in our view, is the mistake committed by the High Court. We hastened to add that we are not saying that under all circumstances, the Court has to blindly accept the Disability Certificate produced by the claimant. The Court has the discretion to accept either totally or partially or reject the Certificate so produced and marked in the trial but, that, can be done only by assigning cogent and acceptable reasons. In this view of the matter, we take the disability suffered by the claimant at 75% and calculate the loss of income of the claimant keeping in view the loss of earning capacity of the claimant assessed by the High Court. Accordingly, we arrive at the loss of earning capacity of the claimant at `6,12,000/-.
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THE CHAIRMAN, BOARD OF TRUSTEES, COCHIN PORT TRUST Vs. M/S AREBEE STAR MARITIME AGENCIES PVT. LTD. & ORS | from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases. 80. As a matter of fact, the Division Bench in Rasiklal (supra) seems to have put the cart before the horse, on a ground based in equity. The Court stated: 60…Denying such a right on the ground that the person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the first respondent would result in driving the first respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of litigation). The first submission is, therefore, rejected. 81. As has been pointed out by us, no such right has been denied on a correct reading of the MPT Act. The importer, the consignee and the consignor, or their agents, can all be held liable to pay demurrage charges. However, since Rasiklal (supra) does not involve either the owner of the vessel or its agent, we leave open the question as to whether the Port Trust, as sub-bailee, is entitled to recover its dues from the original bailor – the consignor, and persons claiming through it, given the statutory scheme of the MPT Act, as has already been indicated in paragraph 66 above. 82. Based on the above discussion, our answers to the questions framed in the reference order are as follows: 1. The point of time at which title to the goods passes to the consignee is not relevant to determine the liability of the consignee or steamer agent in respect of charges to be paid to the Port Trust; 2. and 3. The bill of lading being endorsed by the steamer agent is different from the bill of lading being endorsed by the owner of the goods. In the first case, the endorsement leads to delivery; in the second case, the endorsement leads to passing of title. For the reasons mentioned in the judgment, both stages are irrelevant in determining who is to pay storage charges – we have held that upto the point that the Port Trust takes charge of the goods, and gives receipt therefor, the steamer agent may be held liable for Port Trust dues in connection with services rendered qua unloading of goods, but that thereafter, the importer, owner, consignee or their agent is liable to pay demurrage charges for storage of goods; 4. As per paragraph 24 of our judgment; 5. The answer to question number 5 is really in two parts: first, as to whether carrying goods in a container would make any difference to the position that only the owner of the goods or person entitled to the goods is liable to pay for demurrage; and second, as to whether the Port Trust is obliged to destuff containers that are entrusted to it and return empty containers to the shipping agent. The answer to the first question is contained in paragraphs 45 to 51 of our judgment. The answer to the second question is that a container which has to be returned is only a receptacle by which goods that are imported into India are transported. Considering that the container may belong either to the consignor, shipping agent, ship-owner, or to some person who has leased out the same, it would be the duty of the Port Trust to destuff every container that is entrusted to it, and return destuffed containers to any such person within as short a period as is feasible in cases where the owner/person entitled to the goods does not come forward to take delivery of the goods and destuff such containers. What should be this period is to be determined on the facts of each case, given the activities of the port, the number of vessels which berth at it, together with the volume of goods that are imported. While it does not lie in the mouth of the Port Trust to state that it has no place in which to keep goods after they are destuffed – as in the facts in the present case – yet a court may, in the facts of an individual case, look into practical difficulties faced by the Port Trust. This may lead to the short period in the facts of a particular case being slightly longer than in a case where a port is less frequented, and goods that are stored are lesser in number, given the amount of space in which the goods can be stored. 83. Having answered the questions that have been posed before this Court, we do not, on the facts of this case, think that the justice of the case demands that we should interfere with the impugned High Court judgment. The steamer agents themselves did not dispute liability to pay ground rent upto 75 days before the High Court, and have admittedly paid the said charges long ago. As a matter of fact, the steamer agents paid ground rent even beyond the period of 75 days – the High Court having ordered the Appellant Port Trust to recompute the liability of the steamer agents, and return the balance to the parties concerned within two months from the date of receipt of a copy of the impugned judgment. To order a refund of ground rent paid for 75 days to the steamer agent, and direct the Board to then recover the same from the importer, consignor and/or the owner of the goods at this late stage of the proceedings would not be in the interest of justice. | 1[ds]14. A perusal of the relevant provisions of the MPT Act would show that when section 2(o) defines owner, it defines owner in relation to goods separately from owner in relation to any vessel. In sub-clause (i) of section 2(o), when owner is defined in relation to goods, the definition is an inclusive one. Secondly, it includes persons who are owners of the goods, or persons beneficially entitled to the goods, such as the consignor, consignee and the shipper and then also includes agents for sale, custody, loading or unloading of such goods. Ordinarily, agents for the sale or custody of goods would relate only to agents of the owner or persons beneficially entitled to such goods, which would certainly exclude the ship-owner and the ship-owners agent. However, considering the fact that the definition is an inclusive definition, and that loading or unloading of goods can take place by the steamers agent, as was held in Rowther-I (supra), it is difficult to accept the contention on behalf of the steamers agent that such persons would not be included within the definition of owner under the MPT Act.15. For these reasons, it is not possible to apply the doctrine of noscitur a sociis to the definition of owner under section 2(o), as was contended by the learned Senior Advocates appearing on behalf of the steamer agents.16. In the present case, we find no lack of clarity in the expression agent for the…loading or unloading of such goods, as including persons who may be the vessels agent involved in unloading goods. As the definition of owner is inclusive, as stated hereinabove, the non- mention of the ship-owner in the first part of the definition makes no difference, as it would be incongruous to hold that the shipowners agent is included in the latter part of the definition, but not the ship- owner itself, which would indicate that the maxim noscitur a sociis cannot apply.Under section 42(1), a Board shall have power to undertake services insofar as landing, shipping or transhipping goods between vessels in the port and the wharves, piers, quays or docks belonging to or in the possession of the Board, referring clearly, therefore, to services rendered to the vessel (see section 42(1)(a)). Insofar as receiving, removing, shifting, or transporting goods is concerned, these could be services to both the vessel as well as the owner/person entitled to the goods. The moot question is, when it comes to storing goods brought within the Boards premises, whether such service could be said to be a service rendered to the vessel or its agent (see section 42(1)(b)). Some of the pivotal provisions of the MPT Act, insofar as the present questions are involved, are contained in sections 42(2), 42(7) and 43 of the Act. Under section 42(2), a Board may, if so requested by the owner, take charge of the goods for the purpose of performing services, and shall give a receipt in such form as the Board may specify. It is obvious that if the ship-owner or its agent are not owners, the Board cannot take the charge of the goods from the ship-owner or its agent for the purpose of performing services, a result which would lead to startling consequences. Secondly, under sub-section (7), once goods have been taken charge of and a receipt given for them, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given (this would include any of the persons mentioned in section 2(o)(i), including the vessels agents), or to the master or owner of the vessel from which the goods have been landed or transhipped. This would again make it clear that the master or owner of the vessel and their agents, from this point on, have been absolved from liability for loss or damage to the goods, as the Board has now taken over the custody of the goods from such master or owner of the vessel. From this point on, therefore, the master or owner of the vessel and their agents cease to have any liability qua the goods, inasmuch as the Port Trust has now taken them over. Concomitantly, under section 43(1)(ii), the responsibility of the Port Trust for loss, destruction or deterioration of goods of which it has taken charge from this point of time onwards now becomes that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words in the absence of any special contract in section 152 of the Contract Act. This responsibility attaches only after a receipt is given by the Board, and notice of loss or damage has been given, after expiry of such period (as may be prescribed) from the crucial date on which the Port Trust takes charge of the goods.18. At this juncture, it is important to state that arguments have been made based on observations contained in various judgments in which sections 42 (5) and (6) of the MPT Act have been referred. Sections 42(5) and (6) have no application to the Board, as they apply only to the person authorised under section 42(3) by the Board to perform services mentioned in sub-section (1).24. The statutory scheme of the MPT Act now becomes crystal clear. Until the stage of landing and removal to a place of storage, the steamers agent or the vessel itself may be made liable for rates payable by the vessel for services performed to the vessel. Post landing and removal to a place of storage, detention charges for goods that are stored, and demurrage payable thereon from this point on, i.e. when the Port Trust takes charge of the goods from the vessel, or from any other person who can be said to be owner as defined under section 2(o), it is only the owner of the goods or other persons entitled to the goods (who may be beneficially entitled as well) that the Port Trust has to look to for payment of storage or demurrage charges.29. Under the Customs Act, 1962, customs duties are levied on goods imported into India. Import has been defined in section 2(23) of the Customs Act as the bringing into India from a place outside India. Thus, import of goods can only be said to be complete after they cross into the territorial waters of India, and become part of the mass of goods within India.31. However, another line of judgments deals with what was called the original package doctrine laid down by Chief Justice Marshall of the US Supreme Court in Brown v. State of Maryland 25 U.S. 419 (1827). This judgment laid down that while the goods imported remained the property of the importer in the original form of packaging in which it was imported, a tax upon it would be imposts or duties on imports without the consent of the Congress, violating section 10(2) of Article I of the US Constitution. In addition, any such impost or duty would also violate the Commerce clause under section 8(3) of Article I of the said Constitution, which grants power to the Congress to regulate commerce with foreign nations. Thus, a State legislature has no power to impose an impost or duty upon the first sale of the commodity so long as it remained in the importers hands .32. This doctrine has been the subject-matter of comment in a variety of different situations.This doctrine has no place in the customs law of India, the judgments of this Court concentrating on when an import can be said to be complete on an analysis of the Customs Act.39. Given the aforesaid judgments under the Customs Act, a container, being a receptacle in which goods are imported, cannot be said to be goods that are imported as it does not become part of the mass of goods within the country on the facts of these cases. Thus, once destuffing takes place, the container has to be returned either to the ship-owners agent, or to the person who owns such container.A perusal of the aforesaid Forms prescribed under the said Regulations would show the difference between goods that are imported, which have reference to the bill of lading/invoice presented by the importer which contains the number and value of the goods imported, and payments by way of costs and services other than those declared in the invoice, which includes costs of containers under Rule 10(1)(a)(ii) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, and packing costs under Rule 10(1)(a)(iii) of these Rules.45. A perusal of these Rules would show that the value of imported goods shall be the transaction value of identical goods, as defined, or similar goods, as defined – whichever rule applies to the facts of each particular case. It is clear that whether identical goods or similar goods are taken into account, the price of the container never enters, as the only goods that are to be looked at are the goods that are imported, i.e. goods that are stuffed in the containers.47. A reading of Rule 10(1)(a)(ii) would lead to the same result, as imported goods are differentiated from containers. Further, for the purposes of customs valuation, addition to the transaction value of the imported goods is made only when the cost of containers is treated as being one with the goods in question. Even in such a situation, what is then imported is the goods and the container – the container not having to be destuffed, and therefore being cleared along with the goods contained therein for home consumption. In such a case, where containers do not have to be returned, but are imported along with the goods contained within it, after the Board takes custody of such container and the goods within it, the vessel or steamer agent is no longer liable – even containers that do not need to be destuffed will then incur demurrage along with the goods contained within it, which are then payable by the importer, owner, consignor or agent thereof.48. Further, to make matters clear beyond doubt, General Exemption No. 170, which speaks of Exemption to containers of durable nature (Notification No. 104/94 dated 16.03.1994 as amended by Notification No. 101/95 and 43/17.)48. Further, to make matters clear beyond doubt, General Exemption No. 170, which speaks of Exemption to containers of durable nature (Notification No. 104/94 dated 16.03.1994 as amended by Notification No. 101/95 and 43/17.), states as follows:In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts containers which are of durable nature, falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India, from, -(a) the whole of the duty of customs leviable thereon under the said First Schedule; and(b) the whole of the integrated tax leviable thereon under sub-section (7) of section 3 of the said Customs Tariff Act:Provided that the importer, by execution of a bond in such form and for such sum as may be specified by the Assistant Commissioner of Customs or Dy. Commissioner of Customs binds himself to re-export the said containers within six months from the date of their importation and to furnish documentary evidence thereof of the satisfaction of the said Assistant Commissioner and to pay the duty leviable thereon in the event of the importers failure to do so:Provided further that in any particular case, the aforesaid period of six months may, on sufficient cause being shown, be extended by the said Assistant Commissioner for such further period, as he may deem fit.A clarification by the Central Board of Indirect Taxes and Customs dated 25 th October, 2002 (Circular No.69/2002-Customs.) , clarified as to what is meant by containers of durable nature as follows:Notification No.104/94-Cus., exempts containers which are of durable nature from the whole of the duty of customs and additional duty subject to the condition that such containers are re-exported within 6 months from the date of importation and documentary evidence is furnished to the satisfaction of the Assistant Commissioner. As per the meanings assigned to the words durable and container in various Dictionaries, it would appear that any goods (containers) used for packaging or transporting other goods, and capable of being used several times, would fall in the category of containers of durable nature.A reading of the aforesaid also goes to buttress the conclusion reached in the previous paragraph of this judgment.51. This paragraph again clearly differentiates between containers which go along with the goods contained therein suitable for long-term use, from containers suitable for repetitive use, thus making it clear that the containers of the latter type cannot be classified with the goods contained therein for payment of customs duty.58. Rowther-II (supra) has made it clear that Rowther-I (supra) concerned itself with Port Trust dues at the time of landing of the goods, and their removal thereafter to custody of the Port Trust. These were charges wholly distinct from demurrage charges, which are incurred only after the goods have been landed and have been taken charge of by the Board. To the extent that the High Court lays this down as a proposition of law, there can be no exception. However, it goes on to state that when the steamer agent endorses the bill of lading or issues a delivery order for effecting delivery to the consignee, it is at this stage that the property in the goods passes to the consignee. This part of Rowther- II (supra) is clearly contrary to Rowther-I (supra), which had stated:In the present case, it was further contended that as between the master of the ship and the consignee, the Act made it obligatory that the consignee gets his goods from the Board and not direct from the master of the ship, and that therefore the Board acts as the agent of the consignee. We have not been referred to any provision in the Act which supports this contention. Assuming, however, that the consignee cannot take delivery of the goods at the quay from the ship direct, it does not follow that the Board receives the goods as the agent of the consignee. The only reasonable conclusion in the circumstances can be that the place of delivery is shifted from the side of the ship to the warehouses where the Board stores the goods till the consignee appears to take delivery on the basis of the delivery order by the steamer agent which is usually an endorsement on the bill of lading, and the quay be considered a part of the ship.(Page 946.. Rowther-I (supra) clearly lays down that the endorsement of the bill of lading by a steamer agent is for the purpose of delivery of the goods, and, accordingly, cannot be for the transfer of title to the goods. Rowther-II (supra) cannot, therefore, be said to be good in law when it speaks of endorsement on the bill of lading and issuance of delivery order by the steamer agent passing title of the goods to the consignee. Once this is made clear, the ratio of Rowther-II (supra) is to be understood thus: since charges for storage or demurrage are after goods are removed and placed in the custody of the Board, the steamer agent cannot be made to pay the same, as it would impose a too onerous and unexpected responsibility on the steamer, which is only a carrier, and not owner, of the goods.61. Section 1 of the Indian Bills of Lading Act, 1856 is also important62. Under this section, the endorsement referred to is the endorsement made by the consignor or owner of the goods in favour of such endorsee on the bill of lading, so that title to property is then transferred to the endorsee. This endorsement is very far removed, as has been correctly stated in Rowther-I (supra), from the endorsement on the bill of lading by a steamer agent indicating that the goods have been delivered. Therefore, shorn of the confusion that has arisen as a result of mixing-up the two types of endorsement, the ratio of Rowther-II (supra) that, after goods are taken charge of by the Port Trust and stored in its premises incurring demurrage charges thereon, the vessel or its agent cannot be made responsible, is unexceptionable.63. After extracting passages of the judgment of the High Court, this Court in Rowther-II (supra) then went on to extract a passage from International Airport Authority of India v. Grand Slam International (1995) 3 SCC 151 , by which it was made clear that demurrage charges are to be paid by the importer or consignee liable for the same (and not the vessel or the steamer agent thereof).64. Sriyanesh Knitters (supra) is the next judgment that has to be dealt with in chronological sequence. This was a judgment of two learned judges of this Court, in which the question that arose before the Court was stated thus:1. The common question involved in these appeals is whether the appellant Board of Trustees of the Port Trust constituted under the Major Port Trusts Act, 1963 (for short the MPT Act) have a general lien for their dues over the present or future consignments imported by the importers at the Bombay Port when the said dues are in respect of the past imports made by the said importers.65. The Court first found that a reading of sections 59 and 61(1) of the MPT Act made it clear that the lien spoken of is a lien qua the particular goods that are imported, and cannot extend to previous imports of similar goods made by the same party. The Court then went on to hold that the MPT Act is not a comprehensive code, and has to be read together with other Acts wherever the MPT Act is silent. It was then held that section 171 of the Indian Contract Act, 1872 speaks of a general lien which may be exercised by the Port Trust as it is a wharfinger within the meaning of said section. This being so, the Port Trust may continue to retain the goods bailed as security for past dues, but would have to have recourse to proceedings in accordance with law for securing an order, which would then enable the Port Trust to sell the goods to realise the amounts due to it. This could be done by filing a suit for recovery of the amount due to it under section 131 of the MPT Act.66. However, the judgment goes on to make certain observations, in particular in paragraph 23, stating that a relationship of bailor and bailee comes into existence, when the Board is required to store goods that have been imported, between the Board and the consignee of those goods. Apart from the fact that this is directly contrary to Rowther-I (see page 940), the consignee cannot be considered to be a bailor if the definition of bailor under the Indian Contract Act, 1872 is read. Under section 148 of the Contract Act, a bailor is defined as a person who delivers the goods to the bailee. In this case, the person who delivers the goods to the bailee is the vessel and not the consignee, as has been correctly stated in Rowther-I (supra). Therefore, the observations that the consignee is the bailor of the goods, with the Port Trust being the bailee thereof, made in paragraphs 23 and 25 of Sriyanesh Knitters (supra) cannot be said to state the law correctly, and are accordingly overruled. However, since we are not going into the point of sub-bailment as argued by Shri Pratap, we leave open the question as to whether the Port Trust, as sub-bailee, is entitled to recover its dues from the original bailor – the consignor, and persons claiming through it, given the statutory scheme of the MPT Act.67. However, Rowther-I (supra) was correctly distinguished by the Court in Sriyanesh Knitters (supra) in paragraph 24 thereof, and its ratio qua the MPT Act not being an exhaustive code has our concurrence.68. In Forbes-I (supra), two learned Judges of this Court doubted the correctness of Rowther-II (supra) and framed three questions (referred to earlier in this judgment) to be answered by a larger Bench.69. The matter then came back to a Bench of two Honble Judges of this Court, which delivered the judgment in Forbes-II (supra). In Forbes-II, the Court set out the question of law that arose before it as follows:1…The common question of law that arises in these appeals, though in different facts and circumstances, is with regard to the liability of the agent of a shipowner (hereinafter referred to as the steamer agent) to pay demurrage and port charges to the Board of Trustees of a Port (hereinafter referred to as the Port Trust Authority) in respect of goods brought into the port and warehoused by the said authority. Before proceeding to answer the aforesaid question it will be convenient to take note of the core facts in each of the appeals under consideration.70. Agreeing with the High Courts of Bombay and Calcutta that the steamer agent cannot be made liable for demurrage, the Court went on to hold:10. While it is correct that the liability to pay demurrage charges and port rent is statutory, in the absence of any specific bar under the statute, such liability can reasonably fall on a steamer agent if on a construction of the provisions of the Act such a conclusion can be reached. Determination of the aforesaid question really does not hinge on the meaning of the expression owner as appearing in Section 2(o) of the 1963 Act, as has been sought to be urged on behalf of the appellant though going by the language of Section 2(o) and the other provisions of the Act especially Section 42, an owner would include a shipowner or his agent. Otherwise it is difficult to reconcile how custody of the goods for the purpose of rendering services under Section 42 can be entrusted to the Port Trust Authority by the owner as provided therein under Section 42(2). At that stage the goods may still be in the custody of the shipowner under a separate bailment with the shipper or the consignor, as may be. Even dehors the above question the liability to pay demurrage charges and port rent would accrue to the account of the steamer agent if a contract of bailment between the steamer agent and the Port Trust Authority can be held to come into existence under Section 42(2) read with Section 43(1)(ii) of the 1963 Act.11. For the reasons already indicated the decision in Sriyanesh Knitters with regard to existence of a relationship of bailor and bailee between the consignee and the Port Trust Authority instead of the steamer agent and the Port Trust Authority cannot be understood to be a restatement of a general principle of law but a mere conclusion reached in the facts of the case where the consignee had already appeared in the scene. In all other situations where the bill of lading has not been endorsed or delivery orders have not been issued and therefore the consignee is yet to surface, the following observations of the Constitution Bench in K.P.V. Sheik Mohamed Rowther & Co. [Port of Madras v. K.P.V. Sheik Mohamed Rowther & Co., 1963 Supp (2) SCR 915] will have to prevail: (SCR p. 940)Section 40 speaks of the responsibility of the Board for the loss, destruction or deterioration of the goods of which it has taken charge as a bailee under Sections 151, 152 and 161 of the Contract Act, 1872. Section 148 of the Contract Act states that a bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor and the person to whom they are delivered is called the bailee. It is clear therefore that when the Board takes charge of the goods from the shipowner, the shipowner is the bailor and the Board is the bailee, and the Boards responsibility for the goods thereafter is that of a bailee. The Board does not get the goods from the consignee. It cannot be the bailee of the consignee. It can be the agent of the consignee only if so appointed, which is not alleged to be the case, and even if the Board be an agent, then its liability would be as an agent and not as a bailee. The provisions of Sections 39 and 40, therefore, further support the contention that the Board takes charge of the goods on behalf of the shipowner and not on behalf of the consignee, and whatever services it performs at the time of the landing of the goods or on their removal thereafter, are services rendered to the ship.12. From the above, the position of law which appears to emerge is that once the bill of lading is endorsed or the delivery order is issued it is the consignee or endorsee who would be liable to pay the demurrage charges and other dues of the Port Trust Authority. In all other situations the contract of bailment is one between the steamer agent (bailor) and the Port Trust Authority (bailee) giving rise to the liability of the steamer agent for such charges till such time that the bill of lading is endorsed or delivery order is issued by the steamer agent.13. In the orders of the Calcutta High Court under challenge, it is mentioned that Section 60 of the Act provides a remedy to the steamer agent to recover the dues from the consignee. Section 60 of the 1963 Act confers a limited lien on the shipowner for freight and other charges payable to the shipowner which expression does not extend to demurrage and other port charges. The High Court, therefore, does not appear to be correct in its conclusions. However, the said error would not be fundamental to the final conclusion reached by the High Court. In this regard we cannot help noticing the special provisions of Sections 61 and 62 of the Act which enable the Port Trust Authority to proceed against the goods within its custody to recover the charges which may be payable to the Port Trust Authority. Ordinarily and in the normal course if resort is made to the enabling provisions in the 1963 Act to proceed against the goods for recovery of the charges payable to the Port Trust Authority there may not be any occasion for the said authority to sustain any loss or even suffer any shortfall of the dues payable to it so as to initiate recovery proceedings against the shipowners.71. Paragraph 10 of the judgment does hold that the language of section 2(o) read with other provisions of the MPT Act, especially section 42, would include a ship-owner or his agent. We have already pointed out that the principle of noscitur a sociis cannot be applied to this definition clause, both on its plain language, as also the fact that it is an inclusive definition clause, which shows that this statement of the law is correct. However, the statement in this paragraph that even de hors the above question, the liability to pay demurrage charges and port rent would accrue to the account of the steamer agent because of the statutory bailment that comes into existence under section 42(2) read with section 43(1)(ii), is plainly incorrect, in view of our finding that after the Port Trust takes charge of the goods and issues a receipt therefor (at which point of time the statutory bailment comes into force), the vessel or the steamer agent cannot be held liable.72. Insofar as paragraph 11 is concerned, we have already made it clear that Sriyanesh Knitters (supra) cannot be said to reflect the correct position in law, insofar as a bailment between the consignee and the Port Trust is concerned, and thus Sriyanesh Knitters (supra) has been overruled by us to this extent.73. Paragraph 12 of the said judgment contains the same confusion that is contained in Rowther-II (supra), and cannot therefore be said to lay down the law correctly. The correct position in law is, as has been stated hereinabove, that after the Port Trust takes charge of the goods, and issues a receipt therefor, and thereafter stores the goods in a place belonging to it, such storage charge cannot be to the account of the vessel or an agent of the vessel.74. Paragraph 13 refers to one other aspect of the case that has been argued before us. It may be recalled that the impugned judgment of the Kerala High Court in the present case had held that the word may occurring in sections 61 and 62 of the MPT Act must be read as shall. This is not the correct position in law, as a discretion is vested in the Board to sell the goods in the circumstances mentioned in sections 61 and 62. However, such discretion cannot be exercised arbitrarily, as the Board is State within the meaning of Article 12 of the Constitution, and is therefore bound by the constraints of Article 14 of the Constitution of India (see Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 at paragraph 22). Therefore while it may not be correct to say that may has to be read as shall in sections 61 and 62 of the MPT Act, yet in all future cases the Board is under a constitutional duty to sell the goods in its custody within a reasonable time from which it takes custody of those goods. Ordinarily, the time of four months from the date of landing of the goods mentioned in section 63(1)(c) of the MPT Act should be the outer-limit within which such goods should be put up for sale. If not put up for sale within such time, the Board must explain as to why, in its opinion, this could not be done, which explanation can then be tested by the Courts. If the explanation is found to be reasonable, and the owner or person entitled to the goods does not remove the goods thereafter, penal demurrage may then be levied and collected by the Board. To this extent, therefore, while overruling the impugned judgment of the Kerala High Court on the aspect of may being read as shall in sections 61 and 62 of the MPT Act, yet the hovering omnipresence of Article 14 over the Board must always be given effect to, and there must be a very good reason to continue detention of goods beyond the period of four months as mentioned hereinabove before they are sold.79. First and foremost, Rowther-I (supra) did hold that the Port Trust is a sub-bailee of goods bailed by the consignor to the ship-owner, but so held in order to distinguish an English judgment – as has been pointed out hereinabove – which would then lead to the proposition that once the goods are placed in the charge of the Board, it would amount to delivery to the consignee, which proposition was turned down by the Court. The question whether section 158 of the Contract Act can apply to a statutory bailment under the MPT Act is left open, given that the Port Trust is not limited only to recovering necessary expenses to be payable by the bailor, but is statutorily is entitled to recover, by way of levy of rates and expenses incurred for storage of the goods, together with something more – the something more being rates of storage higher than warehousing rates as a deterrent against keeping these goods in the Port Trust premises. This Court in Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Co. and Ors. (1987) 1 SCC 648 has observed:10. The power of a Port Trust to fix rates of demurrage and to recover the same from an importer or exporter (although the question of an exporter paying demurrage arises rarely) under law and to show concession as regards demurrage charges in certain specified cases is recognised by this Court in the Trustees of the Port of Madras v. Aminchand Pyarelal [(1976) 3 SCC 167] and in the Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co. [(1977) 2 SCC 649] . These decisions are no doubt based on the relevant laws which were in force at the material time. But the decisions are still relevant insofar as cases arising under the Act because the Act also contains provisions more or less similar to the statutory provisions considered in the said decisions. Demurrage charges are levied in order to ensure quick clearance of the cargo from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases.. As a matter of fact, the Division Bench in Rasiklal (supra) seems to have put the cart before the horse, on a ground based in equity. The Court stated:60…Denying such a right on the ground that the person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the first respondent would result in driving the first respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of litigation). The first submission is, therefore, rejected.. As has been pointed out by us, no such right has been denied on a correct reading of the MPT Act. The importer, the consignee and the consignor, or their agents, can all be held liable to pay demurrage charges. However, since Rasiklal (supra) does not involve either the owner of the vessel or its agent, we leave open the question as to whether the Port Trust, as sub-bailee, is entitled to recover its dues from the original bailor – the consignor, and persons claiming through it, given the statutory scheme of the MPT Act, as has already been indicated in paragraph 66 above.82. Based on the above discussion, our answers to the questions framed in the reference order are as follows:1. The point of time at which title to the goods passes to the consignee is not relevant to determine the liability of the consignee or steamer agent in respect of charges to be paid to the Port Trust;2. and 3. The bill of lading being endorsed by the steamer agent is different from the bill of lading being endorsed by the owner of the goods. In the first case, the endorsement leads to delivery; in the second case, the endorsement leads to passing of title. For the reasons mentioned in the judgment, both stages are irrelevant in determining who is to pay storage charges – we have held that upto the point that the Port Trust takes charge of the goods, and gives receipt therefor, the steamer agent may be held liable for Port Trust dues in connection with services rendered qua unloading of goods, but that thereafter, the importer, owner, consignee or their agent is liable to pay demurrage charges for storage of goods;4. As per paragraph 24 of our judgment;5. The answer to question number 5 is really in two parts: first, as to whether carrying goods in a container would make any difference to the position that only the owner of the goods or person entitled to the goods is liable to pay for demurrage; and second, as to whether the Port Trust is obliged to destuff containers that are entrusted to it and return empty containers to the shipping agent. The answer to the first question is contained in paragraphs 45 to 51 of our judgment. The answer to the second question is that a container which has to be returned is only a receptacle by which goods that are imported into India are transported. Considering that the container may belong either to the consignor, shipping agent, ship-owner, or to some person who has leased out the same, it would be the duty of the Port Trust to destuff every container that is entrusted to it, and return destuffed containers to any such person within as short a period as is feasible in cases where the owner/person entitled to the goods does not come forward to take delivery of the goods and destuff such containers. What should be this period is to be determined on the facts of each case, given the activities of the port, the number of vessels which berth at it, together with the volume of goods that are imported. While it does not lie in the mouth of the Port Trust to state that it has no place in which to keep goods after they are destuffed – as in the facts in the present case – yet a court may, in the facts of an individual case, look into practical difficulties faced by the Port Trust. This may lead to the short period in the facts of a particular case being slightly longer than in a case where a port is less frequented, and goods that are stored are lesser in number, given the amount of space in which the goods can be stored.83. Having answered the questions that have been posed before this Court, we do not, on the facts of this case, think that the justice of the case demands that we should interfere with the impugned High Court judgment. The steamer agents themselves did not dispute liability to pay ground rent upto 75 days before the High Court, and have admittedly paid the said charges long ago. As a matter of fact, the steamer agents paid ground rent even beyond the period of 75 days – the High Court having ordered the Appellant Port Trust to recompute the liability of the steamer agents, and return the balance to the parties concerned within two months from the date of receipt of a copy of the impugned judgment. To order a refund of ground rent paid for 75 days to the steamer agent, and direct the Board to then recover the same from the importer, consignor and/or the owner of the goods at this late stage of the proceedings would not be in the interest of justice. | 1 | 27,750 | 7,323 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases. 80. As a matter of fact, the Division Bench in Rasiklal (supra) seems to have put the cart before the horse, on a ground based in equity. The Court stated: 60…Denying such a right on the ground that the person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the first respondent would result in driving the first respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of litigation). The first submission is, therefore, rejected. 81. As has been pointed out by us, no such right has been denied on a correct reading of the MPT Act. The importer, the consignee and the consignor, or their agents, can all be held liable to pay demurrage charges. However, since Rasiklal (supra) does not involve either the owner of the vessel or its agent, we leave open the question as to whether the Port Trust, as sub-bailee, is entitled to recover its dues from the original bailor – the consignor, and persons claiming through it, given the statutory scheme of the MPT Act, as has already been indicated in paragraph 66 above. 82. Based on the above discussion, our answers to the questions framed in the reference order are as follows: 1. The point of time at which title to the goods passes to the consignee is not relevant to determine the liability of the consignee or steamer agent in respect of charges to be paid to the Port Trust; 2. and 3. The bill of lading being endorsed by the steamer agent is different from the bill of lading being endorsed by the owner of the goods. In the first case, the endorsement leads to delivery; in the second case, the endorsement leads to passing of title. For the reasons mentioned in the judgment, both stages are irrelevant in determining who is to pay storage charges – we have held that upto the point that the Port Trust takes charge of the goods, and gives receipt therefor, the steamer agent may be held liable for Port Trust dues in connection with services rendered qua unloading of goods, but that thereafter, the importer, owner, consignee or their agent is liable to pay demurrage charges for storage of goods; 4. As per paragraph 24 of our judgment; 5. The answer to question number 5 is really in two parts: first, as to whether carrying goods in a container would make any difference to the position that only the owner of the goods or person entitled to the goods is liable to pay for demurrage; and second, as to whether the Port Trust is obliged to destuff containers that are entrusted to it and return empty containers to the shipping agent. The answer to the first question is contained in paragraphs 45 to 51 of our judgment. The answer to the second question is that a container which has to be returned is only a receptacle by which goods that are imported into India are transported. Considering that the container may belong either to the consignor, shipping agent, ship-owner, or to some person who has leased out the same, it would be the duty of the Port Trust to destuff every container that is entrusted to it, and return destuffed containers to any such person within as short a period as is feasible in cases where the owner/person entitled to the goods does not come forward to take delivery of the goods and destuff such containers. What should be this period is to be determined on the facts of each case, given the activities of the port, the number of vessels which berth at it, together with the volume of goods that are imported. While it does not lie in the mouth of the Port Trust to state that it has no place in which to keep goods after they are destuffed – as in the facts in the present case – yet a court may, in the facts of an individual case, look into practical difficulties faced by the Port Trust. This may lead to the short period in the facts of a particular case being slightly longer than in a case where a port is less frequented, and goods that are stored are lesser in number, given the amount of space in which the goods can be stored. 83. Having answered the questions that have been posed before this Court, we do not, on the facts of this case, think that the justice of the case demands that we should interfere with the impugned High Court judgment. The steamer agents themselves did not dispute liability to pay ground rent upto 75 days before the High Court, and have admittedly paid the said charges long ago. As a matter of fact, the steamer agents paid ground rent even beyond the period of 75 days – the High Court having ordered the Appellant Port Trust to recompute the liability of the steamer agents, and return the balance to the parties concerned within two months from the date of receipt of a copy of the impugned judgment. To order a refund of ground rent paid for 75 days to the steamer agent, and direct the Board to then recover the same from the importer, consignor and/or the owner of the goods at this late stage of the proceedings would not be in the interest of justice.
### Response:
1
### Explanation:
in order to ensure quick clearance of the cargo from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases.. As a matter of fact, the Division Bench in Rasiklal (supra) seems to have put the cart before the horse, on a ground based in equity. The Court stated:60…Denying such a right on the ground that the person claiming delivery of the goods acquired title to the goods only towards the end of the period of the bailment of the goods with the first respondent would result in driving the first respondent to recover the amount due to it from the bailor or his agent who may or may not be within the jurisdiction of the municipal courts of this country (by resorting to a cumbersome procedure of litigation). The first submission is, therefore, rejected.. As has been pointed out by us, no such right has been denied on a correct reading of the MPT Act. The importer, the consignee and the consignor, or their agents, can all be held liable to pay demurrage charges. However, since Rasiklal (supra) does not involve either the owner of the vessel or its agent, we leave open the question as to whether the Port Trust, as sub-bailee, is entitled to recover its dues from the original bailor – the consignor, and persons claiming through it, given the statutory scheme of the MPT Act, as has already been indicated in paragraph 66 above.82. Based on the above discussion, our answers to the questions framed in the reference order are as follows:1. The point of time at which title to the goods passes to the consignee is not relevant to determine the liability of the consignee or steamer agent in respect of charges to be paid to the Port Trust;2. and 3. The bill of lading being endorsed by the steamer agent is different from the bill of lading being endorsed by the owner of the goods. In the first case, the endorsement leads to delivery; in the second case, the endorsement leads to passing of title. For the reasons mentioned in the judgment, both stages are irrelevant in determining who is to pay storage charges – we have held that upto the point that the Port Trust takes charge of the goods, and gives receipt therefor, the steamer agent may be held liable for Port Trust dues in connection with services rendered qua unloading of goods, but that thereafter, the importer, owner, consignee or their agent is liable to pay demurrage charges for storage of goods;4. As per paragraph 24 of our judgment;5. The answer to question number 5 is really in two parts: first, as to whether carrying goods in a container would make any difference to the position that only the owner of the goods or person entitled to the goods is liable to pay for demurrage; and second, as to whether the Port Trust is obliged to destuff containers that are entrusted to it and return empty containers to the shipping agent. The answer to the first question is contained in paragraphs 45 to 51 of our judgment. The answer to the second question is that a container which has to be returned is only a receptacle by which goods that are imported into India are transported. Considering that the container may belong either to the consignor, shipping agent, ship-owner, or to some person who has leased out the same, it would be the duty of the Port Trust to destuff every container that is entrusted to it, and return destuffed containers to any such person within as short a period as is feasible in cases where the owner/person entitled to the goods does not come forward to take delivery of the goods and destuff such containers. What should be this period is to be determined on the facts of each case, given the activities of the port, the number of vessels which berth at it, together with the volume of goods that are imported. While it does not lie in the mouth of the Port Trust to state that it has no place in which to keep goods after they are destuffed – as in the facts in the present case – yet a court may, in the facts of an individual case, look into practical difficulties faced by the Port Trust. This may lead to the short period in the facts of a particular case being slightly longer than in a case where a port is less frequented, and goods that are stored are lesser in number, given the amount of space in which the goods can be stored.83. Having answered the questions that have been posed before this Court, we do not, on the facts of this case, think that the justice of the case demands that we should interfere with the impugned High Court judgment. The steamer agents themselves did not dispute liability to pay ground rent upto 75 days before the High Court, and have admittedly paid the said charges long ago. As a matter of fact, the steamer agents paid ground rent even beyond the period of 75 days – the High Court having ordered the Appellant Port Trust to recompute the liability of the steamer agents, and return the balance to the parties concerned within two months from the date of receipt of a copy of the impugned judgment. To order a refund of ground rent paid for 75 days to the steamer agent, and direct the Board to then recover the same from the importer, consignor and/or the owner of the goods at this late stage of the proceedings would not be in the interest of justice.
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Sunder Singh And Ors Vs. Narain Singh And Ors | is not so. When the section lays down that the land-owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example, if the land-owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely, that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings. Therefore, when S. 24 speaks of the land-owner or the tenant at will having the same right in the land allotted as he had in the original holding or tenancy, it brings in all the rights and obligations which were attached to his ownership of tenancy of the land originally held. 7. It is in this background that the nature of the right of pre-emption as held in Audh Behari Singhs case. 1955-1 SCR 70 : (AIR 1954 SC 417 ), assumes importance. In that case it was held that the law of pre-emption imposes a limitation or disability upon the ownership of a property and that the benefit as well as the burden of the right of pre-emption run with the land. Therefore, if the original holding of the land-owner was subject to the disability of pre-emption the land allotted in lieu thereof will be equally subject to the same disability. This will however always be subject to the law of pre-emption itself, and to the well-settled principle of pre-emption, namely, that the pre-emptor must have a right of pre-emption at the date of the sale, at the date of the suit and finally at the date of decree. Section 24 when it says that the land-owner or the tenant at will shall have the same right in the land allotted to him as he had in his original holding or tenancy, clearly preserves the obligation that may be on the land in the nature of a disability. 8. The consequence therefore is that the ordinary law of pre-emption under which the pre-emptor has the right to follow the land which is the subject-matter of the sale-deed becomes expanded and the land allotted to the land-owner or tenant at will in lieu of the land which may have been subject to pre-emption also becomes subject to pre-emption in the same way as the original holding or tenancy. So it follows that if the land allotted in lieu of the original holding or tenancy is pre-emptible under the law of pre-emption and the right of pre-emption still exists on the three dates to which we have already referred, the pre-emptor would by virtue of S. 24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject-matter of sale.We are, therefore, of the opinion that the construction of S. 24 by the High Court is correct and the plaintiffs-respondents have a right by virtue of S. 24 of the Act to pre-empt the land which was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deed. 9. It is however urged that S. 25 of the Act specifically provides for rights with respect to a lease, mortgage or other encumbrance to attach to the land allotted in place of the original holding, and that shows that no other rights were intended to survive. We are of opinion that there is no force in this argument. It was necessary to enact S. 25 when dealing with leases, mortgages and encumbrances for without such a specific provision, a lease, mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land.This however is very different from an incident of ownership of land e.g. liability to pre-emption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by S. 24. The special provisions, therefore, in S. 25 do not negative the inference that obligations which attach to the right of ownership of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedings. 10. This brings us to the subsidiary contention which was raised in the High Court, namely, that four of the vendees were allotted land in lieu both of what they owned from before and what they got under the sale-deed in question. The High Court has held - and we think rightly - that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject-matter of the sale-deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not, therefore, be difficult to find out how much land was allotted to these four vendees in place of the land which they got by the sale-deed. 11. Lastly it is urged that the form of the decree is incorrect. This submission is made on the basis of the following sentences in the judgment of the trial court:"It does not mean that the land is not distinguishable. It can be considered during execution at the time of delivering the possession of the land". We have not permitted learned counsel to raise this point for the first time before us, as it was not raised in the High Court. We therefore reject this contention. 12. | 0[ds]Clearly the effect of this provision is to give to the land-owner or a tenant at will the same right in the land which he acquires under the scheme of consolidation in lieu of that land which he had before the consolidation proceedings. He cannot get more right than he had before nor can he get any less rights.It is urged that that section only preserves the rights and has nothing to do with obligations to which the land may be subject. We are of opinion that this is not so. When the section lays down that the land-owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example, if the land-owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely, that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings. Therefore, when S. 24 speaks of the land-owner or the tenant at will having the same right in the land allotted as he had in the original holding or tenancy, it brings in all the rights and obligations which were attached to his ownership of tenancy of the land originally heldThe consequence therefore is that the ordinary law of pre-emption under which the pre-emptor has the right to follow the land which is the subject-matter of the sale-deed becomes expanded and the land allotted to the land-owner or tenant at will in lieu of the land which may have been subject to pre-emption also becomes subject to pre-emption in the same way as the original holding or tenancy. So it follows that if the land allotted in lieu of the original holding or tenancy is pre-emptible under the law of pre-emption and the right of pre-emption still exists on the three dates to which we have already referred, the pre-emptor would by virtue of S. 24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject-matter of sale.We are, therefore, of the opinion that the construction of S. 24 by the High Court is correct and the plaintiffs-respondents have a right by virtue of S. 24 of the Act to pre-empt the land which was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deedWe are of opinion that there is no force in this argument. It was necessary to enact S. 25 when dealing with leases, mortgages and encumbrances for without such a specific provision, a lease, mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land.This however is very different from an incident of ownership of land e.g. liability to pre-emption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by S. 24. The special provisions, therefore, in S. 25 do not negative the inference that obligations which attach to the right of ownership of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedingsThe High Court has held - and we think rightly - that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject-matter of the sale-deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not, therefore, be difficult to find out how much land was allotted to these four vendees in place of the land which they got by the sale-deedWe have not permitted learned counsel to raise this point for the first time before us, as it was not raised in the High Court. We therefore reject this contention. | 0 | 2,214 | 776 | ### 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 not so. When the section lays down that the land-owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example, if the land-owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely, that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings. Therefore, when S. 24 speaks of the land-owner or the tenant at will having the same right in the land allotted as he had in the original holding or tenancy, it brings in all the rights and obligations which were attached to his ownership of tenancy of the land originally held. 7. It is in this background that the nature of the right of pre-emption as held in Audh Behari Singhs case. 1955-1 SCR 70 : (AIR 1954 SC 417 ), assumes importance. In that case it was held that the law of pre-emption imposes a limitation or disability upon the ownership of a property and that the benefit as well as the burden of the right of pre-emption run with the land. Therefore, if the original holding of the land-owner was subject to the disability of pre-emption the land allotted in lieu thereof will be equally subject to the same disability. This will however always be subject to the law of pre-emption itself, and to the well-settled principle of pre-emption, namely, that the pre-emptor must have a right of pre-emption at the date of the sale, at the date of the suit and finally at the date of decree. Section 24 when it says that the land-owner or the tenant at will shall have the same right in the land allotted to him as he had in his original holding or tenancy, clearly preserves the obligation that may be on the land in the nature of a disability. 8. The consequence therefore is that the ordinary law of pre-emption under which the pre-emptor has the right to follow the land which is the subject-matter of the sale-deed becomes expanded and the land allotted to the land-owner or tenant at will in lieu of the land which may have been subject to pre-emption also becomes subject to pre-emption in the same way as the original holding or tenancy. So it follows that if the land allotted in lieu of the original holding or tenancy is pre-emptible under the law of pre-emption and the right of pre-emption still exists on the three dates to which we have already referred, the pre-emptor would by virtue of S. 24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject-matter of sale.We are, therefore, of the opinion that the construction of S. 24 by the High Court is correct and the plaintiffs-respondents have a right by virtue of S. 24 of the Act to pre-empt the land which was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deed. 9. It is however urged that S. 25 of the Act specifically provides for rights with respect to a lease, mortgage or other encumbrance to attach to the land allotted in place of the original holding, and that shows that no other rights were intended to survive. We are of opinion that there is no force in this argument. It was necessary to enact S. 25 when dealing with leases, mortgages and encumbrances for without such a specific provision, a lease, mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land.This however is very different from an incident of ownership of land e.g. liability to pre-emption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by S. 24. The special provisions, therefore, in S. 25 do not negative the inference that obligations which attach to the right of ownership of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedings. 10. This brings us to the subsidiary contention which was raised in the High Court, namely, that four of the vendees were allotted land in lieu both of what they owned from before and what they got under the sale-deed in question. The High Court has held - and we think rightly - that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject-matter of the sale-deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not, therefore, be difficult to find out how much land was allotted to these four vendees in place of the land which they got by the sale-deed. 11. Lastly it is urged that the form of the decree is incorrect. This submission is made on the basis of the following sentences in the judgment of the trial court:"It does not mean that the land is not distinguishable. It can be considered during execution at the time of delivering the possession of the land". We have not permitted learned counsel to raise this point for the first time before us, as it was not raised in the High Court. We therefore reject this contention. 12.
### Response:
0
### Explanation:
Clearly the effect of this provision is to give to the land-owner or a tenant at will the same right in the land which he acquires under the scheme of consolidation in lieu of that land which he had before the consolidation proceedings. He cannot get more right than he had before nor can he get any less rights.It is urged that that section only preserves the rights and has nothing to do with obligations to which the land may be subject. We are of opinion that this is not so. When the section lays down that the land-owner or a tenant at will shall have the same right in the land allotted to him in pursuance of the scheme of consolidation as he had in his original holding or tenancy, it clearly implies that obligations would also remain the same. If that were not so and if his obligations were to disappear he would acquire more right in the land allotted to him than he had in the original holding or tenancy. For example, if the land-owner had only a life interest in the original holding he would get the same life interest in the land allotted to him and could not claim to be absolute owner of the land allotted in consolidation proceedings. Thus the obligation which attached to his ownership of his original holding (namely, that it was subject to all the disabilities of a limited owner) would also apply to the land allotted to him in consolidation proceedings. Therefore, when S. 24 speaks of the land-owner or the tenant at will having the same right in the land allotted as he had in the original holding or tenancy, it brings in all the rights and obligations which were attached to his ownership of tenancy of the land originally heldThe consequence therefore is that the ordinary law of pre-emption under which the pre-emptor has the right to follow the land which is the subject-matter of the sale-deed becomes expanded and the land allotted to the land-owner or tenant at will in lieu of the land which may have been subject to pre-emption also becomes subject to pre-emption in the same way as the original holding or tenancy. So it follows that if the land allotted in lieu of the original holding or tenancy is pre-emptible under the law of pre-emption and the right of pre-emption still exists on the three dates to which we have already referred, the pre-emptor would by virtue of S. 24 be able to enforce his rights against land which may have been allotted to the vendee in lieu of the land which was actually the subject-matter of sale.We are, therefore, of the opinion that the construction of S. 24 by the High Court is correct and the plaintiffs-respondents have a right by virtue of S. 24 of the Act to pre-empt the land which was allotted to the appellants in lieu of the land which was the subject-matter of the sale-deedWe are of opinion that there is no force in this argument. It was necessary to enact S. 25 when dealing with leases, mortgages and encumbrances for without such a specific provision, a lease, mortgage or encumbrance which was on one piece of land could not in law attach to another piece of land.This however is very different from an incident of ownership of land e.g. liability to pre-emption which attaches to the land itself and continues to attach to the land allotted in lieu of the original holding or tenancy by S. 24. The special provisions, therefore, in S. 25 do not negative the inference that obligations which attach to the right of ownership of the original holding or tenancy would continue to attach to the land allotted in lieu thereof in consolidation proceedingsThe High Court has held - and we think rightly - that there should be no difficulty in finding out how much of the land allotted pertains to the land which was the subject-matter of the sale-deed. Land is always valued for purposes of allotment during consolidation proceedings and it would not, therefore, be difficult to find out how much land was allotted to these four vendees in place of the land which they got by the sale-deedWe have not permitted learned counsel to raise this point for the first time before us, as it was not raised in the High Court. We therefore reject this contention.
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MOHAMMED FASRIN Vs. THE STATE REP. BY THE THE INTELLIGENCE OFFICER | Section 8(c) of the NDPS Act reads as follows:8. Prohibition of certain operations.- No person shall- (a) ......... (b) ......... (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"4. This is basically an offence for exporting or importing into India or exporting from India contraband substance. Though, the charges against the appellant were of financing and of indulging in international smuggling of contraband, virtually no evidence in this regard has been found. 5. We now may refer to the facts necessary for disposal of this case. On 04.01.2003, the Intelligence Officer, Narcotic Department received information that at the instance of the present appellant 7.4 kgs. of heroin would be carried in a Toyota Qualis vehicle bearing No.TN 31 C 9117. This vehicle was apprehended when it was parked at Tamil Nadu Hotel of Madurai - Alagar Koil road and 7.4 kgs. of heroin was recovered from it. At that time accused no.2 to 6 were sitting in the car. Accused nos.2 to 4 have been convicted under various provisions of the NDPS Act. We are not concerned with them since, to our knowledge, no appeal has been filed by them. 6. As far as the present appellant is concerned, the only evidence, if it can be called that, is the statement of a co-accused (accused no.2) and his own alleged confession. As far as statement of co-accused (Ext.P41) is concerned, in that the co-accused states in great detail as to how he came into contact with one other person also called Mohammed in Bombay who had instructed him to go to Manglapuram from Bombay. There he was again asked to come to Hotel Airline at Manglapuram where he met the said Mohammed of Bombay. It was that Mohammed of Bombay, who handed over the vehicle to him and told him that 7.4 kgs of heroin is kept hidden in 7 packets in a false compartment beneath the front seat of the car. The only allegation with regard to appellant is that after taking delivery of the contraband from Mohammed of Bombay, the co-accused was to take the heroin and hand it over to one Nalliappan. The said Nalliappan was to further hand over the heroin to the appellant. Neither the said Mohammed from Bombay nor Nalliappan have been examined in the case nor they have been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that Mohammed had told the co-accused that he had to deliver the contraband to the present appellant. Even if we take the confession of the co- accused Hasan Mohamed (A-2) into consideration, it would only prove that Mohammed (from Bombay) had told the co- accused that Nalliappan would handover the contraband to the present appellant. This evidence of a co-accused is a very weak type of evidence which needed to be corroborated by some other evidence. The confession of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused. In the present case no such corroborative evidence has been led. 7. That brings us to the confessional statement of the appellant recorded by PW-1. Admittedly, this confession was recorded after the appellant was arrested. It is true that the issue, whether a statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who has recorded such statement was not to be treated as a police officer, has been referred to a larger Bench in the case of Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 . 8. We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements – one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused. 9. We, accordingly, find force in the appeal. | 1[ds]6. As far as the present appellant is concerned, the only evidence, if it can be called that, is the statement of a co-accused (accused no.2) and his own alleged confession. As far as statement of co-accused (Ext.P41) is concerned, in that the co-accused states in great detail as to how he came into contact with one other person also called Mohammed in Bombay who had instructed him to go to Manglapuram from Bombay. There he was again asked to come to Hotel Airline at Manglapuram where he met the said Mohammed of Bombay. It was that Mohammed of Bombay, who handed over the vehicle to him and told him that 7.4 kgs of heroin is kept hidden in 7 packets in a false compartment beneath the front seat of the car. The only allegation with regard to appellant is that after taking delivery of the contraband from Mohammed of Bombay, the co-accused was to take the heroin and hand it over to one Nalliappan. The said Nalliappan was to further hand over the heroin to the appellant. Neither the said Mohammed from Bombay nor Nalliappan have been examined in the case nor they have been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that Mohammed had told the co-accused that he had to deliver the contraband to the present appellant. Even if we take the confession of the co- accused Hasan Mohamed (A-2) into consideration, it would only prove that Mohammed (from Bombay) had told the co- accused that Nalliappan would handover the contraband to the present appellant. This evidence of a co-accused is a very weak type of evidence which needed to be corroborated by some other evidence. The confession of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused. In the present case no such corroborative evidence has been led.That brings us to the confessional statement of the appellant recorded by PW-1. Admittedly, this confession was recorded after the appellant was arrested. It is true that the issue, whether a statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who has recorded such statement was not to be treated as a police officer, has been referred to a larger Bench in the case of Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 . We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements – one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused.We, accordingly, find force in the appeal. | 1 | 1,528 | 695 | ### 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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Section 8(c) of the NDPS Act reads as follows:8. Prohibition of certain operations.- No person shall- (a) ......... (b) ......... (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"4. This is basically an offence for exporting or importing into India or exporting from India contraband substance. Though, the charges against the appellant were of financing and of indulging in international smuggling of contraband, virtually no evidence in this regard has been found. 5. We now may refer to the facts necessary for disposal of this case. On 04.01.2003, the Intelligence Officer, Narcotic Department received information that at the instance of the present appellant 7.4 kgs. of heroin would be carried in a Toyota Qualis vehicle bearing No.TN 31 C 9117. This vehicle was apprehended when it was parked at Tamil Nadu Hotel of Madurai - Alagar Koil road and 7.4 kgs. of heroin was recovered from it. At that time accused no.2 to 6 were sitting in the car. Accused nos.2 to 4 have been convicted under various provisions of the NDPS Act. We are not concerned with them since, to our knowledge, no appeal has been filed by them. 6. As far as the present appellant is concerned, the only evidence, if it can be called that, is the statement of a co-accused (accused no.2) and his own alleged confession. As far as statement of co-accused (Ext.P41) is concerned, in that the co-accused states in great detail as to how he came into contact with one other person also called Mohammed in Bombay who had instructed him to go to Manglapuram from Bombay. There he was again asked to come to Hotel Airline at Manglapuram where he met the said Mohammed of Bombay. It was that Mohammed of Bombay, who handed over the vehicle to him and told him that 7.4 kgs of heroin is kept hidden in 7 packets in a false compartment beneath the front seat of the car. The only allegation with regard to appellant is that after taking delivery of the contraband from Mohammed of Bombay, the co-accused was to take the heroin and hand it over to one Nalliappan. The said Nalliappan was to further hand over the heroin to the appellant. Neither the said Mohammed from Bombay nor Nalliappan have been examined in the case nor they have been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that Mohammed had told the co-accused that he had to deliver the contraband to the present appellant. Even if we take the confession of the co- accused Hasan Mohamed (A-2) into consideration, it would only prove that Mohammed (from Bombay) had told the co- accused that Nalliappan would handover the contraband to the present appellant. This evidence of a co-accused is a very weak type of evidence which needed to be corroborated by some other evidence. The confession of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused. In the present case no such corroborative evidence has been led. 7. That brings us to the confessional statement of the appellant recorded by PW-1. Admittedly, this confession was recorded after the appellant was arrested. It is true that the issue, whether a statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who has recorded such statement was not to be treated as a police officer, has been referred to a larger Bench in the case of Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 . 8. We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements – one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused. 9. We, accordingly, find force in the appeal.
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6. As far as the present appellant is concerned, the only evidence, if it can be called that, is the statement of a co-accused (accused no.2) and his own alleged confession. As far as statement of co-accused (Ext.P41) is concerned, in that the co-accused states in great detail as to how he came into contact with one other person also called Mohammed in Bombay who had instructed him to go to Manglapuram from Bombay. There he was again asked to come to Hotel Airline at Manglapuram where he met the said Mohammed of Bombay. It was that Mohammed of Bombay, who handed over the vehicle to him and told him that 7.4 kgs of heroin is kept hidden in 7 packets in a false compartment beneath the front seat of the car. The only allegation with regard to appellant is that after taking delivery of the contraband from Mohammed of Bombay, the co-accused was to take the heroin and hand it over to one Nalliappan. The said Nalliappan was to further hand over the heroin to the appellant. Neither the said Mohammed from Bombay nor Nalliappan have been examined in the case nor they have been arrayed as accused. Therefore, the link evidence is totally missing. Furthermore, the allegation is only in the nature of hearsay that Mohammed had told the co-accused that he had to deliver the contraband to the present appellant. Even if we take the confession of the co- accused Hasan Mohamed (A-2) into consideration, it would only prove that Mohammed (from Bombay) had told the co- accused that Nalliappan would handover the contraband to the present appellant. This evidence of a co-accused is a very weak type of evidence which needed to be corroborated by some other evidence. The confession of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co-accused. In the present case no such corroborative evidence has been led.That brings us to the confessional statement of the appellant recorded by PW-1. Admittedly, this confession was recorded after the appellant was arrested. It is true that the issue, whether a statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who has recorded such statement was not to be treated as a police officer, has been referred to a larger Bench in the case of Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31 . We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the Court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements – one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused.We, accordingly, find force in the appeal.
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Nabam Rebia And Others Vs. Deputy Speaker | 155. It is not necessary for the present purposes to delve into the Governor?s role in legislative or quasi-legislative issues, such as assent to Bills (Article 200 and 201 of the Constitution), procedure in financial matters and legislative powers of the Governor (Chapter IV). Nor is it necessary to deal with the relations between the Governor and the Judiciary (Chapter V and Chapter VI of Part VI of the Constitution). All that need be said is that except in specified matters, executive functions of the Governor whether relating to governance issues or issues pertaining to the Legislature are required to be performed by him on the aid and advise of the Council of Ministers and the Rules framed by the House. No discretion is available to him in these matters since he is bound by the advice given to him by the Council of Ministers and Article 163 of the Constitution cannot be imported into these matters. The only discretion available to the Governor under Article 163 of the Constitution is in respect of matters provided for by or under the Constitution not relatable to the Council of Ministers and the Judiciary. 156. In the view that I have taken, the question relating to the interpretation of Article 175 of the Constitution and the validity of the message of the Governor becomes academic or does not arise and it is not necessary or even advisable to answer it. This Court has held on several occasions that it is inexpedient to delve into problems that do not arise and express an opinion thereon. (Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 ) 157. Therefore, I answer the first three questions in the negative and hold that the fourth question does not arise in the circumstances of the case. 158. The fifth and final question in these appeals is: Whether the Deputy Speaker of the Legislative Assembly of Arunachal Pradesh was entitled at law to set aside the order of the Speaker of the Legislative Assembly of Arunachal Pradesh by which the Speaker had disqualified fourteen Members of the Legislative Assembly of Arunachal Pradesh (including the Deputy Speaker) under the Tenth Schedule of the Constitution? 159. The question here is not whether the disqualification of fourteen members of the Legislative Assembly is valid or not. That was a matter pending consideration in the Gauhati High Court when judgment in these appeals was reserved, but has since been decided. We are not concerned with the decision of the Gauhati High Court or the power or propriety of the decision of the Speaker. The narrow question is whether the Deputy Speaker could, by his order dated 15th December, 2015 set aside the order of the Speaker also dated 15th December, 2015 disqualifying fourteen members of the Legislative Assembly including the Deputy Speaker himself. 160. The Speaker gave a notice to fourteen members of the Legislative Assembly on 7th December, 2015 requiring them to show cause why they should not be disqualified under the Tenth Schedule of the Constitution. Thereafter, by an order dated 15th December, 2015 the Speaker disqualified them from their membership in the Legislative Assembly. As mentioned above, the correctness of this order and the procedure followed has now been decided by the Gauhati High Court and the correctness of that decision is not before us. 161. The Deputy Speaker passed an order on 15th December, 2015 inter alia, on the ground that the Speaker lacked the competence to pass the disqualification order and that he had not followed the constitutional and legal procedures. He had had lost his competence to pass the disqualification order since a notice of his removal dated 19th November, 2015 was pending and was to come up before the Legislative Assembly on 16th December, 2015. In passing his order of 15th December, 2015 the Deputy Speaker purported to derive his power from the message given by the Governor to the Legislative Assembly on 9th December, 2015 requiring the Deputy Speaker to conduct the proceedings of the House on the resolution for removal of the Speaker. What is important to note is that the Deputy Speaker was to preside over the House on 16th December, 2015. He certainly had no derivative power from the message of the Governor dated 9th December, 2015 to take over the functions of the Speaker or to sit in judgment over the decision of the Speaker of 15th December, 2015. 162. That apart, it is now well settled by the decision of this Court in Kihoto Hollohan v. Zachillhu (1992 Supp.(2) SCC 651) that the Speaker while acting under the Tenth Schedule of the Constitution acts as a Tribunal and his decision can be challenged only in a court exercising constitutional jurisdiction. It was held in Kashinath Jalmi v. Speaker ((1993) 2 SCC 703 ) that even the Speaker does not have the power to review the decision taken by him under the Tenth Schedule of the Constitution. Under these circumstances, there is absolutely no question of the Deputy Speaker setting aside the order of the Speaker passed under the Tenth Schedule of the Constitution. 163. It is also important to note that the Deputy Speaker was himself disqualified from the membership of the Legislative Assembly by the Speaker and he could certainly not have set aside the order passed against him and in respect of which he would be the beneficiary. There is no doubt that the Deputy Speaker had no authority at all to set aside the decision of the Speaker passed under the Tenth Schedule of the Constitution. The fifth question is answered in the negative. 164. In the view that I have taken, I am of opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen members of the Legislative Assembly does not at all arise in these appeals. Final order | 1[ds]50. In our opinion there is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification; or that such a power existed till November 12, 1991 when the decision in Kihota Hollohan (1992) 1 SCC 309 was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review.?54. It was the pointed assertion of learned senior counsel, that the order of the Deputy Speaker dated 16.12.2015, quashing the Speaker?s order dated 15.12.2015 (disqualifying 14 members of the House, belonging to the INC), was totally without jurisdiction. It was also urged, that if any individual including the Deputy Speaker of the Assembly and/or the other 13 disqualified members of the House were aggrieved, they could have legitimately taken recourse to judicial review, either before the jurisdictional High Court under Article 226, or before this Court under Article 32. It was pointed out, that the disqualified MLAs had actually assailed their disqualification orders before the High Court. It was accordingly submitted, that the decision of the Deputy Speaker, quashing the order of the Speaker dated 15.12.2015 (disqualifying 14 MLAs of the INC), was per se unconstitutional, it lacked jurisdictional authority, and as such, was unacceptable in lawthe concerned 13 MLAs had sought the removal of the Speaker – Nabam Rebia under Articles 179 and 181. It was also pointed out, that in consonance with the procedure of the House, such a resolution was required to be considered and disposed of, by the Assembly immediately after the minimum mandatory period of 14 days. It was also urged, that the ruling political party – the INC, was no longer enjoying majority in the House, as its strength stood reduced to only 25 out of a total of 60 members. It was in this background, that a prayer was made by the concerned 13 legislators to the Governor, to cancel the summoning of the 6th session of the Assembly for 14.1.2016, and to re-summon the House at the earliest, so that the resolution could be settled without any delay. It was submitted, that the 13 MLAs had advised the Governor, that he had the power to modify the earlier summons, and prepone the date of summoning of the Assembly72. It is also relevant to mention, that on 27.11.2015 the Commissioner to the Governor, addressed a letter to the Secretary of the State Legislative Assembly, that the Governor was in receipt of a resolution signed by 13 members of the House, seeking the removal of the Speaker of the Assembly.84. It was urged, that insofar as the present controversy is concerned, a correct understanding of Article 163(2) would be of extreme relevance. Under Article 163(2), according to learned counsel, the Governor has the authority to act on his own, in respect of matters where the Governor is mandated to act in his own discretion ?by or under? the Constitution. It was further submitted that when a question arises, as to whether such discretion is vested with the Governor ?by or under? the Constitution, the decision of the Governor, on the above question, is final and binding. It was submitted, that Article 163(2) postulates three situations where, as an exception to the general rule, the Governor can act at his own will and discretion. Firstly, when he is required to discharge his functions by the mandate of some provision of the Constitution itself, in his own discretion. Secondly, when the Governor is assigned functions on the basis of enactments made under the Constitution, where he is mandated to discharge his functions by exercising his own discretion. And thirdly, where he is impliedly required to act in his own discretion85. It was pointedly contended, that in the present controversy, the question that needs to be determined is, whether Article 174 which vests the Governor with the authority to summon the Assembly, can be envisioned as one of the provisions, which requires the Governor to impliedly act at his own discretion? Learned counsel acknowledged, that the exercise of discretion by the Governor in the present case did not fall within the first two categorizations, postulated in his submission. Insofar as the implied power of the Governor with reference to the summoning of the House (vide order dated 9.12.2015) is concerned, the first and foremost submission canvassed was, that a clear distinction needed to be drawn between Article 174(1), which postulates the authority to summon the House, and Article 174(2) which vests the authority to prorogue or dissolve the Assembly. In dealing with the distinction between the two, it was pointed out, that the process of summoning a House can never be considered to be anti-democratic. Summoning the House, according to learned counsel, inevitably supports the cause of the democratic process. The same, according to learned counsel, may not be true with reference to proroguing or dissolving the House. When a House is prorogued or dissolved, the democratic process is sought to be deferred for the time being, or till the re-election of the members of the Legislative Assembly, respectively86. Learned senior counsel also pointedly focused on Article 179, and more particularly, sub-article (c) thereof. It was submitted, that an incumbent Speaker (or Deputy Speaker) can be removed under sub-article (c) of Article 179, by a resolution of the Assembly passed by a majority of ?… all the then members …? of the Assembly. It was submitted, that the issue of removal of the existing Speaker (or Deputy Speaker) contemplated under Article 179, should not be confused with the exercise of ?executive power? of the State. It was asserted, that the functions of an Assembly could be placed in two entirely separate categories. Firstly, its purely legislative activities. Legislative activity, according to learned counsel, included the responsibility of the ?executive power of the State? represented through the Chief Minister and his Council of Ministers, to determine the field and nature of legislation, to be brought before the House for legislation. It was submitted, that in the discharge of the aforesaid activity, the Governor can have no role whatsoever. The realm of legislative activity, according to learned counsel, also included the actual consideration of a Bill. Herein again, it was submitted, that the Governor would have no role, except to the extent contemplated under Article 200, wherein, when a Bill is passed by the House, the same has to be approved by the Governor. And only when the Governor gives his assent to the Bill, the same assumes the status of a legislative enactment. It was pointed out, that Article 200 contemplates a situation, where the Governor can return the Bill with a message, requiring the House to reconsider the same, by examining the suggestions made by the Governor. This limited responsibility cast on the Governor, it was contended, fell within the legislative process. The Governor before whom a Bill (passed by the Legislative Assembly) is placed, has also the right to reserve the Bill, for the consideration of the President. This action of the Governor, according to learned counsel, must be accepted as a further responsibility of the Governor within the legislative process. It was submitted, that in all the functions vested with the Governor under Article 200, are to be discharged by the Governor, in his independent discretion, and not on any guidance or advice. This, according to learned counsel, illustrates the third category of the Governor?s functions, wherein the Governor is impliedly required to act in his own discretion, even though he is not expressly so required, by any written mandate emerging from Article 20087. Secondly, it was submitted, that there are functions and activities of the House, which are separate and distinct from its legislative functioning. The said activities may have no role, of the Chief Minister or his Council of Ministers. Illustratively, it was contended, that the issue of removal of a Speaker (or Deputy Speaker) under Article 179(c) is an exclusive function of the House, but is independent of its legislative business. Insofar as the issue of removal of the Speaker (or the Deputy Speaker) is concerned, it was acknowledged, that neither the Chief Minister nor his Council of Ministers has any determinative role in the matter. The Speaker (or the Deputy Speaker) can be removed from his office, only ?… by a resolution of the Assembly passed by a majority of all the then members of the Assembly.?. Insofar as the present controversy is concerned, it was pointed out, that the notice of resolution for the removal of the Speaker, dated 19.11.2015, was brought by 13 members of the House. According to learned counsel, it is necessary to understand, the aforesaid submission, in the background of the position occupied by the Speaker. It was emphasized, that a Speaker is a neutral arbiter, between the ruling Government (which has the majority in the Assembly), and the opposition parties (which constitute the minority)88. In continuation, learned senior counsel, invited our attention to Article 180. It was pointed out, that sub-article (1) thereof provides, that if the office of the Speaker is vacant, the duties of ?the office? of Speaker, are to be performed by the Deputy Speaker. And if the office of the Deputy Speaker is also vacant, the duties of ?the office? of Speaker, are to be performed by a person appointed by the Governor, out of the existingMLAs. It washighlighted, that in the above exigency, where the question of discharging duties of the Speaker arises, the Governor has been expressly vested with a constitutional responsibility. Based on the above analysis, it was submitted, that insofar as the non-legislative duties of the Assembly are concerned, the Governor has also been ascribed some specific responsibilities. And since the Chief Minister and the Council of Ministers have no role in the aforestated action/activity, the Governor need not make the choice of the person, to discharge the duties of Speaker, on the basis of any aid and advice of the Chef Minister and his Council of Ministers89. It was asserted, that the position prevailing after the conclusion of the 5th session of the Assembly on 21.10.2015, did occasion the applicability of sub-article (2) of Article 180, in the peculiar facts of this case. As such, it was urged, that it would be wholly incorrect to assume, that the action taken by the Governor with reference to the office of Speaker was extraneous, specially when considered with reference to the relevant provisions of the Constitution90. Learned senior counsel seriously questioned the action of the Speaker in locking the premises of the Assembly, and thereby, consciously stalling the democratic process of the House. It was asserted, that if the Speaker was desirous of enforcing the order of disqualification (of 14 MLAs) by himself, under the Tenth Schedule, he may well have prevented the entry of the said 14 disqualified members into the premises of the House. It was submitted, that the action of the Speaker in disallowing the consideration of the notice of resolution for his removal, by preventing entry of all the legislators, into the building of the House, was really an action aimed at frustrating the democratic process. And, an escape route with reference to the notice of resolution for his own removal. It was pointed out, that the Speaker being an elected member of the Assembly, discharges vital legislative and non-legislative functions. His non-legislative functions include the duties as head of the Secretariat of the Assembly, and in addition thereto, his quasi-judicial functions are those postulated under the ?Tenth Schedule?, of the Constitution. The legislative functions, as well as, the duties vested with the Speaker under the Tenth Schedule, have a direct nexus to the democratic process, and as such, the discharge of the above responsibilities, while his position as a Speaker of the House was under challenge, constituted a serious constitutional impropriety91. On the duties assigned to the Governor under Article 174, it was submitted, that it was improper and unjustified to describe the action of the Governor in summoning the House vide order dated 9.12.2015, as anti-democratic. According to learned counsel, only anti-democratic forces would contest a decision of the Governor, in summoning the House. It was asserted, that a Government which is confident of its majority on the floor of the House, would have nothing to fear, when the House is summoned. The summoning of the House by the Governor, at his own discretion, would be inconsequential where the Government can establish its numbers. For exactly the same reason, it was submitted, that the action of the Governor in summoning the House, for the consideration of a notice of resolution for the removal of the Speaker would be inconsequential, if the Speaker enjoyed the support of the majority of the members of the House. It was pointed out, that the action of shying away and stalling consideration, of a resolution for the removal of the Speaker, is an action which could be justifiably described as anti-democratic. It was submitted, that a party in power which claims to enjoy the majority, cannot be aggrieved in a situation where the Governor requires the Government to establish its majority, through a floor test. Likewise, a Speaker who enjoys the confidence of the House, cannot be an aggrieved party, when the Governor calls for the consideration of a notice of resolution for his removal92. Referring to the action of the Governor, based on the order dated 9.12.2015, it was submitted, that even in the worst case scenario, the action of the Governor could not be described, as an action in conflict with any provision of the Constitution, or even a constitutional norm/propriety. It was submitted, that the notice of resolution for the removal of the Speaker was submitted on 19.11.2015. The Governor had made repeated efforts in writing, to confirm, whether such a notice had actually been submitted to the Secretary of the Legislative Assembly. Initiating action for summoning the House, by ordering its preponement, according to learned senior counsel, could be an option only if, the concerned 13 MLAs had actually submitted the above notice dated 19.11.2015, to the Secretary of the Legislative Assembly. Merely because a copy thereof had been furnished to the Governor, he could not have initiated any action. In spite of the high office of the Governor, and despite repeated communications were sent by the Governor, seeking information about the factual position, whether a notice of resolution for the removal of the Speaker – Nabam Rebia had been received, the same remained unanswered. Finally, the factual position came to the notice of the Governor, only on 8.12.2015, on the receipt of a communication from the Secretary of the Legislative Assembly. By this time the postulated 14 days? notice period, before such notice could be taken up for consideration, had expired (on 3.12.2015). Allowing the Speaker to discharge functions pertaining to the Secretariat of the Assembly, or under the Tenth Schedule to the Constitution, while his own position was under challenge, would not only be unconstitutional, but also undemocratic. It was urged, that it was in the aforesaid background, and based on the aforesaid understanding, and also to ensure that the functioning of the House was carried out in consonance with established democratic norms, that the Governor (in exercise of the powers vested with him under Article 174), had ordered the summoning of the House for 16.12.2015 (by preponing the 6th session of the Assembly, earlier scheduled for 14.1.2016). It was therefore contended, that the submissions advanced at the behest of learned counsel for the appellants, deserved to be rejected93. Mr. Rakesh Dwivedi, learned senior counsel, having concluded his submissions with reference to the order of the Governor dated 9.12.2015, similarly endeavoured to justify the message of the Governor dated 9.12.2015. His submissions to support the message dated 9.12.2015, were the same as in support of the order of the Governor dated 9.12.2015. According to learned counsel, the message was clear, that the Governor had authorised the House, to permit the resolution for removal of the Speaker to be moved. The message required the members of the Assembly, to discuss and put the same to vote, as ?… the first item on the agenda of the House at the first sitting of the Sixth Session…?. The Governor also required the Deputy Speaker, to hold the proceedings peacefully and truthfully, so as to ensure that they were conducted fairly. The message of the Governor, required the proceedings to be video-graphed. It was submitted, that the message of the Governor, would not only secure the enforcement of the democratic process, but would also ensure transparency and fairness. It was therefore the assertion of learned senior counsel, that no fault whatsoever could be found with the message of the Governor94. Having submitted thus far, learned senior counsel, pointedly referred to paragraph 5 of the message dated 9.12.2015. It was conceded, that the contents of paragraph 5, were instructions to the House, that until the 6th session (to commence on 16.12.2015) of the Legislative Assembly was prorogued, no Presiding Officer would alter the party composition of the House. It was acknowledged, that this could only be understood to mean, that disqualification proceedings under the ?Tenth Schedule?, would have to await the outcome of the motion against the Speaker under Article 179(c). In order to demonstrate the propriety and constitutional validity of paragraph 5 of the message, it was submitted, that once it is concluded (- that is, if this Court, on accepting the submissions advanced on behalf of the respondents, so concludes), that the Governor had the discretion to summon or prepone the sitting of the Assembly under Article 174(1) read with Articles 163 and 179(c), then it would also be up to the Governor to decide when and/or where, the House should meet. It was pointed out, that the Governor is undisputedly a high constitutional functionary. And as such, his decisions could neither be taken lightly, nor be easily interfered with. By inviting the Court?s attention to Article 174, it was urged, that the above provision vests responsibility in the Governor to summon, prorogue or dissolve the Assembly. The Governor is mandated to summon the Legislative Assembly ?at such time and place as he thinks fit?. The instant connotation in Article 174, makes it abundantly clear, that the Governor has to discharge the above function, as he in his own discretion, considers appropriate. Premised on the aforesaid foundation, it was contended, that the instant discretion conferred on the Governor, could not be subservient to any aid and advice. It was pointed out, that the fixation of time for sitting of the Legislative Assembly, determined by the Governor under Article 174, was an issue on which reasonable persons could differ widely. As such, it would not be proper for any Court to interfere with, the time and place fixed by the Governor in summoning the Assembly95. On the subject of the power of the judicial review, with reference to the exercise of discretion by the President (in relation to the removal of a Governor), it has to be accepted, that the power of judicial review has to be limited to situations wherein, it could be established that the President had exercised his discretion wantonly, whimsically or arbitrarily. It was urged that the same position would apply to decisions of Governors as well. It was submitted, that the appellants before this Court, were obliged to establish, that the Governor had acted deliberately in an unprincipled manner, and that, the action of the Governor would impair the constitutional trust assigned to him82. The President in exercising power under Article 156(1) should act in a manner which is not arbitrary, capricious or unreasonable. In the event of challenge of withdrawal of the pleasure, the Court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or malafides, in his removal, the Court will refuse to interfere. However, where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case. Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters, it is needless to say that there will be no interference unless a very strong case is made out. The position, therefore, is that the decision is open to judicial review but in a very limited extent83. We summarise our conclusions as under:(i) Under Article 156(1), the Governor holds office during the pleasure of the President. Therefore, the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power under Article156(1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would be compelling reasons would depend upon the facts and circumstances of each case(iii) A Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre. Nor can he be removed on the ground that the Union Government has lost confidence in him. It follows therefore that change in government at Centre is not a ground for removal of Governors holding office to make way for others favoured by the new government(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the Court will call upon the Union Government to disclose to the Court, the material upon which the President had taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the Court will interfere. However, the court will not interfere merely on the ground that a different view is possible or that the material or reasons are insufficient.?154. We declare the law of this branch of our Constitution to be that the President and Governor, custodians of all executive and other powers under various Articles, shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Government which has lost its majority in the House, but refuses to quit office; (c) the dissolution of the House where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step. We do not examine in detail the constitutional proprieties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory137. First of all, it is extremely essential to understand, the nature of powers and the functions of the Governor, under the provisions of the Constitution. Insofar as the instant aspect of the matter is concerned, it is apparent that the Governor has been assigned functions and powers, concerning the executive and the legislative affairs of the State. The executive functioning of the States is provided for under Part VI Chapter II of the Constitution, which includes Articles 153 to 167. Article 154 mandates, that the executive power of the State is vested with the Governor, and is to be exercised by him either directly or through officers subordinate to him ?in accordance with this Constitution?. Article 163 further warrants, that the Governor would exercise his functions, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The above edict is not applicable, in situations where the Governor is expressly required to exercise his functions, ?…by or under this Constitution…?, ?… in his discretion...?. The question that will need determination at our hands is, whether the underlying cardinal principle, with reference to the discretionary power of the Governor, is to be traced from Article 163(1) or from Article 163(2). Whilst it was the contention of the learned counsel for the appellants, that the same is expressed in sub-article (1) of Article 163, the contention on behalf of the respondents was, that the amplitude of the discretionary power of the Governor is evinced and manifested in sub-article (2) of Article 163. Undoubtedly, all executive actions of the Government of a State are expressed in the name of the Governor, under Article 166. That, however, does not per se add to the functions and powers of the GovernorIt is also necessary to appreciate, that in the discharge of executive functions, the Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute sentences (under Article 161). The Governor?s power under Article 161, is undisputedly exercised on the aid and advice of the Chief Minister and his Council of Ministers. The Governor has power to frame rules for the convenient transaction of executive business of the Government, under Article 166. The instant responsibility is also discharged, on aid and advice. All in all, it is apparent, that the Governor is not assigned any significant role in the executive functioning of the State. We would also endeavour to examine the duties and responsibilities of the Governor in the legislative functioning of a State. Details with reference to the same are found incorporated in Part VI Chapter III of the Constitution, which includes Articles 168 to 212. Even though Article 168 postulates, that the legislature of a State would comprise of the Governor, yet the Governor is not assigned any legislative responsibility in any House(s) of the State Legislature, irrespective of whether it is the legislative process relating to Ordinary Bills or Money Bills. Article 158 (dealing with the conditions of the Governor?s office) provides, that the ?… Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule …?. Insofar as the legislative process is concerned, the only function vested with the Governor is expressed through Article 200 which inter alia provides, that a Bill passed by the State Legislature, is to be presented to the Governor for his assent. And its ancillary provision, namely, Article 201 wherein a Bill passed by the State Legislature and presented to the Governor, may be reserved by the Governor for consideration by the President. The only exception to the non-participation of the Governor in legislative functions, is postulated under Article 213 (contained in Part VI Chapter IV of the Constitution), which apparently vests with the Governor, some legislative power. The Governor under Article 213 can promulgate Ordinances, during the period when the House(s) of the State Legislature, is/are not in session. This function is exercised by the Governor, undisputedly, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The Governor is also required to summon the House or Houses of State Legislature, or to prorogue or dissolve them under Article 174. We shall exclusively deal with the connotations of the instant responsibility entrusted with the Governor, immediately after drawing our conclusions with reference to Article 163. Articles 178 to 187 deal with the officers of the State Legislature, including the Speaker and the Deputy Speaker, as well as, the secretariat of the State Legislature. The above Articles are on the subject of appointment and removal of the Speaker and the Deputy Speaker of the Legislative Assembly, as also, the Chairman and Deputy Chairman of the Legislative Council, as well as, other ancillary matters. Whilst Article 179 provides for vacation, resignation and removal of the Speaker (and the Deputy Speaker) of the Legislative Assembly. Article 183 provides for vacation, resignation and removal of the Chairman (and the Deputy Chairman) of the Legislative Council. In neither of the above Articles, the Governor has any assigned role. The only responsibility allocated to the Governor under Article 208, is of making rules as to the procedure with respect to communications between the two Houses of State Legislature. All in all, it is apparent, that the Governor is not assigned any significant role even in the legislative functioning of the State138. The above position, leaves no room for any doubt, that the Governor cannot be seen to have such powers and functions, as would assign to him a dominating position, over the State executive and the State legislature. The interpretation placed on Article 163(2), on behalf of the respondents, has just that effect, because of the following contentions advanced on behalf of the respondents. Firstly, whenever a question arises, whether in discharging a particular function, the Governor can or cannot act in his own discretion. According to the respondents, the discretion of the Governor, on the above question, is final. Secondly, since the provision itself postulates, that ? … the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion…?, according to the respondents, makes the Governor?s orders based on his own discretion, immune from judicial review. Accepting the above position, will convert the Governor into an all-pervading super-constitutional authority. This position is not acceptable because an examination of the executive and legislative functions of the Governor, from the surrounding provisions of the Constitution clearly brings out, that the Governor has not been assigned any significant role either in the executive or the legislative functioning of the State. The position adopted on behalf of the appellants, on the other hand, augurs well in an overall harmonious construction of the provisions of the Constitution. Even on a cursory examination of the relevant provisions of the Constitution, we are inclined to accept the contention advanced on behalf of the appellants139. In our considered view, a clear answer to the query raised above, can inter alia emerge from the Constituent Assembly debates with reference to draft Article 143, which eventually came to be renumbered as Article 163 in the Constitution. It would be relevant to record, that from the queries raised by H.V. Kamath, T.T. Krishnamachari, Alladi Krishnaswami Ayyar, and from the response to the same by Dr. B.R. Ambedkar, it clearly emerges, that the general principle with reference to the scope and extent of the discretionary power of the Governor, is provided for through Article 163(1). It also becomes apparent from Article 163(1), which provides for the principle of ministerial responsibility. The crucial position that gets clarified from a perusal of the Constituent Assembly debates, arises from the answer to the query, whether the Governor should have any discretionary power at all? The debates expound, that the retention of discretionary power with the Governor was not, in any way, contrary to the power of responsible Government, nor should the same be assumed as a power akin to that vested with a Governor under the Government of India Act, 1935. And from that, emerges the answer that the retention and vesting of discretionary powers with the Governor, should not be taken in the sense of being contrary to, or having the effect of negating, the powers of responsible Government. Significantly, with reference to the Governor?s discretionary powers, it was emphasized by Dr. B.R. Ambedkar, that ?the clause is a very limited clause; it says: ‘except insofar as he is by or under this Constitution?. Therefore, Article 163 will have to be read in conjunction with such other Articles which specifically reserve the powers to the Governor?. ?It is not a general clause giving the Governor power to disregard the advice of his Ministers, in any matter in which he finds he ought to disregard. There, I think, lies the fallacy of the argument of my Hon?ble friend…?. In our considered view, the Constituent Assembly debates, leave no room for any doubt, that the framers of the Constitution desired to embody the general and basic principle, describing the extent and scope of the discretionary power of the Governor, in sub-article (1) of Article 163, and not in sub-article (2) thereof, as suggested by the learned counsel for the respondents142. We are therefore of the considered view, that insofar as the exercise of discretionary powers vested with the Governor is concerned, the same is limited to situations, wherein a constitutional provision expressly so provides, that the Governor should act in his own discretion. Additionally, a Governor can exercise his functions in his own discretion, in situations where an interpretation of the concerned constitutional provision, could not be construed otherwise. We therefore hereby reject the contention advanced on behalf of the respondents, that the Governor has the freedom to determine when and in which situation, he should take a decision in his own discretion, without the aid and advice of the Chief Minister and his Council of Ministers. We accordingly, also turn down the contention, that whenever the Governor in the discharge of his functions, takes a decision in his own discretion, the same would be final and binding, and beyond the purview of judicial review. We are of the view, that finality expressed in Article 163(2) would apply to functions exercised by the Governor in his own discretion, as are permissible within the framework of Article 163(1), and additionally, in situations where the clear intent underlying a constitutional provision, so requires i.e., where the exercise of such power on the aid and advice, would run contrary to the constitutional scheme, or would be contradictory in terms143. We may therefore summarise our conclusions as under:Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1)Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretionThirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the concerned provision, and the same cannot be construed otherwiseFourthly, in situations where this Court has declared, that the Governor should exercise the particular function at his own and without any aid or advice, because of the impermissibility of the other alternative, by reason of conflict of interestFifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor?s jurisdictional authority, would certainly be subject to judicial reviewSixthly, in view of the conclusion drawn at Fifthly above, the judgments rendered in the Mahabir Prasad Sharma case20, and the Pratapsing Raojirao Rane case12, by the High Courts of Calcutta and Bombay, respectively, do not lay down the correct legal position. The constitutional position declared therein, with reference to Article 163(2), is accordingly hereby set aside144. The conclusions recorded hereinabove will constitute the foundational basis for determining some of the other important issues, that arise for consideration in the present controversy154. Since it is not a matter of dispute, that the Governor never called for a floor test, it is reasonable for us to infer, that the Governor did not ever entertain any doubt, that the Chief Minister and his Council of Ministers were still enjoying the confidence of the majority, in the House. Nor was a motion of no confidence moved against the Government. In the above situation, the Governor just could not have summoned the House, vide his order dated 9.12.2015, in his own discretion, by preponing the 6th session of the Legislative Assembly from 14.1.2016 to 16.12.2015. This, for the simple reason, that the Governor neither had the jurisdiction nor the power to do so, without the aid and advice of the Council of Ministers with the Chief Minister as the head162. In view of the above, we have no hesitation in concluding, that the messages addressed by the Governor to the Assembly, must abide by the mandate contained in Article 163(1), namely, that the same can only be addressed to the State Legislature, on the aid and advice of the Council of Ministers with the Chief Minister as the head. The message of the Governor dated 9.12.2015, was therefore beyond the constitutional authority vested with the Governor163. For all the reasons recorded hereinabove, we are of the considered view, that the impugned message of the Governor dated 9.12.2015 is liable to be set aside. We order accordingly164. The deliberations and the discussions recorded hereinabove substantiate, that even though in terms of Article 154, the executive power of the State vests in the Governor, and further, the executive power vested with the Governor would be exercised by him either directly or through officers subordinate to him ?in accordance with this Constitution?, and further, the mandate contained in Article 166 enjoins, that all executive actions of the Government of a State are expressed in the name of the Governor, yet Article 163(1) leaves no room for any doubt, that the Governor is ordained, to exercise his functions on the aid and advice of the Council of Ministers with the Chief Minister as the head. Articles 154, 163 and 166 referred to above, are contained in Chapter II of Part VI of the Constitution, which relate to the State Executive. It is therefore apparent, that the exercise of executive power by the Governor, is by and large notional. All in all, the Governor had a limited scope of authority, relating to the exercise of executive functions, in his own discretion, i.e., without any aid and advice. The aforesaid limited power of the Governor is exercisable in situations, expressly provided for ?by or under? the provisions of the Constitution. The position which has briefly been recorded above, has been examined in some detail in paragraph xxx 139 xxx of this judgment165. Likewise, even though Article 168 includes the Governor, and pronounces him to be a part of the State Legislature, the provisions of the Constitution extend no legislative responsibility to him, within the precincts of the House or Houses of the State Legislature. Article 158 provides, that the ?… Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule …?. The Governor does not participate in debates within the Legislature, nor does he have any role in any activity which would result in the passing of a Bill, on the floor of the House. All in all, the legislative functionality constitutionally extended to the Governor, is extremely limited. The role assigned to a Governor in the entire gamut of the legislative process, is as ascribed under Article 200. Needless to mention, that when the House or Houses of the State Legislature are not in session, the Governor has the power to promulgate Ordinances under Article 213. No such legislative power is vested with the Governor, while the House or Houses of the State Legislature are in session. But even the power to issue Ordinances, cannot be exercised by the Governor, on his own. Ordinances can be issued by the Governor, only on the aid and advice of the Council of Ministers with the Chief Minister as the head. In sum and substance, the Governor is vested with extremely limited legislative functions. The position which has been recorded above, has been examined in some detail in paragraph xxx 139 xxx of this judgment166. It also needs to be kept in mind, that the appointment of the Governor is made under Article 155, not by way of an electoral process, but by a warrant issued under the hand and seal of the President. The constitutional Governor, is to hold his office under Article 156, during the pleasure of the President. Since the President exercises his functions on the aid and advice of the Prime Minister and his Council of Ministers, the tenure of the office of the Governor has also to coincide with the aid and advice of the Prime Minister and his Council of Ministers167. It is in the above background, that the ambit and scope of the role of the Governor requires to be examined, with reference to the issue of removal of the Speaker (or the Deputy Speaker) under Article 179(c). Insofar as the issue of the removal of the Speaker is concerned, the same would depend on the result of the vote, on the notice of resolution for his removal. If the majority votes in favour of the motion, the resolution is liable to be adopted. Failing which, it is liable to be rejected. In the above situation, it is apparent, that neither the Chief Minister, nor the Council of Ministers, has any determinative role on the subject of removal of the Speaker (or the Deputy Speaker). Their individual participation is limited to their individual vote, either in favour or against the motion for the removal of the Speaker (or the Deputy Speaker). Even the above bit, is not available to the Governor. The Governor has no role whatsoever in the removal of the Speaker (or the Deputy Speaker). Therefore, in our considered view, no role direct or indirect can be assumed by the Governor, under Article 179(c). The assumption of such a role, and the fulfillment thereof by addressing a message to the Assembly under Article 175, can only be ascribed as an ingenuity, without any constitutional sanction. In the above view of the matter, we are of the opinion, that the impugned message of the Governor dated 9.12.2015, cannot be endorsed as constitutionally acceptable168. Despite the above, the facts and circumstances of the present case reveal, that the Governor in his alleged bona fide determination issued the impugned message dated 9.12.2015, statedly to advise and guide the State Legislature, to carry out its functions in consonance with the provisions of the Constitution, and the rules framed under Articles 166 and 208. The question which arises for adjudication is not, that of the Governor?s bona fides. The question is of the jurisdictional authority of the Governor, in the above matter. The Governor has no direct or indirect constitutionally assigned role, in the matter of removal of the Speaker (or the Deputy Speaker). The Governor is not the conscience keeper of the Legislative Assembly, in the matter of removal of the Speaker. He does not participate in any executive or legislative responsibility, as a marshal. He has no such role assigned to him, whereby he can assume the position of advising and guiding the Legislative Assembly, on the question of removal of the Speaker (or Deputy Speaker). Or to require the Legislative Assembly to follow a particular course. The Governor can only perform such functions, in his own discretion, as are specifically assigned to him ?by or under this Constitution?, within the framework of Article 163(1), and nothing more. In our final analysis, we are satisfied in concluding, that the interjects at the hands of the Governor, in the functioning of the State Legislature, not expressly assigned to him, however bona fide, would be extraneous and without any constitutional sanction. A challenge to an action beyond the authority of the Governor, would fall within the scope of the judicial review, and would be liable to be set aside169. For all the reasons recorded hereinabove, we are of the considered view, that the impugned order and message of the Governor dated 9.12.2015 are liable to be set aside. We order accordingly173. When the position of a Speaker is under challenge, through a notice of resolution for his removal, it would ?seem? just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the office of Speaker is pending, would ?appear? to be unfair. If a Speaker truly and rightfully enjoys support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature, repose in him. The office of Speaker, with which the Constitution vests the authority to deal with disqualification petitions against MLAs, must surely be a Speaker who enjoys confidence of the Assembly. After all, disposal of the motion under Article 179(c), would take no time at all. As soon as the motion is moved, on the floor of the House, the decision thereon will emerge, forthwith. Why would a Speaker who is confident of his majority, fear a floor test? After his position as Speaker is affirmed, he would assuredly and with conviction, deal with the disqualification petitions, under the Tenth Schedule. And, why should a Speaker who is not confident of facing a motion, for his removal, have the right to adjudicate upon disqualification petitions, under the Tenth Schedule? The manner in which the matter has been examined hereinabove, is on ethical considerations. A constitutional issue, however, must have a constitutional answer. We shall endeavour to deal with the constitutional connotation of the instant issue, in the following paragraphs175. Article 179(c) provides, that a Speaker (or Deputy Speaker), ?may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly?. A notice of resolution for the removal of the Speaker (or the Deputy Speaker) of the Assembly, would therefore, have to be passed by a majority ?of all the then members of the Assembly?. The words ?all the then members? included in Article 179(c), are a conscious adage. If the words ?all the then members? are excluded from clause (c) of Article 179, it would affirm the interpretation which the appellants, wish us to adopt. The connotation placed by the appellants, would legitimize the action of the Speaker, in going ahead with the proceedings under the Tenth Schedule, even though a notice of resolution for his removal from the office of Speaker was pending. The words ?all the then members? were consciously added to Article 179(c), and their substitution was not accepted by the Constituent Assembly. We are satisfied, that the words ?passed by a majority of all the then members of the Assembly?, would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words ?all the then members?, after the disqualification of one or more MLAs from the House. The words ?all the then members?, demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all ?the then members? to determine the right of the Speaker to continue176. It would also be relevant to notice, that the Tenth Schedule was inserted in the Constitution, by the Constitution (Seventy-third Amendment) Act, 1992, with effect from 24.4.1993. The purpose sought to be achieved through the Tenth Schedule, is clear and unambiguous. The same is unrelated to, and distinct from, the purpose sought to be achieved through Article 179(c). Neither of the above provisions, can be seen as conflicting with the other. Both, must therefore freely operate, within their individual constitutional space. Each of them will have to be interpreted, in a manner as would serve the object sought to be achieved, without treading into the constitutional expanse of the other. The interpretation would have to be such, as would maintain constitutional purpose and harmony. We would now venture to examine the instant issue from the above perspective, in the following paragraph177. If a Speaker survives the vote, on a motion for his removal from the office of Speaker, he would still be able to adjudicate upon the disqualification petitions filed under the Tenth Schedule. The process of judicial review, cannot alter the above position. But, if a disqualification petition is accepted by the Speaker, the disqualified MLAs will have no right to participate in the motion moved against the Speaker under Article 179(c). A disqualified MLA, as we all know, can assail the order of his disqualification, by way of judicial review. If he succeeds, and his disqualification from the House is set aside, such a disqualified MLA, would be deprived of the opportunity to participate in the motion against the Speaker, under Article 179(c). In this situation, the process of judicial review, can also alter the position, if a disqualification order passed by the Speaker, is set aside by a Court of competent jurisdiction. In the event of an MLA having been disqualified by the Speaker, the notice of resolution for the removal of the Speaker, would surely be dealt with, and will be disposed of, during the period when the concerned MLA stood disqualified. Alternatively, if an MLA has not been disqualified when the motion for the removal of the Speaker is taken up, he would have the right to vote on the motion pertaining to the removal of the Speaker, whereafter, the petition for his own disqualification would certainly be considered and decided, by the Speaker. It is apparent, that the difficulty arises only, if the disqualification petition is taken up first, and the motion for the removal of the Speaker is taken up thereafter. The possibility of a disqualification petition being decided on political considerations, rather than on merits, cannot be ignored. In fact, that is a real possibility. Therefore, while it will not adversely affect the Speaker, if he faces the motion of his own removal from the office of Speaker, before dealing with the disqualification petitions, it could seriously prejudice MLAs facing disqualification, if petitions for their disqualification are taken up and dealt with first. The adoption of the former course, would also result in meaningfully giving effect to the words ?all the then members? used in Article 179(c), as discussed in the foregoing paragraph. This interpretation would also purposefully give effect to the rejection of the amendment suggested during the Constituent Assembly debates, that the motion for removal of the Speaker, should be the majority of ?the members of the Assembly present and voting?. This interpretation would also result in disregarding the retention of the words ?all the then members of the Assembly?, in Article 179(c). If the Speaker faces the motion of his own removal first, both the constitutional provisions would have their independent operational space preserved. None of the concerned constitutional provisions would interfere with the free functionality of the other, nor would one usurp the scheme postulated for the other. We are therefore of the view, that constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as Speaker, is under challenge. This would also, allow the two provisions (Article 179(c), and the Tenth Schedule) to operate in their individual constitutional space, without encroaching on the other178. For the reasons recorded hereinabove, we hereby hold, that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending. We are of the view, that it needs to be asserted as a constitutional determination, that it is not within the realm of the Governor to embroil himself in any political thicket. The Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties. The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or should not be a leader of a political party, is a political question, to be dealt with and resolved privately by the political party itself. The Governor cannot, make such issues, a matter of his concern. The provisions of the Constitution do not enjoin upon the Governor, the authority to resolve disputes within a political party, or between rival political parties. The action of the Governor, in bringing the aforesaid factual position to the notice of the President, in his monthly communications, may well have been justified for drawing the President?s attention to the political scenario of the State. But, it is clearly beyond the scope of the Governor?s authority, to engage through his constitutional position, and exercise his constitutional authority, to resolve the same192. It is open to the Governor to take into consideration, views of a breakaway group. Under Paragraph 4 of the Tenth Schedule, legitimacy is bestowed on a breakaway group which comprises of not less than two thirds of the members of the concerned legislature party. In the present case, the breakaway group belonging to the ruling INC comprised of 21 members, whereas the INC had 47 MLAs in the prevailing 60-member Legislative Assembly. 21 MLAs belonging to the INC did not constitute a legitimate and recognizable breakaway group. The Governor could not in support of the protests and assertions of an invalid breakaway group, adopt a constitutional course, recourse whereof could be taken only in case of a constitutional crisis. As for instance, when the Government is seen to have lost the confidence of the House. It has never been the position of the Governor, that the Chief Minister – Nabam Tuki, had lost the confidence of the House. Nor, that the INC could not sustain its majority in the Assembly. Had that been the position, the Governor would have called for a floor test. Admittedly, the Governor never called for a floor test, nor did he ever require the Chief Minister to establish his majority in the House. The Governor?s actions, based on feuds and wrangles of a breakaway group, which is not recognized under the Tenth Schedule, cannot be constitutionally condescended193. The Governor has no role whatsoever, in the removal of the Speaker (or the Deputy Speaker) under Article 179. The question of adoption or rejection of a notice of resolution, for the removal of the Speaker, is to be determined by the legislators. If the resolution for the Speaker?s removal is supported by a simple majority of the members of the House, the motion has to be adopted, and the Speaker has to be removed. Failing which, the motion has to be rejected. Any action taken by the Governor, based on disputations, with reference to activities in which he has no role to play, is liable to be considered as extraneous. It is not for the Governor to schedule the functioning of the Assembly. It is also not in the Governor?s domain, to schedule the agenda of the House. The Governor has no role with reference to the ongoings in the Assembly. The Governor must keep away, from all that goes on, within the House194. As long as the democratic process in the Assembly functions through a Government, which has the support of the majority, there can be no interference at the behest of the Governor. A constitutional failure as contemplated under Article 356, is quite another matter. So also, a constitutional failure under Article 360. Herein, the Governor has not treaded the procedure postulated for a constitutional breakdown | 1 | 117,747 | 10,992 | ### 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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155. It is not necessary for the present purposes to delve into the Governor?s role in legislative or quasi-legislative issues, such as assent to Bills (Article 200 and 201 of the Constitution), procedure in financial matters and legislative powers of the Governor (Chapter IV). Nor is it necessary to deal with the relations between the Governor and the Judiciary (Chapter V and Chapter VI of Part VI of the Constitution). All that need be said is that except in specified matters, executive functions of the Governor whether relating to governance issues or issues pertaining to the Legislature are required to be performed by him on the aid and advise of the Council of Ministers and the Rules framed by the House. No discretion is available to him in these matters since he is bound by the advice given to him by the Council of Ministers and Article 163 of the Constitution cannot be imported into these matters. The only discretion available to the Governor under Article 163 of the Constitution is in respect of matters provided for by or under the Constitution not relatable to the Council of Ministers and the Judiciary. 156. In the view that I have taken, the question relating to the interpretation of Article 175 of the Constitution and the validity of the message of the Governor becomes academic or does not arise and it is not necessary or even advisable to answer it. This Court has held on several occasions that it is inexpedient to delve into problems that do not arise and express an opinion thereon. (Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147 ) 157. Therefore, I answer the first three questions in the negative and hold that the fourth question does not arise in the circumstances of the case. 158. The fifth and final question in these appeals is: Whether the Deputy Speaker of the Legislative Assembly of Arunachal Pradesh was entitled at law to set aside the order of the Speaker of the Legislative Assembly of Arunachal Pradesh by which the Speaker had disqualified fourteen Members of the Legislative Assembly of Arunachal Pradesh (including the Deputy Speaker) under the Tenth Schedule of the Constitution? 159. The question here is not whether the disqualification of fourteen members of the Legislative Assembly is valid or not. That was a matter pending consideration in the Gauhati High Court when judgment in these appeals was reserved, but has since been decided. We are not concerned with the decision of the Gauhati High Court or the power or propriety of the decision of the Speaker. The narrow question is whether the Deputy Speaker could, by his order dated 15th December, 2015 set aside the order of the Speaker also dated 15th December, 2015 disqualifying fourteen members of the Legislative Assembly including the Deputy Speaker himself. 160. The Speaker gave a notice to fourteen members of the Legislative Assembly on 7th December, 2015 requiring them to show cause why they should not be disqualified under the Tenth Schedule of the Constitution. Thereafter, by an order dated 15th December, 2015 the Speaker disqualified them from their membership in the Legislative Assembly. As mentioned above, the correctness of this order and the procedure followed has now been decided by the Gauhati High Court and the correctness of that decision is not before us. 161. The Deputy Speaker passed an order on 15th December, 2015 inter alia, on the ground that the Speaker lacked the competence to pass the disqualification order and that he had not followed the constitutional and legal procedures. He had had lost his competence to pass the disqualification order since a notice of his removal dated 19th November, 2015 was pending and was to come up before the Legislative Assembly on 16th December, 2015. In passing his order of 15th December, 2015 the Deputy Speaker purported to derive his power from the message given by the Governor to the Legislative Assembly on 9th December, 2015 requiring the Deputy Speaker to conduct the proceedings of the House on the resolution for removal of the Speaker. What is important to note is that the Deputy Speaker was to preside over the House on 16th December, 2015. He certainly had no derivative power from the message of the Governor dated 9th December, 2015 to take over the functions of the Speaker or to sit in judgment over the decision of the Speaker of 15th December, 2015. 162. That apart, it is now well settled by the decision of this Court in Kihoto Hollohan v. Zachillhu (1992 Supp.(2) SCC 651) that the Speaker while acting under the Tenth Schedule of the Constitution acts as a Tribunal and his decision can be challenged only in a court exercising constitutional jurisdiction. It was held in Kashinath Jalmi v. Speaker ((1993) 2 SCC 703 ) that even the Speaker does not have the power to review the decision taken by him under the Tenth Schedule of the Constitution. Under these circumstances, there is absolutely no question of the Deputy Speaker setting aside the order of the Speaker passed under the Tenth Schedule of the Constitution. 163. It is also important to note that the Deputy Speaker was himself disqualified from the membership of the Legislative Assembly by the Speaker and he could certainly not have set aside the order passed against him and in respect of which he would be the beneficiary. There is no doubt that the Deputy Speaker had no authority at all to set aside the decision of the Speaker passed under the Tenth Schedule of the Constitution. The fifth question is answered in the negative. 164. In the view that I have taken, I am of opinion that the view expressed by my learned Brothers relating to the power or propriety of the Speaker taking a decision under the Tenth Schedule of the Constitution with regard to the fourteen members of the Legislative Assembly does not at all arise in these appeals. Final order
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possibility of a disqualification petition being decided on political considerations, rather than on merits, cannot be ignored. In fact, that is a real possibility. Therefore, while it will not adversely affect the Speaker, if he faces the motion of his own removal from the office of Speaker, before dealing with the disqualification petitions, it could seriously prejudice MLAs facing disqualification, if petitions for their disqualification are taken up and dealt with first. The adoption of the former course, would also result in meaningfully giving effect to the words ?all the then members? used in Article 179(c), as discussed in the foregoing paragraph. This interpretation would also purposefully give effect to the rejection of the amendment suggested during the Constituent Assembly debates, that the motion for removal of the Speaker, should be the majority of ?the members of the Assembly present and voting?. This interpretation would also result in disregarding the retention of the words ?all the then members of the Assembly?, in Article 179(c). If the Speaker faces the motion of his own removal first, both the constitutional provisions would have their independent operational space preserved. None of the concerned constitutional provisions would interfere with the free functionality of the other, nor would one usurp the scheme postulated for the other. We are therefore of the view, that constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as Speaker, is under challenge. This would also, allow the two provisions (Article 179(c), and the Tenth Schedule) to operate in their individual constitutional space, without encroaching on the other178. For the reasons recorded hereinabove, we hereby hold, that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending. We are of the view, that it needs to be asserted as a constitutional determination, that it is not within the realm of the Governor to embroil himself in any political thicket. The Governor must remain aloof from any disagreement, discord, disharmony, discontent or dissension, within individual political parties. The activities within a political party, confirming turbulence, or unrest within its ranks, are beyond the concern of the Governor. The Governor must keep clear of any political horse-trading, and even unsavoury political manipulations, irrespective of the degree of their ethical repulsiveness. Who should or should not be a leader of a political party, is a political question, to be dealt with and resolved privately by the political party itself. The Governor cannot, make such issues, a matter of his concern. The provisions of the Constitution do not enjoin upon the Governor, the authority to resolve disputes within a political party, or between rival political parties. The action of the Governor, in bringing the aforesaid factual position to the notice of the President, in his monthly communications, may well have been justified for drawing the President?s attention to the political scenario of the State. But, it is clearly beyond the scope of the Governor?s authority, to engage through his constitutional position, and exercise his constitutional authority, to resolve the same192. It is open to the Governor to take into consideration, views of a breakaway group. Under Paragraph 4 of the Tenth Schedule, legitimacy is bestowed on a breakaway group which comprises of not less than two thirds of the members of the concerned legislature party. In the present case, the breakaway group belonging to the ruling INC comprised of 21 members, whereas the INC had 47 MLAs in the prevailing 60-member Legislative Assembly. 21 MLAs belonging to the INC did not constitute a legitimate and recognizable breakaway group. The Governor could not in support of the protests and assertions of an invalid breakaway group, adopt a constitutional course, recourse whereof could be taken only in case of a constitutional crisis. As for instance, when the Government is seen to have lost the confidence of the House. It has never been the position of the Governor, that the Chief Minister – Nabam Tuki, had lost the confidence of the House. Nor, that the INC could not sustain its majority in the Assembly. Had that been the position, the Governor would have called for a floor test. Admittedly, the Governor never called for a floor test, nor did he ever require the Chief Minister to establish his majority in the House. The Governor?s actions, based on feuds and wrangles of a breakaway group, which is not recognized under the Tenth Schedule, cannot be constitutionally condescended193. The Governor has no role whatsoever, in the removal of the Speaker (or the Deputy Speaker) under Article 179. The question of adoption or rejection of a notice of resolution, for the removal of the Speaker, is to be determined by the legislators. If the resolution for the Speaker?s removal is supported by a simple majority of the members of the House, the motion has to be adopted, and the Speaker has to be removed. Failing which, the motion has to be rejected. Any action taken by the Governor, based on disputations, with reference to activities in which he has no role to play, is liable to be considered as extraneous. It is not for the Governor to schedule the functioning of the Assembly. It is also not in the Governor?s domain, to schedule the agenda of the House. The Governor has no role with reference to the ongoings in the Assembly. The Governor must keep away, from all that goes on, within the House194. As long as the democratic process in the Assembly functions through a Government, which has the support of the majority, there can be no interference at the behest of the Governor. A constitutional failure as contemplated under Article 356, is quite another matter. So also, a constitutional failure under Article 360. Herein, the Governor has not treaded the procedure postulated for a constitutional breakdown
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Spencer & Co Vs. State Of Mysore & Others | revenue. The fourth is making large profits, because the land is very fertile and capable of yielding good crops. Under the Act, it is manifest that the fourth category, in our illustration, would easily be able to bear the burden of the tax. The third one may be able to bear the tax. The first and the second one will have to pay from their own pockets; if they could afford the tax. If they cannot afford the tax, the property is liable to be sold, in due process of law, for realisation of the public demand. It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provision of the Act." 13. We are unable to hold that the impugned Act is discriminatory. The scheme of the Act is that the market value of the land is first ascertained and then tax at 0.4 per cant is levied. Under sub-section (3) of Section 99 the Commissioner has to determine the market value of the land and sub-section (3) of Section 101 gives guidance as to how to determine the market value of the land. It was urged by the learned counsel that the expression "estimated value" and the word "area" are very vague. We are unable to agree with him in this respect. In the context of determining the market value of the land, which has a well-known connotation the Commissioner is directed to look at the lands in the area of the land which is being assessed. In the context he can only look at the lands which are similarly situate, and are similar in nature to the lands being assessed and the area must mean the locality in which the land being assessed is situate and the extent of the locality would be determined by the well-known characteristics such as commercial area, residential area or factory area, etc. In other words the sub-section is drawing the attention of the Commissioner to the well-known principle, which is followed in assessing the market value, that lands similarly situate and of similar potentiality should be taken as examples. 14. The next question that arises is whether fixing property tax at 0.4 per cent is itself discriminatory. We are unable to see how this is discriminatory. This Court has held that the State legislatures have power to levy property tax by assessing the market value of it and levying a percentage on it. If all lands are assessed to the same rate of taxation we are unable to see how there is per se any discrimination. The facts in (1961) 3 SCR 77 = (AIR 1961 SC 552 ) were quite different. There no attention was paid at all to the income of the land. Here it is true that income of the land is not taken into consideration and instead market value is the basis of taxation. But market value of land always bears a definite relationship to the actual or potential income being derived or derivable from the land and there cannot be any objection to a levy at uniform rate on the market value. 15. Reference was made to the decision of this Court on State of Kerala v. Haji K. Kutty. (1969) 1 SCR 645 = (AIR 1969 SC 378 ). There the facts were again quite different. The legislature adopted the floor-area of the building as the basis of tax irrespective of all other considerations. The market value of the property stands on a different footing because, like income, the market value of property is one of the indices of the benefit which the owner derives or can derive from it and the very concept of market value takes into account the present or the potential Income and other relevant considerations. 16. It was next contended that the classification of vacant land is discriminatory. While land appurtenant to a building used as garden and as grounds for the more beneficial enjoyment of such building, not exceeding thrice the area occupied by such building, has been treated as a part of the building and taxed as such, land in excess of thrice the area of a building and other lands not appurtenant to buildings have been classified separately. The learned counsel said that the distinction is artificial as the land in excess, of thrice the area of a building is also being used for the same beneficial enjoyment of the building. It seems to us that in cities like Bangalore, where land is scarce. excessive use of land as gardens and grounds is not in the public interest and the legislature can validly tax the excess land on a different and higher basis. It may in a particular case cause hardship but the legislature cannot be denied the right to classify the lands in such a manner. Three times the area occupied by a building is not a small area and we are unable to hold that this figure is not reasonable. 17. It was said that the Act did not give any indication as to which land would be treated as surplus but in our view it is not necessary to specify the lands because the idea is to tax the excess land being used for a particular building and as this land would be located in a block it was not necessary to specify the land. 18. The last point urged before us was that this was a new tax and the procedure prescribed in Section 98 should have been followed. We are unable to hold that it is a new tax. Tax was being levied before the 1964 Act. The lands were being assessed to property tax even before the 1964, Act, either separately or as part of the building. We cannot say that this tax is being imposed for the first time within the meaning of Section 98. | 0[ds]13. We are unable to hold that the impugned Act is discriminatory. The scheme of the Act is that the market value of the land is first ascertained and then tax at 0.4 per cant is levied. Under sub-section (3) of Section 99 the Commissioner has to determine the market value of the land and sub-section (3) of Section 101 gives guidance as to how to determine the market value of the land. It was urged by the learned counsel that the expression "estimated value" and the word "area" are very vague. We are unable to agree with him in this respect. In the context of determining the market value of the land, which has a well-known connotation the Commissioner is directed to look at the lands in the area of the land which is being assessed. In the context he can only look at the lands which are similarly situate, and are similar in nature to the lands being assessed and the area must mean the locality in which the land being assessed is situate and the extent of the locality would be determined by the well-known characteristics such as commercial area, residential area or factory area, etc. In other words the sub-section is drawing the attention of the Commissioner to the well-known principle, which is followed in assessing the market value, that lands similarly situate and of similar potentiality should be taken as examplesWe are unable to see how this is discriminatory. This Court has held that the State legislatures have power to levy property tax by assessing the market value of it and levying a percentage on it. If all lands are assessed to the same rate of taxation we are unable to see how there is per se any discrimination. The facts in (1961) 3 SCR 77 = (AIR 1961 SC 552 ) were quite different. There no attention was paid at all to the income of the land. Here it is true that income of the land is not taken into consideration and instead market value is the basis of taxation. But market value of land always bears a definite relationship to the actual or potential income being derived or derivable from the land and there cannot be any objection to a levy at uniform rate on the market value15. Reference was made to the decision of this Court on State of Kerala v. Haji K. Kutty. (1969) 1 SCR 645 = (AIR 1969 SC 378 ). There the facts were again quite different. The legislature adopted the floor-area of the building as the basis of tax irrespective of all other considerations. The market value of the property stands on a different footing because, like income, the market value of property is one of the indices of the benefit which the owner derives or can derive from it and the very concept of market value takes into account the present or the potential Income and other relevant considerations16. It was next contended that the classification of vacant land is discriminatory. While land appurtenant to a building used as garden and as grounds for the more beneficial enjoyment of such building, not exceeding thrice the area occupied by such building, has been treated as a part of the building and taxed as such, land in excess of thrice the area of a building and other lands not appurtenant to buildings have been classified separately. The learned counsel said that the distinction is artificial as the land in excess, of thrice the area of a building is also being used for the same beneficial enjoyment of the building. It seems to us that in cities like Bangalore, where land is scarce. excessive use of land as gardens and grounds is not in the public interest and the legislature can validly tax the excess land on a different and higher basis. It may in a particular case cause hardship but the legislature cannot be denied the right to classify the lands in such a manner. Three times the area occupied by a building is not a small area and we are unable to hold that this figure is not reasonable17. It was said that the Act did not give any indication as to which land would be treated as surplus but in our view it is not necessary to specify the lands because the idea is to tax the excess land being used for a particular building and as this land would be located in a block it was not necessary to specify the land18. The last point urged before us was that this was a new tax and the procedure prescribed in Section 98 should have been followed. We are unable to hold that it is a new tax. Tax was being levied before the 1964 Act. The lands were being assessed to property tax even before the 1964, Act, either separately or as part of the building. We cannot say that this tax is being imposed for the first time within the meaning of Section 98. | 0 | 2,947 | 909 | ### 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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revenue. The fourth is making large profits, because the land is very fertile and capable of yielding good crops. Under the Act, it is manifest that the fourth category, in our illustration, would easily be able to bear the burden of the tax. The third one may be able to bear the tax. The first and the second one will have to pay from their own pockets; if they could afford the tax. If they cannot afford the tax, the property is liable to be sold, in due process of law, for realisation of the public demand. It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provision of the Act." 13. We are unable to hold that the impugned Act is discriminatory. The scheme of the Act is that the market value of the land is first ascertained and then tax at 0.4 per cant is levied. Under sub-section (3) of Section 99 the Commissioner has to determine the market value of the land and sub-section (3) of Section 101 gives guidance as to how to determine the market value of the land. It was urged by the learned counsel that the expression "estimated value" and the word "area" are very vague. We are unable to agree with him in this respect. In the context of determining the market value of the land, which has a well-known connotation the Commissioner is directed to look at the lands in the area of the land which is being assessed. In the context he can only look at the lands which are similarly situate, and are similar in nature to the lands being assessed and the area must mean the locality in which the land being assessed is situate and the extent of the locality would be determined by the well-known characteristics such as commercial area, residential area or factory area, etc. In other words the sub-section is drawing the attention of the Commissioner to the well-known principle, which is followed in assessing the market value, that lands similarly situate and of similar potentiality should be taken as examples. 14. The next question that arises is whether fixing property tax at 0.4 per cent is itself discriminatory. We are unable to see how this is discriminatory. This Court has held that the State legislatures have power to levy property tax by assessing the market value of it and levying a percentage on it. If all lands are assessed to the same rate of taxation we are unable to see how there is per se any discrimination. The facts in (1961) 3 SCR 77 = (AIR 1961 SC 552 ) were quite different. There no attention was paid at all to the income of the land. Here it is true that income of the land is not taken into consideration and instead market value is the basis of taxation. But market value of land always bears a definite relationship to the actual or potential income being derived or derivable from the land and there cannot be any objection to a levy at uniform rate on the market value. 15. Reference was made to the decision of this Court on State of Kerala v. Haji K. Kutty. (1969) 1 SCR 645 = (AIR 1969 SC 378 ). There the facts were again quite different. The legislature adopted the floor-area of the building as the basis of tax irrespective of all other considerations. The market value of the property stands on a different footing because, like income, the market value of property is one of the indices of the benefit which the owner derives or can derive from it and the very concept of market value takes into account the present or the potential Income and other relevant considerations. 16. It was next contended that the classification of vacant land is discriminatory. While land appurtenant to a building used as garden and as grounds for the more beneficial enjoyment of such building, not exceeding thrice the area occupied by such building, has been treated as a part of the building and taxed as such, land in excess of thrice the area of a building and other lands not appurtenant to buildings have been classified separately. The learned counsel said that the distinction is artificial as the land in excess, of thrice the area of a building is also being used for the same beneficial enjoyment of the building. It seems to us that in cities like Bangalore, where land is scarce. excessive use of land as gardens and grounds is not in the public interest and the legislature can validly tax the excess land on a different and higher basis. It may in a particular case cause hardship but the legislature cannot be denied the right to classify the lands in such a manner. Three times the area occupied by a building is not a small area and we are unable to hold that this figure is not reasonable. 17. It was said that the Act did not give any indication as to which land would be treated as surplus but in our view it is not necessary to specify the lands because the idea is to tax the excess land being used for a particular building and as this land would be located in a block it was not necessary to specify the land. 18. The last point urged before us was that this was a new tax and the procedure prescribed in Section 98 should have been followed. We are unable to hold that it is a new tax. Tax was being levied before the 1964 Act. The lands were being assessed to property tax even before the 1964, Act, either separately or as part of the building. We cannot say that this tax is being imposed for the first time within the meaning of Section 98.
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13. We are unable to hold that the impugned Act is discriminatory. The scheme of the Act is that the market value of the land is first ascertained and then tax at 0.4 per cant is levied. Under sub-section (3) of Section 99 the Commissioner has to determine the market value of the land and sub-section (3) of Section 101 gives guidance as to how to determine the market value of the land. It was urged by the learned counsel that the expression "estimated value" and the word "area" are very vague. We are unable to agree with him in this respect. In the context of determining the market value of the land, which has a well-known connotation the Commissioner is directed to look at the lands in the area of the land which is being assessed. In the context he can only look at the lands which are similarly situate, and are similar in nature to the lands being assessed and the area must mean the locality in which the land being assessed is situate and the extent of the locality would be determined by the well-known characteristics such as commercial area, residential area or factory area, etc. In other words the sub-section is drawing the attention of the Commissioner to the well-known principle, which is followed in assessing the market value, that lands similarly situate and of similar potentiality should be taken as examplesWe are unable to see how this is discriminatory. This Court has held that the State legislatures have power to levy property tax by assessing the market value of it and levying a percentage on it. If all lands are assessed to the same rate of taxation we are unable to see how there is per se any discrimination. The facts in (1961) 3 SCR 77 = (AIR 1961 SC 552 ) were quite different. There no attention was paid at all to the income of the land. Here it is true that income of the land is not taken into consideration and instead market value is the basis of taxation. But market value of land always bears a definite relationship to the actual or potential income being derived or derivable from the land and there cannot be any objection to a levy at uniform rate on the market value15. Reference was made to the decision of this Court on State of Kerala v. Haji K. Kutty. (1969) 1 SCR 645 = (AIR 1969 SC 378 ). There the facts were again quite different. The legislature adopted the floor-area of the building as the basis of tax irrespective of all other considerations. The market value of the property stands on a different footing because, like income, the market value of property is one of the indices of the benefit which the owner derives or can derive from it and the very concept of market value takes into account the present or the potential Income and other relevant considerations16. It was next contended that the classification of vacant land is discriminatory. While land appurtenant to a building used as garden and as grounds for the more beneficial enjoyment of such building, not exceeding thrice the area occupied by such building, has been treated as a part of the building and taxed as such, land in excess of thrice the area of a building and other lands not appurtenant to buildings have been classified separately. The learned counsel said that the distinction is artificial as the land in excess, of thrice the area of a building is also being used for the same beneficial enjoyment of the building. It seems to us that in cities like Bangalore, where land is scarce. excessive use of land as gardens and grounds is not in the public interest and the legislature can validly tax the excess land on a different and higher basis. It may in a particular case cause hardship but the legislature cannot be denied the right to classify the lands in such a manner. Three times the area occupied by a building is not a small area and we are unable to hold that this figure is not reasonable17. It was said that the Act did not give any indication as to which land would be treated as surplus but in our view it is not necessary to specify the lands because the idea is to tax the excess land being used for a particular building and as this land would be located in a block it was not necessary to specify the land18. The last point urged before us was that this was a new tax and the procedure prescribed in Section 98 should have been followed. We are unable to hold that it is a new tax. Tax was being levied before the 1964 Act. The lands were being assessed to property tax even before the 1964, Act, either separately or as part of the building. We cannot say that this tax is being imposed for the first time within the meaning of Section 98.
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Mr. Rajeev Nohwar Vs. Chief Controlling Revenue Authority Maharashtra State, Pune and Others | the Collector, he will have no adjudicator/ capacity. The Collector must forward the application to the concerned authority as mentioned in Section 52A along with remarks and such authority would have the power to decide the claim. The interpretation that Section 52A only overrides the authority of the Collector in adjudicating the case is evident since the provision does not override Section 49 where the adjudicating officer is the Chief Controlling Revenue Authority. In such a case, Section 52A cannot be considered as a residual clause by applying it to classes of cases that do not fall within the purview of any other provisions. A contrary interpretation would create an artificial class based on economic capacity, as cases where the stamp duty paid exceeds Rupees five lakhs will alone be adjudicated without application of any limitation period as a residual case, while cases falling within the same class but where stamp duty paid is less than Rupees five lakhs cannot take recourse to the provision. It is an established principle of interpretation that an interpretation that furthers the constitutionality of a provision will have to be undertaken. An interpretation which leads to an invidious discrimination must be eschewed. Thus, the intendment of Section 52A was neither to cover the applications that are not brought under any of the preceding substantive clauses nor to override the limitation clauses. 28. Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision. 29. In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period. 30. In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court. 31. We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.(AR Anthulay v. RS Nayak, (1988) 2 SCC 602 ; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 ; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 .) Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution. | 1[ds]The submission does not accord with a plain reading of the provision. The expression any other means must be readin the context of the words which immediately precede it, namely, error in writing. The expression by any other means would indicate that the legislature intended to refer to defacement of a stamp paper in any manner analogous to an error in writing the instrument on the stamp paper. Any other means refers to any other modality by which the stamp paper is rendered unfit for the purpose for which it was purchased. Moreover, the prefatory words in Section 47 state that the collector must be satisfied that the stamp is spoiled. Clauses (a) to (c) lay down the cases that are covered within the ambit of the expression spoiled stamps. The emphasis of Section 47 is not on the purpose but on unfit stamps. Therefore, a case where the stamp has not been utilized at all because it is not needed subsequent to the purchase will not fall within the purview of Section 47. Only those cases where the stamp is unfit for the purpose by an error in writing or any other means would be covered by the provision. It is not the case of the appellant that the stamp paper has been spoiled or obliterated or rendered unfit for the purpose for which it was required. In the present case, it is common ground that the stamp paper is not spoiled but the purpose for which the stamp was purchased has become redundant in view of the judgment of the NCDRC. Therefore, there would be no occasion to apply the provisions of clause (a) of Section 47.15. Clause (c) of Section 47 begins with the expression stamp used for an instrument executed by any party thereto and is followed by eight sub clauses. In other words, clause (c) of Section 47 applies only where a stamp paper has been used for an instrument which has been executed by one of the parties to the instrument. That is why, for instance sub clause (2) refers to the instrument being subsequently found unfit either by reason of an error or mistake for the purpose for which it was originally intended. Sub clause (4) adverts to a situation where the instrument has not been executed by a material party and by his inability or refusal to sign it renders the instrument incomplete and insufficient for the purpose for which it was intended. Clause (c) of Section 47 has no application to the facts of the present case since it is common ground that the stamp was not used for an instrument already executed by any party thereto.18. The revenue authorities rejected the application filed by the appellant on the ground that the application was not filed within six months from the date of the purchase of the stamp paper, treating the case to fall within the residuary provision in Section 48 of the Act. This view has been accepted by the Single Judge of the Bombay High Court. What this view misses is that Section 48 in its entirety applies only to those cases where the application for relief is governed by Section 47. If the application for refund is not with reference to the provisions of Section 47, the period of limitation in Section 48 clearly has no application. Since the application of the appellant does not fall within the purview of any of the clauses in Section 47, the 6 month limitation period prescribed in Section 48 would not be applicable to the application for allowance filed by the appellant.19. Having observed that the application of the appellant for allowance is not covered by the Section 47, it is imperative to determine if it falls within the purview of any other provisions of the Act. Section 49 provides that allowance can be made without any limit of time for stamp papers that are used as printed forms of instruments by any banker or company, if the forms are not required by the banks or the companies. Thus, the application of the appellant is not covered by section 49. Section 50 states that allowance for misused stamps can be made. The provision brings within the purview of the term misused stamps, the stamps of greater value than required or stamps of description other than that prescribed by any rules or stamps that are useless since the instrument is written in contravention of the provisions or where a stamp has been used when the instrument is not charged with stamp duty. Section 50 only covers those cases where inadvertent mistakes are made in the stamp paper. Therefore, the case of the appellant is not covered by Section 50 since there is no mistake in the e-stamp, be it with regard to the value or description. Section 51 lays down the procedure for seeking allowance for cases that fall under Section 47, 49 and 50 and is thus of no application to the appellants claim.21. It could be argued that the use of the words, for which he has no immediate use in Section 52 would only covers cases where the purpose for the purchase of the stamp is still valid but the execution of the purpose if delayed and not immediate. Such an interpretation, however, is erroneous in view of the holistic reading of the provision. The use of the phrase immediate must be read in the context of the limitation period prescribed by the provision. Since a six month limitation period has been imposed in Section 52 for the cases that fall within its purview, the use of the phrase no immediate use should be interpreted to mean either the permanent abandonment of the purpose or a delay (of more than six months from the purchase of the stamp) in the execution of the purpose.22. However, Section 52 would only apply to those cases where the applicant had knowledge that the stamp purchased was not be required for use within six months from the date of purchase. The provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp would not be required for use within six months from the purchase of the stamp. In the instant case, the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it. He was in a bona fide contest over his rights with the builder. Therefore, the case of the appellant would not fall under Section 52 of the Act as well.26. The provisions of Section 52A as noticed above have overriding force and effect, inter alia, on the provisions of Sections 47, 50, 51 and 52. It is pertinent to note that the non obstante clause does not apply to Sections 48 and 49 of the Act. While Section 48 is a limitation clause applicable to cases that are covered by Section 47, Section 49 applies to a Corporation where no limitation period has been prescribed. Section 52A can be applied to the appellants case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions.28. Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision.29. In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period.30. In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court.31. We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.(AR Anthulay v. RS Nayak, (1988) 2 SCC 602 ; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 ; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 .) Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution. | 1 | 6,736 | 2,169 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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the Collector, he will have no adjudicator/ capacity. The Collector must forward the application to the concerned authority as mentioned in Section 52A along with remarks and such authority would have the power to decide the claim. The interpretation that Section 52A only overrides the authority of the Collector in adjudicating the case is evident since the provision does not override Section 49 where the adjudicating officer is the Chief Controlling Revenue Authority. In such a case, Section 52A cannot be considered as a residual clause by applying it to classes of cases that do not fall within the purview of any other provisions. A contrary interpretation would create an artificial class based on economic capacity, as cases where the stamp duty paid exceeds Rupees five lakhs will alone be adjudicated without application of any limitation period as a residual case, while cases falling within the same class but where stamp duty paid is less than Rupees five lakhs cannot take recourse to the provision. It is an established principle of interpretation that an interpretation that furthers the constitutionality of a provision will have to be undertaken. An interpretation which leads to an invidious discrimination must be eschewed. Thus, the intendment of Section 52A was neither to cover the applications that are not brought under any of the preceding substantive clauses nor to override the limitation clauses. 28. Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision. 29. In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period. 30. In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court. 31. We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.(AR Anthulay v. RS Nayak, (1988) 2 SCC 602 ; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 ; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 .) Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution.
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purchased was not be required for use within six months from the date of purchase. The provision cannot be arbitrarily applied to cases where the purchaser of the stamp had no knowledge that the stamp would not be required for use within six months from the purchase of the stamp. In the instant case, the appellant had no knowledge of the fact that the stamp was not needed within six months from the purchase of it. He was in a bona fide contest over his rights with the builder. Therefore, the case of the appellant would not fall under Section 52 of the Act as well.26. The provisions of Section 52A as noticed above have overriding force and effect, inter alia, on the provisions of Sections 47, 50, 51 and 52. It is pertinent to note that the non obstante clause does not apply to Sections 48 and 49 of the Act. While Section 48 is a limitation clause applicable to cases that are covered by Section 47, Section 49 applies to a Corporation where no limitation period has been prescribed. Section 52A can be applied to the appellants case only if the provision is interpreted to override the limitation period laid down in the preceding provisions and if it is regarded as a residual substantive provision that would cover all cases that are not covered by any of the provisions.28. Evidently, and for the reasons that we have indicated above, the application filed by the appellant did not fall within the ambit of Sections 47, 52 and 52A. It is true that the application for refund was titled with reference to the provisions of Section 47. But, it is well settled that a reference of a wrong statutory provision, cannot oust the citizen of an entitlement to refund which otherwise follows in terms of a statutory provision.29. In the present case, the stamp paper was purchased bona fide in view of the agreement to sell which was to be executed by the appellant with the developer. There was a dispute with the developer which led to the institution of the proceedings before the NCDRC. There was nothing untoward in the conduct of the appellant and certainly no unreasonable delay on the part of the appellant in awaiting the outcome of the proceedings. The NCDRC allowed the complaint giving the option to the appellant of either going ahead with the agreement along with an award of compensation or, in the alternative, to seek a refund with interest. The appellant having exercised the latter option applied within two months from the order of the NCDRC for the grant of refund. The conduct of the appellant, therefore, cannot be held to be unreasonable nor was there any intentional or wanton delay on the part of the appellant in applying for a refund of stamp duty. Such an application must be filed within a reasonable period.30. In Committee-GFIL (supra), a two-judge Bench of this Court was dealing with the issue of limitation prescribed in the Indian Stamp Act 1899. In this case, an auction sale of immovable properties was held by a committee constituted by this Court. Successful bidders deposited with the committee, the entire sale consideration along with the stamp duty. However, the transaction failed due to reasons beyond the control of the parties. The Court cancelled the transaction and directed the committee to refund the sale consideration with interest and permitted the purchasers to approach the State Government for refund of the stamp duty. The applications of the auction-purchasers seeking refund of stamp duty was rejected on the ground that the applications were time-barred. An application against the rejection of the refund applications was filed before this Court. This Court allowed the application on three grounds: (i) the transaction which was Court-monitored, could not be fulfilled for reasons beyond the control of the auction-purchasers. No act of the Court should prejudice a person; (ii) in view of the principle of restitution embodied in Section 65 of the Contract Act, any advantage received by a person under a void contract or a contract that becomes void is bound to be restored; and (iii) in light of equity and justice, the six months limitation period prescribed in Section 50 of the Indian Stamp Act 1899 must be read to mean six months from the date of the order of this Court.31. We are conscious of the fact that as a general rule of law, the right to refund is a statutory creation. A refund can be sought in terms envisaged by statute. As discussed above, the case of the appellant is not specifically barred by any substantive provision. It is an established principle that this Court while exercising its power under Article 142 of Constitution must not ignore and override statutory provisions but must rather take note of the express statutory provisions and exercise its discretion with caution.(AR Anthulay v. RS Nayak, (1988) 2 SCC 602 ; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 ; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409 .) Therefore, if a statute prescribes a limitation period, this Court must be slow to interfere with the delay under Article 142. However, in the case of an eventuality such as the instant case where the facts of the case are not covered by the statute, this Court under Article 142 will have the power to do complete justice by condoning the delay. We are of the view that since the delay in filling the application for refund in the instant case was due to the prolonged proceedings before the NCDRC, the application cannot be rejected on the ground of delay. A litigant has no control over judicial delays. A rejection of the application for refund would violate equity, justice and fairness where the applicant is made to suffer the brunt of judicial delay. Therefore, this is a fit case for the exercise of the power under Article 142 of the Constitution.
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Dr. Bais Surgical and Medical Institute Private Limited & Others Vs. Dhananjay Pande & Others | such protection shall be possible only if interim order is set aside.SUBMISSIONS OF APPELLANTS 11.Mr. Thakur placed reliance on citation namely(1) 2005 CL 123 Page 110, Sangramsinh P. Gaekwad and ors. vs. Shantadevi P. Gaekwad (Dead) thr. Lrs. and ors. (2) AIR (37) 1950 SC 172, Nanalal Zaver and another vs. The Bombay Life Assurance Col, Ltd. and others.Mr. Thakur has relied upon these Judgment in order to bring home his plea that the Petition by respondent No.1 before CLB was not bona fide action. And rather was vexatious. According to Mr. Thakur, action taken by Directors was for protecting the interest of Company, with best judgment they had. Their actions according to Mr.Thakur did neither amount to mis-management or prejudicing Companys interest nor did it have any semblance of oppression.According to Mr. Thakur it has already come on record that half of the net worth of the Company was eroded way back prior to 2002 and sales had come to stand still and Company was adding to losses by incurring trading losses.These facts also can be seen from CLBs Judgment dated 2-12-2004.According to Mr. Thakur, the Company was saved from difficulties due to additional investment done by Dr. Bais Group to repay Bank loans of one of the Bank and by bringing additional. funds from the respondent No.2 under the management agreement in the offing and that due to these actions future losses can be avoided and drastic action by Bank can also be prevented.12.Learned Advocate Mr. Bhangde on the other hand asserted and supported his clients plea as taken in the petition under section 397 and pleaded that it was a clear case of actions to undermine the holding and control of the respondent No.1.Mr. Bhangde disputed that the notice under section 17 of Securitization Act by SBI did really pose any threat. He did not very seriously dispute the eroded net worth of the Company, or the fact that the activity has restarted due to the help of the respondent No.2. Mr. Bhangde has also filed written notes of his submissions. All that he emphasis is that the order of CLB under appeal is of short lived transitional nature and passed awaiting hearing of said interlocutory application on merits. He, therefore, urged that C.L. Board was about to hear the question of interim relief and there were no grounds for entertaining the appeal.13.Questions to be decided in this appeal are as follows :(1) Does the order under appeal suffers from any legal or error of jurisdiction.(2) Is the order impugned unsustainable and call for interference(3) What order14.As it is seen what the Company was likely to get, in turn, of allotment of additional share capital to Dr. Bais Group is, in fact, acquisition of assets i.e. land and building in which the hospital is being run which is uptil now exclusively owned by Dr. Bais. The CLB has recorded that status quo in regard to property and shares is to be maintained as can be seen from the underlined portion of the order quoted hereinabove. The parties are common on the ground that the execution of the sale deed in favour of the Company is still not completed. There is no other property owned by the Company which is either to be alienated or any apprehension in regard thereto is capable of being expressed and noticed. The order impugned reveals that the act of the Company of increasing the share capital and its allotment is also complete and what is to be done if order impugned is to be obeyed to maintain status quo in that regard. According to the parties, there is no act of further increasing share capital or allotment of further shares in the offing. In this background, order of status quo as to the shares and property viewed from any angle is innocuous inasmuch as it does not serve the purpose of the respondent No.1 whatsoever, nor could it be said to be causing any prejudice to the appellants herein. The observation of the CLB that the management agreement sought to be entered into with respondent No.2 is not so far entered is simply recording of the statement of fact and not in the nature of recording of an undertaking. Even an injunction in that regard cannot be read to have been passed or in operate against the appellant.15.If the Court would like to examine as to what are the grounds and reasons which led the CLB to pass an order of interim arrangement. It is seen from whatever points urged before the CLB apart from what could be seen from the contents of the application under sections 397 and 398 of Company Act, the application for interim relief and other documents relating to earlier litigation, it would turn out to be an act of fishing expedition. However, in order to meet the apprehensions expressed, CLB seems to have passed impugned transitory arrangement.16.Ordinarily in a challenge of present nature where an order serving the nature of a short lived and almost ex parte and ad hoc arrangement, the challenge ought to be based on such grounds that the order could be seen to be such that by no stretch of interpretation of pleadings, such order could be wholly sustained. A challenge answering such an acid test does not crystallise from pleadings and submissions made on the part of the appellant. The appellants have, therefore, failed in making out a case for entertaining such appeal.17.In this fact background, it would amount to pre-judging of the issue if the present appeal is entertained and this Court enters into the arena by examining the illegality and proprierty of the order.18.Looking to the nature that no prejudice whatsoever is seen to have been caused to the appellants due to the impugned order to the parties, it would be proper to leave the parties to avail option of approaching the CLB and on completing their pleadings to move the CLB for disposal of the application for interim relief. | 0[ds]14.As it is seen what the Company was likely to get, in turn, of allotment of additional share capital to Dr. Bais Group is, in fact, acquisition of assets i.e. land and building in which the hospital is being run which is uptil now exclusively owned by Dr. Bais. The CLB has recorded that status quo in regard to property and shares is to be maintained as can be seen from the underlined portion of the order quoted hereinabove. The parties are common on the ground that the execution of the sale deed in favour of the Company is still not completed. There is no other property owned by the Company which is either to be alienated or any apprehension in regard thereto is capable of being expressed and noticed. The order impugned reveals that the act of the Company of increasing the share capital and its allotment is also complete and what is to be done if order impugned is to be obeyed to maintain status quo in that regard. According to the parties, there is no act of further increasing share capital or allotment of further shares in the offing. In this background, order of status quo as to the shares and property viewed from any angle is innocuous inasmuch as it does not serve the purpose of the respondent No.1 whatsoever, nor could it be said to be causing any prejudice to the appellants herein. The observation of the CLB that the management agreement sought to be entered into with respondent No.2 is not so far entered is simply recording of the statement of fact and not in the nature of recording of an undertaking. Even an injunction in that regard cannot be read to have been passed or in operate against the appellant.15.If the Court would like to examine as to what are the grounds and reasons which led the CLB to pass an order of interim arrangement. It is seen from whatever points urged before the CLB apart from what could be seen from the contents of the application under sections 397 and 398 of Company Act, the application for interim relief and other documents relating to earlier litigation, it would turn out to be an act of fishing expedition. However, in order to meet the apprehensions expressed, CLB seems to have passed impugned transitory arrangement.16.Ordinarily in a challenge of present nature where an order serving the nature of a short lived and almost ex parte and ad hoc arrangement, the challenge ought to be based on such grounds that the order could be seen to be such that by no stretch of interpretation of pleadings, such order could be wholly sustained. A challenge answering such an acid test does not crystallise from pleadings and submissions made on the part of the appellant. The appellants have, therefore, failed in making out a case for entertaining such appeal.17.In this fact background, it would amount toof the issue if the present appeal is entertained and this Court enters into the arena by examining the illegality and proprierty of the order.18.Looking to the nature that no prejudice whatsoever is seen to have been caused to the appellants due to the impugned order to the parties, it would be proper to leave the parties to avail option of approaching the CLB and on completing their pleadings to move the CLB for disposal of the application for interim relief. | 0 | 2,228 | 605 | ### 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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such protection shall be possible only if interim order is set aside.SUBMISSIONS OF APPELLANTS 11.Mr. Thakur placed reliance on citation namely(1) 2005 CL 123 Page 110, Sangramsinh P. Gaekwad and ors. vs. Shantadevi P. Gaekwad (Dead) thr. Lrs. and ors. (2) AIR (37) 1950 SC 172, Nanalal Zaver and another vs. The Bombay Life Assurance Col, Ltd. and others.Mr. Thakur has relied upon these Judgment in order to bring home his plea that the Petition by respondent No.1 before CLB was not bona fide action. And rather was vexatious. According to Mr. Thakur, action taken by Directors was for protecting the interest of Company, with best judgment they had. Their actions according to Mr.Thakur did neither amount to mis-management or prejudicing Companys interest nor did it have any semblance of oppression.According to Mr. Thakur it has already come on record that half of the net worth of the Company was eroded way back prior to 2002 and sales had come to stand still and Company was adding to losses by incurring trading losses.These facts also can be seen from CLBs Judgment dated 2-12-2004.According to Mr. Thakur, the Company was saved from difficulties due to additional investment done by Dr. Bais Group to repay Bank loans of one of the Bank and by bringing additional. funds from the respondent No.2 under the management agreement in the offing and that due to these actions future losses can be avoided and drastic action by Bank can also be prevented.12.Learned Advocate Mr. Bhangde on the other hand asserted and supported his clients plea as taken in the petition under section 397 and pleaded that it was a clear case of actions to undermine the holding and control of the respondent No.1.Mr. Bhangde disputed that the notice under section 17 of Securitization Act by SBI did really pose any threat. He did not very seriously dispute the eroded net worth of the Company, or the fact that the activity has restarted due to the help of the respondent No.2. Mr. Bhangde has also filed written notes of his submissions. All that he emphasis is that the order of CLB under appeal is of short lived transitional nature and passed awaiting hearing of said interlocutory application on merits. He, therefore, urged that C.L. Board was about to hear the question of interim relief and there were no grounds for entertaining the appeal.13.Questions to be decided in this appeal are as follows :(1) Does the order under appeal suffers from any legal or error of jurisdiction.(2) Is the order impugned unsustainable and call for interference(3) What order14.As it is seen what the Company was likely to get, in turn, of allotment of additional share capital to Dr. Bais Group is, in fact, acquisition of assets i.e. land and building in which the hospital is being run which is uptil now exclusively owned by Dr. Bais. The CLB has recorded that status quo in regard to property and shares is to be maintained as can be seen from the underlined portion of the order quoted hereinabove. The parties are common on the ground that the execution of the sale deed in favour of the Company is still not completed. There is no other property owned by the Company which is either to be alienated or any apprehension in regard thereto is capable of being expressed and noticed. The order impugned reveals that the act of the Company of increasing the share capital and its allotment is also complete and what is to be done if order impugned is to be obeyed to maintain status quo in that regard. According to the parties, there is no act of further increasing share capital or allotment of further shares in the offing. In this background, order of status quo as to the shares and property viewed from any angle is innocuous inasmuch as it does not serve the purpose of the respondent No.1 whatsoever, nor could it be said to be causing any prejudice to the appellants herein. The observation of the CLB that the management agreement sought to be entered into with respondent No.2 is not so far entered is simply recording of the statement of fact and not in the nature of recording of an undertaking. Even an injunction in that regard cannot be read to have been passed or in operate against the appellant.15.If the Court would like to examine as to what are the grounds and reasons which led the CLB to pass an order of interim arrangement. It is seen from whatever points urged before the CLB apart from what could be seen from the contents of the application under sections 397 and 398 of Company Act, the application for interim relief and other documents relating to earlier litigation, it would turn out to be an act of fishing expedition. However, in order to meet the apprehensions expressed, CLB seems to have passed impugned transitory arrangement.16.Ordinarily in a challenge of present nature where an order serving the nature of a short lived and almost ex parte and ad hoc arrangement, the challenge ought to be based on such grounds that the order could be seen to be such that by no stretch of interpretation of pleadings, such order could be wholly sustained. A challenge answering such an acid test does not crystallise from pleadings and submissions made on the part of the appellant. The appellants have, therefore, failed in making out a case for entertaining such appeal.17.In this fact background, it would amount to pre-judging of the issue if the present appeal is entertained and this Court enters into the arena by examining the illegality and proprierty of the order.18.Looking to the nature that no prejudice whatsoever is seen to have been caused to the appellants due to the impugned order to the parties, it would be proper to leave the parties to avail option of approaching the CLB and on completing their pleadings to move the CLB for disposal of the application for interim relief.
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14.As it is seen what the Company was likely to get, in turn, of allotment of additional share capital to Dr. Bais Group is, in fact, acquisition of assets i.e. land and building in which the hospital is being run which is uptil now exclusively owned by Dr. Bais. The CLB has recorded that status quo in regard to property and shares is to be maintained as can be seen from the underlined portion of the order quoted hereinabove. The parties are common on the ground that the execution of the sale deed in favour of the Company is still not completed. There is no other property owned by the Company which is either to be alienated or any apprehension in regard thereto is capable of being expressed and noticed. The order impugned reveals that the act of the Company of increasing the share capital and its allotment is also complete and what is to be done if order impugned is to be obeyed to maintain status quo in that regard. According to the parties, there is no act of further increasing share capital or allotment of further shares in the offing. In this background, order of status quo as to the shares and property viewed from any angle is innocuous inasmuch as it does not serve the purpose of the respondent No.1 whatsoever, nor could it be said to be causing any prejudice to the appellants herein. The observation of the CLB that the management agreement sought to be entered into with respondent No.2 is not so far entered is simply recording of the statement of fact and not in the nature of recording of an undertaking. Even an injunction in that regard cannot be read to have been passed or in operate against the appellant.15.If the Court would like to examine as to what are the grounds and reasons which led the CLB to pass an order of interim arrangement. It is seen from whatever points urged before the CLB apart from what could be seen from the contents of the application under sections 397 and 398 of Company Act, the application for interim relief and other documents relating to earlier litigation, it would turn out to be an act of fishing expedition. However, in order to meet the apprehensions expressed, CLB seems to have passed impugned transitory arrangement.16.Ordinarily in a challenge of present nature where an order serving the nature of a short lived and almost ex parte and ad hoc arrangement, the challenge ought to be based on such grounds that the order could be seen to be such that by no stretch of interpretation of pleadings, such order could be wholly sustained. A challenge answering such an acid test does not crystallise from pleadings and submissions made on the part of the appellant. The appellants have, therefore, failed in making out a case for entertaining such appeal.17.In this fact background, it would amount toof the issue if the present appeal is entertained and this Court enters into the arena by examining the illegality and proprierty of the order.18.Looking to the nature that no prejudice whatsoever is seen to have been caused to the appellants due to the impugned order to the parties, it would be proper to leave the parties to avail option of approaching the CLB and on completing their pleadings to move the CLB for disposal of the application for interim relief.
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Keshavlal Lallubhai Patel Vs. Lalbhai Trikumlal Mills | and it should be so rejected. The contract should be held good and the clause ignored."Then the learned Lord Justice pointed out that "the parties themselves treated the contract as subsisting. They regarded it as creating binding obligations between them and it would be most unfortunate if the law should say otherwise." "You would find," observed the learned Lord Justice, "defaulters all scanning their contracts to find some meaningless clause on which to ride free." In our opinion, this decision can be of no assistance of the appellants case before us. The second condition in the letter in question constitutes a clause which had to be agreed upon by the parties since it formed one of the conditions of the respondents proposals for the extension of time.The respondents proposal was to extend time for the performance of the contract subject to two conditions and unless both the conditions were agreed upon between the parties there would be no valid or binding extension of time under S. 63, Contract Act. The mere fact that the second condition introduced by the respondent is vague and uncertain, it does not follow that the said condition was intended by the respondent to be the addition of a meaningless surplusage.If that be the true position, then the material allegations in the plaint itself demonstrably prove that there has been no acceptance by the appellants of the second condition mentioned by the respondent in its proposal to extend time for the performance of the contract. Besides, as we have already indicated, it is really difficult to hold that the respondent had a clear and precise notion as to the constituent elements of the second condition mentioned in its letter and that the appellants were duly appraised of the said constituent elements and agreed with the said condition with that knowledge. In this connection, we may usefully refer to the decision of the House of Lords in G. Scammel And Nephew, Ltd. v. Ouston, 1941 AC 251 (B). In this case, the respondent had agreed to purchase from the appellant a new motor-van but stipulated that this order was given on the understanding that the balance of purchase price can be had on the hire-purchase terms over a period of two years. The House of Lords held that the clause as to hire-purchase terms was so vague that no precise meaning could be attributed to it and consequently there was no enforceable contract between the parties. In his speech, Lord Wright observed that"the object of the Court is to do justice between the parties, and the Court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not at mere form .......... But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard to all the just implications, fall to evince any definite meaning on which the Court can safely act, the court has no choice but to say that there is no contract."Then the learned Law Lord added that his reason for thinking that the clause was vague was not only based on the actual vagueness and unintelligibility of the words used but was confirmed by the startling diversity of the explanations tendered by those who think there was a bargain of what the bargain was. We would like to add that, when the appellants attempted to explain the true meaning of the second condition, it was discovered that the explanations given by the appellants counsel were diverse and inconsistent.We must, therefore, hold that the learned Judges of the High Court were right in coming to the conclusion that the conditions mentioned by the respondent in its letter asking for extension of time were so vague and uncertain that it is not possible to ascertain definitely the period for which the time for the performance of the contract was really intended to be extended. In such a case, the agreement for extension must be held to be vague and uncertain and as such void under S. 29, Contract Act.10. There is one more point which must be considered. It was strongly urged before us by the appellants that, in the trial Court, no plea had been taken by the respondent that the agreement for the extension of time was vague and uncertain. No such plea appears to have been taken even in the grounds of appeal preferred by the respondent in the High Court at Bombay; but apparently the plea was allowed to be raised in the High Court and the appellants took no objection to it at the stage. It cannot be said that it was not open to the High Court to allow such a plea to be raised even for the first time in appeal.After all, the plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal Court to allow such a plea to be raised under O. 41, R. 2. Civil P. C. If, on a fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty. The provisions of S. 93, Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the Court to attempt to remove the defect of vagueness or uncertainty by relaying upon any extrinsic evidence. Such an attempt would really mean the making of a new contract between the parties. That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court.1 | 0[ds]It is fairly clear from the record that the attitude adopted by the respondent in the present dispute was actuated more by Jasubhais prejudice against Chinubhai and it may be safely asserted that some of the pleas taken by the respondent were known to the respondent to be untenable. The appellants rely upon this conduct of the respondent and suggest that the oral testimony of Ratilal and Keshavlal is consistent with probabilities and should be believed. Chinubhai also gave evidence in the case. He stated that the proposal to extend time had been conveyed by Laxmidas under his instructions. It is common ground that similar request was made to all the constituents of the mills both in Ahmedabad and outside Ahmedabad. Chinubhai did not remember whether he had got any written reply to the letter of 15th August 1942, from the appellants but the effect of some of the statements made by him would generally appear to be that he had received oral acceptance of the said proposal from the appellants. However, in answer to further questions put to him in cross-examination. Chinubhai stated that he did not remember whether the appellants accepted the offer or not. It is, however, clear that the evidence of Chinubhai is not at all inconsistent with the statements made by Ratilal and Keshavlal. It is common ground that the prices of the goods were rising at the material time and so it is more likely that the appellants were willing to extend time because they would naturally be keen on obtaining delivery of the goods under the contract. In both the Courts below an argument appears to have been urged by reference to the sauda books kept by the respondent. Shri Dharamasi Harilal had brought the sauda books in the Court but neither party got the books exhibited in the case. The learned trial Judge took the view that, since the sauda books were not produced and proved by the respondent, it led to the inference that, if the books had been produced, they would have shown an endorsement made against the suit contracts that the extension of time had been agreed upon by the appellant. On the other hand, the learned Judges of the High Court were inclined to draw the inference that since the appellants did not want the said sauda books to be exhibited, it would appear that the said books did not contain any note about the extension. In our opinion, it would be unsafe to draw either of these two inferences in the present case. Therefore, the decision of the question would depend upon the appreciation of oral evidence considered in the light of probabilities and other relevant circumstances in the case. On the whole, we are disposed to take the view that the evidence given by Ratilal and Keshavlal is true.The true legal position in regard to the extension of time for the performance of a contract is quite clear under S. 63 of the Indian Contract Act.Every promisee, as the section provides, may extend time for the performance of the contract.The question as to how extension of time may be agreed upon by the parties has been the subject-matter of some argument at the Bar in the present appeal. There can be, no doubt, we think, that both the buyer and the seller must agree to extend time for the delivery of goods.It would not be open to the promisee by his unilateral act to extend the time for performance of his own accord for his own benefit. It is true that the agreement to extend time need not necessarily be reduced to writing. It may be proved by oral evidence. In some cases it may be proved by evidence of conduct. Forbearance on the part of the buyer to make a demand for the delivery of goods on the due date as fixed in the original contract may conceivably be relevant on the question of the intention of the buyer to accept the sellers proposal to extend time. It would be difficult to lay down any hard and fast rule about the requirements of proof of such an agreement. It would naturally be a question of fact in each case to be determined in the light of evidence adduced by the parties.Having regard to the probabilities in this case, and to the conduct of the parties at the relevant time, we think the appellants are entitled to urge that their oral evidence about the acceptance of the respondents proposal for the extension of time should be believed and the finding of the learned trial judge on this question should besuch plea appears to have been taken even in the grounds of appeal preferred by the respondent in the High Court at Bombay; but apparently the plea was allowed to be raised in the High Court and the appellants took no objection to it at the stage. It cannot be said that it was not open to the High Court to allow such a plea to be raised even for the first time in appeal.After all, the plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal Court to allow such a plea to be raised under O. 41, R.Civil P. C. If, on a fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty. The provisions of S. 93, Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the Court to attempt to remove the defect of vagueness or uncertainty by relaying upon any extrinsic evidence. Such an attempt would really mean the making of a new contract between the parties. That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court. | 0 | 4,535 | 1,097 | ### 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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and it should be so rejected. The contract should be held good and the clause ignored."Then the learned Lord Justice pointed out that "the parties themselves treated the contract as subsisting. They regarded it as creating binding obligations between them and it would be most unfortunate if the law should say otherwise." "You would find," observed the learned Lord Justice, "defaulters all scanning their contracts to find some meaningless clause on which to ride free." In our opinion, this decision can be of no assistance of the appellants case before us. The second condition in the letter in question constitutes a clause which had to be agreed upon by the parties since it formed one of the conditions of the respondents proposals for the extension of time.The respondents proposal was to extend time for the performance of the contract subject to two conditions and unless both the conditions were agreed upon between the parties there would be no valid or binding extension of time under S. 63, Contract Act. The mere fact that the second condition introduced by the respondent is vague and uncertain, it does not follow that the said condition was intended by the respondent to be the addition of a meaningless surplusage.If that be the true position, then the material allegations in the plaint itself demonstrably prove that there has been no acceptance by the appellants of the second condition mentioned by the respondent in its proposal to extend time for the performance of the contract. Besides, as we have already indicated, it is really difficult to hold that the respondent had a clear and precise notion as to the constituent elements of the second condition mentioned in its letter and that the appellants were duly appraised of the said constituent elements and agreed with the said condition with that knowledge. In this connection, we may usefully refer to the decision of the House of Lords in G. Scammel And Nephew, Ltd. v. Ouston, 1941 AC 251 (B). In this case, the respondent had agreed to purchase from the appellant a new motor-van but stipulated that this order was given on the understanding that the balance of purchase price can be had on the hire-purchase terms over a period of two years. The House of Lords held that the clause as to hire-purchase terms was so vague that no precise meaning could be attributed to it and consequently there was no enforceable contract between the parties. In his speech, Lord Wright observed that"the object of the Court is to do justice between the parties, and the Court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not at mere form .......... But the test of intention is to be found in the words used. If these words, considered however broadly and untechnically and with due regard to all the just implications, fall to evince any definite meaning on which the Court can safely act, the court has no choice but to say that there is no contract."Then the learned Law Lord added that his reason for thinking that the clause was vague was not only based on the actual vagueness and unintelligibility of the words used but was confirmed by the startling diversity of the explanations tendered by those who think there was a bargain of what the bargain was. We would like to add that, when the appellants attempted to explain the true meaning of the second condition, it was discovered that the explanations given by the appellants counsel were diverse and inconsistent.We must, therefore, hold that the learned Judges of the High Court were right in coming to the conclusion that the conditions mentioned by the respondent in its letter asking for extension of time were so vague and uncertain that it is not possible to ascertain definitely the period for which the time for the performance of the contract was really intended to be extended. In such a case, the agreement for extension must be held to be vague and uncertain and as such void under S. 29, Contract Act.10. There is one more point which must be considered. It was strongly urged before us by the appellants that, in the trial Court, no plea had been taken by the respondent that the agreement for the extension of time was vague and uncertain. No such plea appears to have been taken even in the grounds of appeal preferred by the respondent in the High Court at Bombay; but apparently the plea was allowed to be raised in the High Court and the appellants took no objection to it at the stage. It cannot be said that it was not open to the High Court to allow such a plea to be raised even for the first time in appeal.After all, the plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal Court to allow such a plea to be raised under O. 41, R. 2. Civil P. C. If, on a fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty. The provisions of S. 93, Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the Court to attempt to remove the defect of vagueness or uncertainty by relaying upon any extrinsic evidence. Such an attempt would really mean the making of a new contract between the parties. That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court.1
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of the pleas taken by the respondent were known to the respondent to be untenable. The appellants rely upon this conduct of the respondent and suggest that the oral testimony of Ratilal and Keshavlal is consistent with probabilities and should be believed. Chinubhai also gave evidence in the case. He stated that the proposal to extend time had been conveyed by Laxmidas under his instructions. It is common ground that similar request was made to all the constituents of the mills both in Ahmedabad and outside Ahmedabad. Chinubhai did not remember whether he had got any written reply to the letter of 15th August 1942, from the appellants but the effect of some of the statements made by him would generally appear to be that he had received oral acceptance of the said proposal from the appellants. However, in answer to further questions put to him in cross-examination. Chinubhai stated that he did not remember whether the appellants accepted the offer or not. It is, however, clear that the evidence of Chinubhai is not at all inconsistent with the statements made by Ratilal and Keshavlal. It is common ground that the prices of the goods were rising at the material time and so it is more likely that the appellants were willing to extend time because they would naturally be keen on obtaining delivery of the goods under the contract. In both the Courts below an argument appears to have been urged by reference to the sauda books kept by the respondent. Shri Dharamasi Harilal had brought the sauda books in the Court but neither party got the books exhibited in the case. The learned trial Judge took the view that, since the sauda books were not produced and proved by the respondent, it led to the inference that, if the books had been produced, they would have shown an endorsement made against the suit contracts that the extension of time had been agreed upon by the appellant. On the other hand, the learned Judges of the High Court were inclined to draw the inference that since the appellants did not want the said sauda books to be exhibited, it would appear that the said books did not contain any note about the extension. In our opinion, it would be unsafe to draw either of these two inferences in the present case. Therefore, the decision of the question would depend upon the appreciation of oral evidence considered in the light of probabilities and other relevant circumstances in the case. On the whole, we are disposed to take the view that the evidence given by Ratilal and Keshavlal is true.The true legal position in regard to the extension of time for the performance of a contract is quite clear under S. 63 of the Indian Contract Act.Every promisee, as the section provides, may extend time for the performance of the contract.The question as to how extension of time may be agreed upon by the parties has been the subject-matter of some argument at the Bar in the present appeal. There can be, no doubt, we think, that both the buyer and the seller must agree to extend time for the delivery of goods.It would not be open to the promisee by his unilateral act to extend the time for performance of his own accord for his own benefit. It is true that the agreement to extend time need not necessarily be reduced to writing. It may be proved by oral evidence. In some cases it may be proved by evidence of conduct. Forbearance on the part of the buyer to make a demand for the delivery of goods on the due date as fixed in the original contract may conceivably be relevant on the question of the intention of the buyer to accept the sellers proposal to extend time. It would be difficult to lay down any hard and fast rule about the requirements of proof of such an agreement. It would naturally be a question of fact in each case to be determined in the light of evidence adduced by the parties.Having regard to the probabilities in this case, and to the conduct of the parties at the relevant time, we think the appellants are entitled to urge that their oral evidence about the acceptance of the respondents proposal for the extension of time should be believed and the finding of the learned trial judge on this question should besuch plea appears to have been taken even in the grounds of appeal preferred by the respondent in the High Court at Bombay; but apparently the plea was allowed to be raised in the High Court and the appellants took no objection to it at the stage. It cannot be said that it was not open to the High Court to allow such a plea to be raised even for the first time in appeal.After all, the plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent to the appeal Court to allow such a plea to be raised under O. 41, R.Civil P. C. If, on a fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty. The provisions of S. 93, Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the Court to attempt to remove the defect of vagueness or uncertainty by relaying upon any extrinsic evidence. Such an attempt would really mean the making of a new contract between the parties. That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court.
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Mohd. Zahid Vs. State of Tamil Nadu | of the fact that PW-8 had conducted the post mortem on Jabeenas body nearly 8 days after it was buried, and admittedly even according to PW-8, the body of Jabeena had decomposed considerably at the time of the post mortem examination. This is coupled with the fact that she had admitted in her evidence that she has no other authoritative text to contradict or support her, as against the statements found in the text books like the "Lyons Medical Jurisprudence", Parikhs text book on Medical Jurisprudence, The Essentials of Forensic Medicines by Dr. K.S. Naryana Reddy. The second cumulative cause of death as per the opinion of PW-8 is cerebral anoxia caused due to burns. It is true that PW-8 noticed certain burn marks on the face and chest of Jabeena. It is seen from the text books and from the evidence of PW-8 that anoxia of the brain is caused due to lack of supply of oxygen to the brain which could be due to burning as found in the body of Jabeena. PW-8 in her statement before the court stated thus : "Cerebral anoxia means the stoppage of blood supply to the brain. In the event of cerebral anoxia in the post mortem examination except the pale appearance of the brain, there will not be any other change in the brain. As the brain had been liquefied in this case, it cannot be stated whether brain becomes pale or not. There was no other sign by which I could say that there was cerebral anoxia. Cerebral anoxia in my opinion or conclusion based on my observation and findings in the post mortem examination. It is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain". A cautious reading of this part of PW-8s evidence shows in one part PW-8 admits that the one and only method by which a medical examiner can conclude that cause of death was due to cerebral anoxia is by noticing pale appearance of the brain. She also specifically admits that there will not be any other change in the brain in the case of cerebral anoxia and since the brain had become liquefied, it cannot be stated if the brain had become pale or not. She is also specific in her statement that there was no other sign by which she could say that was cerebral anoxia. Stopping for a while at this stage and examining PW-8s evidence, one finds that at the time of the post mortem examination, Jabeenas brain had liquefied and there was no way by which PW-8 could have noticed the paleness in the brain. However, in the latter part of her evidence, she deviates from her earlier opinion and states that it is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain. These two statements are diametrically opposed to each other and we find it rather difficult to accept this part of her evidence which is so self-contradictory. In our view, the opinion of PW-8 that the cause of death as recorded by her is due to the cumulative effect of asphyxia and cerebral anoxia, is rather difficult to accept.We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. This is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence of PW-8, solely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.We have examined the evidence of PWs. 1 to 7 who speak of the factum of the relationship of the appellant with Jabeena and various possible motives the appellant could have had for causing the death of Jabeena. First of all, we should notice the fact that on the date of the death of Jabeena, none of these witnesses entertained any doubt as to the complicity of the appellant in the death of Jabeena. They proceeded on the basis that Jabeena died an accidental death and even persuaded the investigating authorities to release the body without a proper post mortem. Therefore the court will have to be very cautious while appreciating their evidence. Assuming that the evidence of PWs 1 to 7 can be accepted by the courts, it would only conclude that the appellant had a motive to kill Jabeena, but then it could also give a reason for PWs. 1 to 7 to depose falsely against the appellant, in view of the tragic death of a loved one. Motive being a double-edged weapon, could cut both ways - helping or harming both the prosecution and the defence. Hence, we are of the considered view that if we are unable to place reliance on the evidence of PW-8 then the evidence of PWs. 1 to 7 will not be sufficient to convict the appellant of the prosecution charge. Of course, the prosecution has established that the appellant was the only person in the company of Jabeena and her child at the relevant time on the fateful day. But this again stops the prosecution case in the realm of suspicion, which by itself cannot be substituted for hard evidence. Aware as we are of the fact, a budding life came to an unfortunate premature end, our jurisprudence will not permit us to base a conviction on the basis of the evidence placed by the prosecution in this case and the benefit of a reasonable doubt must be given to the appellant. | 1[ds]The second cumulative cause of death as per the opinion ofis cerebral anoxia caused due to burns. It is true thatnoticed certain burn marks on the face and chest of Jabeena. It is seen from the text books and from the evidence ofthat anoxia of the brain is caused due to lack of supply of oxygen to the brain which could be due to burning as found in the body of Jabeena.in her statement before the court stated thus : "Cerebral anoxia means the stoppage of blood supply to the brain. In the event of cerebral anoxia in the post mortem examination except the pale appearance of the brain, there will not be any other change in the brain. As the brain had been liquefied in this case, it cannot be stated whether brain becomes pale or not. There was no other sign by which I could say that there was cerebral anoxia. Cerebral anoxia in my opinion or conclusion based on my observation and findings in the post mortem examination. It is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain". A cautious reading of this part ofevidence shows in one partadmits that the one and only method by which a medical examiner can conclude that cause of death was due to cerebral anoxia is by noticing pale appearance of the brain. She also specifically admits that there will not be any other change in the brain in the case of cerebral anoxia and since the brain had become liquefied, it cannot be stated if the brain had become pale or not. She is also specific in her statement that there was no other sign by which she could say that was cerebral anoxia. Stopping for a while at this stage and examiningevidence, one finds that at the time of the post mortem examination, Jabeenas brain had liquefied and there was no way by whichcould have noticed the paleness in the brain. However, in the latter part of her evidence, she deviates from her earlier opinion and states that it is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain. These two statements are diametrically opposed to each other and we find it rather difficult to accept this part of her evidence which is soIn our view, the opinion ofthat the cause of death as recorded by her is due to the cumulative effect of asphyxia and cerebral anoxia, is rather difficult to accept.We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it isThis is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence ofsolely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.We have examined the evidence of PWs. 1 to 7 who speak of the factum of the relationship of the appellant with Jabeena and various possible motives the appellant could have had for causing the death of Jabeena. First of all, we should notice the fact that on the date of the death of Jabeena, none of these witnesses entertained any doubt as to the complicity of the appellant in the death of Jabeena. They proceeded on the basis that Jabeena died an accidental death and even persuaded the investigating authorities to release the body without a proper post mortem. Therefore the court will have to be very cautious while appreciating their evidence. Assuming that the evidence of PWs 1 to 7 can be accepted by the courts, it would only conclude that the appellant had a motive to kill Jabeena, but then it could also give a reason for PWs. 1 to 7 to depose falsely against the appellant, in view of the tragic death of a loved one. Motive being aweapon, could cut both wayshelping or harming both the prosecution and the defence. Hence, we are of the considered view that if we are unable to place reliance on the evidence ofthen the evidence of PWs. 1 to 7 will not be sufficient to convict the appellant of the prosecution charge. Of course, the prosecution has established that the appellant was the only person in the company of Jabeena and her child at the relevant time on the fateful day. But this again stops the prosecution case in the realm of suspicion, which by itself cannot be substituted for hard evidence. Aware as we are of the fact, a budding life came to an unfortunate premature end, our jurisprudence will not permit us to base a conviction on the basis of the evidence placed by the prosecution in this case and the benefit of a reasonable doubt must be given to the appellant. | 1 | 4,798 | 932 | ### 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:
of the fact that PW-8 had conducted the post mortem on Jabeenas body nearly 8 days after it was buried, and admittedly even according to PW-8, the body of Jabeena had decomposed considerably at the time of the post mortem examination. This is coupled with the fact that she had admitted in her evidence that she has no other authoritative text to contradict or support her, as against the statements found in the text books like the "Lyons Medical Jurisprudence", Parikhs text book on Medical Jurisprudence, The Essentials of Forensic Medicines by Dr. K.S. Naryana Reddy. The second cumulative cause of death as per the opinion of PW-8 is cerebral anoxia caused due to burns. It is true that PW-8 noticed certain burn marks on the face and chest of Jabeena. It is seen from the text books and from the evidence of PW-8 that anoxia of the brain is caused due to lack of supply of oxygen to the brain which could be due to burning as found in the body of Jabeena. PW-8 in her statement before the court stated thus : "Cerebral anoxia means the stoppage of blood supply to the brain. In the event of cerebral anoxia in the post mortem examination except the pale appearance of the brain, there will not be any other change in the brain. As the brain had been liquefied in this case, it cannot be stated whether brain becomes pale or not. There was no other sign by which I could say that there was cerebral anoxia. Cerebral anoxia in my opinion or conclusion based on my observation and findings in the post mortem examination. It is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain". A cautious reading of this part of PW-8s evidence shows in one part PW-8 admits that the one and only method by which a medical examiner can conclude that cause of death was due to cerebral anoxia is by noticing pale appearance of the brain. She also specifically admits that there will not be any other change in the brain in the case of cerebral anoxia and since the brain had become liquefied, it cannot be stated if the brain had become pale or not. She is also specific in her statement that there was no other sign by which she could say that was cerebral anoxia. Stopping for a while at this stage and examining PW-8s evidence, one finds that at the time of the post mortem examination, Jabeenas brain had liquefied and there was no way by which PW-8 could have noticed the paleness in the brain. However, in the latter part of her evidence, she deviates from her earlier opinion and states that it is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain. These two statements are diametrically opposed to each other and we find it rather difficult to accept this part of her evidence which is so self-contradictory. In our view, the opinion of PW-8 that the cause of death as recorded by her is due to the cumulative effect of asphyxia and cerebral anoxia, is rather difficult to accept.We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. This is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence of PW-8, solely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.We have examined the evidence of PWs. 1 to 7 who speak of the factum of the relationship of the appellant with Jabeena and various possible motives the appellant could have had for causing the death of Jabeena. First of all, we should notice the fact that on the date of the death of Jabeena, none of these witnesses entertained any doubt as to the complicity of the appellant in the death of Jabeena. They proceeded on the basis that Jabeena died an accidental death and even persuaded the investigating authorities to release the body without a proper post mortem. Therefore the court will have to be very cautious while appreciating their evidence. Assuming that the evidence of PWs 1 to 7 can be accepted by the courts, it would only conclude that the appellant had a motive to kill Jabeena, but then it could also give a reason for PWs. 1 to 7 to depose falsely against the appellant, in view of the tragic death of a loved one. Motive being a double-edged weapon, could cut both ways - helping or harming both the prosecution and the defence. Hence, we are of the considered view that if we are unable to place reliance on the evidence of PW-8 then the evidence of PWs. 1 to 7 will not be sufficient to convict the appellant of the prosecution charge. Of course, the prosecution has established that the appellant was the only person in the company of Jabeena and her child at the relevant time on the fateful day. But this again stops the prosecution case in the realm of suspicion, which by itself cannot be substituted for hard evidence. Aware as we are of the fact, a budding life came to an unfortunate premature end, our jurisprudence will not permit us to base a conviction on the basis of the evidence placed by the prosecution in this case and the benefit of a reasonable doubt must be given to the appellant.
### Response:
1
### Explanation:
The second cumulative cause of death as per the opinion ofis cerebral anoxia caused due to burns. It is true thatnoticed certain burn marks on the face and chest of Jabeena. It is seen from the text books and from the evidence ofthat anoxia of the brain is caused due to lack of supply of oxygen to the brain which could be due to burning as found in the body of Jabeena.in her statement before the court stated thus : "Cerebral anoxia means the stoppage of blood supply to the brain. In the event of cerebral anoxia in the post mortem examination except the pale appearance of the brain, there will not be any other change in the brain. As the brain had been liquefied in this case, it cannot be stated whether brain becomes pale or not. There was no other sign by which I could say that there was cerebral anoxia. Cerebral anoxia in my opinion or conclusion based on my observation and findings in the post mortem examination. It is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain". A cautious reading of this part ofevidence shows in one partadmits that the one and only method by which a medical examiner can conclude that cause of death was due to cerebral anoxia is by noticing pale appearance of the brain. She also specifically admits that there will not be any other change in the brain in the case of cerebral anoxia and since the brain had become liquefied, it cannot be stated if the brain had become pale or not. She is also specific in her statement that there was no other sign by which she could say that was cerebral anoxia. Stopping for a while at this stage and examiningevidence, one finds that at the time of the post mortem examination, Jabeenas brain had liquefied and there was no way by whichcould have noticed the paleness in the brain. However, in the latter part of her evidence, she deviates from her earlier opinion and states that it is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain. These two statements are diametrically opposed to each other and we find it rather difficult to accept this part of her evidence which is soIn our view, the opinion ofthat the cause of death as recorded by her is due to the cumulative effect of asphyxia and cerebral anoxia, is rather difficult to accept.We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it isThis is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence ofsolely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.We have examined the evidence of PWs. 1 to 7 who speak of the factum of the relationship of the appellant with Jabeena and various possible motives the appellant could have had for causing the death of Jabeena. First of all, we should notice the fact that on the date of the death of Jabeena, none of these witnesses entertained any doubt as to the complicity of the appellant in the death of Jabeena. They proceeded on the basis that Jabeena died an accidental death and even persuaded the investigating authorities to release the body without a proper post mortem. Therefore the court will have to be very cautious while appreciating their evidence. Assuming that the evidence of PWs 1 to 7 can be accepted by the courts, it would only conclude that the appellant had a motive to kill Jabeena, but then it could also give a reason for PWs. 1 to 7 to depose falsely against the appellant, in view of the tragic death of a loved one. Motive being aweapon, could cut both wayshelping or harming both the prosecution and the defence. Hence, we are of the considered view that if we are unable to place reliance on the evidence ofthen the evidence of PWs. 1 to 7 will not be sufficient to convict the appellant of the prosecution charge. Of course, the prosecution has established that the appellant was the only person in the company of Jabeena and her child at the relevant time on the fateful day. But this again stops the prosecution case in the realm of suspicion, which by itself cannot be substituted for hard evidence. Aware as we are of the fact, a budding life came to an unfortunate premature end, our jurisprudence will not permit us to base a conviction on the basis of the evidence placed by the prosecution in this case and the benefit of a reasonable doubt must be given to the appellant.
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