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SURINDER KAUR (D) TR.LR Vs. BAHADUR SINGH(D) TR.LRS | of the contract which were to be performed by him. 7. We shall also have to take into consideration that the specific performance of contract of an immovable property is a discretionary relief in terms of Section 20 of The Specific Relief Act as it stood at the time of filing of the suit. 8. Section 20 of The Specific Relief Act lays down that the jurisdiction to decree a suit for specific performance is a discretionary jurisdiction and the court is not bound to grant such relief merely because it is lawful. 9. The first issue is whether the promises were reciprocal promises or promises independent of each other. There can be no hard and fast rule and the issue whether promises are reciprocal or not has to be determined in the peculiar facts of each case. As far as the present case is concerned, the vendor, who was a lady received less than 20% of the sale consideration but handed over the possession to the defendant, probably with the hope that the dispute would be decided soon, or at least within a year. Therefore, Clause 3 provided that if the case is not decided within one year, then the second party shall pay to the first party the customary rent for the land. It has been urged by the respondents that the High Court rightly held that this was not a reciprocal promise and had nothing to do with the sale of the land. One cannot lose sight of the fact that the land had been handed over to Bahadur Singh and he had agreed that he would pay rent at the customary rate. Therefore, the possession of the land was given to him only on this clear-cut understanding. This was, therefore, a reciprocal promise and was an essential part of the agreement to sell. 10. Admittedly, Bahadur Singh did not even pay a penny as rent till the date of filing of the suit. After such objection was raised in the written statement, in replication filed by him, he instead of offering to pay the rent, denied his liability to pay the same. Even if we were to hold that this promise was not a reciprocal promise, as far as the agreement to sell is concerned, it would definitely mean that Bahadur Singh had failed to perform his part of the contract. There can be no manner of doubt that the payment of rent was an essential term of the contract. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that Bahadur Singh was required to pay customary rent. 11. It has been urged that no date was fixed for payment of rent. Tenancy can be monthly or yearly. At least after expiry of one year, Bahadur Singh should have offered to pay the customary rent to the vendor which could have been monthly or yearly. But he could definitely not claim that he is not liable to pay rent for 13 long years. 12. Learned counsel for the respondents urged that in case of non-payment of rent the plaintiff was at liberty to file suit for recovery of rent. We are not impressed with this argument. A party cannot claim that though he may not perform his part of the contract he is entitled to specific performance of the same. 13. Explanation (ii) to Section 16(c) of The Specific Relief Act lays down that it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. This the plaintiff miserably failed to do in so far as payment of rent is concerned. 14. A perusal of Section 20 of The Specific Relief Act clearly indicates that the relief of specific performance is discretionary. Merely because the plaintiff is legally right, the Court is not bound to grant him the relief. True it is, that the Court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. Obviously, the discretion cannot be exercised in an arbitrary or whimsical manner. Sub clause(c) of sub-section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the Court can refuse to grant such discretionary relief. Explanation (2) to the Section provides that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the plaintiff. 15. In this case, Bahadur Singh having got possession of the land in the year 1964 did not pay the rent for 13 long years and even when he filed the replication in the year 1978, he denied any liability to pay the customary rent. Therefore, in our opinion, he did not act in a proper manner. Equity is totally against him. In our considered view, he was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell. The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. The land was agricultural land. Bahadur Singh was cultivating the same. He must have been earning a fairly large amount from this land which measured about 9½ acres. He by not paying the rent did not act fairly and, in our opinion, forfeited his right to get the discretionary relief of specific performance. | 1[ds]The courts below have held that the agreement contained several promises which may be reciprocal, contingent or separate.There can be no hard and fast rule and the issue whether promises are reciprocal or not has to be determined in the peculiar facts of each case. As far as the present case is concerned, the vendor, who was a lady received less than 20% of the sale consideration but handed over the possession to the defendant, probably with the hope that the dispute would be decided soon, or at least within a year. Therefore, Clause 3 provided that if the case is not decided within one year, then the second party shall pay to the first party the customary rent for the land. It has been urged by the respondents that the High Court rightly held that this was not a reciprocal promise and had nothing to do with the sale of the land. One cannot lose sight of the fact that the land had been handed over to Bahadur Singh and he had agreed that he would pay rent at the customary rate. Therefore, the possession of the land was given to him only on this clear-cut understanding. This was, therefore, a reciprocal promise and was an essential part of the agreement to sell10. Admittedly, Bahadur Singh did not even pay a penny as rent till the date of filing of the suit. After such objection was raised in the written statement, in replication filed by him, he instead of offering to pay the rent, denied his liability to pay the same. Even if we were to hold that this promise was not a reciprocal promise, as far as the agreement to sell is concerned, it would definitely mean that Bahadur Singh had failed to perform his part of the contract. There can be no manner of doubt that the payment of rent was an essential term of the contract. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that Bahadur Singh was required to pay customary rent11. It has been urged that no date was fixed for payment of rent. Tenancy can be monthly or yearly. At least after expiry of one year, Bahadur Singh should have offered to pay the customary rent to the vendor which could have been monthly or yearly. But he could definitely not claim that he is not liable to pay rent for 13 long years12. Learned counsel for the respondents urged that in case of non-payment of rent the plaintiff was at liberty to file suit for recovery of rent. We are not impressed with this argument. A party cannot claim that though he may not perform his part of the contract he is entitled to specific performance of the same15. In this case, Bahadur Singh having got possession of the land in the year 1964 did not pay the rent for 13 long years and even when he filed the replication in the year 1978, he denied any liability to pay the customary rent. Therefore, in our opinion, he did not act in a proper manner. Equity is totally against him. In our considered view, he was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell. The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. The land was agricultural land. Bahadur Singh was cultivating the same. He must have been earning a fairly large amount from this land which measured about 9½ acres. He by not paying the rent did not act fairly and, in our opinion, forfeited his right to get the discretionary relief of specific performance. | 1 | 1,777 | 758 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of the contract which were to be performed by him. 7. We shall also have to take into consideration that the specific performance of contract of an immovable property is a discretionary relief in terms of Section 20 of The Specific Relief Act as it stood at the time of filing of the suit. 8. Section 20 of The Specific Relief Act lays down that the jurisdiction to decree a suit for specific performance is a discretionary jurisdiction and the court is not bound to grant such relief merely because it is lawful. 9. The first issue is whether the promises were reciprocal promises or promises independent of each other. There can be no hard and fast rule and the issue whether promises are reciprocal or not has to be determined in the peculiar facts of each case. As far as the present case is concerned, the vendor, who was a lady received less than 20% of the sale consideration but handed over the possession to the defendant, probably with the hope that the dispute would be decided soon, or at least within a year. Therefore, Clause 3 provided that if the case is not decided within one year, then the second party shall pay to the first party the customary rent for the land. It has been urged by the respondents that the High Court rightly held that this was not a reciprocal promise and had nothing to do with the sale of the land. One cannot lose sight of the fact that the land had been handed over to Bahadur Singh and he had agreed that he would pay rent at the customary rate. Therefore, the possession of the land was given to him only on this clear-cut understanding. This was, therefore, a reciprocal promise and was an essential part of the agreement to sell. 10. Admittedly, Bahadur Singh did not even pay a penny as rent till the date of filing of the suit. After such objection was raised in the written statement, in replication filed by him, he instead of offering to pay the rent, denied his liability to pay the same. Even if we were to hold that this promise was not a reciprocal promise, as far as the agreement to sell is concerned, it would definitely mean that Bahadur Singh had failed to perform his part of the contract. There can be no manner of doubt that the payment of rent was an essential term of the contract. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that Bahadur Singh was required to pay customary rent. 11. It has been urged that no date was fixed for payment of rent. Tenancy can be monthly or yearly. At least after expiry of one year, Bahadur Singh should have offered to pay the customary rent to the vendor which could have been monthly or yearly. But he could definitely not claim that he is not liable to pay rent for 13 long years. 12. Learned counsel for the respondents urged that in case of non-payment of rent the plaintiff was at liberty to file suit for recovery of rent. We are not impressed with this argument. A party cannot claim that though he may not perform his part of the contract he is entitled to specific performance of the same. 13. Explanation (ii) to Section 16(c) of The Specific Relief Act lays down that it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. This the plaintiff miserably failed to do in so far as payment of rent is concerned. 14. A perusal of Section 20 of The Specific Relief Act clearly indicates that the relief of specific performance is discretionary. Merely because the plaintiff is legally right, the Court is not bound to grant him the relief. True it is, that the Court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. Obviously, the discretion cannot be exercised in an arbitrary or whimsical manner. Sub clause(c) of sub-section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the Court can refuse to grant such discretionary relief. Explanation (2) to the Section provides that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the plaintiff. 15. In this case, Bahadur Singh having got possession of the land in the year 1964 did not pay the rent for 13 long years and even when he filed the replication in the year 1978, he denied any liability to pay the customary rent. Therefore, in our opinion, he did not act in a proper manner. Equity is totally against him. In our considered view, he was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell. The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. The land was agricultural land. Bahadur Singh was cultivating the same. He must have been earning a fairly large amount from this land which measured about 9½ acres. He by not paying the rent did not act fairly and, in our opinion, forfeited his right to get the discretionary relief of specific performance.
### Response:
1
### Explanation:
The courts below have held that the agreement contained several promises which may be reciprocal, contingent or separate.There can be no hard and fast rule and the issue whether promises are reciprocal or not has to be determined in the peculiar facts of each case. As far as the present case is concerned, the vendor, who was a lady received less than 20% of the sale consideration but handed over the possession to the defendant, probably with the hope that the dispute would be decided soon, or at least within a year. Therefore, Clause 3 provided that if the case is not decided within one year, then the second party shall pay to the first party the customary rent for the land. It has been urged by the respondents that the High Court rightly held that this was not a reciprocal promise and had nothing to do with the sale of the land. One cannot lose sight of the fact that the land had been handed over to Bahadur Singh and he had agreed that he would pay rent at the customary rate. Therefore, the possession of the land was given to him only on this clear-cut understanding. This was, therefore, a reciprocal promise and was an essential part of the agreement to sell10. Admittedly, Bahadur Singh did not even pay a penny as rent till the date of filing of the suit. After such objection was raised in the written statement, in replication filed by him, he instead of offering to pay the rent, denied his liability to pay the same. Even if we were to hold that this promise was not a reciprocal promise, as far as the agreement to sell is concerned, it would definitely mean that Bahadur Singh had failed to perform his part of the contract. There can be no manner of doubt that the payment of rent was an essential term of the contract. Explanation (ii) to Section 16(c) clearly lays down that the plaintiff must prove performance or readiness or willingness to perform the contract according to its true construction. The only construction which can be given to the contract in hand is that Bahadur Singh was required to pay customary rent11. It has been urged that no date was fixed for payment of rent. Tenancy can be monthly or yearly. At least after expiry of one year, Bahadur Singh should have offered to pay the customary rent to the vendor which could have been monthly or yearly. But he could definitely not claim that he is not liable to pay rent for 13 long years12. Learned counsel for the respondents urged that in case of non-payment of rent the plaintiff was at liberty to file suit for recovery of rent. We are not impressed with this argument. A party cannot claim that though he may not perform his part of the contract he is entitled to specific performance of the same15. In this case, Bahadur Singh having got possession of the land in the year 1964 did not pay the rent for 13 long years and even when he filed the replication in the year 1978, he denied any liability to pay the customary rent. Therefore, in our opinion, he did not act in a proper manner. Equity is totally against him. In our considered view, he was not entitled to claim the discretionary relief of specific performance of the agreement having not performed his part of the contract even if that part is held to be a distinct part of the agreement to sell. The vendee Bahadur Singh by not paying the rent for 13 long years to the vendor Mohinder Kaur, even when he had been put in possession of the land on payment of less than 18% of the market value, caused undue hardship to her. The land was agricultural land. Bahadur Singh was cultivating the same. He must have been earning a fairly large amount from this land which measured about 9½ acres. He by not paying the rent did not act fairly and, in our opinion, forfeited his right to get the discretionary relief of specific performance.
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Urban Improvement Trust,Udaipur Vs. Bheru Lal | 14. As against this, Section 6(1) provides that if the appropriate Government is satisfied that any particular land is needed for a public purpose or for a company, a declaration is to be made to that effect under the signature of the Secretary of such Government or of some officer duly authorised to certify its order. Further, such declaration is to be made within a period of one year from the date of publication of the notification under Section 4(1) of the Act. Hence, Section 6(1) does not require that such declaration could not be published in the official gazette after expiry of one year from the date of publication of the notification under Section 4(1). Time limit of one year is prescribed to a declaration to be made the land is needed for a public purpose under the signature of a Secretary or authorised officer to such Government. 15. In this view of the matter, in the present case, the relevant dates for consideration would be 17/19.5.1993 when the substance of the notification under Section 14 was published in the local newspapers and 17.5.1994 which is the date on which declaration under Section 6 was made. The date 24.5.1994 when such declaration was published in the official gazette is not required to be considered. The notification under Section 6(1) is made within prescribed period. Hence, the impugned order passed by the High Court considering the relevant date as 24.5.1994 for setting at naught the land acquisition proceeding cannot be justified. 16. Further, the aforesaid question is concluded by three Judge Bench decision of this Court in S.H. Rangappas case (supra), wherein it is held that Sub-section (2) of Section 6 does not prescribe any time limit within which the declaration made under Section 6(1) is to be published in official gazette. The time limit being within one year of the publication of Notification under Section 4 is only for the declaration which is required to be made under Section 6(1) of the Act. For this purpose, the Court referred to the earlier decision in Khadim Hussains case (supra). The same view is taken in the case of Sriniwas Ramnath Khatod vs. State of Maharashtra and others [(2002) 1 SCC 689] . 17. The learned senior counsel Mr. R.P. Bhatt appearing for the respondents submitted that the notices which were published in the daily newspapers on 31st March, 1990 and 1st April, 1990 are required to be taken into consideration for computing the period of limitation of one year for the purpose of making of declaration under Section 6(1). It is his contention that the notices were published in the daily newspapers in March/April 1990 and, therefore, there was no question of publishing the notices again in the newspapers on 17/19.5.1993. Hence, subsequent publication of notices is required to be ignored. 18. In our view, the aforesaid submission is rightly rejected by the High Court. It has to be stated that for the purpose of acquiring the lands, publication of the notification under Section 4(1) in the official gazette in mandatory. If the decision taken by the Government to acquire the land is not notified in the official gazette, the said decision will be of no effect. As stated above, Section 4 of the Act mandates that - whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the official gazette and acquisition process starts after publication of the notification in the official gazette under Section 4(1) [Re: Collector (District Magistrate), Allahabad and another vs. Raja Ram Jaiswal [(1985) 3 SCC 1] and State of Haryana and another vs. Raghubir Dayal [(1995) 1 SCC 133] . Therefore, publication of the Notification under Section 4(1) being a condition precedent for acquisition of land, said date is required to be taken into consideration for counting the period of limitation of one year and the previous publication of notices in the newspapers were rightly ignored by the High Court. 19. It is also contended by Mr. Bhatt, learned senior counsel that taking 17th or 19th May as the date of publication of substance of the Notification under Section 4 in the local newspapers, then there is delay in its publication. Therefore, also, the land acquisition proceedings are required to be quashed. 20. It is apparent that the Notification under Section 4 was first published in the official gazette in June 1992. Thereafter substance was published in November 1992 at the conspicuous places and subsequently it was published in the local newspapers. Considering this sequence of publication, even if there is some delay, it would not mean that on this ground the land acquisition proceedings under Section 4 require to be set aside. Similar view is expressed by this Court in State of Haryana and another vs. Raghubir Dayal and others [(1995) 1 SCC 133 para 7]. 21. Further, learned counsel for the appellant rightly submitted that on the ground of delay and laches in filing the writ petitions, the Court ought to have dismissed the same. In the present case, as stated above, the Notification under section 6 was published in the Official Gazette on 24.5.1994. The writ petitions are virtually filed after two years. In a case where land is needed for a public purpose, that too for a scheme framed under the Urban Development Act, the Court ought to have taken care in not entertaining the same on the ground of delay as it is likely to cause serious prejudice to the persons for whose benefit the Housing Scheme is framed under the Urban Development Act and also in having planned development of the area. The law on this point is well settled. [Re: Reliance Petroleum Ltd. vs. Zaver Chand Popatlal Sumaria and others [(1996) 4 SCC 579] and Hari Singh and others vs. State of U.P. and others [(1984) 3 SCR 417] . | 1[ds]14. As against this, Section 6(1) provides that if the appropriate Government is satisfied that any particular land is needed for a public purpose or for a company, a declaration is to be made to that effect under the signature of the Secretary of such Government or of some officer duly authorised to certify its order. Further, such declaration is to be made within a period of one year from the date of publication of the notification under Section 4(1) of the Act. Hence, Section 6(1) does not require that such declaration could not be published in the official gazette after expiry of one year from the date of publication of the notification under Section 4(1). Time limit of one year is prescribed to a declaration to be made the land is needed for a public purpose under the signature of a Secretary or authorised officer to such Government18. In our view, the aforesaid submission is rightly rejected by the High Court. It has to be stated that for the purpose of acquiring the lands, publication of the notification under Section 4(1) in the official gazette in mandatory. If the decision taken by the Government to acquire the land is not notified in the official gazette, the said decision will be of no effect. As stated above, Section 4 of the Act mandates that - whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the official gazette and acquisition process starts after publication of the notification in the official gazette under Section 4(1) [Re: Collector (District Magistrate), Allahabad and another vs. Raja Ram Jaiswal [(1985) 3 SCC 1] and State of Haryana and another vs. Raghubir Dayal [(1995) 1 SCC 133] . Therefore, publication of the Notification under Section 4(1) being a condition precedent for acquisition of land, said date is required to be taken into consideration for counting the period of limitation of one year and the previous publication of notices in the newspapers were rightly ignored by the High Court20. It is apparent that the Notification under Section 4 was first published in the official gazette in June 1992. Thereafter substance was published in November 1992 at the conspicuous places and subsequently it was published in the local newspapers. Considering this sequence of publication, even if there is some delay, it would not mean that on this ground the land acquisition proceedings under Section 4 require to be set aside. | 1 | 2,451 | 493 | ### 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:
14. As against this, Section 6(1) provides that if the appropriate Government is satisfied that any particular land is needed for a public purpose or for a company, a declaration is to be made to that effect under the signature of the Secretary of such Government or of some officer duly authorised to certify its order. Further, such declaration is to be made within a period of one year from the date of publication of the notification under Section 4(1) of the Act. Hence, Section 6(1) does not require that such declaration could not be published in the official gazette after expiry of one year from the date of publication of the notification under Section 4(1). Time limit of one year is prescribed to a declaration to be made the land is needed for a public purpose under the signature of a Secretary or authorised officer to such Government. 15. In this view of the matter, in the present case, the relevant dates for consideration would be 17/19.5.1993 when the substance of the notification under Section 14 was published in the local newspapers and 17.5.1994 which is the date on which declaration under Section 6 was made. The date 24.5.1994 when such declaration was published in the official gazette is not required to be considered. The notification under Section 6(1) is made within prescribed period. Hence, the impugned order passed by the High Court considering the relevant date as 24.5.1994 for setting at naught the land acquisition proceeding cannot be justified. 16. Further, the aforesaid question is concluded by three Judge Bench decision of this Court in S.H. Rangappas case (supra), wherein it is held that Sub-section (2) of Section 6 does not prescribe any time limit within which the declaration made under Section 6(1) is to be published in official gazette. The time limit being within one year of the publication of Notification under Section 4 is only for the declaration which is required to be made under Section 6(1) of the Act. For this purpose, the Court referred to the earlier decision in Khadim Hussains case (supra). The same view is taken in the case of Sriniwas Ramnath Khatod vs. State of Maharashtra and others [(2002) 1 SCC 689] . 17. The learned senior counsel Mr. R.P. Bhatt appearing for the respondents submitted that the notices which were published in the daily newspapers on 31st March, 1990 and 1st April, 1990 are required to be taken into consideration for computing the period of limitation of one year for the purpose of making of declaration under Section 6(1). It is his contention that the notices were published in the daily newspapers in March/April 1990 and, therefore, there was no question of publishing the notices again in the newspapers on 17/19.5.1993. Hence, subsequent publication of notices is required to be ignored. 18. In our view, the aforesaid submission is rightly rejected by the High Court. It has to be stated that for the purpose of acquiring the lands, publication of the notification under Section 4(1) in the official gazette in mandatory. If the decision taken by the Government to acquire the land is not notified in the official gazette, the said decision will be of no effect. As stated above, Section 4 of the Act mandates that - whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the official gazette and acquisition process starts after publication of the notification in the official gazette under Section 4(1) [Re: Collector (District Magistrate), Allahabad and another vs. Raja Ram Jaiswal [(1985) 3 SCC 1] and State of Haryana and another vs. Raghubir Dayal [(1995) 1 SCC 133] . Therefore, publication of the Notification under Section 4(1) being a condition precedent for acquisition of land, said date is required to be taken into consideration for counting the period of limitation of one year and the previous publication of notices in the newspapers were rightly ignored by the High Court. 19. It is also contended by Mr. Bhatt, learned senior counsel that taking 17th or 19th May as the date of publication of substance of the Notification under Section 4 in the local newspapers, then there is delay in its publication. Therefore, also, the land acquisition proceedings are required to be quashed. 20. It is apparent that the Notification under Section 4 was first published in the official gazette in June 1992. Thereafter substance was published in November 1992 at the conspicuous places and subsequently it was published in the local newspapers. Considering this sequence of publication, even if there is some delay, it would not mean that on this ground the land acquisition proceedings under Section 4 require to be set aside. Similar view is expressed by this Court in State of Haryana and another vs. Raghubir Dayal and others [(1995) 1 SCC 133 para 7]. 21. Further, learned counsel for the appellant rightly submitted that on the ground of delay and laches in filing the writ petitions, the Court ought to have dismissed the same. In the present case, as stated above, the Notification under section 6 was published in the Official Gazette on 24.5.1994. The writ petitions are virtually filed after two years. In a case where land is needed for a public purpose, that too for a scheme framed under the Urban Development Act, the Court ought to have taken care in not entertaining the same on the ground of delay as it is likely to cause serious prejudice to the persons for whose benefit the Housing Scheme is framed under the Urban Development Act and also in having planned development of the area. The law on this point is well settled. [Re: Reliance Petroleum Ltd. vs. Zaver Chand Popatlal Sumaria and others [(1996) 4 SCC 579] and Hari Singh and others vs. State of U.P. and others [(1984) 3 SCR 417] .
### Response:
1
### Explanation:
14. As against this, Section 6(1) provides that if the appropriate Government is satisfied that any particular land is needed for a public purpose or for a company, a declaration is to be made to that effect under the signature of the Secretary of such Government or of some officer duly authorised to certify its order. Further, such declaration is to be made within a period of one year from the date of publication of the notification under Section 4(1) of the Act. Hence, Section 6(1) does not require that such declaration could not be published in the official gazette after expiry of one year from the date of publication of the notification under Section 4(1). Time limit of one year is prescribed to a declaration to be made the land is needed for a public purpose under the signature of a Secretary or authorised officer to such Government18. In our view, the aforesaid submission is rightly rejected by the High Court. It has to be stated that for the purpose of acquiring the lands, publication of the notification under Section 4(1) in the official gazette in mandatory. If the decision taken by the Government to acquire the land is not notified in the official gazette, the said decision will be of no effect. As stated above, Section 4 of the Act mandates that - whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the official gazette and acquisition process starts after publication of the notification in the official gazette under Section 4(1) [Re: Collector (District Magistrate), Allahabad and another vs. Raja Ram Jaiswal [(1985) 3 SCC 1] and State of Haryana and another vs. Raghubir Dayal [(1995) 1 SCC 133] . Therefore, publication of the Notification under Section 4(1) being a condition precedent for acquisition of land, said date is required to be taken into consideration for counting the period of limitation of one year and the previous publication of notices in the newspapers were rightly ignored by the High Court20. It is apparent that the Notification under Section 4 was first published in the official gazette in June 1992. Thereafter substance was published in November 1992 at the conspicuous places and subsequently it was published in the local newspapers. Considering this sequence of publication, even if there is some delay, it would not mean that on this ground the land acquisition proceedings under Section 4 require to be set aside.
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Hazrat Syed Shah Mastershid Ali Al Quadari Vs. The Commissioner Of Wakfs, West Bengal | being his eldest son, made an application to the Commissioner under the Bengal Wakf Act. His younger brother, Syed Shah Rushaid Ali Al Quadari, opposed his claim, the ground being that he was nominated as the successor by Hazrat Sahib. While this controversy was afoot, the Commissioner, acting under S. 40 of the Bengal Wakf Act, appointed Syed Shah Rasheed Ali Al Quadari (the third son of Hazrat Sahib) as a temporary Mutawalli. The appellant then moved a petition in the Calcutta High Court under Art. 226 of the Constitution against the appointment, which was allowed by Sinha, J., and the order of the Commissioner was set aside. On appeal to the Divisional Bench, consisting of Chakravarti, C. J. and Lahiri, J. (as he then was), the order of Sinha, J., was reversed, and the petition was dismissed. This appeal has been filed with special leave. 2. It is contended in this appeal that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the Rules framed by the Government, only the Board constituted under the Bengal Wakf Act could make the appointment. This argument, in our opinion, is wholly unsound. The learned Chief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass. 3. We are concerned with Ss. 40 and 29 of the Bengal Wakf Act. Section 40 and 29 of the Bengal Wakf Act. Section 40 reads as follows :"In the case of any Wakf of which there is no Mutawalli or where there appears to the Board to be an impediment to the appointment of a Mutawalli the Board, subject to any order of a competent Court, may appoint for such period as it thinks fit a person to act as Mutawalli". Section 29 provides :"The Board may, from time to time, authorize the Commissioner to exercise and perform, subject to the control of the Board, any of the powers and duties conferred or imposed on the Board by or under this Act." On April 24, 1936, the Board adopted the following resolution : "(2) In exercise of the powers vested in them under S. 29 of the Act, this Board resolve that the Commissioner of Wakfs be authorised to exercise and perform, subject to the control and approval of this Board, the following powers and duties conferred or imposed on this Board by the sections of the Act mentioned against each case :- * * * * * (c) The powers of this Board under S. 40 to appoint a temporary Mutawalli." 4. These two provisions of the Act show only too plainly that a temporary Mutawalli can be appointed either by the Board, or, if the powers and duties be delegated to the Commissioner, by the Commissioner. The appellant contends that the Commissioner can only make a report to the Board, and the Board alone can make the appointment, and refers to two Rules framed by Government. These Rules are :"1. If it appears to the Commissioner that there is no mutwalli, in the case of any wakf, or that a vacancy in the office of the mutwalli has been caused by death, resignation, retirement or removal of the former mutwalli, and a dispute has arisen between two or more rival claimants to the vacancy, and such dispute is likely to affect the interests of the Wakf, he may institute an enquiry and report the result thereof to the Board with his recommendation. 2. On receipt of the report and the recommendation from the Commissioner, or on its own motion, the Board may appoint a mutawalli under S. 40 of the Act". It is argued that under the second Rule the Commissioner was bound to make his report and recommendation, but the Board alone was empowered to appoint a temporary Mutawalli under S. 40. The last words of the second Rule, it is said, are clear. This is, no doubt, true of those cases where the Board has not delegated its functions under S. 40 to the Commissioner. Once that delegation has been made, the Commissioner acts for and on behalf of the Board, and the Rules cease to apply. The Rules cannot affect the power of the Board to delegate its functions under S. 29, and harmonious construction requires that the Rules should give way, when there is a delegation of the powers of the Board. The Commissioner was thus competent to make the appointment. Mr. Sen, however, contends that the appointment of a temporary Mutawalli could only be made if there was an "impediment" to the appointment of a permanent Mutawalli, and that there was no impediment to such an appointment but "a challenge to the appellant as a candidate". The word "impediment" means hindrance or obstruction, and there was certainly an obstruction to the appointment of a permanent Mutawalli, while the dispute remained undecided. This point has no force whatever. 5. The question which seemed to have largely engaged attention in the High Court, namely, whether the delegation was only of powers or also of duties of the Board, was not argued before us, though it formed the subject of considerable discussion in the statements of the case. It is without substance. Where powers and duties are interconnected and it is not possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties. The proposition hardly needs authority; but if one were necessary, reference may be made to Mungoni v. Attorney-General of Northern Rhodesia, (1960) AC 336. 6. In our opinion, the appeal has no force whatever. The appellant chose the extraordinary course of dragging the respondents twice to the High Court and again to this Court merely to challenge an order of temporary duration, while the main controversy remained outstanding for years and could have been decided by now. | 0[ds]This argument, in our opinion, is wholly unsound. The learned Chief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass4. These two provisions of the Act show only too plainly that a temporary Mutawalli can be appointed either by the Board, or, if the powers and duties be delegated to the Commissioner, by the CommissionerThe last words of the second Rule, it is said, are clear. This is, no doubt, true of those cases where the Board has not delegated its functions under S. 40 to the Commissioner. Once that delegation has been made, the Commissioner acts for and on behalf of the Board, and the Rules cease to apply. The Rules cannot affect the power of the Board to delegate its functions under S. 29, and harmonious construction requires that the Rules should give way, when there is a delegation of the powers of the Board. The Commissioner was thus competent to make the appointment. Mr. Sen, however, contends that the appointment of a temporary Mutawalli could only be made if there was an "impediment" to the appointment of a permanent Mutawalli, and that there was no impediment to such an appointment but "a challenge to the appellant as a candidate". The word "impediment" means hindrance or obstruction, and there was certainly an obstruction to the appointment of a permanent Mutawalli, while the dispute remained undecided. This point has no force whatever5. The question which seemed to have largely engaged attention in the High Court, namely, whether the delegation was only of powers or also of duties of the Board, was not argued before us, though it formed the subject of considerable discussion in the statements of the case. It is without substance. Where powers and duties are interconnected and it is not possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties. The proposition hardly needs authority; but if one were necessary, reference may be made to Mungoni v. Attorney-General of Northern Rhodesia, (1960) AC 3366. In our opinion, the appeal has no force whatever. The appellant chose the extraordinary course of dragging the respondents twice to the High Court and again to this Court merely to challenge an order of temporary duration, while the main controversy remained outstanding for years and could have been decided by now. | 0 | 1,242 | 480 | ### Instruction:
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being his eldest son, made an application to the Commissioner under the Bengal Wakf Act. His younger brother, Syed Shah Rushaid Ali Al Quadari, opposed his claim, the ground being that he was nominated as the successor by Hazrat Sahib. While this controversy was afoot, the Commissioner, acting under S. 40 of the Bengal Wakf Act, appointed Syed Shah Rasheed Ali Al Quadari (the third son of Hazrat Sahib) as a temporary Mutawalli. The appellant then moved a petition in the Calcutta High Court under Art. 226 of the Constitution against the appointment, which was allowed by Sinha, J., and the order of the Commissioner was set aside. On appeal to the Divisional Bench, consisting of Chakravarti, C. J. and Lahiri, J. (as he then was), the order of Sinha, J., was reversed, and the petition was dismissed. This appeal has been filed with special leave. 2. It is contended in this appeal that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the Rules framed by the Government, only the Board constituted under the Bengal Wakf Act could make the appointment. This argument, in our opinion, is wholly unsound. The learned Chief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass. 3. We are concerned with Ss. 40 and 29 of the Bengal Wakf Act. Section 40 and 29 of the Bengal Wakf Act. Section 40 reads as follows :"In the case of any Wakf of which there is no Mutawalli or where there appears to the Board to be an impediment to the appointment of a Mutawalli the Board, subject to any order of a competent Court, may appoint for such period as it thinks fit a person to act as Mutawalli". Section 29 provides :"The Board may, from time to time, authorize the Commissioner to exercise and perform, subject to the control of the Board, any of the powers and duties conferred or imposed on the Board by or under this Act." On April 24, 1936, the Board adopted the following resolution : "(2) In exercise of the powers vested in them under S. 29 of the Act, this Board resolve that the Commissioner of Wakfs be authorised to exercise and perform, subject to the control and approval of this Board, the following powers and duties conferred or imposed on this Board by the sections of the Act mentioned against each case :- * * * * * (c) The powers of this Board under S. 40 to appoint a temporary Mutawalli." 4. These two provisions of the Act show only too plainly that a temporary Mutawalli can be appointed either by the Board, or, if the powers and duties be delegated to the Commissioner, by the Commissioner. The appellant contends that the Commissioner can only make a report to the Board, and the Board alone can make the appointment, and refers to two Rules framed by Government. These Rules are :"1. If it appears to the Commissioner that there is no mutwalli, in the case of any wakf, or that a vacancy in the office of the mutwalli has been caused by death, resignation, retirement or removal of the former mutwalli, and a dispute has arisen between two or more rival claimants to the vacancy, and such dispute is likely to affect the interests of the Wakf, he may institute an enquiry and report the result thereof to the Board with his recommendation. 2. On receipt of the report and the recommendation from the Commissioner, or on its own motion, the Board may appoint a mutawalli under S. 40 of the Act". It is argued that under the second Rule the Commissioner was bound to make his report and recommendation, but the Board alone was empowered to appoint a temporary Mutawalli under S. 40. The last words of the second Rule, it is said, are clear. This is, no doubt, true of those cases where the Board has not delegated its functions under S. 40 to the Commissioner. Once that delegation has been made, the Commissioner acts for and on behalf of the Board, and the Rules cease to apply. The Rules cannot affect the power of the Board to delegate its functions under S. 29, and harmonious construction requires that the Rules should give way, when there is a delegation of the powers of the Board. The Commissioner was thus competent to make the appointment. Mr. Sen, however, contends that the appointment of a temporary Mutawalli could only be made if there was an "impediment" to the appointment of a permanent Mutawalli, and that there was no impediment to such an appointment but "a challenge to the appellant as a candidate". The word "impediment" means hindrance or obstruction, and there was certainly an obstruction to the appointment of a permanent Mutawalli, while the dispute remained undecided. This point has no force whatever. 5. The question which seemed to have largely engaged attention in the High Court, namely, whether the delegation was only of powers or also of duties of the Board, was not argued before us, though it formed the subject of considerable discussion in the statements of the case. It is without substance. Where powers and duties are interconnected and it is not possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties. The proposition hardly needs authority; but if one were necessary, reference may be made to Mungoni v. Attorney-General of Northern Rhodesia, (1960) AC 336. 6. In our opinion, the appeal has no force whatever. The appellant chose the extraordinary course of dragging the respondents twice to the High Court and again to this Court merely to challenge an order of temporary duration, while the main controversy remained outstanding for years and could have been decided by now.
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This argument, in our opinion, is wholly unsound. The learned Chief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass4. These two provisions of the Act show only too plainly that a temporary Mutawalli can be appointed either by the Board, or, if the powers and duties be delegated to the Commissioner, by the CommissionerThe last words of the second Rule, it is said, are clear. This is, no doubt, true of those cases where the Board has not delegated its functions under S. 40 to the Commissioner. Once that delegation has been made, the Commissioner acts for and on behalf of the Board, and the Rules cease to apply. The Rules cannot affect the power of the Board to delegate its functions under S. 29, and harmonious construction requires that the Rules should give way, when there is a delegation of the powers of the Board. The Commissioner was thus competent to make the appointment. Mr. Sen, however, contends that the appointment of a temporary Mutawalli could only be made if there was an "impediment" to the appointment of a permanent Mutawalli, and that there was no impediment to such an appointment but "a challenge to the appellant as a candidate". The word "impediment" means hindrance or obstruction, and there was certainly an obstruction to the appointment of a permanent Mutawalli, while the dispute remained undecided. This point has no force whatever5. The question which seemed to have largely engaged attention in the High Court, namely, whether the delegation was only of powers or also of duties of the Board, was not argued before us, though it formed the subject of considerable discussion in the statements of the case. It is without substance. Where powers and duties are interconnected and it is not possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties. The proposition hardly needs authority; but if one were necessary, reference may be made to Mungoni v. Attorney-General of Northern Rhodesia, (1960) AC 3366. In our opinion, the appeal has no force whatever. The appellant chose the extraordinary course of dragging the respondents twice to the High Court and again to this Court merely to challenge an order of temporary duration, while the main controversy remained outstanding for years and could have been decided by now.
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C.B.I Vs. Sadhu Ram Singla | has expressly prohibited. Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence.” 10. We further wish to supply emphasis on the judgment delivered by this Court in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley & Anr., (2016) 1 SCC 376 , wherein it was observed: “15. As far as the load on the criminal justice dispensation system is concerned it has an insegregable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of.” 11. Further reliance was placed on the decision of this Court in the case of Central Bureau of Investigation Vs. A. Ravishankar Prasad & Ors., (2009) 6 SCC 351 , wherein it was held: “39. Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of each case. The object of incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.” 12. Lastly, reliance was placed upon another judgment of this Court in Central Bureau of Investigation Vs. Maninder Singh, (2016) 1 SCC 389 , wherein it was held by this Court: “19. In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantrai Doshi case, (2014) 15 SCC 29 , the order of the High Court cannot be sustained.” 13. Resisting the aforesaid submissions it was canvassed by Mr. Bishwajit Bhattacharya, learned senior counsel appearing for the respondents that High Court has judiciously and rightly considered the facts and circumstances of the present case. Relying upon the judgment of this Court in Gian Singh Vs. State of Punjab & Anr., (2012) 10 SCC 303 , learned senior counsel appearing for the respondents strenuously urged that the offences in the present case are not heinous offences. He further drew our attention towards the relevant part of Full Bench judgment of the High Court in Kulwinder Singh & Ors. Vs. State of Punjab & Anr. (supra), which was reproduced in the impugned judgment and the same is reproduced hereunder: “26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney & Ors.,(1980) 1 SCC 63, Honble Krishna Iyer, J. aptly summed up the essence of compromise in the following words :-The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.27. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything; except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C.” 14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India.We wish to supply emphasis on para 21 of the Manoj Sharma’s case (supra) which is as follows: “21. Ordinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720 , restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.” 15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manoj Sharma’s case (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties. | 0[ds]14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India.We wish to supply emphasis on para 21 of the Manojcase (supra) which is asOrdinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720 , restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manojcase (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties. | 0 | 2,278 | 351 | ### Instruction:
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has expressly prohibited. Section 320(9) CrPC expressly states that no offence shall be compounded except as provided by that Section. Hence, in my opinion, it would ordinarily not be a legitimate exercise of judicial power to direct compounding of a non-compoundable offence.” 10. We further wish to supply emphasis on the judgment delivered by this Court in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley & Anr., (2016) 1 SCC 376 , wherein it was observed: “15. As far as the load on the criminal justice dispensation system is concerned it has an insegregable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of.” 11. Further reliance was placed on the decision of this Court in the case of Central Bureau of Investigation Vs. A. Ravishankar Prasad & Ors., (2009) 6 SCC 351 , wherein it was held: “39. Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of each case. The object of incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.” 12. Lastly, reliance was placed upon another judgment of this Court in Central Bureau of Investigation Vs. Maninder Singh, (2016) 1 SCC 389 , wherein it was held by this Court: “19. In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for so many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case at hand in the light of the decision in Vikram Anantrai Doshi case, (2014) 15 SCC 29 , the order of the High Court cannot be sustained.” 13. Resisting the aforesaid submissions it was canvassed by Mr. Bishwajit Bhattacharya, learned senior counsel appearing for the respondents that High Court has judiciously and rightly considered the facts and circumstances of the present case. Relying upon the judgment of this Court in Gian Singh Vs. State of Punjab & Anr., (2012) 10 SCC 303 , learned senior counsel appearing for the respondents strenuously urged that the offences in the present case are not heinous offences. He further drew our attention towards the relevant part of Full Bench judgment of the High Court in Kulwinder Singh & Ors. Vs. State of Punjab & Anr. (supra), which was reproduced in the impugned judgment and the same is reproduced hereunder: “26. In Mrs. Shakuntala Sawhney v. Mrs. Kaushalya Sawhney & Ors.,(1980) 1 SCC 63, Honble Krishna Iyer, J. aptly summed up the essence of compromise in the following words :-The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.27. The power to do complete justice is the very essence of every judicial justice dispensation system. It cannot be diluted by distorted perceptions and is not a slave to anything; except to the caution and circumspection, the standards of which the Court sets before it, in exercise of such plenary and unfettered power inherently vested in it while donning the cloak of compassion to achieve the ends of justice. No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C.” 14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India.We wish to supply emphasis on para 21 of the Manoj Sharma’s case (supra) which is as follows: “21. Ordinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720 , restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.” 15. Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manoj Sharma’s case (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties.
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14. Since the present case pertains to the crucial doctrine of judicial restraint, we are of the considered opinion that encroaching into the right of the other organ of the government would tantamount clear violation of the rule of law which is one of the basic structure of the Constitution of India.We wish to supply emphasis on para 21 of the Manojcase (supra) which is asOrdinarily, we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasised repeatedly by this Court e.g. in Aravali Golf Club v. Chander Hass (2008) 1 SCC 683 and Govt. of A.P. v. P. Laxmi Devi (2008) 4 SCC 720 , restricts the power of the Court and does not permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.Having carefully considered the singular facts and circumstances of the present case, and also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the view taken in Manojcase (supra) and several decisions of this Court delivered thereafter with respect to the doctrine of judicial restraint. In concluding hereinabove, we are not unmindful of the view recorded in the decisions cited at the Bar that depending on the attendant facts, continuance of the criminal proceedings, after a compromise has been arrived at between the complainant and the accused, would amount to abuse of process of Court and an exercise in futility since the trial would be prolonged and ultimately, it may end in a decision which may be of no consequence to any of the parties.
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Harjas Rai Makhija (D) Thr.Lrs Vs. Pushparani Jain | additional evidence was filed but did not do so and cannot have a second shot for the same purpose. The allegation of fraud leveled by Makhija was not accepted by the High Court. 14. Learned counsel for Makhija raised quite a few submissions before us but in our opinion, the present appeal deserves to be dismissed on the ground that no fraud has been alleged in the plaint filed by Makhija or found in respect of the decree dated 4th October, 1999. 15. There is no doubt that a decree was passed in favour of Pushparani by the District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by the High Court but also by this Court. Makhija made an application before the High Court to produce additional evidence to suggest that the agreement for sale entered into by him with Pushparani through her attorney Jinendra Jain on 16th October, 1988 was genuine and based on the Power of Attorney given by her to Jinendra Jain on 30th April, 1983. Not only was the application for bringing on record additional evidence dismissed by the High Court but the decree dismissing the suit for specific performance of the agreement for sale filed by Makhija was dismissed by the High Court. That dismissal attained finality when the petitions for special leave to appeal filed by Makhija were dismissed by this Court. 16. It is significant to note that Makhija has not sought (and indeed could not seek) to reopen the proceedings pertaining to the dismissal of his suit for specific performance. As such, as mentioned above, the decree dismissing his suit for specific performance of the agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Makhija now collaterally pray for a decree of specific performance in respect of that agreement. 17. Through a collateral attack, Makhija has now sought to deprive Pushparani of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had thereby committed a fraud on the courts. 18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of 2008 and find that he has nowhere made any specific allegation of a fraud having been played by Pushparani on the Trial Court while obtaining the decree dated 4th October, 1999. 19. During the course of submissions, it was contended on behalf of Makhija that it is a settled proposition of law that a decree obtained by playing fraud on the court is a nullity and that such a decree could be challenged at any time in any proceedings. Reliance was placed on A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221 )This proposition is certainly not in dispute. 20. Learned counsel also placed reliance on Union of India v. Ramesh Gandhi (2012) 1 SCC 476 )which reads as under:- 27. If a judgment obtained by playing fraud on the court is a nullity and is to be treated as non est by every court, superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the court by not disclosing the necessary facts relevant for the adjudication of the controversy before the court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest. (Emphasis supplied by us). 21. We agree that when there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point. 22. What is fraud has been adequately discussed in Meghmala & Ors. v. G. Narasimha Reddy & Ors. (2010) 8 SCC 383 ( paragraphs 28 to 36))Unfortunately, this decision does not refer to earlier decisions where also there is an equally elaborate discussion on fraud. These two decisions are Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7 SCC 605 )and State of Orissa & Ors. v. Harapriya Bisoi. (2009) 12 SCC 378 )In view of the elaborate discussion in these and several other cases which have been referred to in these decisions, it is clear that fraud has a definite meaning in law and it must be proved and not merely alleged and inferred. 23. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC. However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4th October, 1999. 24. Fraud not having been proved but merely alleged, we do not find any reason to differ with the judgment and order passed by the High Court and the Trial Court. | 0[ds]14. Learned counsel for Makhija raised quite a few submissions before us but in our opinion, the present appeal deserves to be dismissed on the ground that no fraud has been alleged in the plaint filed by Makhija or found in respect of the decree dated 4th October, 199915. There is no doubt that a decree was passed in favour of Pushparani by the District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by the High Court but also by this Court. Makhija made an application before the High Court to produce additional evidence to suggest that the agreement for sale entered into by him with Pushparani through her attorney Jinendra Jain on 16th October, 1988 was genuine and based on the Power of Attorney given by her to Jinendra Jain on 30th April, 1983. Not only was the application for bringing on record additional evidence dismissed by the High Court but the decree dismissing the suit for specific performance of the agreement for sale filed by Makhija was dismissed by the High Court. That dismissal attained finality when the petitions for special leave to appeal filed by Makhija were dismissed by this Court16. It is significant to note that Makhija has not sought (and indeed could not seek) to reopen the proceedings pertaining to the dismissal of his suit for specific performance. As such, as mentioned above, the decree dismissing his suit for specific performance of the agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Makhija now collaterally pray for a decree of specific performance in respect of that agreement17. Through a collateral attack, Makhija has now sought to deprive Pushparani of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had thereby committed a fraud on the courts18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of 2008 and find that he has nowhere made any specific allegation of a fraud having been played by Pushparani on the Trial Court while obtaining the decree dated 4th October, 199921. We agree that when there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point23. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC. However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4th October, 199924. Fraud not having been proved but merely alleged, we do not find any reason to differ with the judgment and order passed by the High Court and the Trial Court | 0 | 2,526 | 679 | ### 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:
additional evidence was filed but did not do so and cannot have a second shot for the same purpose. The allegation of fraud leveled by Makhija was not accepted by the High Court. 14. Learned counsel for Makhija raised quite a few submissions before us but in our opinion, the present appeal deserves to be dismissed on the ground that no fraud has been alleged in the plaint filed by Makhija or found in respect of the decree dated 4th October, 1999. 15. There is no doubt that a decree was passed in favour of Pushparani by the District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by the High Court but also by this Court. Makhija made an application before the High Court to produce additional evidence to suggest that the agreement for sale entered into by him with Pushparani through her attorney Jinendra Jain on 16th October, 1988 was genuine and based on the Power of Attorney given by her to Jinendra Jain on 30th April, 1983. Not only was the application for bringing on record additional evidence dismissed by the High Court but the decree dismissing the suit for specific performance of the agreement for sale filed by Makhija was dismissed by the High Court. That dismissal attained finality when the petitions for special leave to appeal filed by Makhija were dismissed by this Court. 16. It is significant to note that Makhija has not sought (and indeed could not seek) to reopen the proceedings pertaining to the dismissal of his suit for specific performance. As such, as mentioned above, the decree dismissing his suit for specific performance of the agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Makhija now collaterally pray for a decree of specific performance in respect of that agreement. 17. Through a collateral attack, Makhija has now sought to deprive Pushparani of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had thereby committed a fraud on the courts. 18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of 2008 and find that he has nowhere made any specific allegation of a fraud having been played by Pushparani on the Trial Court while obtaining the decree dated 4th October, 1999. 19. During the course of submissions, it was contended on behalf of Makhija that it is a settled proposition of law that a decree obtained by playing fraud on the court is a nullity and that such a decree could be challenged at any time in any proceedings. Reliance was placed on A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221 )This proposition is certainly not in dispute. 20. Learned counsel also placed reliance on Union of India v. Ramesh Gandhi (2012) 1 SCC 476 )which reads as under:- 27. If a judgment obtained by playing fraud on the court is a nullity and is to be treated as non est by every court, superior or inferior, it would be strange logic to hear that an enquiry into the question whether a judgment was secured by playing fraud on the court by not disclosing the necessary facts relevant for the adjudication of the controversy before the court is impermissible. From the above judgments, it is clear that such an examination is permissible. Such a principle is required to be applied with greater emphasis in the realm of public law jurisdiction as the mischief resulting from such fraud has larger dimension affecting the larger public interest. (Emphasis supplied by us). 21. We agree that when there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point. 22. What is fraud has been adequately discussed in Meghmala & Ors. v. G. Narasimha Reddy & Ors. (2010) 8 SCC 383 ( paragraphs 28 to 36))Unfortunately, this decision does not refer to earlier decisions where also there is an equally elaborate discussion on fraud. These two decisions are Bhaurao Dagdu Paralkar v. State of Maharashtra & Ors. (2005) 7 SCC 605 )and State of Orissa & Ors. v. Harapriya Bisoi. (2009) 12 SCC 378 )In view of the elaborate discussion in these and several other cases which have been referred to in these decisions, it is clear that fraud has a definite meaning in law and it must be proved and not merely alleged and inferred. 23. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC. However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4th October, 1999. 24. Fraud not having been proved but merely alleged, we do not find any reason to differ with the judgment and order passed by the High Court and the Trial Court.
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14. Learned counsel for Makhija raised quite a few submissions before us but in our opinion, the present appeal deserves to be dismissed on the ground that no fraud has been alleged in the plaint filed by Makhija or found in respect of the decree dated 4th October, 199915. There is no doubt that a decree was passed in favour of Pushparani by the District Judge on 4th October, 1999 after a full-fledged trial and that decree was upheld not only by the High Court but also by this Court. Makhija made an application before the High Court to produce additional evidence to suggest that the agreement for sale entered into by him with Pushparani through her attorney Jinendra Jain on 16th October, 1988 was genuine and based on the Power of Attorney given by her to Jinendra Jain on 30th April, 1983. Not only was the application for bringing on record additional evidence dismissed by the High Court but the decree dismissing the suit for specific performance of the agreement for sale filed by Makhija was dismissed by the High Court. That dismissal attained finality when the petitions for special leave to appeal filed by Makhija were dismissed by this Court16. It is significant to note that Makhija has not sought (and indeed could not seek) to reopen the proceedings pertaining to the dismissal of his suit for specific performance. As such, as mentioned above, the decree dismissing his suit for specific performance of the agreement dated 16th October, 1988 has become final. Therefore, under no circumstances can Makhija now collaterally pray for a decree of specific performance in respect of that agreement17. Through a collateral attack, Makhija has now sought to deprive Pushparani of her allotment of the suit property by alleging that she had concealed the Power of Attorney executed by her in favour of Jinendra Jain on 30th April, 1983 and had thereby committed a fraud on the courts18. We have been taken through the plaint filed by Makhija in Suit No. 471-A of 2008 and find that he has nowhere made any specific allegation of a fraud having been played by Pushparani on the Trial Court while obtaining the decree dated 4th October, 199921. We agree that when there is an allegation of fraud by non-disclosure of necessary and relevant facts or concealment of material facts, it must be inquired into. It is only after evidence is led coupled with intent to deceive that a conclusion of fraud could be arrived at. A mere concealment or non-disclosure without intent to deceive or a bald allegation of fraud without proof and intent to deceive would not render a decree obtained by a party as fraudulent. To conclude in a blanket manner that in every case where relevant facts are not disclosed, the decree obtained would be fraudulent, is stretching the principle to a vanishing point23. In so far as the present appeal is concerned, there is no doubt that Makhija had an opportunity to prove the allegation of fraud when he filed an application under Order XLI Rule 27 of the CPC. However, he missed that opportunity right up to this court. Makhija took a second shot at alleging fraud and filing another suit against Pushparani. However, the evidence that he relied upon was very thin and could not even be considered as secondary evidence. Accordingly both the Trial Court as well as the High Court rejected the allegation of fraud by not accepting the evidence put forward by Makhija to allege that fraud had been committed by Pushparani when she obtained the decree dated 4th October, 199924. Fraud not having been proved but merely alleged, we do not find any reason to differ with the judgment and order passed by the High Court and the Trial Court
|
C. Venkatachalam & Another Vs. Ajitkumar C. Shah & Others | Rules, any attorney in good standing is allowed to represent a claimant before the ALJ and Appeals Council. A non-attorney is allowed to represent a claimant if the non-attorney : 1) Is generally known to have a good character and reputation; 2) Is capable of giving valuable help to you in connection with your claim; 3) Is not disqualified or suspended from acting as a representative in dealings with us; and 4) Is not prohibited by any law from acting as a representative. 95. SSA rules also restrict the amount that any representative of claimant (attorney or non-attorney) may receive for the services rendered by him. Tax Court 96. The US Tax Court adjudicates disputes over federal income tax. Taxpayers are permitted to litigate in many legal forums (such as a district federal court), but many choose the Tax Court because they may litigate their case without first paying the disputes tax amount in full. Non-Attorney Representation 97. Tax Court Rules state that all representatives must be admitted to practice before the Tax Court in order to appear in proceedings on behalf of a taxpayer. To be admitted, a non- attorney must pass a special written examination and obtain sponsorship from two persons who are already admitted to practice before the Court. 98. Representatives before the Court are instructed to act in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. Representatives may be disciplined for inappropriate conduct and may be suspended or banned from appearing in the Court. Court of Appeals for Veterans Claims 99. The Court of Appeals for Veterans Claims reviews decision of the Board of Veterans Appeals, which adjudicates disputes pertaining to Veterans benefits. Non-Attorney representation 100. A non-attorney may represent claimants if (1) he is under direct supervision of an attorney or (2) he is employed by an organization that the Secretary of Veterans Affairs has deemed is competent to handle veterans claims. However, if the Court deems it appropriate it may admit non-attorney representatives to represent the claimants. South Africa The Equality Court 101. The Equality Court hears complaints pertaining to unfair discrimination, harassment and hate speech. The court rules allow parties in this court to be represented by lawyers and non-lawyers. However, the rules also require the judge of the court inform a party accordingly if he is of the opinion that a particular non-attorney representative is not a suitable person to represent the party. Englandand Wales 102. There are two kinds of courts in England that are similar in structure and function to the consumer courts in India: Magistrate Courts and Tribunals. Magistrates Courts 103. Magistrates Courts are lowest level of court in England and Wales and deals with minor civil and criminal offences. There are also specialist courts within the Magistrates Courts system, such as the Family Proceedings Court and the Youth Court. Under statute, a party may only be represented in a Magistrates Court by a legal representative. A legal representative is a person who has been authorized by a government-approved regulator to perform reserved legal activities. Tribunals 104. England and Wales also have a fairly complex system of tribunals that hear special complaints. These tribunals are similar to US administrative courts in that they are allowed to create their own procedural rules that regulate representation. For instance, the Asylum and Immigration Tribunal permits non-attorney representatives to appear if they meet certain requirements elaborated in Section 84 of the Immigration and Asylum Act, 199. Other tribunals may follow different procedures. Small Claims Court 105. There is no bar for small claims court. A non-attorney may appear as a representative without prior authorization from the court. He may, however, be dismissed at the judges discretion. 1) Non-attorney advocates do not appear to be bound by any code of conduct. But they may be dismissed by a judge if they judge disapproves of their conduct. 2) The judge may disqualify a non-attorney from appearing in court if the judge has reason to believe the non-attorney has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise [the right to be a representative]. The statute specifically mentions that the judge may disqualify a representative for conduct done in previous judicial appearances. 3) The court rules and relevant legislation do not appear to prescribe a limit to the number of appearances a non-lawyer can make before the small claims court. However, the statute allows a judge to discipline a non-attorney representative for conduct in previous judicial proceedings. This suggests that if a judge believes a non-attorney is making frequent appearances before a small claims court and charging in appropriate fees, the judge may disqualify the non-attorney from appearing in a particular case. Australia 106.State Governments in Australia have their own court systems and also specialized courts to deal with certain subject matter. In the State of Victoria, statutory law states that only lawyers may appear in court as representatives with a few exceptions. A non-attorney may represent a party in a cause of action for a debt or liquidated demand if the non- attorney is in the exclusive employment of the aggrieved party. Also, the statute mentions that a non-attorney representative may appear if empowered by some other piece of legislation. New Zealand 107. New Zealand has a large number of tribunals that are similar to Indias consumer courts and seek to provide quick and easy dispute resolution. There appears to be a strong preference in tribunals for the parties to represent themselves; professional lawyers are rarely allowed to appear as representatives. Two tribunals are discussed below, but New Zealands other tribunals should function similarly. Disputes Tribunal 108. The Disputes Tribunal hears civil complaints that concern amounts less than $15,000. Parties subject to proceedings are generally required to represent themselves. However, the Tribunal may permit a representative to appear on a partys behalf under certain special circumstances. Representatives may only appear with specific authorization from the Tribunal and cannot be lawyers. Directions | 1[ds]40. A perusal of Chapter II clearly shows that the statute seeks to protect the `consumer of goods and services in every possible way. It aims at providing a speedy and inexpensive remedy. Any interpretation of the provisions of the 1986 Act and the rules framed thereunder must promote this objective of the enactment.43. Such an interpretation is not only literally correct but also promotes the declared objective of the statute. It helps the claimant and the defendant equally. It does not violate any provision of the Advocates Act.51. The appellants submitted before the High Court that the complainant may appear through its authorized agent, but, that doesnt mean that authorized agent is empowered to act, appear or plead on behalf of the party before the State Commission or the District Forum as a lawyer. According to the appellants (Bar Council of India and advocate), the agent appointed by the complainant is empowered only to present any complaint, appeal or rely on behalf of the party to the complaint before the Consumer Forum by physically remaining present on the date/dates of hearing. This contention was rejected by the Division Bench of the High Court52. According to the judgment of this Court in Harishankar Rastogi (supra), a non-advocate can appear with the permission of the Court. The Court may, in an appropriate case, even after grant of permission withdraw it if the representative proves himself reprehensible. It is only a privilege granted by the Court and it depends entirely on the discretion of the court.The clear interpretation of the Rules is that the authorised agent appointed by the (consumer) complainant may appear before the Consumer Fora. The Consumer Fora may, in its discretion, either dismiss the appeal or decide it on the merit of the case. In this view of the matter, it is abundantly clear that the authorized agent of the complainant can act and plead before the State Tribunal otherwise the complaint is liable to the dismissed.It is the bounden duty of the courts to discern legislative intention and interpret the statutes accordingly. The instant case Act and Rules have made specific provisions by which the agents have been permitted to plead and appear on behalf of the parties before the Consumer Forums. Therefore, to interpret it differently would be contrary to legislative intention.69. A perusal thereof shows that the Regulations appear to have been framed by the National Commission in exercise of the power conferred by section 30A with the previous approval of the Central Government. The footnote indicates that these were published in the Gazette of India dated May 31, 2005.70. Specifically, Regulation 16 inter alia makes provision to ensure that the agents do not indulge in any malpractice or commit misconduct82. It is the bounden duty and obligation of the Court to carefully discern the legislative intention and articulate the same. In the instant case we are not really called upon to discern legislative intention because there is specific rule defining the agents and the provisions of permitting them to appear before the Consumer Forums. The agents have been permitted to appear to accomplish the main object of the act of disposal of consumers complaints expeditiously with no costs or small costs83. In our considered view the High Court was fully justified in observing that the authorised agents do not practise law when they are permitted to appear before the District Forums and the State Commissions84. In the impugned judgment the High Court aptly observed that many statutes, such as, Sales Tax, Income Tax and Competition Act also permit non-advocates to represent the parties before the authorities and those non-advocates cannot be said to practise law. On the same analogy those non- advocates who appear before Consumer fora also cannot be said to practise law. We approve the view taken by the High Court in the impugned judgment85. The legislature has given an option to the parties before the Consumer Forums to either personally appear or be represented by an `authorized agent or by an advocate, then the court would not be justified in taking away that option or interpreting the statute differently86. The functioning, conduct and behaviour of authorized agents can always be regulated by the Consumer Forums. Advocates are entitled as of right to practise before Consumer Fora but this privilege cannot be claimed as a matter of right by anyone else87. When the legislature has permitted authorized agents to appear on behalf of the complainant, then the courts cant compel the consumer to engage the services of an advocate.88. However, at this stage we hasten to add that the National Commission being aware of a possibility of misuse of the right by an agent had framed Regulation 30-A of the Consumer Protection Act, 1986, wherein certain restrictions on the right of audience and also certain precautions to rule out any misuse of liberty granted has been taken by way of framing Regulation 16.These provisions are enacted for providing proper guidelines and safeguards for regulating appearance and audience of the agents. The aforesaid regulation in our considered opinion is a reasonable restriction on the right to appear by an agent. Such reasonable restrictions as provided for are to be strictly adhered to and complied with by the Consumer Forum hearing cases under the Consumer Protection Act so as to rule out any misuse of the privilege granted. In terms of the said regulation and other regulations as provided and framed by the National Commission and as approved by the Parliament of India, the Consumer Forum has the right to prevent an authorized agent to appear in case it is found and believed that he is using the said right as a profession. The Consumer Forums being empowered with such Regulations would be in a position to judge whether the agent appearing before it is in any manner exercising such privileges granted for any ulterior purpose90. In the foregoing paragraph, it has been indicated that many statutes and Acts in India permit non-advocates to represent the parties before the authorities and forums.91. In other jurisdictions also, non-advocates are permitted to appear before quasi-judicial fora or subordinate courts. In most of these jurisdictions, specific rules have been framed for the regulation of qualifications, conduct and ethical behaviour of the non-advocates appearing in these fora92. In most jurisdictions, the statutes or court rules impose some form of restrictions on appearances of non-advocate representatives in quasi-judicial fora or subordinate courts. Restrictions on non-advocates agents vary significantly in terms of their specificity, but most forums have rules granting them some discretion in admitting or refusing the appearance of a non-advocate representative.Social Security Administration93. In addition to administering Social Security Retirement and Disability payments, the(SSA) handles disputes arising from Social Security Payments or the lack thereof. If a current or former recipient of social security believes that he has been wrongfully denied some or all of his benefit amount, he may first apply for reconsideration. | 1 | 10,810 | 1,248 | ### 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:
Rules, any attorney in good standing is allowed to represent a claimant before the ALJ and Appeals Council. A non-attorney is allowed to represent a claimant if the non-attorney : 1) Is generally known to have a good character and reputation; 2) Is capable of giving valuable help to you in connection with your claim; 3) Is not disqualified or suspended from acting as a representative in dealings with us; and 4) Is not prohibited by any law from acting as a representative. 95. SSA rules also restrict the amount that any representative of claimant (attorney or non-attorney) may receive for the services rendered by him. Tax Court 96. The US Tax Court adjudicates disputes over federal income tax. Taxpayers are permitted to litigate in many legal forums (such as a district federal court), but many choose the Tax Court because they may litigate their case without first paying the disputes tax amount in full. Non-Attorney Representation 97. Tax Court Rules state that all representatives must be admitted to practice before the Tax Court in order to appear in proceedings on behalf of a taxpayer. To be admitted, a non- attorney must pass a special written examination and obtain sponsorship from two persons who are already admitted to practice before the Court. 98. Representatives before the Court are instructed to act in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. Representatives may be disciplined for inappropriate conduct and may be suspended or banned from appearing in the Court. Court of Appeals for Veterans Claims 99. The Court of Appeals for Veterans Claims reviews decision of the Board of Veterans Appeals, which adjudicates disputes pertaining to Veterans benefits. Non-Attorney representation 100. A non-attorney may represent claimants if (1) he is under direct supervision of an attorney or (2) he is employed by an organization that the Secretary of Veterans Affairs has deemed is competent to handle veterans claims. However, if the Court deems it appropriate it may admit non-attorney representatives to represent the claimants. South Africa The Equality Court 101. The Equality Court hears complaints pertaining to unfair discrimination, harassment and hate speech. The court rules allow parties in this court to be represented by lawyers and non-lawyers. However, the rules also require the judge of the court inform a party accordingly if he is of the opinion that a particular non-attorney representative is not a suitable person to represent the party. Englandand Wales 102. There are two kinds of courts in England that are similar in structure and function to the consumer courts in India: Magistrate Courts and Tribunals. Magistrates Courts 103. Magistrates Courts are lowest level of court in England and Wales and deals with minor civil and criminal offences. There are also specialist courts within the Magistrates Courts system, such as the Family Proceedings Court and the Youth Court. Under statute, a party may only be represented in a Magistrates Court by a legal representative. A legal representative is a person who has been authorized by a government-approved regulator to perform reserved legal activities. Tribunals 104. England and Wales also have a fairly complex system of tribunals that hear special complaints. These tribunals are similar to US administrative courts in that they are allowed to create their own procedural rules that regulate representation. For instance, the Asylum and Immigration Tribunal permits non-attorney representatives to appear if they meet certain requirements elaborated in Section 84 of the Immigration and Asylum Act, 199. Other tribunals may follow different procedures. Small Claims Court 105. There is no bar for small claims court. A non-attorney may appear as a representative without prior authorization from the court. He may, however, be dismissed at the judges discretion. 1) Non-attorney advocates do not appear to be bound by any code of conduct. But they may be dismissed by a judge if they judge disapproves of their conduct. 2) The judge may disqualify a non-attorney from appearing in court if the judge has reason to believe the non-attorney has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise [the right to be a representative]. The statute specifically mentions that the judge may disqualify a representative for conduct done in previous judicial appearances. 3) The court rules and relevant legislation do not appear to prescribe a limit to the number of appearances a non-lawyer can make before the small claims court. However, the statute allows a judge to discipline a non-attorney representative for conduct in previous judicial proceedings. This suggests that if a judge believes a non-attorney is making frequent appearances before a small claims court and charging in appropriate fees, the judge may disqualify the non-attorney from appearing in a particular case. Australia 106.State Governments in Australia have their own court systems and also specialized courts to deal with certain subject matter. In the State of Victoria, statutory law states that only lawyers may appear in court as representatives with a few exceptions. A non-attorney may represent a party in a cause of action for a debt or liquidated demand if the non- attorney is in the exclusive employment of the aggrieved party. Also, the statute mentions that a non-attorney representative may appear if empowered by some other piece of legislation. New Zealand 107. New Zealand has a large number of tribunals that are similar to Indias consumer courts and seek to provide quick and easy dispute resolution. There appears to be a strong preference in tribunals for the parties to represent themselves; professional lawyers are rarely allowed to appear as representatives. Two tribunals are discussed below, but New Zealands other tribunals should function similarly. Disputes Tribunal 108. The Disputes Tribunal hears civil complaints that concern amounts less than $15,000. Parties subject to proceedings are generally required to represent themselves. However, the Tribunal may permit a representative to appear on a partys behalf under certain special circumstances. Representatives may only appear with specific authorization from the Tribunal and cannot be lawyers. Directions
### Response:
1
### Explanation:
present any complaint, appeal or rely on behalf of the party to the complaint before the Consumer Forum by physically remaining present on the date/dates of hearing. This contention was rejected by the Division Bench of the High Court52. According to the judgment of this Court in Harishankar Rastogi (supra), a non-advocate can appear with the permission of the Court. The Court may, in an appropriate case, even after grant of permission withdraw it if the representative proves himself reprehensible. It is only a privilege granted by the Court and it depends entirely on the discretion of the court.The clear interpretation of the Rules is that the authorised agent appointed by the (consumer) complainant may appear before the Consumer Fora. The Consumer Fora may, in its discretion, either dismiss the appeal or decide it on the merit of the case. In this view of the matter, it is abundantly clear that the authorized agent of the complainant can act and plead before the State Tribunal otherwise the complaint is liable to the dismissed.It is the bounden duty of the courts to discern legislative intention and interpret the statutes accordingly. The instant case Act and Rules have made specific provisions by which the agents have been permitted to plead and appear on behalf of the parties before the Consumer Forums. Therefore, to interpret it differently would be contrary to legislative intention.69. A perusal thereof shows that the Regulations appear to have been framed by the National Commission in exercise of the power conferred by section 30A with the previous approval of the Central Government. The footnote indicates that these were published in the Gazette of India dated May 31, 2005.70. Specifically, Regulation 16 inter alia makes provision to ensure that the agents do not indulge in any malpractice or commit misconduct82. It is the bounden duty and obligation of the Court to carefully discern the legislative intention and articulate the same. In the instant case we are not really called upon to discern legislative intention because there is specific rule defining the agents and the provisions of permitting them to appear before the Consumer Forums. The agents have been permitted to appear to accomplish the main object of the act of disposal of consumers complaints expeditiously with no costs or small costs83. In our considered view the High Court was fully justified in observing that the authorised agents do not practise law when they are permitted to appear before the District Forums and the State Commissions84. In the impugned judgment the High Court aptly observed that many statutes, such as, Sales Tax, Income Tax and Competition Act also permit non-advocates to represent the parties before the authorities and those non-advocates cannot be said to practise law. On the same analogy those non- advocates who appear before Consumer fora also cannot be said to practise law. We approve the view taken by the High Court in the impugned judgment85. The legislature has given an option to the parties before the Consumer Forums to either personally appear or be represented by an `authorized agent or by an advocate, then the court would not be justified in taking away that option or interpreting the statute differently86. The functioning, conduct and behaviour of authorized agents can always be regulated by the Consumer Forums. Advocates are entitled as of right to practise before Consumer Fora but this privilege cannot be claimed as a matter of right by anyone else87. When the legislature has permitted authorized agents to appear on behalf of the complainant, then the courts cant compel the consumer to engage the services of an advocate.88. However, at this stage we hasten to add that the National Commission being aware of a possibility of misuse of the right by an agent had framed Regulation 30-A of the Consumer Protection Act, 1986, wherein certain restrictions on the right of audience and also certain precautions to rule out any misuse of liberty granted has been taken by way of framing Regulation 16.These provisions are enacted for providing proper guidelines and safeguards for regulating appearance and audience of the agents. The aforesaid regulation in our considered opinion is a reasonable restriction on the right to appear by an agent. Such reasonable restrictions as provided for are to be strictly adhered to and complied with by the Consumer Forum hearing cases under the Consumer Protection Act so as to rule out any misuse of the privilege granted. In terms of the said regulation and other regulations as provided and framed by the National Commission and as approved by the Parliament of India, the Consumer Forum has the right to prevent an authorized agent to appear in case it is found and believed that he is using the said right as a profession. The Consumer Forums being empowered with such Regulations would be in a position to judge whether the agent appearing before it is in any manner exercising such privileges granted for any ulterior purpose90. In the foregoing paragraph, it has been indicated that many statutes and Acts in India permit non-advocates to represent the parties before the authorities and forums.91. In other jurisdictions also, non-advocates are permitted to appear before quasi-judicial fora or subordinate courts. In most of these jurisdictions, specific rules have been framed for the regulation of qualifications, conduct and ethical behaviour of the non-advocates appearing in these fora92. In most jurisdictions, the statutes or court rules impose some form of restrictions on appearances of non-advocate representatives in quasi-judicial fora or subordinate courts. Restrictions on non-advocates agents vary significantly in terms of their specificity, but most forums have rules granting them some discretion in admitting or refusing the appearance of a non-advocate representative.Social Security Administration93. In addition to administering Social Security Retirement and Disability payments, the(SSA) handles disputes arising from Social Security Payments or the lack thereof. If a current or former recipient of social security believes that he has been wrongfully denied some or all of his benefit amount, he may first apply for reconsideration.
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Shree Sajjan Mills Ltd. & Others Vs. Municipal Corporation, Ratlam | the order dated 11th January, 2007, passed in M.C.C.No.1194/2005. The petitioner herein applied to the Board of Industrial and Finance Reconstruction (BIFR) under the Sick, Industrial Companies (Special Provisions) Act, 1985, hereinafter referred to as `SICA for being registered as a sick company and it was so registered on 21st November, 1989. It appears that a recommendation was made by the BIFR for winding up of the company, but in appeal before the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), a scheme for revival of the company was framed on 29th November, 1995. Pursuant to the scheme, an Assets Sale Committee was constituted which invited tenders for sale of surplus land belonging to the appellant company. The respondent-Corporation also participated in the auction and was found to be the highest bidder in respect of the plots tendered for sale. Under the terms and conditions of the sale, the highest bidder was required to deposit 20% of the purchase price within thirty days from the date of the auction and the remaining balance in two subsequent stages. At the very initial stage, the Corporation failed to deposit 20% of the purchase price within the stipulated time and, accordingly, the aforesaid Committee cancelled the offer and forfeited the earnest money which had been deposited by the Corporation for participating in the auction. Such cancellation and forfeiture was effected as far back as in 1998. 3. Subsequently, in 2001, the Corporation filed a Suit for recovery of the earnest money. Before the Civil Court, an application was filed by the appellant- Company under Sections 9 and 151 of the Code of Civil Procedure read with Section 26 of `SICA objecting to the jurisdiction of the court to entertain the suit. The application was considered by the learned District Judge, Ratlam, Madhya Pradesh, before whom the suit was pending. Accepting the submissions made on behalf of the Corporation, the learned District Judge came to the finding that in view of Section 26 of SICA, the Civil Court had no jurisdiction to try any suit relating to sick units against the proceedings of the Board and was of the view that the Plaint should be returned to the plaintiff under Order 7 Rule 10 CPC. However, on the request made on behalf of the plaintiff, an order was made for return of the plaint for presentation before the appropriate forum, including the Board, under the provisions of Order VII Rule 10-A C.P.C. 4. Aggrieved by the order of the learned District Judge, dated 31 st August, 2004, the respondent Corporation filed Misc.Appeal No.2275/2004. The High Court considered the effect of Section 26 of the Sick Industrial Companies (Special Provisions) Act, 1985 and held that the transaction between the Corporation and the Company was outside the purview both of the BIFR and the AAIFR, and that the same did not affect the implementation of the scheme. The High Court, accordingly, allowed the appeal and set aside the order of the learned District Judge and remanded the same to the learned District Judge to dispose of the suit on merits. 5. The said order of the High Court has been challenged in the present Special Leave Petition. 6. Ms. Sunita Rao, learned Advocate for the appellant, tried to impress upon us that the sale, which was sought to be effected by the Assets Sale Committee, constituted a part of the process of implementation of the scheme and, accordingly, under Section 26 of SICA, appropriate relief should have been sought for before the Board and that the High Court had erred in holding otherwise. 7. Ms. Rao submitted that the sale being part of the scheme for revival of the company, only the BIFR or the AAIFR have jurisdiction to decide the question as to whether the earnest money had been rightly forfeited or not. Ms. Rao relied on the decision of this Court in the case of Jay Engineering Works Ltd. Vs. Industry Facilitation Council & Anr., 2006 (8) SCC677 in support of her submissions. 8. On the other hand, Ms.Priya Puri, learned Advocate, appearing for the respondent-Corporation, submitted that the sale transaction may have been effected towards the implementation of the scheme, but the question as to whether the earnest money deposited by the Corporation was liable to be forfeited or not was not an issue which fell for the determination of the BIFR or the AAIFR under the aforesaid Act and that the same was an issue of a purely civil nature to be decided by the Civil Court. She submitted that no interference was called for with the judgment and order of the High Court. 9. Having considered the submissions made on behalf of the respective parties, we are unable to agree with Ms.Rao that the forfeiture of the earnest money in respect of the sale transaction was part of the process for implementation of the scheme as such. The provisions of Sections 15 to 19 of the SICA provide for the BIFR to frame a scheme for revival of the company declared sick and, in that connection, it has authority to decide all matters with regard to such a scheme. It is in that context that Section 26 has to be read: "26. Bar of jurisdiction.--- No order passed or proposal made under this Act shall be appealable except as provided therein and no civil court shall have jurisdiction in respect of any matter which the Appellate Authority or the Board is empowered by, or under, this Act to determine 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." 10. We agree with the view expressed by the High Court that the forfeiture of the earnest money by the Assets Sale Committee could not have been the subject matter of a dispute within the meaning of Section 26 which either BIFR or AAIFR has the jurisdiction to determine. | 0[ds]Having considered the submissions made on behalf of the respective parties, we are unable to agree with Ms.Rao that the forfeiture of the earnest money in respect of the sale transaction was part of the process for implementation of the scheme as such. The provisions of Sections 15 to 19 of the SICA provide for the BIFR to frame a scheme for revival of the company declared sick and, in that connection, it has authority to decide all matters with regard to such aagree with the view expressed by the High Court that the forfeiture of the earnest money by the Assets Sale Committee could not have been the subject matter of a dispute within the meaning of Section 26 which either BIFR or AAIFR has the jurisdiction to determine. | 0 | 1,144 | 139 | ### 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 order dated 11th January, 2007, passed in M.C.C.No.1194/2005. The petitioner herein applied to the Board of Industrial and Finance Reconstruction (BIFR) under the Sick, Industrial Companies (Special Provisions) Act, 1985, hereinafter referred to as `SICA for being registered as a sick company and it was so registered on 21st November, 1989. It appears that a recommendation was made by the BIFR for winding up of the company, but in appeal before the Appellate Authority for Industrial and Financial Reconstruction (AAIFR), a scheme for revival of the company was framed on 29th November, 1995. Pursuant to the scheme, an Assets Sale Committee was constituted which invited tenders for sale of surplus land belonging to the appellant company. The respondent-Corporation also participated in the auction and was found to be the highest bidder in respect of the plots tendered for sale. Under the terms and conditions of the sale, the highest bidder was required to deposit 20% of the purchase price within thirty days from the date of the auction and the remaining balance in two subsequent stages. At the very initial stage, the Corporation failed to deposit 20% of the purchase price within the stipulated time and, accordingly, the aforesaid Committee cancelled the offer and forfeited the earnest money which had been deposited by the Corporation for participating in the auction. Such cancellation and forfeiture was effected as far back as in 1998. 3. Subsequently, in 2001, the Corporation filed a Suit for recovery of the earnest money. Before the Civil Court, an application was filed by the appellant- Company under Sections 9 and 151 of the Code of Civil Procedure read with Section 26 of `SICA objecting to the jurisdiction of the court to entertain the suit. The application was considered by the learned District Judge, Ratlam, Madhya Pradesh, before whom the suit was pending. Accepting the submissions made on behalf of the Corporation, the learned District Judge came to the finding that in view of Section 26 of SICA, the Civil Court had no jurisdiction to try any suit relating to sick units against the proceedings of the Board and was of the view that the Plaint should be returned to the plaintiff under Order 7 Rule 10 CPC. However, on the request made on behalf of the plaintiff, an order was made for return of the plaint for presentation before the appropriate forum, including the Board, under the provisions of Order VII Rule 10-A C.P.C. 4. Aggrieved by the order of the learned District Judge, dated 31 st August, 2004, the respondent Corporation filed Misc.Appeal No.2275/2004. The High Court considered the effect of Section 26 of the Sick Industrial Companies (Special Provisions) Act, 1985 and held that the transaction between the Corporation and the Company was outside the purview both of the BIFR and the AAIFR, and that the same did not affect the implementation of the scheme. The High Court, accordingly, allowed the appeal and set aside the order of the learned District Judge and remanded the same to the learned District Judge to dispose of the suit on merits. 5. The said order of the High Court has been challenged in the present Special Leave Petition. 6. Ms. Sunita Rao, learned Advocate for the appellant, tried to impress upon us that the sale, which was sought to be effected by the Assets Sale Committee, constituted a part of the process of implementation of the scheme and, accordingly, under Section 26 of SICA, appropriate relief should have been sought for before the Board and that the High Court had erred in holding otherwise. 7. Ms. Rao submitted that the sale being part of the scheme for revival of the company, only the BIFR or the AAIFR have jurisdiction to decide the question as to whether the earnest money had been rightly forfeited or not. Ms. Rao relied on the decision of this Court in the case of Jay Engineering Works Ltd. Vs. Industry Facilitation Council & Anr., 2006 (8) SCC677 in support of her submissions. 8. On the other hand, Ms.Priya Puri, learned Advocate, appearing for the respondent-Corporation, submitted that the sale transaction may have been effected towards the implementation of the scheme, but the question as to whether the earnest money deposited by the Corporation was liable to be forfeited or not was not an issue which fell for the determination of the BIFR or the AAIFR under the aforesaid Act and that the same was an issue of a purely civil nature to be decided by the Civil Court. She submitted that no interference was called for with the judgment and order of the High Court. 9. Having considered the submissions made on behalf of the respective parties, we are unable to agree with Ms.Rao that the forfeiture of the earnest money in respect of the sale transaction was part of the process for implementation of the scheme as such. The provisions of Sections 15 to 19 of the SICA provide for the BIFR to frame a scheme for revival of the company declared sick and, in that connection, it has authority to decide all matters with regard to such a scheme. It is in that context that Section 26 has to be read: "26. Bar of jurisdiction.--- No order passed or proposal made under this Act shall be appealable except as provided therein and no civil court shall have jurisdiction in respect of any matter which the Appellate Authority or the Board is empowered by, or under, this Act to determine 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." 10. We agree with the view expressed by the High Court that the forfeiture of the earnest money by the Assets Sale Committee could not have been the subject matter of a dispute within the meaning of Section 26 which either BIFR or AAIFR has the jurisdiction to determine.
### Response:
0
### Explanation:
Having considered the submissions made on behalf of the respective parties, we are unable to agree with Ms.Rao that the forfeiture of the earnest money in respect of the sale transaction was part of the process for implementation of the scheme as such. The provisions of Sections 15 to 19 of the SICA provide for the BIFR to frame a scheme for revival of the company declared sick and, in that connection, it has authority to decide all matters with regard to such aagree with the view expressed by the High Court that the forfeiture of the earnest money by the Assets Sale Committee could not have been the subject matter of a dispute within the meaning of Section 26 which either BIFR or AAIFR has the jurisdiction to determine.
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M/S. Satnam Overseas Ltd Vs. Commnr. Of Central Excise, New Delhi | that the process undertaken by the assessee may have made value addition to the product but the essential character of the product did not undergo any change, which is the determinative factor, inasmuch as pineapple remained the pineapple; albeit in slice form and continued to be known as pineapple in the market. For this proposition the Court decided to rely upon a foreign judgment where the U.S. Supreme Court had held that dressed and frozen chicken was not a commercially distinct article from the original chicken. Detailed discussion of the said judgment appears in para 7 which reads as follows: 7. While on the point, we may refer to East Taxes Motor Freight Lines vs. Frosen Food Express, where the U.S. Supreme Court held that dressed and frozen chicken was not a commercially distinct article from the original chicken. It was pointed out: “killing, dressed and freezing a chicken is certainly a change in the commodity. But it is no more drastic a change than the change which takes place in milk from pasteurising, homogenizing, adding vitamin concentrates, standardizing and bottling”. It was also observed: “……………………there is hardly less difference between cotton in the field and cotton at the gin or in the bale or between cotton seed in the field and cotton seed at the gin, than between a chicken in the pen and one that is dressed. The ginned and baled cotton and the cotton seed, as well as the dressed chicken, have gone through a processing stage. But neither has been ‘manufactured’ in the normal sense of the word. Referring to Anheuser-Busch Brewing-Association v. United States the Court said: ”Manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary…..There must be transformation; a new and different article must emerge having distinctive name, character on use.” And further: “At some point processing and manufacturing will merge. But where the commodity retains a continuing substantial identity through the processing stage we cannot say that it has been manufactured.” The comment applies fully in the case before us. Although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. It is contended for the Revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the cane employed to contain it. It is not as if the higher price is claimed because it is a different commercially commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a cane of pineapple slices he had in mind something very different from fresh pineapple fruit. Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit is desired. Learned counsel for the Revenue contends that even if no manufacturing process involved, the case still falls within Section 5(1)(a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise. There is a fallacy in the submission. The clause, truly read, speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale.” It follows from the above that mere addition in the value, after the original product has undergone certain process, would not bring it within the definition of manufacture unless its original identity also under goes transformation and it becomes a distinctive and new product. When we apply the aforesaid principle to the facts of this case, it is clear that mere addition of dehydrated vegetables and certain spices to the raw rice, would not make it a different product. Its primary and essential character still remains the same as it is continued to be known in the market as rice and is sold as rice only. Further, this rice, again, remains in raw form and in order to make it edible, it has to be cooked like any other cereal. The process of cooking is even mentioned on the pouch which contains cooking instructions. Reading thereof amply demonstrates that it is to be cooked in the same form as any other rice is to be cooked. Therefore, we do not agree with the CEGAT that there is a transformation into a new commodity, commercially known as distinct and separate commodity.Since we are holding that the activity undertaken by the assessee does not amount to manufacture, this appeal is liable to succeed on this ground itself inasmuch in the absence of any manufacture there is no question of payment of any excise duty. We may, however, remark that even otherwise the classification of the product by the Revenue under sub-heading 21.08 may not be correct. In fact, the CEGAT has accepted that classification only on the ground that the product after mixing of raw rice with dehydrated vegetable and spice, has become a new product as it amounts to `manufacture and on that basis it has held that it no longer remains product of milling industry. As we have held that it does not amount to `manufacture as the essential characteristics of the product, still remains the same, namely, rice, a natural corollary would be that it continues to be the product of the milling industry and would be classifiable under sub-heading 11.01. Rate of duty on this product, in any case, is nil. | 1[ds]Though the authorities below had decided against the assessee, this Court reversed the said view holding that the said process would not amount to `manufacture as the process involving manufacture does not always result in the creation of a new product. In the instant case notwithstanding the manufacturing process, it could not be said that a transformation had taken place resulting in the formation of a newis to be highlighted is that even after the betel nut which had been cut to different sizes and had undergone the process, the Court did not treat it as manufacture within the meaning of Sec.2(f) of the Act on the ground that the end product was still a betel nut and there was no change in the essential character to that article even when it was the result of treatment, labour and manipulation, inasmuch as even after employing the same it had not resulted in the manufacture of a new product as the end product continued to retain its originalthe test which was applied was that essential character of the product did not change and, therefore, it would not amount to manufacture. It was so held even when gum arebic as well as wheat flour were mixed in the process. A pertinent aspect which was noted was that mixing of these articles did not result in chemical reaction withcomment applies fully in the case before us. Although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. It is contended for the Revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the cane employed to contain it. It is not as if the higher price is claimed because it is a different commercially commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a cane of pineapple slices he had in mind something very different from fresh pineapple fruit. Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit iswe apply the aforesaid principle to the facts of this case, it is clear that mere addition of dehydrated vegetables and certain spices to the raw rice, would not make it a different product. Its primary and essential character still remains the same as it is continued to be known in the market as rice and is sold as rice only. Further, this rice, again, remains in raw form and in order to make it edible, it has to be cooked like any other cereal. The process of cooking is even mentioned on the pouch which contains cooking instructions. Reading thereof amply demonstrates that it is to be cooked in the same form as any other rice is to be cooked. Therefore, we do not agree with the CEGAT that there is a transformation into a new commodity, commercially known as distinct and separate commodity.Since we are holding that the activity undertaken by the assessee does not amount to manufacture, this appeal is liable to succeed on this ground itself inasmuch in the absence of any manufacture there is no question of payment of any excise duty. We may, however, remark that even otherwise the classification of the product by the Revenue under sub-heading 21.08 may not be correct. In fact, the CEGAT has accepted that classification only on the ground that the product after mixing of raw rice with dehydrated vegetable and spice, has become a new product as it amounts to `manufacture and on that basis it has held that it no longer remains product of milling industry. As we have held that it does not amount to `manufacture as the essential characteristics of the product, still remains the same, namely, rice, a natural corollary would be that it continues to be the product of the milling industry and would be classifiable under sub-heading 11.01. Rate of duty on this product, in any case, is nil. | 1 | 4,504 | 803 | ### 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:
that the process undertaken by the assessee may have made value addition to the product but the essential character of the product did not undergo any change, which is the determinative factor, inasmuch as pineapple remained the pineapple; albeit in slice form and continued to be known as pineapple in the market. For this proposition the Court decided to rely upon a foreign judgment where the U.S. Supreme Court had held that dressed and frozen chicken was not a commercially distinct article from the original chicken. Detailed discussion of the said judgment appears in para 7 which reads as follows: 7. While on the point, we may refer to East Taxes Motor Freight Lines vs. Frosen Food Express, where the U.S. Supreme Court held that dressed and frozen chicken was not a commercially distinct article from the original chicken. It was pointed out: “killing, dressed and freezing a chicken is certainly a change in the commodity. But it is no more drastic a change than the change which takes place in milk from pasteurising, homogenizing, adding vitamin concentrates, standardizing and bottling”. It was also observed: “……………………there is hardly less difference between cotton in the field and cotton at the gin or in the bale or between cotton seed in the field and cotton seed at the gin, than between a chicken in the pen and one that is dressed. The ginned and baled cotton and the cotton seed, as well as the dressed chicken, have gone through a processing stage. But neither has been ‘manufactured’ in the normal sense of the word. Referring to Anheuser-Busch Brewing-Association v. United States the Court said: ”Manufacture implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary…..There must be transformation; a new and different article must emerge having distinctive name, character on use.” And further: “At some point processing and manufacturing will merge. But where the commodity retains a continuing substantial identity through the processing stage we cannot say that it has been manufactured.” The comment applies fully in the case before us. Although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. It is contended for the Revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the cane employed to contain it. It is not as if the higher price is claimed because it is a different commercially commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a cane of pineapple slices he had in mind something very different from fresh pineapple fruit. Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit is desired. Learned counsel for the Revenue contends that even if no manufacturing process involved, the case still falls within Section 5(1)(a) of the Kerala General Sales Tax Act, because the statutory provision speaks not only of goods consumed in the manufacture of other goods for sale but also goods consumed otherwise. There is a fallacy in the submission. The clause, truly read, speaks of goods consumed in the manufacture of other goods for sale or goods consumed in the manufacture of other goods for purposes other than sale.” It follows from the above that mere addition in the value, after the original product has undergone certain process, would not bring it within the definition of manufacture unless its original identity also under goes transformation and it becomes a distinctive and new product. When we apply the aforesaid principle to the facts of this case, it is clear that mere addition of dehydrated vegetables and certain spices to the raw rice, would not make it a different product. Its primary and essential character still remains the same as it is continued to be known in the market as rice and is sold as rice only. Further, this rice, again, remains in raw form and in order to make it edible, it has to be cooked like any other cereal. The process of cooking is even mentioned on the pouch which contains cooking instructions. Reading thereof amply demonstrates that it is to be cooked in the same form as any other rice is to be cooked. Therefore, we do not agree with the CEGAT that there is a transformation into a new commodity, commercially known as distinct and separate commodity.Since we are holding that the activity undertaken by the assessee does not amount to manufacture, this appeal is liable to succeed on this ground itself inasmuch in the absence of any manufacture there is no question of payment of any excise duty. We may, however, remark that even otherwise the classification of the product by the Revenue under sub-heading 21.08 may not be correct. In fact, the CEGAT has accepted that classification only on the ground that the product after mixing of raw rice with dehydrated vegetable and spice, has become a new product as it amounts to `manufacture and on that basis it has held that it no longer remains product of milling industry. As we have held that it does not amount to `manufacture as the essential characteristics of the product, still remains the same, namely, rice, a natural corollary would be that it continues to be the product of the milling industry and would be classifiable under sub-heading 11.01. Rate of duty on this product, in any case, is nil.
### Response:
1
### Explanation:
Though the authorities below had decided against the assessee, this Court reversed the said view holding that the said process would not amount to `manufacture as the process involving manufacture does not always result in the creation of a new product. In the instant case notwithstanding the manufacturing process, it could not be said that a transformation had taken place resulting in the formation of a newis to be highlighted is that even after the betel nut which had been cut to different sizes and had undergone the process, the Court did not treat it as manufacture within the meaning of Sec.2(f) of the Act on the ground that the end product was still a betel nut and there was no change in the essential character to that article even when it was the result of treatment, labour and manipulation, inasmuch as even after employing the same it had not resulted in the manufacture of a new product as the end product continued to retain its originalthe test which was applied was that essential character of the product did not change and, therefore, it would not amount to manufacture. It was so held even when gum arebic as well as wheat flour were mixed in the process. A pertinent aspect which was noted was that mixing of these articles did not result in chemical reaction withcomment applies fully in the case before us. Although a degree of processing is involved in preparing pineapple slices from the original fruit, the commodity continues to possess its original identity, notwithstanding the removal of inedible portions, the slicing and thereafter canning it on adding sugar to preserve it. It is contended for the Revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different commercial commodity. The higher price, it seems to us, is occasioned only because of the labour put into making the fruit more readily consumable and because of the cane employed to contain it. It is not as if the higher price is claimed because it is a different commercially commodity. It is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a cane of pineapple slices he had in mind something very different from fresh pineapple fruit. Here again, the distinction in the mind of the consumer arises not from any difference in the essential identity of the two, but is derived from the mere form in which the fruit iswe apply the aforesaid principle to the facts of this case, it is clear that mere addition of dehydrated vegetables and certain spices to the raw rice, would not make it a different product. Its primary and essential character still remains the same as it is continued to be known in the market as rice and is sold as rice only. Further, this rice, again, remains in raw form and in order to make it edible, it has to be cooked like any other cereal. The process of cooking is even mentioned on the pouch which contains cooking instructions. Reading thereof amply demonstrates that it is to be cooked in the same form as any other rice is to be cooked. Therefore, we do not agree with the CEGAT that there is a transformation into a new commodity, commercially known as distinct and separate commodity.Since we are holding that the activity undertaken by the assessee does not amount to manufacture, this appeal is liable to succeed on this ground itself inasmuch in the absence of any manufacture there is no question of payment of any excise duty. We may, however, remark that even otherwise the classification of the product by the Revenue under sub-heading 21.08 may not be correct. In fact, the CEGAT has accepted that classification only on the ground that the product after mixing of raw rice with dehydrated vegetable and spice, has become a new product as it amounts to `manufacture and on that basis it has held that it no longer remains product of milling industry. As we have held that it does not amount to `manufacture as the essential characteristics of the product, still remains the same, namely, rice, a natural corollary would be that it continues to be the product of the milling industry and would be classifiable under sub-heading 11.01. Rate of duty on this product, in any case, is nil.
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M/s. Inox Wind Ltd Vs. M/s. Thermocables Ltd | parties, a ?stricter rule? is applied in charterparty/bills of lading cases. The reason given is that the other party may have no knowledge nor ready means of knowledge of the relevant terms. Further, as the authorities illustrate, the terms of an arbitration clause may require adjustment if they are to be made to apply to the parties to a different contract.?The Court therefore reinforced the distinction between incorporation by reference of standard form terms and of the terms of a different contract, and concluded that in a single contract case general words of incorporation are sufficient, whereas by its nature a two contract case may require specific reference to the other contract, unless the secondary document is stated to be based on standard form terms containing an arbitration agreement. In that case, presumably specific reference to the arbitration clause would not be needed. As discussed below, this approach has been endorsed in subsequent cases, albeit drawing a slightly different but ?material? distinction between incorporation of the terms of a separate contract – standard or otherwise – made between the same parties which are treated as ?single contract? cases, even where there is in fact more than one contract; and those where the terms to be incorporated are contained in a contract between one or more different parties which are treated as the ?two contract? cases. (Para 2-049)Extension of the single contract cases.Recently, the courts appear to have extended the ?single contract? principle applicable to standard form contracts, where general words of incorporation will suffice, to other types of contract where the same rationale can be said to apply. Thus, if the document sought to be incorporated is a bespoke contract between the same parties, the courts have accepted this as a ?single contract? case where general words of incorporation will suffice, even though the other contract is not on standard terms and constitutes an entirely separate agreement. The rationale for this approach is that the parties have already contracted on the terms said to be incorporated and are therefore even more likely to be familiar with the term relied on than a party resisting incorporation of a standard term. Put another way, if general words of incorporation are sufficient for the latter, they should be even more so for the former. The courts also appear to have accepted as a ?single contract? case a situation where the contract referred to is between one of the parties to the original contract and a third party, where the contracts as a whole ?were entered into in the context of a single commercial relationship?.(Para 2-050) [Emphasis Supplied]18. This Court in M.R. Engineers? case, which is discussed in detail supra, held the rule to be that an arbitration clause in an earlier contract cannot be incorporated by a general reference. The exception to the rule is a reference to a standard form of contract by a trade association or a professional institution in which case a general reference would be sufficient for incorporation of an arbitration clause. Reliance was placed by this Court on Russell on Arbitration 23 rd Edition (2007) . The development of law regarding incorporation after the judgment in M.R. Engineers requires careful consideration. It has been held in Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm) that a standard form of one party is also recognized as a ‘single contract? case. In the said case, it was also held that in single contract cases general reference is enough for incorporation of an arbitration clause from a standard form of contract. There is no distinction that is drawn between standard forms by recognized trade associations or professional institutions on one hand and standard terms of one party on the other. Russell on Arbitration 24 th Edition (2015) also takes note of the Habas?s case.19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause. | 1[ds]19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause. | 1 | 5,490 | 394 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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parties, a ?stricter rule? is applied in charterparty/bills of lading cases. The reason given is that the other party may have no knowledge nor ready means of knowledge of the relevant terms. Further, as the authorities illustrate, the terms of an arbitration clause may require adjustment if they are to be made to apply to the parties to a different contract.?The Court therefore reinforced the distinction between incorporation by reference of standard form terms and of the terms of a different contract, and concluded that in a single contract case general words of incorporation are sufficient, whereas by its nature a two contract case may require specific reference to the other contract, unless the secondary document is stated to be based on standard form terms containing an arbitration agreement. In that case, presumably specific reference to the arbitration clause would not be needed. As discussed below, this approach has been endorsed in subsequent cases, albeit drawing a slightly different but ?material? distinction between incorporation of the terms of a separate contract – standard or otherwise – made between the same parties which are treated as ?single contract? cases, even where there is in fact more than one contract; and those where the terms to be incorporated are contained in a contract between one or more different parties which are treated as the ?two contract? cases. (Para 2-049)Extension of the single contract cases.Recently, the courts appear to have extended the ?single contract? principle applicable to standard form contracts, where general words of incorporation will suffice, to other types of contract where the same rationale can be said to apply. Thus, if the document sought to be incorporated is a bespoke contract between the same parties, the courts have accepted this as a ?single contract? case where general words of incorporation will suffice, even though the other contract is not on standard terms and constitutes an entirely separate agreement. The rationale for this approach is that the parties have already contracted on the terms said to be incorporated and are therefore even more likely to be familiar with the term relied on than a party resisting incorporation of a standard term. Put another way, if general words of incorporation are sufficient for the latter, they should be even more so for the former. The courts also appear to have accepted as a ?single contract? case a situation where the contract referred to is between one of the parties to the original contract and a third party, where the contracts as a whole ?were entered into in the context of a single commercial relationship?.(Para 2-050) [Emphasis Supplied]18. This Court in M.R. Engineers? case, which is discussed in detail supra, held the rule to be that an arbitration clause in an earlier contract cannot be incorporated by a general reference. The exception to the rule is a reference to a standard form of contract by a trade association or a professional institution in which case a general reference would be sufficient for incorporation of an arbitration clause. Reliance was placed by this Court on Russell on Arbitration 23 rd Edition (2007) . The development of law regarding incorporation after the judgment in M.R. Engineers requires careful consideration. It has been held in Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm) that a standard form of one party is also recognized as a ‘single contract? case. In the said case, it was also held that in single contract cases general reference is enough for incorporation of an arbitration clause from a standard form of contract. There is no distinction that is drawn between standard forms by recognized trade associations or professional institutions on one hand and standard terms of one party on the other. Russell on Arbitration 24 th Edition (2015) also takes note of the Habas?s case.19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause.
### Response:
1
### Explanation:
19. We are of the opinion that though general reference to an earlier contract is not sufficient for incorporation of an arbitration clause in the later contract, a general reference to a standard form would be enough for incorporation of the arbitration clause. In M.R. Engineers this Court restricted the exceptions to standard form of contract of trade associations and professional institutions. In view of the development of law after the judgment in M.R. Engineers? case, we are of the opinion that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form of contract of one party will be enough for incorporation of arbitration clause. A perusal of the passage from Russell on Arbitration 24 th Edition (2015) would demonstrate the change in position of law pertaining to incorporation when read in conjunction with the earlier edition relied upon by this Court in M.R. Engineers? case. We are in agreement with the judgment in M.R. Engineer?s case with a modification that a general reference to a standard form of contract of one party along with those of trade associations and professional bodies will be sufficient to incorporate the arbitration clause.20. In the present case, the purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause.
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Commissioner Of Income Tax, Madras Vs. M/S. Madurai Mills Co. Limited | to sale, exchange, relinquishment or transfer of the assets. The revenue, in the circumstances, cannot derive much assistance from that case. 9. In the case of Commr. of Income-tax v. Dewas Cine Corpn. 68 ITR 240 = (AIR 1968 SC 676 ) this Court while dealing with Section 10 (2) (vii) of the Act observed that the expression "sale" in its ordinary meaning is a transfer of property for a price and adjustment of the rights of the partners in a dissolved firm by allotment of its assets is not a transfer nor it is for a price. In that case the assets were distributed among the partners and it was contended that the assets must in law be deemed to be sold to the individual partners in consideration of their respective shares, and the difference between the written-down value and the price realised should be included in the toted income of the partnership under the second proviso to Section 10 (2) (vii). This Court in this context observed that a partner may in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a partner in satisfaction of his claim to his share, could not be deemed in law to be sold to him. 10. In Commr. of Income-tax v. Associated Industrial Development Co. P. Ltd. (1969) 73 ITR 50 (Cal) a Division Bench of the Calcutta High Court held that the amount received by a share-holder on the liquidation of a company was not assessable to capital gains as there was no sale, exchange, relinquishment or transfer of the capital assets. Similar view has also been taken by the Gujarat High Court in Commr. of Income Tax v. R. M. Amin, 82 ITR l94 = (1972 Tax LR 226 (Guj) ). 11. We are, therefore, of the view that distribution of the assets of the companies in liquidation does not amount to a transaction of sale, exchange, relinquishment or transfer so as to attract Section 12B of the Act. 12. Mr. Manchanda on behalf of the appellant has invited our attention to the third proviso to sub-section (1) of Section 12B as originally enacted by the Income-tax and Excess Profit Tax (Amendment) Act wherein it was stated, inter alia, that any distribution of capital assets on the dissolution of a firm or other association of persons or on the liquidation of a company shall not for the purpose of Section 12B be treated as sale, exchange or transfer of capital assets. It is urged that the omission of such distribution of capital assets in the first proviso to sub-section (l) of section 12B, as revived by the Finance (No. 3) Act of 1956, would show that the legislature wanted the distribution of capital assets on dissolution of a firm or other association of persons or the liquidation of a company to be treated as sale, exchange or transfer. This contention, in our opinion, is not well founded. It appears to us that the cases of the distribution of capital assets on dissolution of a firm or other association of persons or liquidation of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allay fears even though the language of sub-section (1) of S. 12B was not intended to apply to such cases. Provisos, as mentioned on page 221 of Craies on Statute Laws, Sixth Edition, are often inserted to allay fears. A proviso is inserted to guard against the particular case of which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all. 13. We have already stated earlier that the distribution of assets by a liquidator on the voluntary winding up of a company cannot constitute sale, transfer or exchange for the purpose of sub-section (1) of S. 12B of the Act. If the language of sub-section (1) of Section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer or exchange the said transaction of distribution of assets would not, in our opinion, change its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to sub-section (1) of Section 12B of the Act, even though such a clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition; page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Further, it the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso (see page 217 of Craies on Statute Law, Sixth Edition). 14. In the light of what has been discussed above, the difference between the language of the first proviso to Section 12 (B) (1), as inserted by Finance (No. 3) Act of 1956 and the third proviso to Section 12 (b) (1), as inserted by Act 22 of 1947, cannot be of much material help to the revenue. 15. Reference has also been made by Mr. Manchanda to Section 46 of the Income-tax Act, 1961 which contains a provision for charging with capital gains the money or assets received by a share-holder on the liquidation of a company. The liability under that section arises from its express provisions. It cannot, however, be said that such a liability would also arise even in the absence of such provisions under the Act of 1922. | 0[ds]We, however, find ourselves unable to accede to this contention. The act of each of the liquidators in distributing the assets of the company which had gone into voluntary liquidation did not result in the creation of new rights. It merely entailed recognition of legal rights which were in existence prior to the distribution. According to observations on page 512 of Buckleys Commentaries on the Companies Act, Thirteenth Edition, a liquidator is only a trustee in the sense that the property of the company ceases upon the winding up to belong beneficially to the company and passes into his custody, to be applied by him as directed by the statuteWhen a share-holder receives money representing his share on distribution of the net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer. In the circumstances, we find it difficult to hold that the assessee company is liable to pay tax on capital gains as contemplated by Section 12B of the Act in respect of the amount of Rs. 95,944In the present case there has been no sale or receipt of price but only a distribution of the assets of the companies which had gone into voluntary liquidation. Such a transaction does not amount to sale, exchange, relinquishment or transfer of the assets. The revenue, in the circumstances, cannot derive much assistance from that case11. We are, therefore, of the view that distribution of the assets of the companies in liquidation does not amount to a transaction of sale, exchange, relinquishment or transfer so as to attract Section 12B of the ActThis contention, in our opinion, is not well founded. It appears to us that the cases of the distribution of capital assets on dissolution of a firm or other association of persons or liquidation of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allay fears even though the language of sub-section (1) of S. 12B was not intended to apply to such cases. Provisos, as mentioned on page 221 of Craies on Statute Laws, Sixth Edition, are often inserted to allay fears. A proviso is inserted to guard against the particular case of which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all13. We have already stated earlier that the distribution of assets by a liquidator on the voluntary winding up of a company cannot constitute sale, transfer or exchange for the purpose of sub-section (1) of S. 12B of the Act. If the language of sub-section (1) of Section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer or exchange the said transaction of distribution of assets would not, in our opinion, change its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to sub-section (1) of Section 12B of the Act, even though such a clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition; page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Further, it the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso (see page 217 of Craies on Statute Law, Sixth Edition)14. In the light of what has been discussed above, the difference between the language of the first proviso to Section 12 (B) (1), as inserted by Finance (No. 3) Act of 1956 and the third proviso to Section 12 (b) (1), as inserted by Act 22 of 1947, cannot be of much material help to the revenueIt cannot, however, be said that such a liability would also arise even in the absence of such provisions under the Act of 1922. | 0 | 3,340 | 841 | ### 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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to sale, exchange, relinquishment or transfer of the assets. The revenue, in the circumstances, cannot derive much assistance from that case. 9. In the case of Commr. of Income-tax v. Dewas Cine Corpn. 68 ITR 240 = (AIR 1968 SC 676 ) this Court while dealing with Section 10 (2) (vii) of the Act observed that the expression "sale" in its ordinary meaning is a transfer of property for a price and adjustment of the rights of the partners in a dissolved firm by allotment of its assets is not a transfer nor it is for a price. In that case the assets were distributed among the partners and it was contended that the assets must in law be deemed to be sold to the individual partners in consideration of their respective shares, and the difference between the written-down value and the price realised should be included in the toted income of the partnership under the second proviso to Section 10 (2) (vii). This Court in this context observed that a partner may in an action for dissolution insist that the assets of the partnership be realised by sale of its assets, but property allotted to a partner in satisfaction of his claim to his share, could not be deemed in law to be sold to him. 10. In Commr. of Income-tax v. Associated Industrial Development Co. P. Ltd. (1969) 73 ITR 50 (Cal) a Division Bench of the Calcutta High Court held that the amount received by a share-holder on the liquidation of a company was not assessable to capital gains as there was no sale, exchange, relinquishment or transfer of the capital assets. Similar view has also been taken by the Gujarat High Court in Commr. of Income Tax v. R. M. Amin, 82 ITR l94 = (1972 Tax LR 226 (Guj) ). 11. We are, therefore, of the view that distribution of the assets of the companies in liquidation does not amount to a transaction of sale, exchange, relinquishment or transfer so as to attract Section 12B of the Act. 12. Mr. Manchanda on behalf of the appellant has invited our attention to the third proviso to sub-section (1) of Section 12B as originally enacted by the Income-tax and Excess Profit Tax (Amendment) Act wherein it was stated, inter alia, that any distribution of capital assets on the dissolution of a firm or other association of persons or on the liquidation of a company shall not for the purpose of Section 12B be treated as sale, exchange or transfer of capital assets. It is urged that the omission of such distribution of capital assets in the first proviso to sub-section (l) of section 12B, as revived by the Finance (No. 3) Act of 1956, would show that the legislature wanted the distribution of capital assets on dissolution of a firm or other association of persons or the liquidation of a company to be treated as sale, exchange or transfer. This contention, in our opinion, is not well founded. It appears to us that the cases of the distribution of capital assets on dissolution of a firm or other association of persons or liquidation of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allay fears even though the language of sub-section (1) of S. 12B was not intended to apply to such cases. Provisos, as mentioned on page 221 of Craies on Statute Laws, Sixth Edition, are often inserted to allay fears. A proviso is inserted to guard against the particular case of which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all. 13. We have already stated earlier that the distribution of assets by a liquidator on the voluntary winding up of a company cannot constitute sale, transfer or exchange for the purpose of sub-section (1) of S. 12B of the Act. If the language of sub-section (1) of Section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer or exchange the said transaction of distribution of assets would not, in our opinion, change its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to sub-section (1) of Section 12B of the Act, even though such a clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition; page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Further, it the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso (see page 217 of Craies on Statute Law, Sixth Edition). 14. In the light of what has been discussed above, the difference between the language of the first proviso to Section 12 (B) (1), as inserted by Finance (No. 3) Act of 1956 and the third proviso to Section 12 (b) (1), as inserted by Act 22 of 1947, cannot be of much material help to the revenue. 15. Reference has also been made by Mr. Manchanda to Section 46 of the Income-tax Act, 1961 which contains a provision for charging with capital gains the money or assets received by a share-holder on the liquidation of a company. The liability under that section arises from its express provisions. It cannot, however, be said that such a liability would also arise even in the absence of such provisions under the Act of 1922.
### Response:
0
### Explanation:
We, however, find ourselves unable to accede to this contention. The act of each of the liquidators in distributing the assets of the company which had gone into voluntary liquidation did not result in the creation of new rights. It merely entailed recognition of legal rights which were in existence prior to the distribution. According to observations on page 512 of Buckleys Commentaries on the Companies Act, Thirteenth Edition, a liquidator is only a trustee in the sense that the property of the company ceases upon the winding up to belong beneficially to the company and passes into his custody, to be applied by him as directed by the statuteWhen a share-holder receives money representing his share on distribution of the net assets of the company in liquidation, he receives that money in satisfaction of the right which belonged to him by virtue of his holding the shares and not by operation of any transaction which amounts to sale, exchange, relinquishment or transfer. In the circumstances, we find it difficult to hold that the assessee company is liable to pay tax on capital gains as contemplated by Section 12B of the Act in respect of the amount of Rs. 95,944In the present case there has been no sale or receipt of price but only a distribution of the assets of the companies which had gone into voluntary liquidation. Such a transaction does not amount to sale, exchange, relinquishment or transfer of the assets. The revenue, in the circumstances, cannot derive much assistance from that case11. We are, therefore, of the view that distribution of the assets of the companies in liquidation does not amount to a transaction of sale, exchange, relinquishment or transfer so as to attract Section 12B of the ActThis contention, in our opinion, is not well founded. It appears to us that the cases of the distribution of capital assets on dissolution of a firm or other association of persons or liquidation of a company were mentioned in the third proviso under the earlier Act, as a matter of clarification to allay fears even though the language of sub-section (1) of S. 12B was not intended to apply to such cases. Provisos, as mentioned on page 221 of Craies on Statute Laws, Sixth Edition, are often inserted to allay fears. A proviso is inserted to guard against the particular case of which a particular person is apprehensive, although the enactment was never intended to apply to his case or to any other similar case at all13. We have already stated earlier that the distribution of assets by a liquidator on the voluntary winding up of a company cannot constitute sale, transfer or exchange for the purpose of sub-section (1) of S. 12B of the Act. If the language of sub-section (1) of Section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer or exchange the said transaction of distribution of assets would not, in our opinion, change its character and acquire the attributes of sale, transfer or exchange because of the omission of a clarification in the first proviso to sub-section (1) of Section 12B of the Act, even though such a clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition; page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect. Further, it the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso (see page 217 of Craies on Statute Law, Sixth Edition)14. In the light of what has been discussed above, the difference between the language of the first proviso to Section 12 (B) (1), as inserted by Finance (No. 3) Act of 1956 and the third proviso to Section 12 (b) (1), as inserted by Act 22 of 1947, cannot be of much material help to the revenueIt cannot, however, be said that such a liability would also arise even in the absence of such provisions under the Act of 1922.
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Union of India Vs. M/s. Singh Builders Syndicate | or his designate is not powerless to make appropriate alternative arrangements to give effect to the provision for arbitration. 8. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of parties choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such Tribunal is made non-functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expeditiously to replace the arbitrators in terms of the Arbitration Agreement, the Chief Justice or his designate, required to exercise power under section 11 of the Act, can step in and pass appropriate orders. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as Arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously. Constituting Arbitral Tribunals with serving officers from different far away places should be avoided. There can be no hard and fast rule, but there should be a conscious effort to ensure that Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades. 9. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of clause 64, there may be a need to change even the other two members of the Tribunal. The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole Arbitrator does not call for interference in exercise of jurisdiction under Article 136 of the Constitution of India. 10. Another aspect referred to by the appellant, however requires serious consideration. When the arbitration is by a Tribunal consisting of serving officers, the cost of arbitration is very low. On the other hand, the cost of arbitration can be high if the Arbitral Tribunal consists of retired Judge/s. When a retired Judge is appointed as Arbitrator in place of serving officers, the government is forced to bear the high cost of Arbitration by way of private arbitrators fee even though it had not consented for the appointment of such non-technical non-serving persons as Arbitrator/s. There is no doubt a prevalent opinion that the cost of arbitration becomes very high in many cases where retired Judge/s are Arbitrators. The large number of sittings and charging of very high fees per sitting, with several add-ons, without any ceiling, have many a time resulted in the cost of arbitration approaching or even exceeding the amount involved in the dispute or the amount of the award. When an arbitrator is appointed by a court without indicating fees, either both parties or at least one party is at a disadvantage. Firstly, the parties feel constrained to agree to whatever fees is suggested by the Arbitrator, even if it is high or beyond their capacity. Secondly, if a high fee is claimed by the Arbitrator and one party agrees to pay such fee, the other party, who is unable to afford such fee or reluctant to pay such high fee, is put to an embarrassing position. He will not be in a position to express his reservation or objection to the high fee, owing to an apprehension that refusal by him to agree for the fee suggested by the arbitrator, may prejudice his case or create a bias in favour of the other party who readily agreed to pay the high fee. It is necessary to find an urgent solution for this problem to save arbitration from the arbitration cost. Institutional arbitration has provided a solution as the Arbitrators fees is not fixed by the Arbitrators themselves on case to case basis, but is governed by a uniform rate prescribed by the institution under whose aegis the Arbitration is held. Another solution is for the court to fix the fees at the time of appointing the arbitrator, with the consent of parties, if necessary in consultation with the arbitrator concerned. Third is for the retired Judges offering to serve as Arbitrators, to indicate their fee structure to the Registry of the respective High Court so that the parties will have the choice of selecting an Arbitrator whose fees are in their `range having regard to the stakes involved. What is found to be objectionable is parties being forced to go to an arbitrator appointed by the court and then being forced to agree for a fee fixed by such Arbitrator. It is unfortunate that delays, high cost, frequent and sometimes unwarranted judicial interruptions at different stages are seriously hampering the growth of arbitration as an effective dispute resolution process. Delay and high cost are two areas where the Arbitrators by self regulation can bring about marked improvement. 11. We find that a provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration. | 0[ds]8. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of parties choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such Tribunal is made non-functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expeditiously to replace the arbitrators in terms of the Arbitration Agreement, the Chief Justice or his designate, required to exercise power under section 11 of the Act, can step in and pass appropriate orders. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as Arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously. Constituting Arbitral Tribunals with serving officers from different far away places should be avoided. There can be no hard and fast rule, but there should be a conscious effort to ensure that Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades9. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of clause 64, there may be a need to change even the other two members of the Tribunal. The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole Arbitrator does not call for interference in exercise of jurisdiction under Article 136 of the Constitution of India10. Another aspect referred to by the appellant, however requires serious consideration. When the arbitration is by a Tribunal consisting of serving officers, the cost of arbitration is very low. On the other hand, the cost of arbitration can be high if the Arbitral Tribunal consists of retired Judge/s. When a retired Judge is appointed as Arbitrator in place of serving officers, the government is forced to bear the high cost of Arbitration by way of private arbitrators fee even though it had not consented for the appointment of such non-technical non-serving persons as Arbitrator/s. There is no doubt a prevalent opinion that the cost of arbitration becomes very high in many cases where retired Judge/s are Arbitrators. The large number of sittings and charging of very high fees per sitting, with several add-ons, without any ceiling, have many a time resulted in the cost of arbitration approaching or even exceeding the amount involved in the dispute or the amount of the award. When an arbitrator is appointed by a court without indicating fees, either both parties or at least one party is at a disadvantage. Firstly, the parties feel constrained to agree to whatever fees is suggested by the Arbitrator, even if it is high or beyond their capacity. Secondly, if a high fee is claimed by the Arbitrator and one party agrees to pay such fee, the other party, who is unable to afford such fee or reluctant to pay such high fee, is put to an embarrassing position. He will not be in a position to express his reservation or objection to the high fee, owing to an apprehension that refusal by him to agree for the fee suggested by the arbitrator, may prejudice his case or create a bias in favour of the other party who readily agreed to pay the high fee. It is necessary to find an urgent solution for this problem to save arbitration from the arbitration cost. Institutional arbitration has provided a solution as the Arbitrators fees is not fixed by the Arbitrators themselves on case to case basis, but is governed by a uniform rate prescribed by the institution under whose aegis the Arbitration is held. Another solution is for the court to fix the fees at the time of appointing the arbitrator, with the consent of parties, if necessary in consultation with the arbitrator concerned. Third is for the retired Judges offering to serve as Arbitrators, to indicate their fee structure to the Registry of the respective High Court so that the parties will have the choice of selecting an Arbitrator whose fees are in their `range having regard to the stakes involved. What is found to be objectionable is parties being forced to go to an arbitrator appointed by the court and then being forced to agree for a fee fixed by such Arbitrator. It is unfortunate that delays, high cost, frequent and sometimes unwarranted judicial interruptions at different stages are seriously hampering the growth of arbitration as an effective dispute resolution process. Delay and high cost are two areas where the Arbitrators by self regulation can bring about marked improvement11. We find that a provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration. | 0 | 2,182 | 1,053 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
or his designate is not powerless to make appropriate alternative arrangements to give effect to the provision for arbitration. 8. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of parties choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such Tribunal is made non-functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expeditiously to replace the arbitrators in terms of the Arbitration Agreement, the Chief Justice or his designate, required to exercise power under section 11 of the Act, can step in and pass appropriate orders. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as Arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously. Constituting Arbitral Tribunals with serving officers from different far away places should be avoided. There can be no hard and fast rule, but there should be a conscious effort to ensure that Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades. 9. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of clause 64, there may be a need to change even the other two members of the Tribunal. The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole Arbitrator does not call for interference in exercise of jurisdiction under Article 136 of the Constitution of India. 10. Another aspect referred to by the appellant, however requires serious consideration. When the arbitration is by a Tribunal consisting of serving officers, the cost of arbitration is very low. On the other hand, the cost of arbitration can be high if the Arbitral Tribunal consists of retired Judge/s. When a retired Judge is appointed as Arbitrator in place of serving officers, the government is forced to bear the high cost of Arbitration by way of private arbitrators fee even though it had not consented for the appointment of such non-technical non-serving persons as Arbitrator/s. There is no doubt a prevalent opinion that the cost of arbitration becomes very high in many cases where retired Judge/s are Arbitrators. The large number of sittings and charging of very high fees per sitting, with several add-ons, without any ceiling, have many a time resulted in the cost of arbitration approaching or even exceeding the amount involved in the dispute or the amount of the award. When an arbitrator is appointed by a court without indicating fees, either both parties or at least one party is at a disadvantage. Firstly, the parties feel constrained to agree to whatever fees is suggested by the Arbitrator, even if it is high or beyond their capacity. Secondly, if a high fee is claimed by the Arbitrator and one party agrees to pay such fee, the other party, who is unable to afford such fee or reluctant to pay such high fee, is put to an embarrassing position. He will not be in a position to express his reservation or objection to the high fee, owing to an apprehension that refusal by him to agree for the fee suggested by the arbitrator, may prejudice his case or create a bias in favour of the other party who readily agreed to pay the high fee. It is necessary to find an urgent solution for this problem to save arbitration from the arbitration cost. Institutional arbitration has provided a solution as the Arbitrators fees is not fixed by the Arbitrators themselves on case to case basis, but is governed by a uniform rate prescribed by the institution under whose aegis the Arbitration is held. Another solution is for the court to fix the fees at the time of appointing the arbitrator, with the consent of parties, if necessary in consultation with the arbitrator concerned. Third is for the retired Judges offering to serve as Arbitrators, to indicate their fee structure to the Registry of the respective High Court so that the parties will have the choice of selecting an Arbitrator whose fees are in their `range having regard to the stakes involved. What is found to be objectionable is parties being forced to go to an arbitrator appointed by the court and then being forced to agree for a fee fixed by such Arbitrator. It is unfortunate that delays, high cost, frequent and sometimes unwarranted judicial interruptions at different stages are seriously hampering the growth of arbitration as an effective dispute resolution process. Delay and high cost are two areas where the Arbitrators by self regulation can bring about marked improvement. 11. We find that a provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration.
### Response:
0
### Explanation:
8. The object of the alternative dispute resolution process of arbitration is to have expeditious and effective disposal of the disputes through a private forum of parties choice. If the Arbitral Tribunal consists of serving officers of one of the parties to the dispute, as members in terms of the arbitration agreement, and such Tribunal is made non-functional on account of the action or inaction or delay of such party, either by frequent transfers of such members of the Arbitral Tribunal or by failing to take steps expeditiously to replace the arbitrators in terms of the Arbitration Agreement, the Chief Justice or his designate, required to exercise power under section 11 of the Act, can step in and pass appropriate orders. We fail to understand why the General Manager of the Railways repeatedly furnished panels containing names of officers who were due for transfer in the near future. We are conscious of the fact that a serving officer is transferred on account of exigencies of service and transfer policy of the employer and that merely because an employee is appointed as arbitrator, his transfer cannot be avoided or postponed. But an effort should be made to ensure that officers who are likely to remain in a particular place are alone appointed as Arbitrators and that the Arbitral Tribunal consisting of serving officers, decides the matter expeditiously. Constituting Arbitral Tribunals with serving officers from different far away places should be avoided. There can be no hard and fast rule, but there should be a conscious effort to ensure that Arbitral Tribunal is constituted promptly and arbitration does not drag on for years and decades9. As noticed above, the matter has now been pending for nearly ten years from the date when the demand for arbitration was first made with virtually no progress. Having regard to the passage of time, if the Arbitral Tribunal has to be reconstituted in terms of clause 64, there may be a need to change even the other two members of the Tribunal. The delays and frequent changes in the Arbitral Tribunal make a mockery of the process of arbitration. Having regard to this factual background, we are of the view that the appointment of a retired Judge of the Delhi High Court as sole Arbitrator does not call for interference in exercise of jurisdiction under Article 136 of the Constitution of India10. Another aspect referred to by the appellant, however requires serious consideration. When the arbitration is by a Tribunal consisting of serving officers, the cost of arbitration is very low. On the other hand, the cost of arbitration can be high if the Arbitral Tribunal consists of retired Judge/s. When a retired Judge is appointed as Arbitrator in place of serving officers, the government is forced to bear the high cost of Arbitration by way of private arbitrators fee even though it had not consented for the appointment of such non-technical non-serving persons as Arbitrator/s. There is no doubt a prevalent opinion that the cost of arbitration becomes very high in many cases where retired Judge/s are Arbitrators. The large number of sittings and charging of very high fees per sitting, with several add-ons, without any ceiling, have many a time resulted in the cost of arbitration approaching or even exceeding the amount involved in the dispute or the amount of the award. When an arbitrator is appointed by a court without indicating fees, either both parties or at least one party is at a disadvantage. Firstly, the parties feel constrained to agree to whatever fees is suggested by the Arbitrator, even if it is high or beyond their capacity. Secondly, if a high fee is claimed by the Arbitrator and one party agrees to pay such fee, the other party, who is unable to afford such fee or reluctant to pay such high fee, is put to an embarrassing position. He will not be in a position to express his reservation or objection to the high fee, owing to an apprehension that refusal by him to agree for the fee suggested by the arbitrator, may prejudice his case or create a bias in favour of the other party who readily agreed to pay the high fee. It is necessary to find an urgent solution for this problem to save arbitration from the arbitration cost. Institutional arbitration has provided a solution as the Arbitrators fees is not fixed by the Arbitrators themselves on case to case basis, but is governed by a uniform rate prescribed by the institution under whose aegis the Arbitration is held. Another solution is for the court to fix the fees at the time of appointing the arbitrator, with the consent of parties, if necessary in consultation with the arbitrator concerned. Third is for the retired Judges offering to serve as Arbitrators, to indicate their fee structure to the Registry of the respective High Court so that the parties will have the choice of selecting an Arbitrator whose fees are in their `range having regard to the stakes involved. What is found to be objectionable is parties being forced to go to an arbitrator appointed by the court and then being forced to agree for a fee fixed by such Arbitrator. It is unfortunate that delays, high cost, frequent and sometimes unwarranted judicial interruptions at different stages are seriously hampering the growth of arbitration as an effective dispute resolution process. Delay and high cost are two areas where the Arbitrators by self regulation can bring about marked improvement11. We find that a provision for serving officers of one party being appointed as arbitrator/s brings out considerable resistance from the other party, when disputes arise. Having regard to the emphasis on independence and impartiality in the new Act, government, statutory authorities and government companies should think of phasing out arbitration clauses providing for serving officers and encourage professionalism in arbitration.
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M/S.Associated Journals Ltd Vs. The Mysore Paper Mills Ltd | affidavit by filing fresh affidavit for removal of the defect in swearing clause of the affidavit. The case of the respondents is not prejudiced in any manner nor there was any bar of limitation to come in the way. The winding up petition has already been admitted and any amendment or correction to rectify the defect of the affidavit by filing fresh affidavit at this stage would not be so fatal to dismiss the petition. The Court has always discretion to allow the amendment of pleadings, reswearing or reverification of the petition. The defects thus could be cured subsequently even after filing of the petition." 18. In this context, it is beneficial to reproduce Form No.3 of the Companies (Court) Rules, 1959: - "FORM NO.3[See rule 21][Heading as in Form No.1]Company Petition No.......of 19....Affidavit verifying petitionI, A.B., son of ...................aged ...........residing at .............do, solemnly affirm and say as follows:-1. I am a director/secretary/.............../of ................Ltd., the petitioner in the above matter *(and am duly authorized by the said petitioner to make this affidavit on its behalf).[Note.-This paragraph is to be included in cases where the petitioner is the company.]2. The statements made in paragraphs.......of the petition herein now shown to me and marked with the letter `A, are true to my knowledge, and the statements made in paragraphs..........are based on information, and I believe them to be true.Solemnly affirmed, etc.*Note.- To be included when the affidavit is sworn to by any person other than a director, agent or secretary or other officer of the company." 19. Rule 21 of the Companies (Court) Rules, 1959 prescribes the procedure for verification of affidavit. Rule 21 is reproduced as under: - "R.21. Affidavit verifying petition.- Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in the case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof; such affidavit shall be filed along with the petition and shall be in Form No.3:Provided that the Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit." 20. The affidavit filed by the respondent herein is available at page 63 of the paper book. Para 2 of the said affidavit is reproduced as under: - "2. That I have read the contents of the accompanying Company Petition and have understood the contents thereof.I, the deponent above named do hereby swear that the contents of paragraphs nos.1 and 2 of this affidavit, those of paragraph nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the accompanying petition are true to the best of my knowledge, information and belief, that no part of its is false and nothing material has been concealed in it. So help me God." 21 . A careful perusal of the affidavit filed by the respondent and Form No.3 as prescribed under Rule 21 would show that there is substantial compliance of the said Rule. A Three-Judge Bench of this Court in an identical matter in Malhotra Steel Syndicate vs. Punjab Chemi-Plants Ltd., (1993) Suppl.3 SCC 565 has also opined that even if there is some slight defect or irregularity in the filing of affidavit, the appellant should have been given an opportunity to rectify the same. In the instant case, the same liberty was given to the respondent by the Company Judge as also by the Division Bench of the High Court. We are, therefore, of the opinion that the Division Bench was right in dismissing the appeal filed by the appellant.22. This Court has in catena of decisions held that substantial compliance is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition. In the instant case, both the learned Company Judge and also the Division Bench were of the opinion that there is substantial compliance of Rule 21. In Khaitan Overseas & Finance Ltd. vs. Dhandhania Bros. P. Ltd., (2002) 1 Comp LJ 274, a petition was filed by the Chairman-cum-Director of the company. He annexed with the petition a resolution of the Board of Directors permitting him to execute necessary petitions, documents, applications, affidavits and to lodge a suit to recover dues from the debtor company. This was held to include the authority to file a Winding Up Petition also. The affidavit accompanying the petition was signed, sworn and affirmed on oath in the prescribed manner. The court said that the affidavit conformed with the requirements of law.23. We are of the opinion that the Rules of procedure cannot be a tool to circumvent the justice. In fact, the Rules are laid to help for speedy disposal of justice. The learned Judges of the Division Bench has appreciated that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. The learned counsel submitted that the appellant is raising the defence of technical plea to protect himself from the consequence of his default and this plea cannot be considered effective enough to review the order of advertisement. Assuming without admitting that the affidavit was not verified as per the Company Rules, the learned counsel has correctly submitted that if this objection was taken earlier the respondent would have cured the defect.24. For the aforesaid reasons, we are of the opinion that the appeal has no merit and the order passed by the learned Judges of the Division Bench confirming the order passed by the Learned Company Judge does not call for any interference by this Court. | 0[ds]A careful perusal of the affidavit filed by the respondent and Form No.3 as prescribed under Rule 21 would show that there is substantial compliance of the said Rule. ABench of this Court in an identical matter in Malhotra Steel Syndicate vs. PunjabLtd., (1993) Suppl.3 SCC 565 has also opined that even if there is some slight defect or irregularity in the filing of affidavit, the appellant should have been given an opportunity to rectify the same. In the instant case, the same liberty was given to the respondent by the Company Judge as also by the Division Bench of the High Court. We are, therefore, of the opinion that the Division Bench was right in dismissing the appeal filed by the appellant.22. This Court has in catena of decisions held that substantial compliance is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition. In the instant case, both the learned Company Judge and also the Division Bench were of the opinion that there is substantial compliance of Rule 21. In Khaitan Overseas & Finance Ltd. vs. Dhandhania Bros. P. Ltd., (2002) 1 Comp LJ 274, a petition was filed by theof the company. He annexed with the petition a resolution of the Board of Directors permitting him to execute necessary petitions, documents, applications, affidavits and to lodge a suit to recover dues from the debtor company. This was held to include the authority to file a Winding Up Petition also. The affidavit accompanying the petition was signed, sworn and affirmed on oath in the prescribed manner. The court said that the affidavit conformed with the requirements of law.23. We are of the opinion that the Rules of procedure cannot be a tool to circumvent the justice. In fact, the Rules are laid to help for speedy disposal of justice. The learned Judges of the Division Bench has appreciated that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. The learned counsel submitted that the appellant is raising the defence of technical plea to protect himself from the consequence of his default and this plea cannot be considered effective enough to review the order of advertisement. Assuming without admitting that the affidavit was not verified as per the Company Rules, the learned counsel has correctly submitted that if this objection was taken earlier the respondent would have cured the defect.24. For the aforesaid reasons, we are of the opinion that the appeal has no merit and the order passed by the learned Judges of the Division Bench confirming the order passed by the Learned Company Judge does not call for any interference by this Court. | 0 | 3,105 | 551 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
affidavit by filing fresh affidavit for removal of the defect in swearing clause of the affidavit. The case of the respondents is not prejudiced in any manner nor there was any bar of limitation to come in the way. The winding up petition has already been admitted and any amendment or correction to rectify the defect of the affidavit by filing fresh affidavit at this stage would not be so fatal to dismiss the petition. The Court has always discretion to allow the amendment of pleadings, reswearing or reverification of the petition. The defects thus could be cured subsequently even after filing of the petition." 18. In this context, it is beneficial to reproduce Form No.3 of the Companies (Court) Rules, 1959: - "FORM NO.3[See rule 21][Heading as in Form No.1]Company Petition No.......of 19....Affidavit verifying petitionI, A.B., son of ...................aged ...........residing at .............do, solemnly affirm and say as follows:-1. I am a director/secretary/.............../of ................Ltd., the petitioner in the above matter *(and am duly authorized by the said petitioner to make this affidavit on its behalf).[Note.-This paragraph is to be included in cases where the petitioner is the company.]2. The statements made in paragraphs.......of the petition herein now shown to me and marked with the letter `A, are true to my knowledge, and the statements made in paragraphs..........are based on information, and I believe them to be true.Solemnly affirmed, etc.*Note.- To be included when the affidavit is sworn to by any person other than a director, agent or secretary or other officer of the company." 19. Rule 21 of the Companies (Court) Rules, 1959 prescribes the procedure for verification of affidavit. Rule 21 is reproduced as under: - "R.21. Affidavit verifying petition.- Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in the case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof; such affidavit shall be filed along with the petition and shall be in Form No.3:Provided that the Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit." 20. The affidavit filed by the respondent herein is available at page 63 of the paper book. Para 2 of the said affidavit is reproduced as under: - "2. That I have read the contents of the accompanying Company Petition and have understood the contents thereof.I, the deponent above named do hereby swear that the contents of paragraphs nos.1 and 2 of this affidavit, those of paragraph nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the accompanying petition are true to the best of my knowledge, information and belief, that no part of its is false and nothing material has been concealed in it. So help me God." 21 . A careful perusal of the affidavit filed by the respondent and Form No.3 as prescribed under Rule 21 would show that there is substantial compliance of the said Rule. A Three-Judge Bench of this Court in an identical matter in Malhotra Steel Syndicate vs. Punjab Chemi-Plants Ltd., (1993) Suppl.3 SCC 565 has also opined that even if there is some slight defect or irregularity in the filing of affidavit, the appellant should have been given an opportunity to rectify the same. In the instant case, the same liberty was given to the respondent by the Company Judge as also by the Division Bench of the High Court. We are, therefore, of the opinion that the Division Bench was right in dismissing the appeal filed by the appellant.22. This Court has in catena of decisions held that substantial compliance is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition. In the instant case, both the learned Company Judge and also the Division Bench were of the opinion that there is substantial compliance of Rule 21. In Khaitan Overseas & Finance Ltd. vs. Dhandhania Bros. P. Ltd., (2002) 1 Comp LJ 274, a petition was filed by the Chairman-cum-Director of the company. He annexed with the petition a resolution of the Board of Directors permitting him to execute necessary petitions, documents, applications, affidavits and to lodge a suit to recover dues from the debtor company. This was held to include the authority to file a Winding Up Petition also. The affidavit accompanying the petition was signed, sworn and affirmed on oath in the prescribed manner. The court said that the affidavit conformed with the requirements of law.23. We are of the opinion that the Rules of procedure cannot be a tool to circumvent the justice. In fact, the Rules are laid to help for speedy disposal of justice. The learned Judges of the Division Bench has appreciated that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. The learned counsel submitted that the appellant is raising the defence of technical plea to protect himself from the consequence of his default and this plea cannot be considered effective enough to review the order of advertisement. Assuming without admitting that the affidavit was not verified as per the Company Rules, the learned counsel has correctly submitted that if this objection was taken earlier the respondent would have cured the defect.24. For the aforesaid reasons, we are of the opinion that the appeal has no merit and the order passed by the learned Judges of the Division Bench confirming the order passed by the Learned Company Judge does not call for any interference by this Court.
### Response:
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### Explanation:
A careful perusal of the affidavit filed by the respondent and Form No.3 as prescribed under Rule 21 would show that there is substantial compliance of the said Rule. ABench of this Court in an identical matter in Malhotra Steel Syndicate vs. PunjabLtd., (1993) Suppl.3 SCC 565 has also opined that even if there is some slight defect or irregularity in the filing of affidavit, the appellant should have been given an opportunity to rectify the same. In the instant case, the same liberty was given to the respondent by the Company Judge as also by the Division Bench of the High Court. We are, therefore, of the opinion that the Division Bench was right in dismissing the appeal filed by the appellant.22. This Court has in catena of decisions held that substantial compliance is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition. In the instant case, both the learned Company Judge and also the Division Bench were of the opinion that there is substantial compliance of Rule 21. In Khaitan Overseas & Finance Ltd. vs. Dhandhania Bros. P. Ltd., (2002) 1 Comp LJ 274, a petition was filed by theof the company. He annexed with the petition a resolution of the Board of Directors permitting him to execute necessary petitions, documents, applications, affidavits and to lodge a suit to recover dues from the debtor company. This was held to include the authority to file a Winding Up Petition also. The affidavit accompanying the petition was signed, sworn and affirmed on oath in the prescribed manner. The court said that the affidavit conformed with the requirements of law.23. We are of the opinion that the Rules of procedure cannot be a tool to circumvent the justice. In fact, the Rules are laid to help for speedy disposal of justice. The learned Judges of the Division Bench has appreciated that the technical plea raised by the respondent regarding defective affidavit was raised after seven years of filing the petition. The learned counsel submitted that the appellant is raising the defence of technical plea to protect himself from the consequence of his default and this plea cannot be considered effective enough to review the order of advertisement. Assuming without admitting that the affidavit was not verified as per the Company Rules, the learned counsel has correctly submitted that if this objection was taken earlier the respondent would have cured the defect.24. For the aforesaid reasons, we are of the opinion that the appeal has no merit and the order passed by the learned Judges of the Division Bench confirming the order passed by the Learned Company Judge does not call for any interference by this Court.
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Amrit Banaspati Co. Ltd. Vs. State Of Punjab | on extension of principle of equity, the basic purpose of which is to promote justice founded on fairness and relieve a promisee of any injustice perpetrated due to promisors going back on its promise, is incapable of being enforced in a court of law if the promise which furnishes the cause of action or the agreement, express of implied, giving rise to binding contract is statutorily prohibited or is against public policy. What then was the nature of refund which was promised by the govt.? Was such promise contrary to law and against public policy? Could it be enforced in a court of law? Taxation is a sovereign power exercised by the St ate to realise revenue to enable it to discharge its obligations. Power to do so is derived from entries in Lists I, II and III of the Seventh Schedule of the Constitution. Sales tax or purchase tax is levied in exercise of power derived from an Act p assed by a State under Entry 54 of List II of VIIth Schedule. It is an indirect tax as even though it is collected by a dealer the normally permits it to be passed on and the ultimate burden is borne by the consumer. But the fact that the burden of a tax may have been passed on the consumer does not alter the legal nature of the tax (Halsburys Laws of England, Vol. 52, paragraph 20.04). Therefore even a legislature, much less government, cannot enact a law or issue an order or agree to refund the tax realised by it from people in exercise of its sovereign powers, except when the levy or realisation is contrary to a law validly enacted. A promise or agreement to refund tax which is due under the Act and realised in accordance with law would be a fraud on the Constitution and branch of faith of the people. Taxes like sales tax are paid even by a poor man irrespective of his savings with a sense of participation in growth of national economy and development of the State. Its utilization by way of refund not to the payer but to a private person, a manufacturer, as an inducement to set up its unit in the State would be breach of trust of the people amounting to deception under law.Exemption from tax to encourage industrialisation should not be confused with refund of tax. They are two different legal and distinct concepts. An exemption is a concession allowed to a class or individua l from general burden for valid and justifiable reason. For instance tax holiday or concession to new or expanding industries is well known to be one of the methods to grant incentive to encourage industrialisation. Avowed objective is to en able the industry to stand up and compete in the market. Sales tax is an indirect tax which is ultimately passed on to the consumer. If an industry is exempt from tax the ultimate beneficiary is the consumer. The industry is allowed to overcom e its teething period by selling its products at comparatively cheaper rate as compared to others. Therefore, both the manufacture, and consumer gain, one by concession of non-levy and other by non-payment. Such provisions in an Act or Notification or orders issued by Government are neither illegal not against public policy. 12. But refund of tax is made in consequence of excess payment of it or its realisation illegally or contrary to the provisions of law. A provision or agreement to refund tax due or realised in accordance with law cannot be comprehended. No law can be made to refund tax to a manufacturer realised under a statute. It would be invalid and ultra vires. The Punjab Sales Tax Act provided for refund of sales tax and grant of exemption in circumstances specified in Sections 12 and 30 respectively. Neither empowered the Government to refund sales tax realised by a manufacturer on sales of its finished product. Refund could be allowed if tax paid was in excess of amount due. An agreement or even a notification or order permitting refund of sales tax which was due shall be contrary to the statute. To illustrate it the appellant claimed refund of sales tax paid by it to the State Government of sale made by it of its finished products. But the tax paid is not an amount spent by the appellant but realised on sale by it. What is deposited under this head is tax which is otherwise due under provisions of the Act.Return of refund of its or its equivalent, irrespective of from is repayment or refund of sales tax. This would be contrary to Constitution. Any agreement for such refund being contrary to public policy was void under Section 23 of Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law. Realisation of tax through State mechanism for sake of paying it to private person directly or indirectly is impermissible under Constitutional scheme. The law does not permit it nor equity can countenance it. The scheme of refund of sales tax was thus incapable of being enforced in a court of law. 13. Fallacy of such constitutionally inhibited policy, sacrificing public interest resulting in illegal private enrichment is exposed by claim of refund for nearly Rs. 2 crores, for a period of three years, only, when tot al investment in establishing the unit was Rs. 1.5 crores, Levy of tax to raise revenue for promoting economic growth of the State reduced itself in enhancing the profit margin of the manufacturer and the sales tax stood converted into income of the appellant. Such contrivance of law even though bona fide is legally unenforceable. 14. | 0[ds]But refund of tax is made in consequence of excess payment of it or its realisation illegally or contrary to the provisions of law. A provision or agreement to refund tax due or realised in accordance with law cannot be comprehended. No law can be made to refund tax to a manufacturer realised under a statute. It would be invalid and ultra vires. The Punjab Sales Tax Act provided for refund of sales tax and grant of exemption in circumstances specified in Sections 12 and 30 respectively. Neither empowered the Government to refund sales tax realised by a manufacturer on sales of its finished product. Refund could be allowed if tax paid was in excess of amount due. An agreement or even a notification or order permitting refund of sales tax which was due shall be contrary to the statute. To illustrate it the appellant claimed refund of sales tax paid by it to the State Government of sale made by it of its finished products. But the tax paid is not an amount spent by the appellant but realised on sale by it. What is deposited under this head is tax which is otherwise due under provisions of the Act.Return of refund of its or its equivalent, irrespective of from is repayment or refund of sales tax. This would be contrary to Constitution. Any agreement for such refund being contrary to public policy was void under Section 23 of Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law. Realisation of tax through State mechanism for sake of paying it to private person directly or indirectly is impermissible under Constitutional scheme. The law does not permit it nor equity can countenance it. The scheme of refund of sales tax was thus incapable of being enforced in a court of lawFallacy of such constitutionally inhibited policy, sacrificing public interest resulting in illegal private enrichment is exposed by claim of refund for nearly Rs. 2 crores, for a period of three years, only, when tot al investment in establishing the unit was Rs. 1.5 crores, Levy of tax to raise revenue for promoting economic growth of the State reduced itself in enhancing the profit margin of the manufacturer and the sales tax stood converted into income of the appellant. Such contrivance of law even though bona fide is legally unenforceable. | 0 | 5,559 | 474 | ### Instruction:
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on extension of principle of equity, the basic purpose of which is to promote justice founded on fairness and relieve a promisee of any injustice perpetrated due to promisors going back on its promise, is incapable of being enforced in a court of law if the promise which furnishes the cause of action or the agreement, express of implied, giving rise to binding contract is statutorily prohibited or is against public policy. What then was the nature of refund which was promised by the govt.? Was such promise contrary to law and against public policy? Could it be enforced in a court of law? Taxation is a sovereign power exercised by the St ate to realise revenue to enable it to discharge its obligations. Power to do so is derived from entries in Lists I, II and III of the Seventh Schedule of the Constitution. Sales tax or purchase tax is levied in exercise of power derived from an Act p assed by a State under Entry 54 of List II of VIIth Schedule. It is an indirect tax as even though it is collected by a dealer the normally permits it to be passed on and the ultimate burden is borne by the consumer. But the fact that the burden of a tax may have been passed on the consumer does not alter the legal nature of the tax (Halsburys Laws of England, Vol. 52, paragraph 20.04). Therefore even a legislature, much less government, cannot enact a law or issue an order or agree to refund the tax realised by it from people in exercise of its sovereign powers, except when the levy or realisation is contrary to a law validly enacted. A promise or agreement to refund tax which is due under the Act and realised in accordance with law would be a fraud on the Constitution and branch of faith of the people. Taxes like sales tax are paid even by a poor man irrespective of his savings with a sense of participation in growth of national economy and development of the State. Its utilization by way of refund not to the payer but to a private person, a manufacturer, as an inducement to set up its unit in the State would be breach of trust of the people amounting to deception under law.Exemption from tax to encourage industrialisation should not be confused with refund of tax. They are two different legal and distinct concepts. An exemption is a concession allowed to a class or individua l from general burden for valid and justifiable reason. For instance tax holiday or concession to new or expanding industries is well known to be one of the methods to grant incentive to encourage industrialisation. Avowed objective is to en able the industry to stand up and compete in the market. Sales tax is an indirect tax which is ultimately passed on to the consumer. If an industry is exempt from tax the ultimate beneficiary is the consumer. The industry is allowed to overcom e its teething period by selling its products at comparatively cheaper rate as compared to others. Therefore, both the manufacture, and consumer gain, one by concession of non-levy and other by non-payment. Such provisions in an Act or Notification or orders issued by Government are neither illegal not against public policy. 12. But refund of tax is made in consequence of excess payment of it or its realisation illegally or contrary to the provisions of law. A provision or agreement to refund tax due or realised in accordance with law cannot be comprehended. No law can be made to refund tax to a manufacturer realised under a statute. It would be invalid and ultra vires. The Punjab Sales Tax Act provided for refund of sales tax and grant of exemption in circumstances specified in Sections 12 and 30 respectively. Neither empowered the Government to refund sales tax realised by a manufacturer on sales of its finished product. Refund could be allowed if tax paid was in excess of amount due. An agreement or even a notification or order permitting refund of sales tax which was due shall be contrary to the statute. To illustrate it the appellant claimed refund of sales tax paid by it to the State Government of sale made by it of its finished products. But the tax paid is not an amount spent by the appellant but realised on sale by it. What is deposited under this head is tax which is otherwise due under provisions of the Act.Return of refund of its or its equivalent, irrespective of from is repayment or refund of sales tax. This would be contrary to Constitution. Any agreement for such refund being contrary to public policy was void under Section 23 of Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law. Realisation of tax through State mechanism for sake of paying it to private person directly or indirectly is impermissible under Constitutional scheme. The law does not permit it nor equity can countenance it. The scheme of refund of sales tax was thus incapable of being enforced in a court of law. 13. Fallacy of such constitutionally inhibited policy, sacrificing public interest resulting in illegal private enrichment is exposed by claim of refund for nearly Rs. 2 crores, for a period of three years, only, when tot al investment in establishing the unit was Rs. 1.5 crores, Levy of tax to raise revenue for promoting economic growth of the State reduced itself in enhancing the profit margin of the manufacturer and the sales tax stood converted into income of the appellant. Such contrivance of law even though bona fide is legally unenforceable. 14.
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### Explanation:
But refund of tax is made in consequence of excess payment of it or its realisation illegally or contrary to the provisions of law. A provision or agreement to refund tax due or realised in accordance with law cannot be comprehended. No law can be made to refund tax to a manufacturer realised under a statute. It would be invalid and ultra vires. The Punjab Sales Tax Act provided for refund of sales tax and grant of exemption in circumstances specified in Sections 12 and 30 respectively. Neither empowered the Government to refund sales tax realised by a manufacturer on sales of its finished product. Refund could be allowed if tax paid was in excess of amount due. An agreement or even a notification or order permitting refund of sales tax which was due shall be contrary to the statute. To illustrate it the appellant claimed refund of sales tax paid by it to the State Government of sale made by it of its finished products. But the tax paid is not an amount spent by the appellant but realised on sale by it. What is deposited under this head is tax which is otherwise due under provisions of the Act.Return of refund of its or its equivalent, irrespective of from is repayment or refund of sales tax. This would be contrary to Constitution. Any agreement for such refund being contrary to public policy was void under Section 23 of Contract Act. The constitutional requirements of levy of tax being for the welfare of the society and not for a specific individual the agreement or promise made by the government was in contravention of public purpose thus violative of public policy. No legal relationship could have arisen by operation of promissory estoppel as it was contrary both to the Constitution and the law. Realisation of tax through State mechanism for sake of paying it to private person directly or indirectly is impermissible under Constitutional scheme. The law does not permit it nor equity can countenance it. The scheme of refund of sales tax was thus incapable of being enforced in a court of lawFallacy of such constitutionally inhibited policy, sacrificing public interest resulting in illegal private enrichment is exposed by claim of refund for nearly Rs. 2 crores, for a period of three years, only, when tot al investment in establishing the unit was Rs. 1.5 crores, Levy of tax to raise revenue for promoting economic growth of the State reduced itself in enhancing the profit margin of the manufacturer and the sales tax stood converted into income of the appellant. Such contrivance of law even though bona fide is legally unenforceable.
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Moti Das Vs. S.P. Sahi, The Special Officer In Charge of Hindu Religious Trusts and Ors | time to time, with the previous sanction of the State Government, determine."The argument is that S. 70 imposes an unauthorised tax.The point is, we think, concluded by our decision in 1954 SCR 1046 : (AIR 1954 SC 400 ), where the distinction between a tax and a fee for legislative purposes under our Constitution was pointed out and with regard to an identical imposition under S. 49 of the Orissa Hindu Religious Endowments Act, 1939, it was held that the contribution levied was a fee and not a tax.It was observed there at p. 1054 (of SCR) : (at p. 403 of AIR) :"The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by S. 50 of the Act . . . . . . . . We are further of opinion that an imposition like this cannot be said to be hit by article 27 of the Constitution. What is forbidden by Art. 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The object of the contribution under S. 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination, Art. 27 could not possibly apply."These observations apply, with equal force to the present case.16. It has also been argued that S. 55 (2) of the Act contravenes Art. 138 of the Constitution and is accordingly invalid. Section 55 is in these terms :55 (1). "Unless otherwise provided in this Act, an appeal shall lie to the High Court against every order passed by the District Judge under this Act.(2) No appeal shall lie from any order passed in appeal under this section."We do not think that S. 55 (2) of the Act overrides or is intended to override Art. 133 or any other Article of the Constitution relating to appeals to the Supreme Court. Such appeals must undoubtedly lie to the Supreme Court, provided the necessary requirements for such appeals are fulfilled. It is, we think, obvious that the Act cannot affect the jurisdiction of the Supreme Court.17. We now come to that part of the case of the appellants in which they claim the properties to be their private properties or, in the alternative, the trusts to be private trusts. The High Court has pointed out that in M. J. C. 418 of 1952 out of which has arisen Civil Appeal No. 225 of 1955, though there was an assertion that the properties were not trust properties, there was a counter-affidavit on behalf of the State of Bihar that the asthal in question was a public asthal and the properties appertaining thereto trust properties within the meaning of the Act. In M. J. C. 124 of 1953 out of which has arisen Civil Appeal No. 226 of 1955 there was a similar claim that the mahant of the asthal was the absolute owner of the properties belonging to the math. In suit No. No. 34 of 1952 /106 of 1953 out of out of which has arisen Civil Appeal No. 228 of 1955 there was a prayer for adjournment in order to enable the plaintiffs (now appellants before us) to file a petition to amend the plaint, and the purpose of the amendment sought to be made was to claim that the institutions in question were of a private character and the Act had no application to them. This prayer was dissolved by the High Court on the ground that the amendment sought to be made would alter the whole character of the suit. In M.J.C.188 of 1953 out of which has arisen Civil Appeal No. 229 of loss the claim was that there was no trust, express or implied. In M. I. C. 235 of 1953 out of which as arisen Civil Appeal No. 248 of 1955 there was a counter-affidavit on behalf of the State of Bihar that the temple in question was a public temple and the Act applied to it.In all these cases the High Court has taken the view, rightly in our opinion, that the questions whether the trusts are public or private trusts or the properties are private or trust properties are questions which involve investigation of complicated facts and recording of evidence and such investigation could not be done on writ proceedings. In the one suit which was tried in the High Court the question did not arise as no amendment was allowed.Therefore, in these cases there are no materials on which the question as to the nature of the trust can be determined, though in Mahant Ram Saroop Dasji v. S. P. Sahi, Civil Appeal No. 343 of 1955 : (AIR 1959 SC 951 ), in which also judgment is being delivered today, we have held that having regard to the preamble to the Act, the provisions in S. 3 and the provisions of sub-s. (5) of S. 4 the definition cause of religious trust in the Act must mean public trusts express or constructive, recognised by Hindu law to be religious, pious or charitable. That finding, however, is of no assistance to the appellants in the present cases. The fate of these cases must depend on the sole question whether the Act is constitutionally valid or not. We have held that the Act is constitutionally valid. | 0[ds]It is enough to say that it is now well settled by a series of decisions of this Court that while Art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases such as, geographical, or according to objects or occupations and the like. The decisions of this Court further establish that there is a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional guarantee; that it must be, presumed that the legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and further that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. It is not disputed before us, and this has been pointed out by the High Court, that there are some differences between Hindus, Sikhs and Jains in some of the essential details of the faith which they profess and the religious practices they observe; the Sikhs have no caste or priests, though they have grantis who officiate at marriages and other ceremonies; they do not believe in the Vedas, Puranas or Shastras, at least not in the same way as the Hindus believe in them.The Jains also do not recognise the divine authority of the Vedas and do not practise sradhs or ceremonies of the dead, nor do they recognise the spiritual authority of the Brahmins (Maines Hindu Law., 11th Edition, p. 82). It has been further pointed out that there are also organisational differences in the matter of religious trusts between Hindus, Sikhs and Jains. There are not many Sikh religious trusts in Bihar, and their organisation is essentially different. Jains consist of two main branches - Swetambar Jains and Digambar Jains - and each branch has a separate central organisation. Section 8 of the Act recognises these differences; for example, there is an assembly of Swetambar Jains known as Shree Sangh and under S. 8 (2) (c) of the Act the Shree Sangh is entitled to elect five persons to the Board of Swetambar lain Religious Trust. Similarly, Digambar Jains also have an assembly known as the Digambar Samaj and under S. 8 (3) (c) of the Act this assembly is entitled to elect five persons to the Board for Digambar Jain Religious Trust.In view of these differences it cannot be said that in the matter of religious trusts in the State of Bihar, Sikhs, Hindus and Jains are situated alike or that the needs of the Jains and Hindus are the same in the matter of the administration of their respective religious Trusts; therefore, according to the well established principles laid down by this Court with regard to legislative classification, it was open to the Bihar Legislature to exclude Sikhs who might have been in no need of protection and to distinguish between Hindus and Jains. Therefore, the contention urged on behalf of the appellants that the several provisions of the Act contravene Art. 14 is devoid of anyare other sections in the chapter which give the Board power to enter into contracts and to borrow money etc., for carrying out any of the purposes of the Act or to give effect to the provisions thereof. Under S. 58 every trustee must carry out all directions which may from time to time be issued to him by the Board under any of the provisions of the Act. The powers given under S. 28 include the power to prepare and settle the budget, to cause inspection to be made of the property and the office of any religious trust, to call for information, reports, returns etc., to give directions for the proper administration of a religious trust in accordance with the law governing such trusts and the wishes of the founder, to remove a trustee from his office in certain circumstances, and to control and administer the trust fund etc. The argument before us is that the position of a mahant or shebait of a Hindu religious trust is a combination of office and proprietary right and under the provisions of the Act the mahant or shebait practically loses his right of management and is reduced to the position of a mere servant of the Board; this, it is contended, is violative of the appellants fundamental right under Art. 19 (1) (f)are of the view, in agreement with that of the High Court, that the restrictions imposed by the Act on the power of the trustees are really intended, as the preamble of the Act states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts. It is indeed true that the Act provides a better and more speedy remedy for the enforcement of the obligations and duties imposed on the trustees than the lengthy and cumbrous procedure of a suit under S. 92 of the Civil Procedureanswer to this submission is twofold : we have pointed out earlier that the power to alter the budget is subject to Cl. (6) of S. 60 of the Act and the Board is not authorised to alter or modify the budget in a manner or to an extent inconsistent with the wishes of the founder or with the provisions of the Act. The power to give directions to the trustee is also subject to a similar restrictions, namely, the directions must be for the proper administration of the religious trust in accordance with the law governing such trust and the wishes of the founder in so far as such wishes can be ascertained and are not repugnant to such law. The keynote of all the relevant provisions of the Act is the due observance of the objects of the religious trust and not its breach or violation. Secondly, as was observed in 1954 SCR 1005 at p. 1030 : (AIR 1954 SC 282 at p. 292),"an apprehension that the powers conferred . . .. .... may be abused in individual cases does not make the provision itself bad or invalid inthat matters of religion include practices which a religious denomination regards as part of its religion, none of the provisions of the Act interfere with such practices; nor do the provisions of the Act seek to divert the trust property or funds for purposes other than those indicated by the founder of the trust or those established by usage obtaining in a particular institution. On the contrary; the provisions of the Act seek to implement the purposes for which the trust was created and prevent mismanagement and waste by the trustee. In other words, the Act by its several provisions seeks to fulfil rather than defeat the trust.In our opinion, there is no substance in the argument that the provisions of the Act contravene Arts. 25 and 26 of thedo not think that S. 55 (2) of the Act overrides or is intended to override Art. 133 or any other Article of the Constitution relating to appeals to the Supreme Court. Such appeals must undoubtedly lie to the Supreme Court, provided the necessary requirements for such appeals are fulfilled. It is, we think, obvious that the Act cannot affect the jurisdiction of the Supremein these cases there are no materials on which the question as to the nature of the trust can be determined, though in Mahant Ram Saroop Dasji v. S. P. Sahi, Civil Appeal No. 343 of 1955 : (AIR 1959 SC 951 ), in which also judgment is being delivered today, we have held that having regard to the preamble to the Act, the provisions in S. 3 and the provisions of(5) of S. 4 the definition cause of religious trust in the Act must mean public trusts express or constructive, recognised by Hindu law to be religious, pious or charitable. That finding, however, is of no assistance to the appellants in the present cases. The fate of these cases must depend on the sole question whether the Act is constitutionally valid or not. We have held that the Act is constitutionally valid. | 0 | 7,175 | 1,598 | ### Instruction:
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time to time, with the previous sanction of the State Government, determine."The argument is that S. 70 imposes an unauthorised tax.The point is, we think, concluded by our decision in 1954 SCR 1046 : (AIR 1954 SC 400 ), where the distinction between a tax and a fee for legislative purposes under our Constitution was pointed out and with regard to an identical imposition under S. 49 of the Orissa Hindu Religious Endowments Act, 1939, it was held that the contribution levied was a fee and not a tax.It was observed there at p. 1054 (of SCR) : (at p. 403 of AIR) :"The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by S. 50 of the Act . . . . . . . . We are further of opinion that an imposition like this cannot be said to be hit by article 27 of the Constitution. What is forbidden by Art. 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The object of the contribution under S. 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination, Art. 27 could not possibly apply."These observations apply, with equal force to the present case.16. It has also been argued that S. 55 (2) of the Act contravenes Art. 138 of the Constitution and is accordingly invalid. Section 55 is in these terms :55 (1). "Unless otherwise provided in this Act, an appeal shall lie to the High Court against every order passed by the District Judge under this Act.(2) No appeal shall lie from any order passed in appeal under this section."We do not think that S. 55 (2) of the Act overrides or is intended to override Art. 133 or any other Article of the Constitution relating to appeals to the Supreme Court. Such appeals must undoubtedly lie to the Supreme Court, provided the necessary requirements for such appeals are fulfilled. It is, we think, obvious that the Act cannot affect the jurisdiction of the Supreme Court.17. We now come to that part of the case of the appellants in which they claim the properties to be their private properties or, in the alternative, the trusts to be private trusts. The High Court has pointed out that in M. J. C. 418 of 1952 out of which has arisen Civil Appeal No. 225 of 1955, though there was an assertion that the properties were not trust properties, there was a counter-affidavit on behalf of the State of Bihar that the asthal in question was a public asthal and the properties appertaining thereto trust properties within the meaning of the Act. In M. J. C. 124 of 1953 out of which has arisen Civil Appeal No. 226 of 1955 there was a similar claim that the mahant of the asthal was the absolute owner of the properties belonging to the math. In suit No. No. 34 of 1952 /106 of 1953 out of out of which has arisen Civil Appeal No. 228 of 1955 there was a prayer for adjournment in order to enable the plaintiffs (now appellants before us) to file a petition to amend the plaint, and the purpose of the amendment sought to be made was to claim that the institutions in question were of a private character and the Act had no application to them. This prayer was dissolved by the High Court on the ground that the amendment sought to be made would alter the whole character of the suit. In M.J.C.188 of 1953 out of which has arisen Civil Appeal No. 229 of loss the claim was that there was no trust, express or implied. In M. I. C. 235 of 1953 out of which as arisen Civil Appeal No. 248 of 1955 there was a counter-affidavit on behalf of the State of Bihar that the temple in question was a public temple and the Act applied to it.In all these cases the High Court has taken the view, rightly in our opinion, that the questions whether the trusts are public or private trusts or the properties are private or trust properties are questions which involve investigation of complicated facts and recording of evidence and such investigation could not be done on writ proceedings. In the one suit which was tried in the High Court the question did not arise as no amendment was allowed.Therefore, in these cases there are no materials on which the question as to the nature of the trust can be determined, though in Mahant Ram Saroop Dasji v. S. P. Sahi, Civil Appeal No. 343 of 1955 : (AIR 1959 SC 951 ), in which also judgment is being delivered today, we have held that having regard to the preamble to the Act, the provisions in S. 3 and the provisions of sub-s. (5) of S. 4 the definition cause of religious trust in the Act must mean public trusts express or constructive, recognised by Hindu law to be religious, pious or charitable. That finding, however, is of no assistance to the appellants in the present cases. The fate of these cases must depend on the sole question whether the Act is constitutionally valid or not. We have held that the Act is constitutionally valid.
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the Digambar Samaj and under S. 8 (3) (c) of the Act this assembly is entitled to elect five persons to the Board for Digambar Jain Religious Trust.In view of these differences it cannot be said that in the matter of religious trusts in the State of Bihar, Sikhs, Hindus and Jains are situated alike or that the needs of the Jains and Hindus are the same in the matter of the administration of their respective religious Trusts; therefore, according to the well established principles laid down by this Court with regard to legislative classification, it was open to the Bihar Legislature to exclude Sikhs who might have been in no need of protection and to distinguish between Hindus and Jains. Therefore, the contention urged on behalf of the appellants that the several provisions of the Act contravene Art. 14 is devoid of anyare other sections in the chapter which give the Board power to enter into contracts and to borrow money etc., for carrying out any of the purposes of the Act or to give effect to the provisions thereof. Under S. 58 every trustee must carry out all directions which may from time to time be issued to him by the Board under any of the provisions of the Act. The powers given under S. 28 include the power to prepare and settle the budget, to cause inspection to be made of the property and the office of any religious trust, to call for information, reports, returns etc., to give directions for the proper administration of a religious trust in accordance with the law governing such trusts and the wishes of the founder, to remove a trustee from his office in certain circumstances, and to control and administer the trust fund etc. The argument before us is that the position of a mahant or shebait of a Hindu religious trust is a combination of office and proprietary right and under the provisions of the Act the mahant or shebait practically loses his right of management and is reduced to the position of a mere servant of the Board; this, it is contended, is violative of the appellants fundamental right under Art. 19 (1) (f)are of the view, in agreement with that of the High Court, that the restrictions imposed by the Act on the power of the trustees are really intended, as the preamble of the Act states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts. It is indeed true that the Act provides a better and more speedy remedy for the enforcement of the obligations and duties imposed on the trustees than the lengthy and cumbrous procedure of a suit under S. 92 of the Civil Procedureanswer to this submission is twofold : we have pointed out earlier that the power to alter the budget is subject to Cl. (6) of S. 60 of the Act and the Board is not authorised to alter or modify the budget in a manner or to an extent inconsistent with the wishes of the founder or with the provisions of the Act. The power to give directions to the trustee is also subject to a similar restrictions, namely, the directions must be for the proper administration of the religious trust in accordance with the law governing such trust and the wishes of the founder in so far as such wishes can be ascertained and are not repugnant to such law. The keynote of all the relevant provisions of the Act is the due observance of the objects of the religious trust and not its breach or violation. Secondly, as was observed in 1954 SCR 1005 at p. 1030 : (AIR 1954 SC 282 at p. 292),"an apprehension that the powers conferred . . .. .... may be abused in individual cases does not make the provision itself bad or invalid inthat matters of religion include practices which a religious denomination regards as part of its religion, none of the provisions of the Act interfere with such practices; nor do the provisions of the Act seek to divert the trust property or funds for purposes other than those indicated by the founder of the trust or those established by usage obtaining in a particular institution. On the contrary; the provisions of the Act seek to implement the purposes for which the trust was created and prevent mismanagement and waste by the trustee. In other words, the Act by its several provisions seeks to fulfil rather than defeat the trust.In our opinion, there is no substance in the argument that the provisions of the Act contravene Arts. 25 and 26 of thedo not think that S. 55 (2) of the Act overrides or is intended to override Art. 133 or any other Article of the Constitution relating to appeals to the Supreme Court. Such appeals must undoubtedly lie to the Supreme Court, provided the necessary requirements for such appeals are fulfilled. It is, we think, obvious that the Act cannot affect the jurisdiction of the Supremein these cases there are no materials on which the question as to the nature of the trust can be determined, though in Mahant Ram Saroop Dasji v. S. P. Sahi, Civil Appeal No. 343 of 1955 : (AIR 1959 SC 951 ), in which also judgment is being delivered today, we have held that having regard to the preamble to the Act, the provisions in S. 3 and the provisions of(5) of S. 4 the definition cause of religious trust in the Act must mean public trusts express or constructive, recognised by Hindu law to be religious, pious or charitable. That finding, however, is of no assistance to the appellants in the present cases. The fate of these cases must depend on the sole question whether the Act is constitutionally valid or not. We have held that the Act is constitutionally valid.
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Ajay @ Neetu Vs. The State of Haryana | 1. Heard learned counsel for the appellant.2. With the assistance of the counsel for the appellant, we have perused the evidence on record and the two judgments in question. In our opinion, the view taken by the trial court on the basis of the analysis of the evidence on record, in particular, the evidence of prosecutrix (PW-3), which commended to the High Court, warrants no interference. While analyzing the evidence of PW-3, the trial court noted thus:-?Now turning to the merits of the prosecution case, the prosecution case is based on the testimony of PW-3 (Prosecutrix) and she has stated on oath that on 16-04-2000 she was sleeping in the house in the night and her husband had gone to Gud Mandi for attending labour work. Accused present in the court entered the room and caught hold her hand and the PW-3 (Prosecutrix) further deposed the manner of commission of offence, infliction of injuries, raising of the alarm and coming of the witnesses on the spot. During cross examination, the veracity of the witness could not be impeached at all and neither the previous enmity not any other ground regarding false implication of the present accused could be put or suggested to the witness and again, it is not the case of the accused that it was a consented transaction and even the whole reading of the evidence of the prosecutrix does not suggest the inference of consent.The victim of offence in the present case is a poor lady of 35 years of age and there are no allegations regarding moral character of the victim and in Indian Society no lady of virtue is supposed to invite unnecessary criticism for herself by alleging forcible rape upon herself. The status of the victim of rape is down-graded in the society and on lady of virtue would like rape upon her body unless the offence actually has been committed or if the victim is to take revenge of any other bigger enmity with the accused.In the present case, no enmity could be suggested which may instigate the prosecutrix to level false allegations of rape and in such a state of affairs, no inference can be raised that the accused had been falsely implicated in the present case because there is neither the earlier rivalry nor the allegations against the moral character of the victim could be proved and even it is not possible to raise inference of consent in the present case.A simple suggestion has been made to PW-3 (Prosecutrix) that she was to pay the price of meat to the accused and on that dispute she falsely implicated the accused. No lady of virtue is supposed to invite unnecessary criticism for herself on account of petty dispute regarding price of meat allegedly purchased from the shop of the accused and in the present case, the prosecutrix has categorically disclosed that the accused was not known to him earlier.?And again:-?The statement of the prosecutrix in the present case as PW-3 as already discussed is above all suspicions and there is nothing to suggest that the statement of PW-3 (Prosecutrix) is inherently improbable and no inference of consent is possible and there is nothing on record to disbelieve the testimony of the prosecutrix (PW-3) and in such a state of affairs, the statement of PW-3 which stands corroborated on material particulars by the testimony of PW-12 Medical Officer, PW-4, husband of prosecutrix and PW-5, independent witness is sufficient to discharge the heavy burden on prosecution.Resultantly, in view of the above discussion and for the foregoing reasons, the prosecution has been able to substantiate its allegations on record beyond all reasonable shadows of doubt and the prosecution has been able to establish on record that the accused after having criminally trespassed the house of th complainant/prosecutrix (PW-3), gave beatins to the complainant and committed rape upon her and also criminally intimidated the complainant as threats were extended to kill the complainant in case the matter is reported. Hence, the prosecution has been able to substantiate on record that the accused has committed the offences punishable under Sections 452, 323, 376 and 506 IPC and the accused is hereby held guilty accordingly and is convicted for the commission of offences punishable under sections 452, 323, 376 and 506 IPC. Let, the accused be heard on quantum of sentence.? 3. The High Court in appeal, after analyzing the same evidence, opined thus:-?Two injuries were found on the person of prosecutrix, which lends support to the case of prosecution. There was no reason for the prosecutrix to falsely impliacte the accused/appellant. Had it been a case of consent, in that case, there would not have been injuries on the person of prosecutrix. The prosecutrix has categorically stated that the accused pressed her neck and also gave her fist and slap blows. Injuries on the person of prosecutrix have proved the said fact. The presence of semen on the salwar of prosecutrix further lends support to the prosecution story. The stand taken by the accused that on account of dispute of payment of meat, he has been falsely impl8icated, has rightly been disbelieved by the trial court. It is not possible that for a petty matter of few hundred rupees, a person would be falsely implicated in such a heinous crime. The neighbour Suman (independent witness) has also supported the (husband of the prosecutrix) has also supported the case of prosecution. There is no undue delay in lodging the FIR. Mere fact that she is a married lady having four children, does not prove the fact that it is a case of consent.? 4. As aforesaid, we have gone through the oral evidence of the prosecution witnesses. In our opinion, the view taken by the trial court regarding the evidence of PW-3, is unquestionable and, therefore, has been rightly upheld by the High Court. | 0[ds]2. With the assistance of the counsel for the appellant, we have perused the evidence on record and the two judgments in question. In our opinion, the view taken by the trial court on the basis of the analysis of the evidence on record, in particular, the evidence of prosecutrix (PW-3), which commended to the High Court, warrants no interference4. As aforesaid, we have gone through the oral evidence of the prosecution witnesses. In our opinion, the view taken by the trial court regarding the evidence of PW-3, is unquestionable and, therefore, has been rightly upheld by the High Court. | 0 | 1,077 | 122 | ### 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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1. Heard learned counsel for the appellant.2. With the assistance of the counsel for the appellant, we have perused the evidence on record and the two judgments in question. In our opinion, the view taken by the trial court on the basis of the analysis of the evidence on record, in particular, the evidence of prosecutrix (PW-3), which commended to the High Court, warrants no interference. While analyzing the evidence of PW-3, the trial court noted thus:-?Now turning to the merits of the prosecution case, the prosecution case is based on the testimony of PW-3 (Prosecutrix) and she has stated on oath that on 16-04-2000 she was sleeping in the house in the night and her husband had gone to Gud Mandi for attending labour work. Accused present in the court entered the room and caught hold her hand and the PW-3 (Prosecutrix) further deposed the manner of commission of offence, infliction of injuries, raising of the alarm and coming of the witnesses on the spot. During cross examination, the veracity of the witness could not be impeached at all and neither the previous enmity not any other ground regarding false implication of the present accused could be put or suggested to the witness and again, it is not the case of the accused that it was a consented transaction and even the whole reading of the evidence of the prosecutrix does not suggest the inference of consent.The victim of offence in the present case is a poor lady of 35 years of age and there are no allegations regarding moral character of the victim and in Indian Society no lady of virtue is supposed to invite unnecessary criticism for herself by alleging forcible rape upon herself. The status of the victim of rape is down-graded in the society and on lady of virtue would like rape upon her body unless the offence actually has been committed or if the victim is to take revenge of any other bigger enmity with the accused.In the present case, no enmity could be suggested which may instigate the prosecutrix to level false allegations of rape and in such a state of affairs, no inference can be raised that the accused had been falsely implicated in the present case because there is neither the earlier rivalry nor the allegations against the moral character of the victim could be proved and even it is not possible to raise inference of consent in the present case.A simple suggestion has been made to PW-3 (Prosecutrix) that she was to pay the price of meat to the accused and on that dispute she falsely implicated the accused. No lady of virtue is supposed to invite unnecessary criticism for herself on account of petty dispute regarding price of meat allegedly purchased from the shop of the accused and in the present case, the prosecutrix has categorically disclosed that the accused was not known to him earlier.?And again:-?The statement of the prosecutrix in the present case as PW-3 as already discussed is above all suspicions and there is nothing to suggest that the statement of PW-3 (Prosecutrix) is inherently improbable and no inference of consent is possible and there is nothing on record to disbelieve the testimony of the prosecutrix (PW-3) and in such a state of affairs, the statement of PW-3 which stands corroborated on material particulars by the testimony of PW-12 Medical Officer, PW-4, husband of prosecutrix and PW-5, independent witness is sufficient to discharge the heavy burden on prosecution.Resultantly, in view of the above discussion and for the foregoing reasons, the prosecution has been able to substantiate its allegations on record beyond all reasonable shadows of doubt and the prosecution has been able to establish on record that the accused after having criminally trespassed the house of th complainant/prosecutrix (PW-3), gave beatins to the complainant and committed rape upon her and also criminally intimidated the complainant as threats were extended to kill the complainant in case the matter is reported. Hence, the prosecution has been able to substantiate on record that the accused has committed the offences punishable under Sections 452, 323, 376 and 506 IPC and the accused is hereby held guilty accordingly and is convicted for the commission of offences punishable under sections 452, 323, 376 and 506 IPC. Let, the accused be heard on quantum of sentence.? 3. The High Court in appeal, after analyzing the same evidence, opined thus:-?Two injuries were found on the person of prosecutrix, which lends support to the case of prosecution. There was no reason for the prosecutrix to falsely impliacte the accused/appellant. Had it been a case of consent, in that case, there would not have been injuries on the person of prosecutrix. The prosecutrix has categorically stated that the accused pressed her neck and also gave her fist and slap blows. Injuries on the person of prosecutrix have proved the said fact. The presence of semen on the salwar of prosecutrix further lends support to the prosecution story. The stand taken by the accused that on account of dispute of payment of meat, he has been falsely impl8icated, has rightly been disbelieved by the trial court. It is not possible that for a petty matter of few hundred rupees, a person would be falsely implicated in such a heinous crime. The neighbour Suman (independent witness) has also supported the (husband of the prosecutrix) has also supported the case of prosecution. There is no undue delay in lodging the FIR. Mere fact that she is a married lady having four children, does not prove the fact that it is a case of consent.? 4. As aforesaid, we have gone through the oral evidence of the prosecution witnesses. In our opinion, the view taken by the trial court regarding the evidence of PW-3, is unquestionable and, therefore, has been rightly upheld by the High Court.
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2. With the assistance of the counsel for the appellant, we have perused the evidence on record and the two judgments in question. In our opinion, the view taken by the trial court on the basis of the analysis of the evidence on record, in particular, the evidence of prosecutrix (PW-3), which commended to the High Court, warrants no interference4. As aforesaid, we have gone through the oral evidence of the prosecution witnesses. In our opinion, the view taken by the trial court regarding the evidence of PW-3, is unquestionable and, therefore, has been rightly upheld by the High Court.
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The Nandlal Bhandari Mills Ltd.,Indore Vs. The State Of Madhya Bharat | the Cabinet and were promulgated by a notification in the Gazette as part of the Rules. The mode followed in 1926 and 1927 was repeated in 1932 and 1933 also presumable also 1931, though the notification of that year has not been printed in the record of this case. 9. This view was taken by the Full Bench of the Madhya Bharat High Court in Rajkumar Mills Ltd. v Madhya Bharat State AIR 1953 Madh. B. 135. The question which is involved in these appeals also arose in that case. It was observed by the Full Bench:"This Notification makes it abundantly clear that His Highness the Maharaja ordered that the industrial tax due on the amount of the managing agents commission on profits be recovered. This being an order of the ruler, who enjoyed sovereign powers that order is not open to challenge. This is a mandate emanating from a sovereign and as such has the force of law. This Court has therefore, no power to go behind the order and enquire as to whether the managing agents commission on profits is an item of expenditure solely incurred for the purpose of earning profits or not. In this view of the matter the point at issue is concluded by Huzur Shri Shanker Order No. 173 dated 29th June, 1933." This view was affirmed by the High Court of Madhya Pradesh in the judgment under appeal. 10. In our judgment, the two notifications cannot be described as "judicial interpretation." If anything, they must be interpreted as legislative exposition of R. 3 (2)(ix) and in the nature of an explanation. This Court in Ameer-un-nissa Begum v. Mahboob Begum AIR 1955 SC 352 , in dealing with the Firmans of His Exalted Highness the Nizam of Hyderabad, observed as follows :"It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; -- nay, they would override all other laws which were in conflict with them. So long as a particular Firmans held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed." The same can be said of the Ruler of the Holker State. When to the order of the Ruler was added the usual mode of making and promulgating rules, the position which emerges is really unassailable. 11. Mr. Desai in attempting to show that the ruling does not apply to the case, raised two contentions. The first was based upon a more recent decision of this Court in Madhaorao v. State of Madhya Bharat, AIR 1961 SC 298 , where certain Kalambandis of the Maharaja of Gwalior were considered. This Court in deciding whether the Kalambandis were existing law under Art. 372 of the Constitution observed :"In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens." It was, however, pointed out in the case that even where an order is issued by the sovereign ruler, one must look to the character of the order and its content to find out whether it enacted a binding rule. Mr. Desai has constructed his entire argument on the basis of these observations, and has contended that the orders only expressed an opinion and did not bind. He pointed out as the second limb of his argument that these notifications were not expressed as a rule but as an order, and that they did not seek to amend the rules, nor to add to them. He referred to other notification in which a legislative act was clearly discernible, as for example, Notification No. 22/Com. dated May 17,1946, by which for the existing. Rule 4, a new Rule was substituted. An examination of the Rules, however, shows that there was no set pattern of language. Some of the Rules do not read line rules at all. Notes have been appended to the rules, which are not rules proper, and R. 29 says :"All matters not dealt with in these rules may be submitted to the member-in-charge, Commerce and Industry Department for decision". The existence of such a rule seems to obliterate the frontiers between legislative, judicial and executive exercise of the power of a State, such as we understand it. There being no invariable use of a clear-cut legislative language, each general order emanating from the sovereign ruler and promulgated in the same manner as any other rule and having its roots in a resolution of the Cabinet must be regarded as one binding upon the subject. This is the purport of the decisions of this Court, and the present case falls in line with those which have been previously decided. There is nothing in the content, the character or the nature of these notifications, which would put them on a level lower than the Rules, which had been earlier promulgated. | 1[ds]6. It seems that, as a result of this decision, a notification was issued in August. 1931, and another on February 2 /3, 1932 by the Commerce and Industry Department of the Holkar State8. All this would of course be pertinent to consider, if there was no legislative enactment on the subject. If the matter was not one concluded by law, then there would be room for judicial interpretation of the Rule. The rival claims in these appeals are thus confined to the legislative force of the notifications issued in 1931, 1932 and 1933 respectivelyIn so far as the legislative supremacy of the Cabinet was concerned, no question was raised before us.10. In our judgment, the two notifications cannot be described as "judicial interpretation." If anything, they must be interpreted as legislative exposition of R. 3 (2)(ix) and in the nature of an explanationThe same can be said of the Ruler of the Holker State. When to the order of the Ruler was added the usual mode of making and promulgating rules, the position which emerges is really unassailableexamination of the Rules, however, shows that there was no set pattern of language. Some of the Rules do not read line rules at allThe existence of such a rule seems to obliterate the frontiers between legislative, judicial and executive exercise of the power of a State, such as we understand it. There being no invariable use of a clear-cut legislative language, each general order emanating from the sovereign ruler and promulgated in the same manner as any other rule and having its roots in a resolution of the Cabinet must be regarded as one binding upon the subject. This is the purport of the decisions of this Court, and the present case falls in line with those which have been previously decided. There is nothing in the content, the character or the nature of these notifications, which would put them on a level lower than the Rules, which had been earlier promulgated. | 1 | 3,584 | 376 | ### 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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the Cabinet and were promulgated by a notification in the Gazette as part of the Rules. The mode followed in 1926 and 1927 was repeated in 1932 and 1933 also presumable also 1931, though the notification of that year has not been printed in the record of this case. 9. This view was taken by the Full Bench of the Madhya Bharat High Court in Rajkumar Mills Ltd. v Madhya Bharat State AIR 1953 Madh. B. 135. The question which is involved in these appeals also arose in that case. It was observed by the Full Bench:"This Notification makes it abundantly clear that His Highness the Maharaja ordered that the industrial tax due on the amount of the managing agents commission on profits be recovered. This being an order of the ruler, who enjoyed sovereign powers that order is not open to challenge. This is a mandate emanating from a sovereign and as such has the force of law. This Court has therefore, no power to go behind the order and enquire as to whether the managing agents commission on profits is an item of expenditure solely incurred for the purpose of earning profits or not. In this view of the matter the point at issue is concluded by Huzur Shri Shanker Order No. 173 dated 29th June, 1933." This view was affirmed by the High Court of Madhya Pradesh in the judgment under appeal. 10. In our judgment, the two notifications cannot be described as "judicial interpretation." If anything, they must be interpreted as legislative exposition of R. 3 (2)(ix) and in the nature of an explanation. This Court in Ameer-un-nissa Begum v. Mahboob Begum AIR 1955 SC 352 , in dealing with the Firmans of His Exalted Highness the Nizam of Hyderabad, observed as follows :"It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; -- nay, they would override all other laws which were in conflict with them. So long as a particular Firmans held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed." The same can be said of the Ruler of the Holker State. When to the order of the Ruler was added the usual mode of making and promulgating rules, the position which emerges is really unassailable. 11. Mr. Desai in attempting to show that the ruling does not apply to the case, raised two contentions. The first was based upon a more recent decision of this Court in Madhaorao v. State of Madhya Bharat, AIR 1961 SC 298 , where certain Kalambandis of the Maharaja of Gwalior were considered. This Court in deciding whether the Kalambandis were existing law under Art. 372 of the Constitution observed :"In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens." It was, however, pointed out in the case that even where an order is issued by the sovereign ruler, one must look to the character of the order and its content to find out whether it enacted a binding rule. Mr. Desai has constructed his entire argument on the basis of these observations, and has contended that the orders only expressed an opinion and did not bind. He pointed out as the second limb of his argument that these notifications were not expressed as a rule but as an order, and that they did not seek to amend the rules, nor to add to them. He referred to other notification in which a legislative act was clearly discernible, as for example, Notification No. 22/Com. dated May 17,1946, by which for the existing. Rule 4, a new Rule was substituted. An examination of the Rules, however, shows that there was no set pattern of language. Some of the Rules do not read line rules at all. Notes have been appended to the rules, which are not rules proper, and R. 29 says :"All matters not dealt with in these rules may be submitted to the member-in-charge, Commerce and Industry Department for decision". The existence of such a rule seems to obliterate the frontiers between legislative, judicial and executive exercise of the power of a State, such as we understand it. There being no invariable use of a clear-cut legislative language, each general order emanating from the sovereign ruler and promulgated in the same manner as any other rule and having its roots in a resolution of the Cabinet must be regarded as one binding upon the subject. This is the purport of the decisions of this Court, and the present case falls in line with those which have been previously decided. There is nothing in the content, the character or the nature of these notifications, which would put them on a level lower than the Rules, which had been earlier promulgated.
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6. It seems that, as a result of this decision, a notification was issued in August. 1931, and another on February 2 /3, 1932 by the Commerce and Industry Department of the Holkar State8. All this would of course be pertinent to consider, if there was no legislative enactment on the subject. If the matter was not one concluded by law, then there would be room for judicial interpretation of the Rule. The rival claims in these appeals are thus confined to the legislative force of the notifications issued in 1931, 1932 and 1933 respectivelyIn so far as the legislative supremacy of the Cabinet was concerned, no question was raised before us.10. In our judgment, the two notifications cannot be described as "judicial interpretation." If anything, they must be interpreted as legislative exposition of R. 3 (2)(ix) and in the nature of an explanationThe same can be said of the Ruler of the Holker State. When to the order of the Ruler was added the usual mode of making and promulgating rules, the position which emerges is really unassailableexamination of the Rules, however, shows that there was no set pattern of language. Some of the Rules do not read line rules at allThe existence of such a rule seems to obliterate the frontiers between legislative, judicial and executive exercise of the power of a State, such as we understand it. There being no invariable use of a clear-cut legislative language, each general order emanating from the sovereign ruler and promulgated in the same manner as any other rule and having its roots in a resolution of the Cabinet must be regarded as one binding upon the subject. This is the purport of the decisions of this Court, and the present case falls in line with those which have been previously decided. There is nothing in the content, the character or the nature of these notifications, which would put them on a level lower than the Rules, which had been earlier promulgated.
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Kumar Pashupatinath Malia & Another Vs. Deba Prosanna Mukherjee | an order of the third kind mentioned above. The three forms of order permissible under R. 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending R. 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939 :"Heard learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case was dismissed."This endorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of 30-1-1937 was in form and in substance a final order of dismissal of the execution case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amendment made by the Calcutta High Court in R. 57. Learned Advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air. There is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned Advocate for the appellants, hang in the air. It rests upon the solid foundation of a special order which R. 57, as amended in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under O. 38, R. 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgment-debtor cannot deal with the property to the disadvantage of the decree-holder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.18. As to (ii).- Learned Advocate for the appellants then contended that the petition (Ex. 2a) dated 2- 6-1939 amounted to a proceeding in execution and as that was instituted and was pending after 1-1-1939 the proceedings came within the definition in S. 9 (22) of "a suit to which this Act applies." I do not think this argument is sound The petition (Ex. 2a) was not really an application at all. See Shri Prokash Singh v. The Allahabad Bank Ltd.33 Cal. W. N. 267 : A. I. R. (16) 1929 P. C.19. In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decree-holder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act.20. | 0[ds]It is quite obvious that the Court made an order of the third kind mentioned above. The three forms of order permissible under R. 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending R. 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case wasendorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of 30-1-1937 was in form and in substance a final order of dismissal of the execution case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amendment made by the Calcutta High Court in R.is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned Advocate for the appellants, hang in the air. It rests upon the solid foundation of a special order which R. 57, as amended in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under O. 38, R. 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgment-debtor cannot deal with the property to the disadvantage of the decree-holder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decree-holder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act. | 0 | 5,330 | 967 | ### Instruction:
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an order of the third kind mentioned above. The three forms of order permissible under R. 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending R. 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939 :"Heard learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case was dismissed."This endorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of 30-1-1937 was in form and in substance a final order of dismissal of the execution case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amendment made by the Calcutta High Court in R. 57. Learned Advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air. There is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned Advocate for the appellants, hang in the air. It rests upon the solid foundation of a special order which R. 57, as amended in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under O. 38, R. 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgment-debtor cannot deal with the property to the disadvantage of the decree-holder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.18. As to (ii).- Learned Advocate for the appellants then contended that the petition (Ex. 2a) dated 2- 6-1939 amounted to a proceeding in execution and as that was instituted and was pending after 1-1-1939 the proceedings came within the definition in S. 9 (22) of "a suit to which this Act applies." I do not think this argument is sound The petition (Ex. 2a) was not really an application at all. See Shri Prokash Singh v. The Allahabad Bank Ltd.33 Cal. W. N. 267 : A. I. R. (16) 1929 P. C.19. In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decree-holder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act.20.
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### Explanation:
It is quite obvious that the Court made an order of the third kind mentioned above. The three forms of order permissible under R. 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending R. 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case wasendorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of 30-1-1937 was in form and in substance a final order of dismissal of the execution case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amendment made by the Calcutta High Court in R.is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned Advocate for the appellants, hang in the air. It rests upon the solid foundation of a special order which R. 57, as amended in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under O. 38, R. 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgment-debtor cannot deal with the property to the disadvantage of the decree-holder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decree-holder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act.
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EMPLOYEES STATE INSURANCE CORPORATION THR. REGIONAL DIRECTORS Vs. VENUS ALLOY PVT. LTD. THR. MANAGAING DIRECTOR | case of Apex Engineering (supra), the Board of Directors of respondent-Company resolved to elect one of its Directors as Managing Director of the Company and to grant him annual remuneration of Rs. 12,000/- for rendering services as Managing Director. The question was as to whether the said Managing Director was an "employee" within the meaning of Section 2(9) of the ESI Act? Though the High Court and the ESI Court had answered this question against the Corporation, but this Court allowed the appeal and, inter alia, held that the Managing Director, even when to be treated as principal employer, could also be an employee and could carry such dual capacity. This Court said,- ?8. But even assuming that the High Court was right that Shri Dhanwate could be said to be principal employer there is nothing in the Act to indicate that a managing director being the principal employer cannot also be an employee. In other words he can have dual capacity….? This Court also approved the interpretation of relevant provisions of the ESI Act by the Karnataka High Court in the following:- ?13. A Division Bench of the Karnataka High Court in the case of Regional Director, ESI Corpn. v. Margarine & Refined Oils Co. (P) Ltd. [1984 Lab IC 844; (1983) 2 LLN 918 (Kant)] took the view which has commanded (sic commended) to us in the present proceedings. It was held by the High Court that the Managing Director of a private limited company was an employee as defined by Section 2 sub-section (9) of the Act. In this connection it was observed by the High Court that a company is a legal person and a corporate entity and as such it can employ one of its directors as Managing Director. The Managing Director of the company covered by the Act becomes an employee of the company within the meaning of Section 2(9) of the Act and the remuneration paid to him for the functions he discharges as Managing Director would amount to wages as defined under Section 2(22) of the Act for the purpose of calculating employees? contribution. The aforesaid decision of the High Court correctly interprets the relevant provisions of the Act.? After a survey of the other cited decisions, this Court held as under:- "19. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court in the impugned judgment had erred in taking the view, on the facts of the present case, that Shri Dhanwate as Managing Director of the company was not an employee within the meaning of Section 2 sub-section (9) of the Act. On the other hand it must be held that he was an employee of the company and as such could be added to the list of the remaining 19 employees so as to make a total of 20 for covering the establishment under Section 2 sub-section (12) of the Act which defines ?factory? to mean,? any premises including the precincts thereof- (a)........., or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on? 12. We are clearly of the view that what has been observed and held by this Court in Apex Engineering (supra), in relation to the Managing Director of a Company, applies with greater force in relation to a Director of the Company, if he is paid the remuneration for discharge of the duties entrusted to him. 13. It is noticed that in the present case, the appellant-Corporation in its impugned order dated 06.04.2005 specifically asserted that the Directors of the Company were paid remuneration at the rate of Rs. 3,000/- p.m. and they were falling within the definition of "employee" under the ESI Act and hence, contribution was payable in regard to the amount paid to them. Interestingly, even while seeking to challenge the aforesaid order dated 06.04.2005 by way of proceedings under Section 75 of the ESI Act, the respondent-Company chose not to lead any evidence before the Court. Hence, there was nothing on record to displace the facts asserted on behalf of the appellant-Corporation in its order dated 06.04.2005; rather the factual assertions in the said order remained uncontroverted. The order dated 06.04.2005 had been questioned by the respondent-Company only on the contention that the Directors do not fall within the category of "employee" but no attempt was made to show as to how and why the remuneration paid to its Directors would not fall within the purview of "wages" as per the meaning assigned by sub-section (22) of Section 2 of the ESI Act? 14. The ESI Court cursorily attempted to distinguish the decision of this Court in Apex Engineering (supra) only with reference to the fact that therein, the amount was being received by the Managing Director. The High Court, on the other hand, overlooked the said decision of this Court and relied only on the decisions of the Bombay High Court though the propositions in the referred decisions of the Bombay High Court stood effectively overruled by the decision in Apex Engineering (supra) where this Court held in no uncertain terms that the High Court was in error in taking the view that the Managing Director of the Company was not an employee within the meaning of Section 2 (9) of the ESI Act. The said decision directly applies to the present case and we have no hesitation in concluding that the High Court in the present case has been in error in assuming that the Director of a Company, who had been receiving remuneration for discharge of duties assigned to him, may not fall within the definition of an employee for the purpose of the ESI Act. There had been no reason to interfere with the order dated 06.04.2005 as issued by the appellant- Corporation. | 1[ds]7. Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the impugned orders cannot be sustained and the application filed by the respondent-Company under Section 75 of the ESI Act deserves to be dismissed.We are clearly of the view that what has been observed and held by this Court in Apex Engineering (supra), in relation to the Managing Director of a Company, applies with greater force in relation to a Director of the Company, if he is paid the remuneration for discharge of the duties entrusted to him.It is noticed that in the present case, the appellant-Corporation in its impugned order dated 06.04.2005 specifically asserted that the Directors of the Company were paid remuneration at the rate of Rs. 3,000/- p.m. and they were falling within the definition of "employee" under the ESI Act and hence, contribution was payable in regard to the amount paid to them. Interestingly, even while seeking to challenge the aforesaid order dated 06.04.2005 by way of proceedings under Section 75 of the ESI Act, the respondent-Company chose not to lead any evidence before the Court. Hence, there was nothing on record to displace the facts asserted on behalf of the appellant-Corporation in its order dated 06.04.2005; rather the factual assertions in the said order remained uncontroverted. The order dated 06.04.2005 had been questioned by the respondent-Company only on the contention that the Directors do not fall within the category of "employee" but no attempt was made to show as to how and why the remuneration paid to its Directors would not fall within the purview of "wages" as per the meaning assigned by sub-section (22) of Section 2 of the ESIThe ESI Court cursorily attempted to distinguish the decision of this Court in Apex Engineering (supra) only with reference to the fact that therein, the amount was being received by the Managing Director. The High Court, on the other hand, overlooked the said decision of this Court and relied only on the decisions of the Bombay High Court though the propositions in the referred decisions of the Bombay High Court stood effectively overruled by the decision in Apex Engineering (supra) where this Court held in no uncertain terms that the High Court was in error in taking the view that the Managing Director of the Company was not an employee within the meaning of Section 2 (9) of the ESI Act. The said decision directly applies to the present case and we have no hesitation in concluding that the High Court in the present case has been in error in assuming that the Director of a Company, who had been receiving remuneration for discharge of duties assigned to him, may not fall within the definition of an employee for the purpose of the ESI Act. There had been no reason to interfere with the order dated 06.04.2005 as issued by the appellant- Corporation. | 1 | 3,291 | 540 | ### Instruction:
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case of Apex Engineering (supra), the Board of Directors of respondent-Company resolved to elect one of its Directors as Managing Director of the Company and to grant him annual remuneration of Rs. 12,000/- for rendering services as Managing Director. The question was as to whether the said Managing Director was an "employee" within the meaning of Section 2(9) of the ESI Act? Though the High Court and the ESI Court had answered this question against the Corporation, but this Court allowed the appeal and, inter alia, held that the Managing Director, even when to be treated as principal employer, could also be an employee and could carry such dual capacity. This Court said,- ?8. But even assuming that the High Court was right that Shri Dhanwate could be said to be principal employer there is nothing in the Act to indicate that a managing director being the principal employer cannot also be an employee. In other words he can have dual capacity….? This Court also approved the interpretation of relevant provisions of the ESI Act by the Karnataka High Court in the following:- ?13. A Division Bench of the Karnataka High Court in the case of Regional Director, ESI Corpn. v. Margarine & Refined Oils Co. (P) Ltd. [1984 Lab IC 844; (1983) 2 LLN 918 (Kant)] took the view which has commanded (sic commended) to us in the present proceedings. It was held by the High Court that the Managing Director of a private limited company was an employee as defined by Section 2 sub-section (9) of the Act. In this connection it was observed by the High Court that a company is a legal person and a corporate entity and as such it can employ one of its directors as Managing Director. The Managing Director of the company covered by the Act becomes an employee of the company within the meaning of Section 2(9) of the Act and the remuneration paid to him for the functions he discharges as Managing Director would amount to wages as defined under Section 2(22) of the Act for the purpose of calculating employees? contribution. The aforesaid decision of the High Court correctly interprets the relevant provisions of the Act.? After a survey of the other cited decisions, this Court held as under:- "19. As a result of the aforesaid discussion it must be held that the Division Bench of the High Court in the impugned judgment had erred in taking the view, on the facts of the present case, that Shri Dhanwate as Managing Director of the company was not an employee within the meaning of Section 2 sub-section (9) of the Act. On the other hand it must be held that he was an employee of the company and as such could be added to the list of the remaining 19 employees so as to make a total of 20 for covering the establishment under Section 2 sub-section (12) of the Act which defines ?factory? to mean,? any premises including the precincts thereof- (a)........., or (b) whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on? 12. We are clearly of the view that what has been observed and held by this Court in Apex Engineering (supra), in relation to the Managing Director of a Company, applies with greater force in relation to a Director of the Company, if he is paid the remuneration for discharge of the duties entrusted to him. 13. It is noticed that in the present case, the appellant-Corporation in its impugned order dated 06.04.2005 specifically asserted that the Directors of the Company were paid remuneration at the rate of Rs. 3,000/- p.m. and they were falling within the definition of "employee" under the ESI Act and hence, contribution was payable in regard to the amount paid to them. Interestingly, even while seeking to challenge the aforesaid order dated 06.04.2005 by way of proceedings under Section 75 of the ESI Act, the respondent-Company chose not to lead any evidence before the Court. Hence, there was nothing on record to displace the facts asserted on behalf of the appellant-Corporation in its order dated 06.04.2005; rather the factual assertions in the said order remained uncontroverted. The order dated 06.04.2005 had been questioned by the respondent-Company only on the contention that the Directors do not fall within the category of "employee" but no attempt was made to show as to how and why the remuneration paid to its Directors would not fall within the purview of "wages" as per the meaning assigned by sub-section (22) of Section 2 of the ESI Act? 14. The ESI Court cursorily attempted to distinguish the decision of this Court in Apex Engineering (supra) only with reference to the fact that therein, the amount was being received by the Managing Director. The High Court, on the other hand, overlooked the said decision of this Court and relied only on the decisions of the Bombay High Court though the propositions in the referred decisions of the Bombay High Court stood effectively overruled by the decision in Apex Engineering (supra) where this Court held in no uncertain terms that the High Court was in error in taking the view that the Managing Director of the Company was not an employee within the meaning of Section 2 (9) of the ESI Act. The said decision directly applies to the present case and we have no hesitation in concluding that the High Court in the present case has been in error in assuming that the Director of a Company, who had been receiving remuneration for discharge of duties assigned to him, may not fall within the definition of an employee for the purpose of the ESI Act. There had been no reason to interfere with the order dated 06.04.2005 as issued by the appellant- Corporation.
### Response:
1
### Explanation:
7. Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the impugned orders cannot be sustained and the application filed by the respondent-Company under Section 75 of the ESI Act deserves to be dismissed.We are clearly of the view that what has been observed and held by this Court in Apex Engineering (supra), in relation to the Managing Director of a Company, applies with greater force in relation to a Director of the Company, if he is paid the remuneration for discharge of the duties entrusted to him.It is noticed that in the present case, the appellant-Corporation in its impugned order dated 06.04.2005 specifically asserted that the Directors of the Company were paid remuneration at the rate of Rs. 3,000/- p.m. and they were falling within the definition of "employee" under the ESI Act and hence, contribution was payable in regard to the amount paid to them. Interestingly, even while seeking to challenge the aforesaid order dated 06.04.2005 by way of proceedings under Section 75 of the ESI Act, the respondent-Company chose not to lead any evidence before the Court. Hence, there was nothing on record to displace the facts asserted on behalf of the appellant-Corporation in its order dated 06.04.2005; rather the factual assertions in the said order remained uncontroverted. The order dated 06.04.2005 had been questioned by the respondent-Company only on the contention that the Directors do not fall within the category of "employee" but no attempt was made to show as to how and why the remuneration paid to its Directors would not fall within the purview of "wages" as per the meaning assigned by sub-section (22) of Section 2 of the ESIThe ESI Court cursorily attempted to distinguish the decision of this Court in Apex Engineering (supra) only with reference to the fact that therein, the amount was being received by the Managing Director. The High Court, on the other hand, overlooked the said decision of this Court and relied only on the decisions of the Bombay High Court though the propositions in the referred decisions of the Bombay High Court stood effectively overruled by the decision in Apex Engineering (supra) where this Court held in no uncertain terms that the High Court was in error in taking the view that the Managing Director of the Company was not an employee within the meaning of Section 2 (9) of the ESI Act. The said decision directly applies to the present case and we have no hesitation in concluding that the High Court in the present case has been in error in assuming that the Director of a Company, who had been receiving remuneration for discharge of duties assigned to him, may not fall within the definition of an employee for the purpose of the ESI Act. There had been no reason to interfere with the order dated 06.04.2005 as issued by the appellant- Corporation.
|
Dev Prakash & Another Vs. Indra & Others | High Court assailed would disclose, thereby the suit property has been, directed to be sold in public auction, pending disposal of the appeals. 10. Mr. H.D. Thanvi, learned counsel for the appellants has emphatically urged that the order directing disposal of the suit property by public auction is on the face of the records palpably illegal and is in derogation of the basic principle of preservation of property in a civil litigation, pending final adjudication. Further, in absence of any reason for adopting this course, the impugned order is patently unsustainable in law and on facts, and if not reversed, would result in irreparable loss and prejudice to the appellants. 11. The learned counsel for the respondents though did faintly endeavour to support the order, eventually did admit that none of the parties had sought for disposal of the suit property by public auction, as has been directed by the High Court. 12. We have duly considered the recorded facts to the extent necessary at this stage as well as the rival contentions. The order indeed presents certain discomfiting features. To reiterate, the property involved is the subject matter, amongst others of the aforementioned suit and the appeals before the High Court, all of which are presently pending. There is a dispute inter alia, as to whether this property is an asset of the partnership firm in question. Prayer for declaration of the title thereto and rendition of accounts, as made by the respondents/plaintiffs is pending scrutiny of the Trial Court. Not only an order of injunction has been passed by the Trial Court, noticing the nature and extent of the lingering controversy revolving around the suit property, it has also construed it to be expedient to appoint a receiver to keep the same in its custody, pending final resolution of the lis in accordance with law. 13. The impugned order, to start with, has been passed at an interim stage pending the disposal of the appeals assailing the order of injunction and appointment of receiver. It does not record any convincing reason for electing the course of disposal of the suit property in this overwhelming background, by public auction. Not only, this initiative has the potential of possible annihilation of the suit property, the purported justification cited that such an auction would facilitate determination and realisation of the current fair market value and that appointment of receiver would unnecessarily put the suit property in disuse, is wholly indefensible. Noticeably, the High Court not only had estimated the value of the suit property at Rs. 2 crores, it had directed amongst others, that the said amount be quoted as the minimum reserve price in the auction notice to be issued. It has directed as well that a committee, as suggested by it, be constituted to conduct the court auction and also to submit a report with regard thereto, to it. Direction thereby has also been issued to the appellants/defendants to hand over the peaceful and vacant possession of the suit premises to the highest bidder/auction purchaser on the completion of the exercise. 14. In the preponderant factual backdrop, as outlined herein above, we are of the view that not only the reasons endeavoured to be cited in the impugned order in justification of the direction for public auction of the suit property lack in persuasion, those are apparently speculative and illogical, to say the least. The direction for disposal of the suit property by public auction, in the facts and circumstances of the case, clearly militates against the fundamental precept of preservation of subject matter of any dispute pending adjudication in a court of law, more particularly relatable to a civil litigation, to appropriately decide on the rights of the parties for administering the reliefs to which they would be entitled eventually on the culmination of the adjudication. As it is, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. We do not wish to burden this order by the decisions of this Court on the issue except referring to the one in Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass AIR 2005 SC 104 , wherein it has been underlined that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been cause to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse. 15. The course adopted by the High Court in this perspective is in a way unprecedented and rather unknown in law. The impugned order seems to be the yield of an unfathomable urge divorced from the bearing of the consequences thereof on the pending adjudication of the proceedings between the parties and is noticeably unusual and unexpected at the level of High Court. The follow up steps to execute the order also display a cavalier and committed approach so much so that it goes to the extent of fixing the estimated price of the property to be mentioned in the notice for sale. As it is, none of the parties did suggest the disposal of the suit property by public auction. Neither any exceptional circumstance nor any compelling necessity in the interest of adjudication exists as on date to compel the disposal of the property as directed. This assumes great significance as well in view of the dispute as to whether the same belongs to the partnership firm or not. | 1[ds]14. In the preponderant factual backdrop, as outlined herein above, we are of the view that not only the reasons endeavoured to be cited in the impugned order in justification of the direction for public auction of the suit property lack in persuasion, those are apparently speculative and illogical, to say the least. The direction for disposal of the suit property by public auction, in the facts and circumstances of the case, clearly militates against the fundamental precept of preservation of subject matter of any dispute pending adjudication in a court of law, more particularly relatable to a civil litigation, to appropriately decide on the rights of the parties for administering the reliefs to which they would be entitled eventually on the culmination of the adjudication. As it is, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. We do not wish to burden this order by the decisions of this Court on the issue except referring to the one in Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass AIR 2005 SC 104 , wherein it has been underlined that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been cause to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse15. The course adopted by the High Court in this perspective is in a way unprecedented and rather unknown in law. The impugned order seems to be the yield of an unfathomable urge divorced from the bearing of the consequences thereof on the pending adjudication of the proceedings between the parties and is noticeably unusual and unexpected at the level of High Court. The follow up steps to execute the order also display a cavalier and committed approach so much so that it goes to the extent of fixing the estimated price of the property to be mentioned in the notice for sale. As it is, none of the parties did suggest the disposal of the suit property by public auction. Neither any exceptional circumstance nor any compelling necessity in the interest of adjudication exists as on date to compel the disposal of the property as directed. This assumes great significance as well in view of the dispute as to whether the same belongs to the partnership firm or not. | 1 | 1,984 | 521 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
High Court assailed would disclose, thereby the suit property has been, directed to be sold in public auction, pending disposal of the appeals. 10. Mr. H.D. Thanvi, learned counsel for the appellants has emphatically urged that the order directing disposal of the suit property by public auction is on the face of the records palpably illegal and is in derogation of the basic principle of preservation of property in a civil litigation, pending final adjudication. Further, in absence of any reason for adopting this course, the impugned order is patently unsustainable in law and on facts, and if not reversed, would result in irreparable loss and prejudice to the appellants. 11. The learned counsel for the respondents though did faintly endeavour to support the order, eventually did admit that none of the parties had sought for disposal of the suit property by public auction, as has been directed by the High Court. 12. We have duly considered the recorded facts to the extent necessary at this stage as well as the rival contentions. The order indeed presents certain discomfiting features. To reiterate, the property involved is the subject matter, amongst others of the aforementioned suit and the appeals before the High Court, all of which are presently pending. There is a dispute inter alia, as to whether this property is an asset of the partnership firm in question. Prayer for declaration of the title thereto and rendition of accounts, as made by the respondents/plaintiffs is pending scrutiny of the Trial Court. Not only an order of injunction has been passed by the Trial Court, noticing the nature and extent of the lingering controversy revolving around the suit property, it has also construed it to be expedient to appoint a receiver to keep the same in its custody, pending final resolution of the lis in accordance with law. 13. The impugned order, to start with, has been passed at an interim stage pending the disposal of the appeals assailing the order of injunction and appointment of receiver. It does not record any convincing reason for electing the course of disposal of the suit property in this overwhelming background, by public auction. Not only, this initiative has the potential of possible annihilation of the suit property, the purported justification cited that such an auction would facilitate determination and realisation of the current fair market value and that appointment of receiver would unnecessarily put the suit property in disuse, is wholly indefensible. Noticeably, the High Court not only had estimated the value of the suit property at Rs. 2 crores, it had directed amongst others, that the said amount be quoted as the minimum reserve price in the auction notice to be issued. It has directed as well that a committee, as suggested by it, be constituted to conduct the court auction and also to submit a report with regard thereto, to it. Direction thereby has also been issued to the appellants/defendants to hand over the peaceful and vacant possession of the suit premises to the highest bidder/auction purchaser on the completion of the exercise. 14. In the preponderant factual backdrop, as outlined herein above, we are of the view that not only the reasons endeavoured to be cited in the impugned order in justification of the direction for public auction of the suit property lack in persuasion, those are apparently speculative and illogical, to say the least. The direction for disposal of the suit property by public auction, in the facts and circumstances of the case, clearly militates against the fundamental precept of preservation of subject matter of any dispute pending adjudication in a court of law, more particularly relatable to a civil litigation, to appropriately decide on the rights of the parties for administering the reliefs to which they would be entitled eventually on the culmination of the adjudication. As it is, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. We do not wish to burden this order by the decisions of this Court on the issue except referring to the one in Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass AIR 2005 SC 104 , wherein it has been underlined that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been cause to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse. 15. The course adopted by the High Court in this perspective is in a way unprecedented and rather unknown in law. The impugned order seems to be the yield of an unfathomable urge divorced from the bearing of the consequences thereof on the pending adjudication of the proceedings between the parties and is noticeably unusual and unexpected at the level of High Court. The follow up steps to execute the order also display a cavalier and committed approach so much so that it goes to the extent of fixing the estimated price of the property to be mentioned in the notice for sale. As it is, none of the parties did suggest the disposal of the suit property by public auction. Neither any exceptional circumstance nor any compelling necessity in the interest of adjudication exists as on date to compel the disposal of the property as directed. This assumes great significance as well in view of the dispute as to whether the same belongs to the partnership firm or not.
### Response:
1
### Explanation:
14. In the preponderant factual backdrop, as outlined herein above, we are of the view that not only the reasons endeavoured to be cited in the impugned order in justification of the direction for public auction of the suit property lack in persuasion, those are apparently speculative and illogical, to say the least. The direction for disposal of the suit property by public auction, in the facts and circumstances of the case, clearly militates against the fundamental precept of preservation of subject matter of any dispute pending adjudication in a court of law, more particularly relatable to a civil litigation, to appropriately decide on the rights of the parties for administering the reliefs to which they would be entitled eventually on the culmination of the adjudication. As it is, the very essence of the concept of temporary injunction and receivership during the pendency of a civil litigation involving any property is to prevent its threatened wastage, damage and alienation by any party thereto, to the immeasurable prejudice to the other side or to render the situation irreversible not only to impact upon the ultimate decision but also to render the relief granted, illusory. We do not wish to burden this order by the decisions of this Court on the issue except referring to the one in Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass AIR 2005 SC 104 , wherein it has been underlined that unless and until a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property to be changed, which may include alienation or transfer thereof leading to loss or damage been cause to the party who may ultimately succeed and which would as well lead to multiplicity of proceedings. Judicial discretion has to be disciplined by jurisprudential ethics and can by no means conduct itself as an unruly horse15. The course adopted by the High Court in this perspective is in a way unprecedented and rather unknown in law. The impugned order seems to be the yield of an unfathomable urge divorced from the bearing of the consequences thereof on the pending adjudication of the proceedings between the parties and is noticeably unusual and unexpected at the level of High Court. The follow up steps to execute the order also display a cavalier and committed approach so much so that it goes to the extent of fixing the estimated price of the property to be mentioned in the notice for sale. As it is, none of the parties did suggest the disposal of the suit property by public auction. Neither any exceptional circumstance nor any compelling necessity in the interest of adjudication exists as on date to compel the disposal of the property as directed. This assumes great significance as well in view of the dispute as to whether the same belongs to the partnership firm or not.
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Hindustan Paper Corporation Ltd. Etc Vs. State of Kerala and Others | a case where the exemption operates only in certain circumstances. The learned counsel submits that the decisions o f this court in Indian Aluminum and Industrial Cables have been considered and explained by this Court in Pine Chemicals and, therefore, the principle of those decisions cannot be read as supporting the States submissions. 11. While we see the force in the submissions of Sri Iyer, learned counsel for the State of Kerala, we cannot give effect to the same in the light of the binding decision in Pine Chemicals which deals with an almost similar exemption notification. The Government of Jammu &Kashmir had issued orders providing for exemption from the State sales tax both on raw-materials and finished products for a period of five years from the date the unit goes into production. Question had arisen whether the said exempt ion attracts the exemption contained in Section 8(2A) of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub-section (1) and (lA) of Section 6 as well as of sub-sections (1), (2) and(2A) of Section 8 and then observed:On a plain reading of Section 8(2-A) of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax gen erally at a rate which is lower than 4 per cent than his liability to tax under the Central Sales Tax Act when such commodity is sold on inter-state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. 12. That is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of a dealer which term would include any dealer or any class of dealers The existence or otherwise of the three Limitations under the explanation above referred to on claiming exemption under Section 8(2-A) of the Central Sales Tax Act will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods.Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2-A) of the Central Sales Tax Act. 13. The learned Advocate-General for the State contended that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under Section 8(2-A) of the Central Sales Tax Act. We are unable to agree with this submission of the learned counsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub- sequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at specified stage does not arise for consideration. This is not also a case where the exemption is with reference to something other than the turnover of the goods. (emphasis added) The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one. The learned Judge pointed out that the exemption concerned therein was with respect to sales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910 (9 of 1910), of goods for use by it in generation or distribution of such energy. 14. | 1[ds]While we see the force in the submissions of Sri Iyer, learned counsel for the State of Kerala, we cannot give effect to the same in the light of the binding decision in Pine Chemicals which deals with an almost similar exemption notification. The Government of Jammu &Kashmir had issued orders providing for exemption from the State sales tax both on raw-materials and finished products for a period of five years from the date the unit goes into production. Question had arisen whether the said exempt ion attracts the exemption contained in Section 8(2A) of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub-section (1) and (lA) of Section 6 as well as of sub-sections (1), (2) and(2A) of Section 8 and then observed:On a plain reading of Section 8(2-A) of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax gen erally at a rate which is lower than 4 per cent than his liability to tax under the Central Sales Tax Act when such commodity is sold on inter-state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax lawThat is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of a dealer which term would include any dealer or any class of dealers The existence or otherwise of the three Limitations under the explanation above referred to on claiming exemption under Section 8(2-A) of the Central Sales Tax Act will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods.Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2-A) of the Central Sales Tax ActThe learned Advocate-General for the State contended that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under Section 8(2-A) of the Central Sales Tax Act. We are unable to agree with this submission of the learned counsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub- sequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at specified stage does not arise for consideration. This is not also a case where the exemption is with reference to something other than the turnover of the goods. (emphasis added) The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one. The learned Judge pointed out that the exemption concerned therein was with respect tosales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910 (9 of 1910), of goods for use by it in generation or distribution of such energy. | 1 | 3,393 | 1,018 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
a case where the exemption operates only in certain circumstances. The learned counsel submits that the decisions o f this court in Indian Aluminum and Industrial Cables have been considered and explained by this Court in Pine Chemicals and, therefore, the principle of those decisions cannot be read as supporting the States submissions. 11. While we see the force in the submissions of Sri Iyer, learned counsel for the State of Kerala, we cannot give effect to the same in the light of the binding decision in Pine Chemicals which deals with an almost similar exemption notification. The Government of Jammu &Kashmir had issued orders providing for exemption from the State sales tax both on raw-materials and finished products for a period of five years from the date the unit goes into production. Question had arisen whether the said exempt ion attracts the exemption contained in Section 8(2A) of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub-section (1) and (lA) of Section 6 as well as of sub-sections (1), (2) and(2A) of Section 8 and then observed:On a plain reading of Section 8(2-A) of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax gen erally at a rate which is lower than 4 per cent than his liability to tax under the Central Sales Tax Act when such commodity is sold on inter-state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. 12. That is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of a dealer which term would include any dealer or any class of dealers The existence or otherwise of the three Limitations under the explanation above referred to on claiming exemption under Section 8(2-A) of the Central Sales Tax Act will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods.Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2-A) of the Central Sales Tax Act. 13. The learned Advocate-General for the State contended that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under Section 8(2-A) of the Central Sales Tax Act. We are unable to agree with this submission of the learned counsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub- sequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at specified stage does not arise for consideration. This is not also a case where the exemption is with reference to something other than the turnover of the goods. (emphasis added) The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one. The learned Judge pointed out that the exemption concerned therein was with respect to sales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910 (9 of 1910), of goods for use by it in generation or distribution of such energy. 14.
### Response:
1
### Explanation:
While we see the force in the submissions of Sri Iyer, learned counsel for the State of Kerala, we cannot give effect to the same in the light of the binding decision in Pine Chemicals which deals with an almost similar exemption notification. The Government of Jammu &Kashmir had issued orders providing for exemption from the State sales tax both on raw-materials and finished products for a period of five years from the date the unit goes into production. Question had arisen whether the said exempt ion attracts the exemption contained in Section 8(2A) of the Central Act? The said question was answered in the affirmative by V., Ramaswami, J. speaking for the Bench. The learned Judge examined the scheme of sub-section (1) and (lA) of Section 6 as well as of sub-sections (1), (2) and(2A) of Section 8 and then observed:On a plain reading of Section 8(2-A) of the Central Sales tax Act it deals with the liability of a dealer to pay tax under the Act on his interstate sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State. It provides that if an intrastate sale or purchase of a commodity by the dealer is exempt from tax generally or subject to tax gen erally at a rate which is lower than 4 per cent than his liability to tax under the Central Sales Tax Act when such commodity is sold on inter-state trade would be either nil or as the case may be shall be calculated at a lower rate. Explanation states as to when the sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax law. That is to say an intrastate sale or purchase shall not be deemed as to be exempt from tax generally under the sales tax lawThat is to say an intrastate sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of the goods. These conditions or limitations are therefore with reference to the transaction of sale or purchase. The main clause deals with the turnover of a dealer which term would include any dealer or any class of dealers The existence or otherwise of the three Limitations under the explanation above referred to on claiming exemption under Section 8(2-A) of the Central Sales Tax Act will therefore have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intrastate sale or purchase of the same goods.Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under Section 8(2-A) of the Central Sales Tax ActThe learned Advocate-General for the State contended that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under Section 8(2-A) of the Central Sales Tax Act. We are unable to agree with this submission of the learned counsel for the State. The facts which the dealer has to prove to get the benefit of the government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provision. The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of the exemption is claimed. These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale. We have already held that not only sale by the manufacturer to dealer that is exempt under the government orders but since the General Sales Tax Act had adopted only a single point levy, even the sub- sequent sales would be covered by the exemption order. Therefore, the question whether the tax is leviable on the sale or purchase at specified stage does not arise for consideration. This is not also a case where the exemption is with reference to something other than the turnover of the goods. (emphasis added) The learned Judge then dealt with the decisions of this Court in Indian Aluminum and Industrial Cables and distinguished them pointing out that the exemption concerned in those cases was clearly a conditional one. The learned Judge pointed out that the exemption concerned therein was with respect tosales of an undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910 (9 of 1910), of goods for use by it in generation or distribution of such energy.
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Kelvinator Of India Ltd Vs. The State Of Haryana | an authority confers an election on the party authorised. An authority to appropriate is presumed where, by the terms of the con tract, one party is to do with reference to the goods some act or thing which cannot be done until the goods are appropriated. When the party authorised has determined his election by doing such act or thing, the appropriation is finally made. Until that time any act or thing done with reference to the goods towards appropriation by the party authorised is revocable, unless it has previous to its revocation, been assented to by the other party."So far as the observations made in the first paragraph reproduced above are concerned, we find that there is no material on the record to show that an authority was given by the distributors to the appellant to appropriate the goods at Faridabad. As such, the aforesaid paragraph cannot be of any material help to the respondent. The second paragraph reproduced above relates to an authority which may be presumed from the fact that one party by the terms of contract is to do with reference to the goods some act or thing which cannot be done until the goods are appropriated. In respect of this paragraph also, as already indicated above, we find that there is no material to show that the appellant was under the terms of contract authorised to do some act or thing with reference to the refrigerators which could not be done until the refrigerators were appropriated. A part from that we find that the observation that "until that time any act or thing done with reference to the goods towards appropriation by the party authorised is revocable would show that there was no legal bar to the changing of name plates by the appellant company till such time as orders with regard to the refrigerators were placed by the distributors after inspection of those, refrigerators.16. A case which was considerable bearing on the facts of the present case is that of Tata Engineering and Locomotive Co. Ltd. V. Assistant Commissioner of Commercial Taxes, Jamshedpur and Anr. (supra). In that case the appellant company, which manufactured trucks and buses in Jamshedpur in the State of Bihar, transferred the vehicles to stock-yards operated by its own personnel in other States and supplied them to the dealers. After the promulgation of the Commercial Vehicles (Distribution and Sale) Control Order, 1963 the appellant issued a circular dated June 14, 1963, to the dealers asking them to submit monthly statements regarding fresh applications registered, retail sales, applications cancelled and stock and sales. , A new form of dealership agreement was also introduced under which the appellant a greed to sell from its works in Jamshedpur or its depots and stockvirds outside the State of Bihar to the dealer the vehicles which shall be allotted at its discretion. Clause 11(b) of:the agreement provided that "the dealer shall mail to the company on the 15th of each month ...... his firm order for purchases to be effected during the next succeeding month and his estimated requirements., for the two months following the next succeeding month In fact however no firm order was called for by the company. Pursuant to authorisation issued by the sales office of the appellant in Bombay, vehicles were transferred from its works at Jamshedpur to the various stockyards in the States. The stocks available in the stock-yards were then distributed from time to time to dealers for which purpose an allocation letter was issued each month by the sales office. There were many instances where vehicles had been actually delivered from the stock- yard prior to the issue of the allocation letter. It was also found that on some occasions vehicles bad been moved from a stock-yard in on-, State to a stock-yard in another. Treating the allocation letters together with their confirmation as transactions of sale, and the movement of vehicles from the works to the stock-yards as the direct result of the allocation so made, the Assistant Commissioner imposed tax under the Central Sales Tax Act, 1956, in relation to the sales during the period April 1, 1964 to March 31, 1966, of vehicles which had moved from Jamshedpur to the stock-yards in the various States. it was held by this Court that the procedure followed by the appellant together with the proved absence of any firm orders, indicated that the allocation letters and the statements furnished by the dealers did not themselves bring about transactions of sale within the meaning of section 2(g) of the Act. This Court further observed:"It would appear from the materials placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stock- yards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stock-yards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyard to another. Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. it is not possible to comprehend how, in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale."17. The facts of the present case have a certain amount of similarity to the facts of the above case and, in our opinion, the dictum laid down therein fortifies us in the conclusion at which we have arrived.18. | 1[ds]In the face of the facts of the present case, we find it difficult to hold that the sale of refrigerators by the. appellant to the three distributors took place at Faridabad. We are also unable to agree with the High Court that the distribution agreements constituted agreements of sale. It is noteworthy in this context to observe that the number of refrigerators which were to be purchased by each of the distributors was not specified in the distribution agreements, nor did the agreements contain the price which was to be charged for each refrigerator. According to the agreement dated April 26, 1965 the appellant undertook to sell and the distributors undertook to purchase the products of the appellant "as mutually agreed upon from time to time". It is, therefore, plain that sales by the appellant company--to the distributor referred to in the distribution agreement dated April 26, 1965 depended upon the future agreement between the parties from time to time. Distribution agreements dated September 15, 1965 and December 11, 1965 no doubt mentioned the minimum number of Leonard and Gem refrigerators which had been agreed to be purchased by the distributors; the exact number of refrigerators to be sold by the appellant to these two distributors was still left to volition of the appellant. The appellant company, it was also mentioned, would incur no liability if it was unable to supply the guaranteed minimum number of refrigerators. The mode of dealings between the parties was that subsequent to the distribution agreements, orders were placed by the distributors with the appellant after the refrigerators had reached the appellants sale office and godown in Delhi. The price of the refrigerators was also to be mutually agreed upon from time to time. It is Plain that it is the orders which were placed in Delhi by the distributors and the acceptance thereof by the appellant that resulted in mutual agreement of sale. It was, in our opinion, the mutual agreement between the parties at the time of the placing of the order by the distributor with the appellant which constituted the contract of sale and not the distribution agreement. The distribution agreement with each distributor provided the framework within which the different contracts of sale-were entered into by the distributor with the appellant. This circumstance should not make us lose sight of the fact that the distribution agreements and the subsequent contracts of sale were distinct transactions.We are not impressed by Mr. Tarkundes argument that under agreement dated April 26, 1965 Spencer &Co. was bound to purchase all the products of the appellant company. Spencer &Co. undertook to buy the products manufactured by the appellant company subject to the stipulation contained in the words "as mutually agreed upon from time to time". Had it been the intention of the parties that, Spencer &Co. was bound to purchase all products manufactured by the appellant company irrespective of any future agreement between the parties, the words "as mutually agreed upon from time to time" in clause 1 of agreement dated April 26, 1965 would lose all significance. It would not have also in that event been possible for the appellant to enter into the other two distribution agreements of September 15, 1965 and December 11, 1965 regarding Leonard and Gem refrigerators which were manufactured by the appellant. The fact that the appellant was in a position to export its products to foreign countries during the assessment year in question also shows that the re was no agreement between the parties that the appellant was bound to sell and Spencer &Co. was bound to purchase all products manufactured by theargument that the sale of refrigerators to each of the distributors took place at Faridabad and that it was at Faridabad that the refrigerators were appropriated towards the agreement with each of the three distributors appears to us to be not well-founded. The argument proceeds upon the assumption that trade-mark name plates on , the refrigerators were affixed at Faridabad by the appellant company. There is, however, no direct material to show that the name plates on, the refrigerators were actually affixed at Faridabad and not in Delhi. Assuming that the name plates were, in fact, affixed to the refrigerators by the appellant at Faridabad, there was nothing to prevent the appellant from changing the name plate of a refrigerator and affixing the name plate of a different brand of refrigerator on the refrigerator from which the name plate was removed. The three different brands of refrigerators were in all respects identical except in respect of the name plate. The said name plates, it has been demonstrated to us, . are easily interchangeable. In the circumstances, the alleged affixation of trade-mark plates to the refrigerators at Faridabad would not necessarily show that the appropriation of the refrigerators towards the agreement with a particular distributor took place at Faridabad. A very significant circumstance which should not be lost sight of, in this context is that orders in respect of the various refrigerators were placed by the distributors in Delhi after the refrigerators had been transported to the Delhi sale office and godown of the appellant. If the sale of the refrigerators in favour of the distributor hid already taken place at Faridabad and the refrigerators had been appropriated there towards the sale contract, there would have arisen no occasion for the placing of the subsequent order in Delhi by a distributor with regard to the said refrigerators. The fact that subsequent orders had to be placed by the distributors in Delhi with regard to the different refrigerators after their arrival in Delhi shows that there was no earlier sale or appropriation of those refrigerators towards any contract of sale with the distributors. The stand taken on behalf of the department that the appropriation of the refrigerators took place at Faridabad towards the contracts of sale with the distributors is inconsistent with the entire course of dealings between the parties. It may also be observed that in deciding the question whether the transactions between the parties constituted sales in the course of inter-State trade or commerce, the court should look not merely at the distribution agreements, regard should be had of the en-tire course of dealings between the parties.Assuming that the distribution agreements constituted contracts of sale, it would still have to be shown that the sale by the appellant to the distributors occasioned the movement of refrigerators from Faridabad to Delhi in this respect we find that according to the facts found by the Tribunal the appellant had a godown and sale office in Delhi. There is nothing to show that the appellant has also a godown in Faridabad. The movement of refrigerators from Faridabad to the appellants godown in Delhi in the circumstances can well be ascribed to the fact that the appellant has a godown facility in Delhi. There were two places at which in the nature of things the appellant could have sold the refrigerators to the distributors. It could be either at Faridabad where the appellant has its factory wherein the refrigerators are manufactured or in Delhi where the appellant has its sale office and godown and where- also the, three distributors have their offices. The selection of place of sale. depended upon mutual agreement between the parties it is also obvious that if there is a choice before the parties of so arranging their matters that in. one case they would have to incur liability to pay tax and in the other case the liability to p ay tax would not be attracted, they would prefer the latter course. There is nothing illegal or impermissible to a party so arranging its affairs that the liability to pay tax would not be attracted or that the brunt of taxation would be reduced to the minimum. The appellant company in the present case would incur no liability to pay tax under the Act if it were to transport the refrigerators from its factory in Faridabad to its own office and godown in Delhi and thereafter to sell them to the distributors. The liability to pay tax under the Act would, however, arise if the sale of the refrigerators to distributors were to take place at Faridabad and the movement of refrigerators from Faridabad to Delhi were to take place under the contract of sale. The question with which we are concerned is whether the appellant entered into such an arrangement with the distributors that the liability to pay tax would be attracted and not the other arrangement under which no such liability could be fastened on the appellant. So far as this question is concerned, we find that the parties expressly stated in each of the three distribution agreements that it would be in Delhi that the sale of refrigerators would take place to the distributors and the property therein would pass to them. It was again in Delhi that the refrigerators were delivered to the distributors. The orders for the refrigerators were placed by the distributors in Delhi and it was also here that, the price of refrigerators was paid. Looking to all the facts of the case, we have no doubt that the arrangement between the parties was that refrigerators would be sold by the appellant to the distributors after they had been transported to the sale office and godown of the appellant on Alipore Road, Delhi so that no liability to pay tax under the Act would arise. It cannot in-the circumstances be said that the transport of the refrigerators from Faridabad to Delhi was in pursuance of contracts of sale between the appellant and the distributors.Reference has been made by Mr. Tarkunde to the fact that the distributors were to bear the freight charges for the transportation of refrigerators from Faridabad to Delhi. In this respect we find that the distribution agreements show that reference was made to transportation charges for determining the amount or price to be paid by the distributors to the appellant company. The price payable by the distributors was the aggregate of the ex-factory price of refrigerators and the transportation charges. As the ex-factory., price of refrigerators was fixed from time to time and as the agreements with the distributors provided that the sale of the refrigerators as well as the delivery thereof to the distributors would take place in Delhi, there was nothing surprising in the clause of the distribution agreements that the transportation charges would be added to the ex-factory prices of the refrigerators in calculating the amount payable by the distributors to the appellant. The inclusion of the charges for the transport of the refrigerators from Faridabad to Delhi in the. price payable by the distributors would not show that the movement of refrigerators from Faridabad to Delhi was occasioned by the contract ofHigh Court in the course of its judgment hasfreight from Faridabad to Delhi is borne by the Distributors that is the Blue Star and the General Equipment Merchants. Any shortage or damage in transit is also the responsibility of Blue Star and the General Equipment Merchants; the responsibility for this does not fall on theobservations in the above paragraph that any shortage or damage in transit was the responsibility of the Blue Star and the General Equipment Merchants and the responsibility for that did not fall on the manufacturer is not correct because clause 8 of each of the two agreements dated September 15, 1965 and December 11, 1965 relating to Leonard and Gem refrigerators shows that the liability of the appellant company for any shortage or damage that might occur would cease only after the goods had been delivered and inspected by the distributors at Delhi. The appellant no doubt stipulated in its agreement with Spencer &Co. that it (the appellant) would accept no responsibility for shortage or damage occurring in transit after the goods had passed through rigorous inspection at the time they left the appellants factory. This must, however, be regarded in the- nature of things to be a matter of mutual agreement between the parties. Spencer &Co. might well have agreed to bear that loss on the assumption that the advantage of becoming the distributor for sale of Kelvinator refrigerators would far outweigh the loss borne by the said company in this respect. Indeed, the possibility of any loss being borne by Spencer &Co. because of any shortage or damage occurring in transit of refrigerators from Faridabad to Delhi was only theoretical, is according to the order of reference the expenses of transit insurance were borne by the appellant company. It would thus be the insurer who would have to bear the loss caused by shortage or damage occurring during transit. It may also be mention ed in this context that the octroi charges in connection with the movement of refrigerators from Faridabad to Delhi were paid by the appellant.We have been referred to section 23 of the Sale of Goods Act. According to that section, where the re is a contract for the sale of unascertained or future goods by description. and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assessment o f the buyer or by the buyer with the assent of the, seller, the property in the goods thereupon posses to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. , The said section, in our opinion, cannot be of much avail to the respondent. Apart, from the fact that the distribution agreements cannot, in our opinion, be construed as contracts of We. there- is no material to show that there was any assent expressed or implied by the distributors to the appropriation of. the refrigerators by the appellant atcase which was considerable bearing on the facts of the present case is that of Tata Engineering and Locomotive Co. Ltd. V. Assistant Commissioner of Commercial Taxes, Jamshedpur and Anr. (supra). In that case the appellant company, which manufactured trucks and buses in Jamshedpur in the State of Bihar, transferred the vehicles to stock-yards operated by its own personnel in other States and supplied them to the dealers. After the promulgation of the Commercial Vehicles (Distribution and Sale) Control Order, 1963 the appellant issued a circular dated June 14, 1963, to the dealers asking them to submit monthly statements regarding fresh applications registered, retail sales, applications cancelled and stock and sales. , A new form of dealership agreement was also introduced under which the appellant a greed to sell from its works in Jamshedpur or its depots and stockvirds outside the State of Bihar to the dealer the vehicles which shall be allotted at its discretion. Clause 11(b) of:the agreement provided that "the dealer shall mail to the company on the 15th of each month ...... his firm order for purchases to be effected during the next succeeding month and his estimated requirements., for the two months following the next succeeding month In fact however no firm order was called for by the company. Pursuant to authorisation issued by the sales office of the appellant in Bombay, vehicles were transferred from its works at Jamshedpur to the various stockyards in the States. The stocks available in the stock-yards were then distributed from time to time to dealers for which purpose an allocation letter was issued each month by the sales office. There were many instances where vehicles had been actually delivered from the stock- yard prior to the issue of the allocation letter. It was also found that on some occasions vehicles bad been moved from a stock-yard in on-, State to a stock-yard in another. Treating the allocation letters together with their confirmation as transactions of sale, and the movement of vehicles from the works to the stock-yards as the direct result of the allocation so made, the Assistant Commissioner imposed tax underthe Central Sales Tax Act, 1956, in relation to the sales during the period April 1, 1964 to March 31, 1966, of vehicles which had moved from Jamshedpur to the stock-yards in the various States. it was held by this Court that the procedure followed by the appellant together with the proved absence of any firm orders, indicated that the allocation letters and the statements furnished by the dealers did not themselves bring about transactions of sale within the meaning of section 2(g) of the Act. This Court furtherwould appear from the materials placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stock- yards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stock-yards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyard to another. Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. it is not possible to comprehend how, in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract offacts of the present case have a certain amount of similarity to the facts of the above case and, in our opinion, the dictum laid down therein fortifies us in the conclusion at which we have arrived. | 1 | 7,951 | 3,174 | ### 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:
an authority confers an election on the party authorised. An authority to appropriate is presumed where, by the terms of the con tract, one party is to do with reference to the goods some act or thing which cannot be done until the goods are appropriated. When the party authorised has determined his election by doing such act or thing, the appropriation is finally made. Until that time any act or thing done with reference to the goods towards appropriation by the party authorised is revocable, unless it has previous to its revocation, been assented to by the other party."So far as the observations made in the first paragraph reproduced above are concerned, we find that there is no material on the record to show that an authority was given by the distributors to the appellant to appropriate the goods at Faridabad. As such, the aforesaid paragraph cannot be of any material help to the respondent. The second paragraph reproduced above relates to an authority which may be presumed from the fact that one party by the terms of contract is to do with reference to the goods some act or thing which cannot be done until the goods are appropriated. In respect of this paragraph also, as already indicated above, we find that there is no material to show that the appellant was under the terms of contract authorised to do some act or thing with reference to the refrigerators which could not be done until the refrigerators were appropriated. A part from that we find that the observation that "until that time any act or thing done with reference to the goods towards appropriation by the party authorised is revocable would show that there was no legal bar to the changing of name plates by the appellant company till such time as orders with regard to the refrigerators were placed by the distributors after inspection of those, refrigerators.16. A case which was considerable bearing on the facts of the present case is that of Tata Engineering and Locomotive Co. Ltd. V. Assistant Commissioner of Commercial Taxes, Jamshedpur and Anr. (supra). In that case the appellant company, which manufactured trucks and buses in Jamshedpur in the State of Bihar, transferred the vehicles to stock-yards operated by its own personnel in other States and supplied them to the dealers. After the promulgation of the Commercial Vehicles (Distribution and Sale) Control Order, 1963 the appellant issued a circular dated June 14, 1963, to the dealers asking them to submit monthly statements regarding fresh applications registered, retail sales, applications cancelled and stock and sales. , A new form of dealership agreement was also introduced under which the appellant a greed to sell from its works in Jamshedpur or its depots and stockvirds outside the State of Bihar to the dealer the vehicles which shall be allotted at its discretion. Clause 11(b) of:the agreement provided that "the dealer shall mail to the company on the 15th of each month ...... his firm order for purchases to be effected during the next succeeding month and his estimated requirements., for the two months following the next succeeding month In fact however no firm order was called for by the company. Pursuant to authorisation issued by the sales office of the appellant in Bombay, vehicles were transferred from its works at Jamshedpur to the various stockyards in the States. The stocks available in the stock-yards were then distributed from time to time to dealers for which purpose an allocation letter was issued each month by the sales office. There were many instances where vehicles had been actually delivered from the stock- yard prior to the issue of the allocation letter. It was also found that on some occasions vehicles bad been moved from a stock-yard in on-, State to a stock-yard in another. Treating the allocation letters together with their confirmation as transactions of sale, and the movement of vehicles from the works to the stock-yards as the direct result of the allocation so made, the Assistant Commissioner imposed tax under the Central Sales Tax Act, 1956, in relation to the sales during the period April 1, 1964 to March 31, 1966, of vehicles which had moved from Jamshedpur to the stock-yards in the various States. it was held by this Court that the procedure followed by the appellant together with the proved absence of any firm orders, indicated that the allocation letters and the statements furnished by the dealers did not themselves bring about transactions of sale within the meaning of section 2(g) of the Act. This Court further observed:"It would appear from the materials placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stock- yards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stock-yards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyard to another. Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. it is not possible to comprehend how, in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract of sale."17. The facts of the present case have a certain amount of similarity to the facts of the above case and, in our opinion, the dictum laid down therein fortifies us in the conclusion at which we have arrived.18.
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### Explanation:
the goods had passed through rigorous inspection at the time they left the appellants factory. This must, however, be regarded in the- nature of things to be a matter of mutual agreement between the parties. Spencer &Co. might well have agreed to bear that loss on the assumption that the advantage of becoming the distributor for sale of Kelvinator refrigerators would far outweigh the loss borne by the said company in this respect. Indeed, the possibility of any loss being borne by Spencer &Co. because of any shortage or damage occurring in transit of refrigerators from Faridabad to Delhi was only theoretical, is according to the order of reference the expenses of transit insurance were borne by the appellant company. It would thus be the insurer who would have to bear the loss caused by shortage or damage occurring during transit. It may also be mention ed in this context that the octroi charges in connection with the movement of refrigerators from Faridabad to Delhi were paid by the appellant.We have been referred to section 23 of the Sale of Goods Act. According to that section, where the re is a contract for the sale of unascertained or future goods by description. and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assessment o f the buyer or by the buyer with the assent of the, seller, the property in the goods thereupon posses to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made. , The said section, in our opinion, cannot be of much avail to the respondent. Apart, from the fact that the distribution agreements cannot, in our opinion, be construed as contracts of We. there- is no material to show that there was any assent expressed or implied by the distributors to the appropriation of. the refrigerators by the appellant atcase which was considerable bearing on the facts of the present case is that of Tata Engineering and Locomotive Co. Ltd. V. Assistant Commissioner of Commercial Taxes, Jamshedpur and Anr. (supra). In that case the appellant company, which manufactured trucks and buses in Jamshedpur in the State of Bihar, transferred the vehicles to stock-yards operated by its own personnel in other States and supplied them to the dealers. After the promulgation of the Commercial Vehicles (Distribution and Sale) Control Order, 1963 the appellant issued a circular dated June 14, 1963, to the dealers asking them to submit monthly statements regarding fresh applications registered, retail sales, applications cancelled and stock and sales. , A new form of dealership agreement was also introduced under which the appellant a greed to sell from its works in Jamshedpur or its depots and stockvirds outside the State of Bihar to the dealer the vehicles which shall be allotted at its discretion. Clause 11(b) of:the agreement provided that "the dealer shall mail to the company on the 15th of each month ...... his firm order for purchases to be effected during the next succeeding month and his estimated requirements., for the two months following the next succeeding month In fact however no firm order was called for by the company. Pursuant to authorisation issued by the sales office of the appellant in Bombay, vehicles were transferred from its works at Jamshedpur to the various stockyards in the States. The stocks available in the stock-yards were then distributed from time to time to dealers for which purpose an allocation letter was issued each month by the sales office. There were many instances where vehicles had been actually delivered from the stock- yard prior to the issue of the allocation letter. It was also found that on some occasions vehicles bad been moved from a stock-yard in on-, State to a stock-yard in another. Treating the allocation letters together with their confirmation as transactions of sale, and the movement of vehicles from the works to the stock-yards as the direct result of the allocation so made, the Assistant Commissioner imposed tax underthe Central Sales Tax Act, 1956, in relation to the sales during the period April 1, 1964 to March 31, 1966, of vehicles which had moved from Jamshedpur to the stock-yards in the various States. it was held by this Court that the procedure followed by the appellant together with the proved absence of any firm orders, indicated that the allocation letters and the statements furnished by the dealers did not themselves bring about transactions of sale within the meaning of section 2(g) of the Act. This Court furtherwould appear from the materials placed before us that generally the completion of the sales to the dealers did not take place at Jamshedpur and the final steps in the matter of such completion were taken at the stock- yards. Even if the appellant took into account the requirements of the dealers which it naturally was expected to do when the vehicles were moved from the works to the stock-yards it was not necessary that the number of vehicles allocated to the dealer should necessarily be delivered to him. The appropriation of the vehicles was done at the stockyards through specification of the engine and the chassis number and it was open to the appellant till then to allot any vehicle to any purchaser and to transfer the vehicles from one stockyard to another. Even the Assistant Commissioner found that on some occasion vehicles had been moved from stockyards in one State to a stockyard in another State. it is not possible to comprehend how, in the above situation it could be held that the movement of the vehicles from the works to the stockyards was occasioned by any covenant or incident of the contract offacts of the present case have a certain amount of similarity to the facts of the above case and, in our opinion, the dictum laid down therein fortifies us in the conclusion at which we have arrived.
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Shreejee Traco (I) Private Limited Vs. Paperline International Inc | (1) This is a petition under Section 11(4) of the Arbitration and Conciliation Act, 1996 (hereinafter, the Act for short) seeking appointment of an arbitrator for and on behalf of the respondent herein, in the backdrop of the events briefly stated hereinafter. (2) The petitioner, a company duly incorporated in India and having its principal office at Delhi placed an order for the supply of facial tissue paper to the respondent, a company incorporated in New York and having its seat thereat. The respondent issued pro forma invoice dated 22-6-2001 wherein one of the clauses provides as under: "Any disputes or claims will be submitted to arbitration in New York." (3) The abovesaid clause is treated by the petitioner as arbitration contract between the parties.(4) The petitioner opened an L/C as demanded by the respondent and agreed to by the petitioner. The shipment of the goods arrived at Nhava Sheva Port at Mumbai. The goods on inspection were found to be not conforming to the sample of goods. The petitioner held the respondent guilty of breach of contract and demanded damages and compensation along with refund of the amount of L/C with interest. Vide legal notice dated 22-11-2001 the petitioner called upon the respondent to join in constitution of an Arbitral Tribunal. The petitioner nominated one Shri Vikas Jain, Chartered Accountant, New Jersey, USA as his arbitrator and requested the respondent to nominate its arbitrator within 30 days of the date of receipt of the notice and thereafter both the nominated arbitrators proceeding to appoint a presiding arbitrator. The respondent neither appointed an arbitrator nor responded to the petitioners notice. On 12-1-2002 the present petition has been filed. (5) The respondent though noticed has chosen to remain absent. These proceedings have, therefore, proceeded ex parte against the respondent. In view of the place of arbitration being New York, as agreed upon between the parties, a doubt arose whether the Chief Justice of India or his designate within the meaning of Section 11 of the Act would be competent to appoint an arbitrator. Shri V.A. Mohta, Senior Advocate was requested to render his assistance as amicus curiae. Shri V.A. Mohta has appeared and pointed out various relevant legal .provisions. Shri Rajesh Aggarwal, the learned counsel for the petitioner has also been heard. (6) Section 11 is placed in Part I of the Act. Sub-section (2) of Section 2 provides: This Part shall apply where the place of arbitration is in India." On a plain reading of this provision it is clear that Parliament intended the provisions of Part I to be applicable when the place of arbitration is in India. Shri Rajesh Aggarwal, the learned counsel for the petitioner submitted that the provision is not couched in a negative form i.e. it does not exclude the applicability of Part I if the place of arbitration is not in India. He submitted that the contract was to be performed in India; it is here that the breach of contract has taken place. Therefore, a petition under Section 11 of the Act is maintainable before the Chief Justice of India or his designate. (7) In National Thermal Power Corpn. v. Singer Co. a question arose as to the applicability of Indian law when one of the contracting parties was a foreigner. Though the case is pre-1996, certain observations made therein are apposite. In case of conflict of laws, the Supreme Court of India has opined that for arbitration, the selection of the place of arbitration may have little significance where it is chosen, as is often the case, without regard to any relevant or significant link with the place. This is particularly true when the place of arbitration is not chosen by the parties themselves, but by the arbitrators or by the outside body, and that too for reasons unconnected with the contract. It would be different if choice of place for submission for the arbitration is supported by the rest of the contract and surrounding circumstances which may be treated as stronger indication in regard to the intention of the parties. Dicey and Morns on The Conflict of Laws (11th Edn., Vol. II) was cited with approval wherein the learned authors state inter alia that the law governing arbitration proceedings is the law chosen by the parties, or, in the absence of agreement, the law of the country in which the arbitration is held. In the absence of express choice of the law governing the contract as a whole or the arbitration agreement as such having been exercised by the parties, a presumption may arise that the law of the country where the arbitration is agreed to be held is the proper law of the arbitration agreement. The presumption is rebuttable. The parties have the freedom to choose the law governing an international commercial arbitration agreement. Where there is no express choice of the law governing the contract as a whole, or the arbitration agreement in particular, there is, in the absence of any contrary indication, a presumption that the parties have intended that the proper law of the contract as well as the law governing the arbitration agreement are the same as law of the country in which the arbitration is agreed to be held. There is nothing in the contract or correspondence between the parties to rebut the ordinary presumption and spell out an intention of the parties that they intended proper law of India to govern arbitration in spite of the place of arbitration having been agreed to be at New York.(8) So far as the language employed by Parliament in drafting sub-section (2) of Section 2 of the Act is concerned, suffice it to say that the language is clear and unambiguous. Saying that this Part would apply where the place of arbitration is in India tantamounts to saying that it will not apply where the place of arbitration is not in India. | 0[ds]In view of the place of arbitration being New York, as agreed upon between the parties, a doubt arose whether the Chief Justice of India or his designate within the meaning of Section 11 of the Act would be competent to appoint anthe case iscertain observations made therein are apposite. In case of conflict of laws, the Supreme Court of India has opined that for arbitration, the selection of the place of arbitration may have little significance where it is chosen, as is often the case, without regard to any relevant or significant link with the place. This is particularly true when the place of arbitration is not chosen by the parties themselves, but by the arbitrators or by the outside body, and that too for reasons unconnected with the contract. It would be different if choice of place for submission for the arbitration is supported by the rest of the contract and surrounding circumstances which may be treated as stronger indication in regard to the intention of the parties. Dicey and Morns on The Conflict of Laws (11th Edn., Vol. II) was cited with approval wherein the learned authors state inter alia that the law governing arbitration proceedings is the law chosen by the parties, or, in the absence of agreement, the law of the country in which the arbitration is held. In the absence of express choice of the law governing the contract as a whole or the arbitration agreement as such having been exercised by the parties, a presumption may arise that the law of the country where the arbitration is agreed to be held is the proper law of the arbitration agreement. The presumption is rebuttable. The parties have the freedom to choose the law governing an international commercial arbitration agreement. Where there is no express choice of the law governing the contract as a whole, or the arbitration agreement in particular, there is, in the absence of any contrary indication, a presumption that the parties have intended that the proper law of the contract as well as the law governing the arbitration agreement are the same as law of the country in which the arbitration is agreed to be held. There is nothing in the contract or correspondence between the parties to rebut the ordinary presumption and spell out an intention of the parties that they intended proper law of India to govern arbitration in spite of the place of arbitration having been agreed to be at New York.(8) So far as the language employed by Parliament in drafting(2) of Section 2 of the Act is concerned, suffice it to say that the language is clear and unambiguous. Saying that this Part would apply where the place of arbitration is in India tantamounts to saying that it will not apply where the place of arbitration is not in India. | 0 | 1,095 | 517 | ### 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) This is a petition under Section 11(4) of the Arbitration and Conciliation Act, 1996 (hereinafter, the Act for short) seeking appointment of an arbitrator for and on behalf of the respondent herein, in the backdrop of the events briefly stated hereinafter. (2) The petitioner, a company duly incorporated in India and having its principal office at Delhi placed an order for the supply of facial tissue paper to the respondent, a company incorporated in New York and having its seat thereat. The respondent issued pro forma invoice dated 22-6-2001 wherein one of the clauses provides as under: "Any disputes or claims will be submitted to arbitration in New York." (3) The abovesaid clause is treated by the petitioner as arbitration contract between the parties.(4) The petitioner opened an L/C as demanded by the respondent and agreed to by the petitioner. The shipment of the goods arrived at Nhava Sheva Port at Mumbai. The goods on inspection were found to be not conforming to the sample of goods. The petitioner held the respondent guilty of breach of contract and demanded damages and compensation along with refund of the amount of L/C with interest. Vide legal notice dated 22-11-2001 the petitioner called upon the respondent to join in constitution of an Arbitral Tribunal. The petitioner nominated one Shri Vikas Jain, Chartered Accountant, New Jersey, USA as his arbitrator and requested the respondent to nominate its arbitrator within 30 days of the date of receipt of the notice and thereafter both the nominated arbitrators proceeding to appoint a presiding arbitrator. The respondent neither appointed an arbitrator nor responded to the petitioners notice. On 12-1-2002 the present petition has been filed. (5) The respondent though noticed has chosen to remain absent. These proceedings have, therefore, proceeded ex parte against the respondent. In view of the place of arbitration being New York, as agreed upon between the parties, a doubt arose whether the Chief Justice of India or his designate within the meaning of Section 11 of the Act would be competent to appoint an arbitrator. Shri V.A. Mohta, Senior Advocate was requested to render his assistance as amicus curiae. Shri V.A. Mohta has appeared and pointed out various relevant legal .provisions. Shri Rajesh Aggarwal, the learned counsel for the petitioner has also been heard. (6) Section 11 is placed in Part I of the Act. Sub-section (2) of Section 2 provides: This Part shall apply where the place of arbitration is in India." On a plain reading of this provision it is clear that Parliament intended the provisions of Part I to be applicable when the place of arbitration is in India. Shri Rajesh Aggarwal, the learned counsel for the petitioner submitted that the provision is not couched in a negative form i.e. it does not exclude the applicability of Part I if the place of arbitration is not in India. He submitted that the contract was to be performed in India; it is here that the breach of contract has taken place. Therefore, a petition under Section 11 of the Act is maintainable before the Chief Justice of India or his designate. (7) In National Thermal Power Corpn. v. Singer Co. a question arose as to the applicability of Indian law when one of the contracting parties was a foreigner. Though the case is pre-1996, certain observations made therein are apposite. In case of conflict of laws, the Supreme Court of India has opined that for arbitration, the selection of the place of arbitration may have little significance where it is chosen, as is often the case, without regard to any relevant or significant link with the place. This is particularly true when the place of arbitration is not chosen by the parties themselves, but by the arbitrators or by the outside body, and that too for reasons unconnected with the contract. It would be different if choice of place for submission for the arbitration is supported by the rest of the contract and surrounding circumstances which may be treated as stronger indication in regard to the intention of the parties. Dicey and Morns on The Conflict of Laws (11th Edn., Vol. II) was cited with approval wherein the learned authors state inter alia that the law governing arbitration proceedings is the law chosen by the parties, or, in the absence of agreement, the law of the country in which the arbitration is held. In the absence of express choice of the law governing the contract as a whole or the arbitration agreement as such having been exercised by the parties, a presumption may arise that the law of the country where the arbitration is agreed to be held is the proper law of the arbitration agreement. The presumption is rebuttable. The parties have the freedom to choose the law governing an international commercial arbitration agreement. Where there is no express choice of the law governing the contract as a whole, or the arbitration agreement in particular, there is, in the absence of any contrary indication, a presumption that the parties have intended that the proper law of the contract as well as the law governing the arbitration agreement are the same as law of the country in which the arbitration is agreed to be held. There is nothing in the contract or correspondence between the parties to rebut the ordinary presumption and spell out an intention of the parties that they intended proper law of India to govern arbitration in spite of the place of arbitration having been agreed to be at New York.(8) So far as the language employed by Parliament in drafting sub-section (2) of Section 2 of the Act is concerned, suffice it to say that the language is clear and unambiguous. Saying that this Part would apply where the place of arbitration is in India tantamounts to saying that it will not apply where the place of arbitration is not in India.
### Response:
0
### Explanation:
In view of the place of arbitration being New York, as agreed upon between the parties, a doubt arose whether the Chief Justice of India or his designate within the meaning of Section 11 of the Act would be competent to appoint anthe case iscertain observations made therein are apposite. In case of conflict of laws, the Supreme Court of India has opined that for arbitration, the selection of the place of arbitration may have little significance where it is chosen, as is often the case, without regard to any relevant or significant link with the place. This is particularly true when the place of arbitration is not chosen by the parties themselves, but by the arbitrators or by the outside body, and that too for reasons unconnected with the contract. It would be different if choice of place for submission for the arbitration is supported by the rest of the contract and surrounding circumstances which may be treated as stronger indication in regard to the intention of the parties. Dicey and Morns on The Conflict of Laws (11th Edn., Vol. II) was cited with approval wherein the learned authors state inter alia that the law governing arbitration proceedings is the law chosen by the parties, or, in the absence of agreement, the law of the country in which the arbitration is held. In the absence of express choice of the law governing the contract as a whole or the arbitration agreement as such having been exercised by the parties, a presumption may arise that the law of the country where the arbitration is agreed to be held is the proper law of the arbitration agreement. The presumption is rebuttable. The parties have the freedom to choose the law governing an international commercial arbitration agreement. Where there is no express choice of the law governing the contract as a whole, or the arbitration agreement in particular, there is, in the absence of any contrary indication, a presumption that the parties have intended that the proper law of the contract as well as the law governing the arbitration agreement are the same as law of the country in which the arbitration is agreed to be held. There is nothing in the contract or correspondence between the parties to rebut the ordinary presumption and spell out an intention of the parties that they intended proper law of India to govern arbitration in spite of the place of arbitration having been agreed to be at New York.(8) So far as the language employed by Parliament in drafting(2) of Section 2 of the Act is concerned, suffice it to say that the language is clear and unambiguous. Saying that this Part would apply where the place of arbitration is in India tantamounts to saying that it will not apply where the place of arbitration is not in India.
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Bhopal Gas Peedith Mahila Udyog Sangathan & Others Vs. Union of India & Others | Court. 26. It is commonly conceded before us that the corpus money stands completely transferred to the Ministry of Health and Family Welfare, Department of Health Research (for short ‘DHR’) and they have also taken over the management of BMHRC. 27. Thus, it is necessary for us to deal with the various prayers made in the above application and the background leading to the filing of such application in its correct perspective. We have to take a balanced approach which would further the cause of accurate research and better medical care in favour of the gas victims. The Union of India has already passed a resolution directing the ICMR to establish a permanent research centre at Bhopal which, as already noticed, has already been established in the name of NIREH. This itself is sufficiently indicative of the intent of the Government of India to provide and procure necessary machinery for research related works as well as to further the process of getting much needed scientific manpower and research, which can contribute in research activities relating to gas affected persons. 28. The Advisory Committee is performing its advisory function continuously. Definite replies had been filed on behalf of the State of Madhya Pradesh and the Government of India ensuring their full cooperation and complete implementation of the recommendations of these Committees, so as to provide adequate medical facilities to the affected persons and the completion of the research work. 29. As already noticed, suggestions made by the Monitoring Committee in its Report dated 29th March, 2011 have been broadly accepted by the State of Madhya Pradesh, except for two of such proposals. The reservation of the State Government on the issue of assistance of non-governmental organisation and experts from outside in assessing the quality of care and research work, appears to be for valid and good reasons. We wish to make it clear that the recommendations of the Empowered Monitoring Committee, as afore-mentioned, shall not be deemed to have been accepted by this Court, except where directions in that behalf have been specifically passed by this Court in the operative part of this order. 30. Vide letter dated 12th April, 2012, the ICMR while making a reference to the order of this Court dated 19th July, 2010 had informed that the administrative control of BMHRC, after winding up of BMHT, had been transferred to the DHR, Ministry of Health and Family Welfare, Government of India and all other matters, including administrative, financial and legal, pertaining to BMHRC would be dealt with by the DHR. All documents were also admitted to have been transferred, except the corpus of the Trust. It was suggested that the Corpus of BMHT with accumulated interest along with original documents/receipts be transferred to the Secretary, DHR-cum-DG, ICMR and it was also stated that BMHT had been wound up as per the directions of this Court with effect from 19th July, 2010. 31. The BMHT had been constituted under the Deed of Trust dated 11th August, 1998. Since then, it had carried on its activities under the guidance of the Monitoring Committee, the Advisory Committee and as per the orders of this Court. The BMHT was to remain irrevocable for all times and the Trust Deed was to be construed and have effect in accordance with the Indian laws as per the terms and conditions of the Trust. 32. In terms of the clauses of this Deed, initially the Trust was to stand possessed of the Trust property and income thereof. This possession was to remain both during and after termination of the said period of eight years for the purposes and objects stated therein, which primarily were related to providing for infrastructure of the hospital and grant of medical aid to the poor, without distinction of race, caste or creed to the gas affected victims. 33. The accounts of the Trust had been audited and the chartered accountants submitted their Report dated 15th July, 2011 pointing out no irregularity or objections to the accounts of BMHT. This Report was submitted to the Members of the Governing Body of the BMHT. In the opinion of the Chartered Accountants, the balance sheet of the state of affairs of BMHT upto 19th July, 2010 along with accounts giving the required information, gave the true and fair view and was in complete conformity with the accounting principles generally accepted in India. Similar remarks have been made in regard to the Income and Expenditure Account wherein an excess of income over expenditure can be seen for the said period. 34. It would still be in the interest of BMHT itself, particularly when the management and the corpus of the BMHT have been transferred to the Union of India that the Government agency, besides regularly inspecting the accounts of the BMHT, also gave their final report for the period ending July 2010. The Auditor General of the State of Madhya Pradesh would be the appropriate authority to inspect the accounts of the BMHT regularly even when the management and corpus thereof is transferred to the Union of India. 35. Having noticed in detail the factual aspect of this case, the suggestions made by various applicants, recommendations of the expert bodies and keeping in mind the very object for which the present Public Interest Litigation was instituted, we are of the considered view that issuance of certain specific directions are inevitably called for. These orders would be to ensure proper progress and implementation of the ‘Relief and Rehabilitation programme’ for the penurious gas victims as well as to ensure that the research work is result-oriented and continued with exactitude. We make it clear that these directions shall be in aid of the various orders passed by this Court from time to time in the present petition and not in derogation thereto. In other words, all orders passed by this Court with specific reference to the orders mentioned above, shall be read mutatis mutandis to these directions and shall remain in force. The orders-cum-directions are: | 1[ds]35. Having noticed in detail the factual aspect of this case, the suggestions made by various applicants, recommendations of the expert bodies and keeping in mind the very object for which the present Public Interest Litigation was instituted, we are of the considered view that issuance of certain specific directions are inevitably called for. These orders would be to ensure proper progress and implementation of the ‘Relief and Rehabilitationfor the penurious gas victims as well as to ensure that the research work is result-oriented and continued with exactitude. We make it clear that these directions shall be in aid of the various orders passed by this Court from time to time in the present petition and not in derogation thereto. In other words, all orders passed by this Court with specific reference to the orders mentioned above, shall be read mutatis mutandis to these directions and shall remain in force.Having noticed in detail the factual aspect of this case, the suggestions made by various applicants, recommendations of the expert bodies and keeping in mind the very object for which the present Public Interest Litigation was instituted, we are of the considered view that issuance of certain specific directions are inevitably called for. These orders would be to ensure proper progress and implementation of the ‘Relief and Rehabilitationfor the penurious gas victims as well as to ensure that the research work is result-oriented and continued with exactitude. We make it clear that these directions shall be in aid of the various orders passed by this Court from time to time in the present petition and not in derogation thereto. In other words, all orders passed by this Court with specific reference to the orders mentioned above, shall be read mutatis mutandis to these directions and shall remain in | 1 | 6,089 | 320 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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Court. 26. It is commonly conceded before us that the corpus money stands completely transferred to the Ministry of Health and Family Welfare, Department of Health Research (for short ‘DHR’) and they have also taken over the management of BMHRC. 27. Thus, it is necessary for us to deal with the various prayers made in the above application and the background leading to the filing of such application in its correct perspective. We have to take a balanced approach which would further the cause of accurate research and better medical care in favour of the gas victims. The Union of India has already passed a resolution directing the ICMR to establish a permanent research centre at Bhopal which, as already noticed, has already been established in the name of NIREH. This itself is sufficiently indicative of the intent of the Government of India to provide and procure necessary machinery for research related works as well as to further the process of getting much needed scientific manpower and research, which can contribute in research activities relating to gas affected persons. 28. The Advisory Committee is performing its advisory function continuously. Definite replies had been filed on behalf of the State of Madhya Pradesh and the Government of India ensuring their full cooperation and complete implementation of the recommendations of these Committees, so as to provide adequate medical facilities to the affected persons and the completion of the research work. 29. As already noticed, suggestions made by the Monitoring Committee in its Report dated 29th March, 2011 have been broadly accepted by the State of Madhya Pradesh, except for two of such proposals. The reservation of the State Government on the issue of assistance of non-governmental organisation and experts from outside in assessing the quality of care and research work, appears to be for valid and good reasons. We wish to make it clear that the recommendations of the Empowered Monitoring Committee, as afore-mentioned, shall not be deemed to have been accepted by this Court, except where directions in that behalf have been specifically passed by this Court in the operative part of this order. 30. Vide letter dated 12th April, 2012, the ICMR while making a reference to the order of this Court dated 19th July, 2010 had informed that the administrative control of BMHRC, after winding up of BMHT, had been transferred to the DHR, Ministry of Health and Family Welfare, Government of India and all other matters, including administrative, financial and legal, pertaining to BMHRC would be dealt with by the DHR. All documents were also admitted to have been transferred, except the corpus of the Trust. It was suggested that the Corpus of BMHT with accumulated interest along with original documents/receipts be transferred to the Secretary, DHR-cum-DG, ICMR and it was also stated that BMHT had been wound up as per the directions of this Court with effect from 19th July, 2010. 31. The BMHT had been constituted under the Deed of Trust dated 11th August, 1998. Since then, it had carried on its activities under the guidance of the Monitoring Committee, the Advisory Committee and as per the orders of this Court. The BMHT was to remain irrevocable for all times and the Trust Deed was to be construed and have effect in accordance with the Indian laws as per the terms and conditions of the Trust. 32. In terms of the clauses of this Deed, initially the Trust was to stand possessed of the Trust property and income thereof. This possession was to remain both during and after termination of the said period of eight years for the purposes and objects stated therein, which primarily were related to providing for infrastructure of the hospital and grant of medical aid to the poor, without distinction of race, caste or creed to the gas affected victims. 33. The accounts of the Trust had been audited and the chartered accountants submitted their Report dated 15th July, 2011 pointing out no irregularity or objections to the accounts of BMHT. This Report was submitted to the Members of the Governing Body of the BMHT. In the opinion of the Chartered Accountants, the balance sheet of the state of affairs of BMHT upto 19th July, 2010 along with accounts giving the required information, gave the true and fair view and was in complete conformity with the accounting principles generally accepted in India. Similar remarks have been made in regard to the Income and Expenditure Account wherein an excess of income over expenditure can be seen for the said period. 34. It would still be in the interest of BMHT itself, particularly when the management and the corpus of the BMHT have been transferred to the Union of India that the Government agency, besides regularly inspecting the accounts of the BMHT, also gave their final report for the period ending July 2010. The Auditor General of the State of Madhya Pradesh would be the appropriate authority to inspect the accounts of the BMHT regularly even when the management and corpus thereof is transferred to the Union of India. 35. Having noticed in detail the factual aspect of this case, the suggestions made by various applicants, recommendations of the expert bodies and keeping in mind the very object for which the present Public Interest Litigation was instituted, we are of the considered view that issuance of certain specific directions are inevitably called for. These orders would be to ensure proper progress and implementation of the ‘Relief and Rehabilitation programme’ for the penurious gas victims as well as to ensure that the research work is result-oriented and continued with exactitude. We make it clear that these directions shall be in aid of the various orders passed by this Court from time to time in the present petition and not in derogation thereto. In other words, all orders passed by this Court with specific reference to the orders mentioned above, shall be read mutatis mutandis to these directions and shall remain in force. The orders-cum-directions are:
### Response:
1
### Explanation:
35. Having noticed in detail the factual aspect of this case, the suggestions made by various applicants, recommendations of the expert bodies and keeping in mind the very object for which the present Public Interest Litigation was instituted, we are of the considered view that issuance of certain specific directions are inevitably called for. These orders would be to ensure proper progress and implementation of the ‘Relief and Rehabilitationfor the penurious gas victims as well as to ensure that the research work is result-oriented and continued with exactitude. We make it clear that these directions shall be in aid of the various orders passed by this Court from time to time in the present petition and not in derogation thereto. In other words, all orders passed by this Court with specific reference to the orders mentioned above, shall be read mutatis mutandis to these directions and shall remain in force.Having noticed in detail the factual aspect of this case, the suggestions made by various applicants, recommendations of the expert bodies and keeping in mind the very object for which the present Public Interest Litigation was instituted, we are of the considered view that issuance of certain specific directions are inevitably called for. These orders would be to ensure proper progress and implementation of the ‘Relief and Rehabilitationfor the penurious gas victims as well as to ensure that the research work is result-oriented and continued with exactitude. We make it clear that these directions shall be in aid of the various orders passed by this Court from time to time in the present petition and not in derogation thereto. In other words, all orders passed by this Court with specific reference to the orders mentioned above, shall be read mutatis mutandis to these directions and shall remain in
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Bengal Textiles Association Vs. Commissioner of Income Tax, West Bengal | the letter dated November 13, 1945, and under the provisions of the Income-tax Act the exemption is inoperative in regard to the claim made by the Association. The letter gave exemption on certain conditions in regard to Income-tax, Super-tax or Excess Profits Tax. But under S. 60(3) of the Income-tax Act the power of exemption was not exercisable by the Government after the commencement of the Indian Income-tax (Amendment) Act. 1939. This sub-section provides :Section 60(3) "After the commencement of the Indian Income-tax (Amendment) Act, 1939, the power conferred by sub-sec. (1) shall not be exercisable except for the purpose of rescinding an exemption, reduction or modification already made".Consequently neither the letter of the Central Board of Revenue nor the provisions of the Income-tax Act can operate in favour of the contention of the Association raised before us and the first question was rightly answered in the negative.6. The next question raised was in regard to the nature of the payment of Rs. 6,00,000 by the Government of Bengal during the first chargeable accounting period ending December 31, 1946. The appellant claimed that it was in the nature of a subsidy and was therefore exempt under proviso (c) to S. 4 of the Business Profits Tax Act. To ascertain the true nature and character of the payment of this sum it is necessary to consider the relevant terms of the agreement between the Government of Bengal and the Association. The preamble sets out the obligations which were undertaken by the Government and by the Association. In Cl. 8 it was provided that the Association shall, subject to the contribution by the Government as provided in the agreement, arrange for and maintain suitable office accommodation in Calcutta and equip it with suitable technical and administrative personnel. Under Cl. 18 it was provided that the Association shall, at its own expense, keep all sorts of cloth and shall receive no remuneration or profit beyond the margin between the buying price and the price paid by the buyer. Clause 24 made provision as to the payment of a sum not exceeding Rs. 6,00,000 for establishment charges, office rent, advertisement, salaries and wages etc. This clause when quoted runs as under :Cl. 24. "During the existence of the Association the Government will be responsible for and pay every month to the Association the administrative expenses it has incurred in the previous month including establishment charges, office rent, advertising, salaries and wages etc., but not exceeding Rs. 6,00,000 per annum less the amount, subject to a maximum of Rs. 75,000 per annum. Government will pay as salary and expenses of the Liaison Officer with the Association appointed by Government and those of his personal staff. The Government, however, shall not be responsible for any of the costs and expenses to be incurred by the Association in connection with the purchase, transport, insurance, storage and distribution of cloth."The Association was started for the purpose of procurement and distribution of cloth and its functions were controlled by the provisions of the agreement and it was also subject to the provisions of the Bengal Cloth and Yarn Control Order. The whole trend of the agreement shows that the Association itself was responsible for the payment of its expenses subject to the contribution by the Government as above stated.On the construction of the various terms of the agreement the High Court was of the opinion that the payment by Government was a payment to itself. This view of the agreement does not appear to us to be correct. If the terms of the agreement are read as a whole, it seems to be reasonably clear that the payment was made for services rendered and the contribution was in the form of paying for the actual expenses incurred per month which were to be paid in the month following the month in which the amount was expended. Can it be said that the payment was by way of a bounty? The answer must be in the negative because the payments were made to the Association to assist it in carrying on its trade or business and for the services it was rendering to Government by doing so.What is decisive in this case is that these payments were made to the Association in order that they be used in the business of the Association and for services rendered and they have to be viewed from that point of view. So viewed the payments cannot be said to be of a benevolent nature. Their very quality and nature make it impossible to treat them as a bounty or subsidy because the use of the word bonus or subsidy in S. 4, proviso (c) connotes that the payment is in the nature of a gift which in the instant case it is not. Counsel for the Association relied upon two cases : Seaham Harbour Dock Co. v. Crook, (1931) 16 Tax Cas 333 and Glenboig Union Fireclay, Co., Ltd. v. Commrs. of Inland Revenue, (1922) 12 Tax Cas 427. In the former case the grant was given not as a supplementary trading receipt but for the specific purpose of enabling the company to undertake works of relief of unemployment and it was held not to be taxable income. Lord Buckmaster said at p. 353 :"It was a grant which was made by a government department with the idea that by its use men might be kept in employment."In that case the sums granted were received by the assessee not as part of their profits or gains or as a sum which went to make up the profits but was given for an express purpose of relief of unemployment. The latter case does not assist in the decision of the case. It was relied upon to show that the measure of payment is not indicative of its quality. That may be so but in the present case the payments were made for services rendered to Government and that would negative their being a subsidy. | 1[ds]For the three chargeable accounting periods a common question arises whether the Association obtained a valid exemption from payment of Business Profits Tax for all the chargeable accounting periods. For the first chargeable accounting period the question which arises is whether Rs. 6,00,000 paid to the Association was a subsidy within the meaning of S. 4, proviso (c) of the Business Profits Tax Act.In our opinion both these questions have been correctly answered by the HighAssociation was started for the purpose of procurement and distribution of cloth and its functions were controlled by the provisions of the agreement and it was also subject to the provisions of the Bengal Cloth and Yarn Control Order. The whole trend of the agreement shows that the Association itself was responsible for the payment of its expenses subject to the contribution by the Government as above stated.On the construction of the various terms of the agreement the High Court was of the opinion that the payment by Government was a payment to itself. This view of the agreement does not appear to us to be correct. If the terms of the agreement are read as a whole, it seems to be reasonably clear that the payment was made for services rendered and the contribution was in the form of paying for the actual expenses incurred per month which were to be paid in the month following the month in which the amount was expended. Can it be said that the payment was by way of a bounty? The answer must be in the negative because the payments were made to the Association to assist it in carrying on its trade or business and for the services it was rendering to Government by doing so.What is decisive in this case is that these payments were made to the Association in order that they be used in the business of the Association and for services rendered and they have to be viewed from that point of view. So viewed the payments cannot be said to be of a benevolent nature. Their very quality and nature make it impossible to treat them as a bounty or subsidy because the use of the word bonus or subsidy in S. 4, proviso (c) connotes that the payment is in the nature of a gift which in the instant case it isthat case the sums granted were received by the assessee not as part of their profits or gains or as a sum which went to make up the profits but was given for an express purpose of relief of unemployment. The latter case does not assist in the decision of the case. It was relied upon to show that the measure of payment is not indicative of its quality. That may be so but in the present case the payments were made for services rendered to Government and that would negative their being a subsidy. | 1 | 2,257 | 511 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the letter dated November 13, 1945, and under the provisions of the Income-tax Act the exemption is inoperative in regard to the claim made by the Association. The letter gave exemption on certain conditions in regard to Income-tax, Super-tax or Excess Profits Tax. But under S. 60(3) of the Income-tax Act the power of exemption was not exercisable by the Government after the commencement of the Indian Income-tax (Amendment) Act. 1939. This sub-section provides :Section 60(3) "After the commencement of the Indian Income-tax (Amendment) Act, 1939, the power conferred by sub-sec. (1) shall not be exercisable except for the purpose of rescinding an exemption, reduction or modification already made".Consequently neither the letter of the Central Board of Revenue nor the provisions of the Income-tax Act can operate in favour of the contention of the Association raised before us and the first question was rightly answered in the negative.6. The next question raised was in regard to the nature of the payment of Rs. 6,00,000 by the Government of Bengal during the first chargeable accounting period ending December 31, 1946. The appellant claimed that it was in the nature of a subsidy and was therefore exempt under proviso (c) to S. 4 of the Business Profits Tax Act. To ascertain the true nature and character of the payment of this sum it is necessary to consider the relevant terms of the agreement between the Government of Bengal and the Association. The preamble sets out the obligations which were undertaken by the Government and by the Association. In Cl. 8 it was provided that the Association shall, subject to the contribution by the Government as provided in the agreement, arrange for and maintain suitable office accommodation in Calcutta and equip it with suitable technical and administrative personnel. Under Cl. 18 it was provided that the Association shall, at its own expense, keep all sorts of cloth and shall receive no remuneration or profit beyond the margin between the buying price and the price paid by the buyer. Clause 24 made provision as to the payment of a sum not exceeding Rs. 6,00,000 for establishment charges, office rent, advertisement, salaries and wages etc. This clause when quoted runs as under :Cl. 24. "During the existence of the Association the Government will be responsible for and pay every month to the Association the administrative expenses it has incurred in the previous month including establishment charges, office rent, advertising, salaries and wages etc., but not exceeding Rs. 6,00,000 per annum less the amount, subject to a maximum of Rs. 75,000 per annum. Government will pay as salary and expenses of the Liaison Officer with the Association appointed by Government and those of his personal staff. The Government, however, shall not be responsible for any of the costs and expenses to be incurred by the Association in connection with the purchase, transport, insurance, storage and distribution of cloth."The Association was started for the purpose of procurement and distribution of cloth and its functions were controlled by the provisions of the agreement and it was also subject to the provisions of the Bengal Cloth and Yarn Control Order. The whole trend of the agreement shows that the Association itself was responsible for the payment of its expenses subject to the contribution by the Government as above stated.On the construction of the various terms of the agreement the High Court was of the opinion that the payment by Government was a payment to itself. This view of the agreement does not appear to us to be correct. If the terms of the agreement are read as a whole, it seems to be reasonably clear that the payment was made for services rendered and the contribution was in the form of paying for the actual expenses incurred per month which were to be paid in the month following the month in which the amount was expended. Can it be said that the payment was by way of a bounty? The answer must be in the negative because the payments were made to the Association to assist it in carrying on its trade or business and for the services it was rendering to Government by doing so.What is decisive in this case is that these payments were made to the Association in order that they be used in the business of the Association and for services rendered and they have to be viewed from that point of view. So viewed the payments cannot be said to be of a benevolent nature. Their very quality and nature make it impossible to treat them as a bounty or subsidy because the use of the word bonus or subsidy in S. 4, proviso (c) connotes that the payment is in the nature of a gift which in the instant case it is not. Counsel for the Association relied upon two cases : Seaham Harbour Dock Co. v. Crook, (1931) 16 Tax Cas 333 and Glenboig Union Fireclay, Co., Ltd. v. Commrs. of Inland Revenue, (1922) 12 Tax Cas 427. In the former case the grant was given not as a supplementary trading receipt but for the specific purpose of enabling the company to undertake works of relief of unemployment and it was held not to be taxable income. Lord Buckmaster said at p. 353 :"It was a grant which was made by a government department with the idea that by its use men might be kept in employment."In that case the sums granted were received by the assessee not as part of their profits or gains or as a sum which went to make up the profits but was given for an express purpose of relief of unemployment. The latter case does not assist in the decision of the case. It was relied upon to show that the measure of payment is not indicative of its quality. That may be so but in the present case the payments were made for services rendered to Government and that would negative their being a subsidy.
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For the three chargeable accounting periods a common question arises whether the Association obtained a valid exemption from payment of Business Profits Tax for all the chargeable accounting periods. For the first chargeable accounting period the question which arises is whether Rs. 6,00,000 paid to the Association was a subsidy within the meaning of S. 4, proviso (c) of the Business Profits Tax Act.In our opinion both these questions have been correctly answered by the HighAssociation was started for the purpose of procurement and distribution of cloth and its functions were controlled by the provisions of the agreement and it was also subject to the provisions of the Bengal Cloth and Yarn Control Order. The whole trend of the agreement shows that the Association itself was responsible for the payment of its expenses subject to the contribution by the Government as above stated.On the construction of the various terms of the agreement the High Court was of the opinion that the payment by Government was a payment to itself. This view of the agreement does not appear to us to be correct. If the terms of the agreement are read as a whole, it seems to be reasonably clear that the payment was made for services rendered and the contribution was in the form of paying for the actual expenses incurred per month which were to be paid in the month following the month in which the amount was expended. Can it be said that the payment was by way of a bounty? The answer must be in the negative because the payments were made to the Association to assist it in carrying on its trade or business and for the services it was rendering to Government by doing so.What is decisive in this case is that these payments were made to the Association in order that they be used in the business of the Association and for services rendered and they have to be viewed from that point of view. So viewed the payments cannot be said to be of a benevolent nature. Their very quality and nature make it impossible to treat them as a bounty or subsidy because the use of the word bonus or subsidy in S. 4, proviso (c) connotes that the payment is in the nature of a gift which in the instant case it isthat case the sums granted were received by the assessee not as part of their profits or gains or as a sum which went to make up the profits but was given for an express purpose of relief of unemployment. The latter case does not assist in the decision of the case. It was relied upon to show that the measure of payment is not indicative of its quality. That may be so but in the present case the payments were made for services rendered to Government and that would negative their being a subsidy.
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Godrej and Boyce Manufacturing Company Limited Vs. Dy. Commissioner of Income Tax and Ors | the Act and, if so read, it is clear that it disallows certain expenditure incurred to earn exempt income from being deducted from other income which is includible in the "total income" for the purpose of chargeability to tax."The views expressed in Walfort Share and Stock Brokers P. Ltd. (supra), in our considered opinion, yet again militate against the plea urged on behalf of the Assessee.34. For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case. In this regard we may remind ourselves of what has been observed by this Court in Radhasoami Satsang v. Commissioner of Income-Tax, (1992) 193 ITR (SC) 321 [ At Page 329]."We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year."39. In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions. | 1[ds]22. All the said provisions, noticeably, exclude dividend received under Section 115-O. As the provisions of the aforesaid Sections of the Act contemplate deduction of tax payable by the shareholder on the dividend income, however, to the exception of dividend income under Section 115-O, it is submitted by the learned Solicitor General that it is crystal clear that the additional income tax paid under Section 115-O by the dividend paying company cannot assume the character of tax paid on dividend income by the assessee shareholder. The position, according to the learned Solicitor General, is further fortified by the provisions of Section 115-O(4), reference to which has already been made earlier. Specific reference is made to Section 199 of the Act which provides for credit to be given for the tax deducted at source on dividend paid. If the tax paid on dividend under Section 115-O is on income earned by the shareholder, Section 199 would have also provided for deduction of tax at source in respect of the dividends paid under Section 115-O of the Act to the assessee, it is contended.23. Insofar as the second issue arising in the case is concerned, namely, the appellate orders of the learned Tribunal for the Assessment Years 1998-1999, 1999-2000 and 2001-2002 granting the benefit of full deduction on interest expenditure, it is submitted by the learned Solicitor General that each assessment year has to be reckoned separately; there is no estoppel and, furthermore, sub-sections (2) and (3) of Section 14A having been introduced by the Finance Act of 2006, the Tribunal and the High Court was fully justified in remanding the matter to the Assessing Officer for a de novo consideration in the light of the provisions contained in sub-sections (2) and (3) of Section 14A of the Act.24. The object behind the introduction of Section 14A of the Act by the Finance Act of 2001 is clear and unambiguous. The legislature intended to check the claim of allowance of expenditure incurred towards earning exempted income in a situation where an assessee has both exempted and non-exempted income or includible or non-includible income. While there can be no scintilla of doubt that if the income in question is taxable and, therefore, includible in the total income, the deduction of expenses incurred in relation to such an income must be allowed, such deduction would not be permissible merely on the ground that the tax on the dividend received by the assessee has been paid by the dividend paying company and not by the recipient assessee, when under Section 10(33) of the Act such income by way of dividend is not a part of the total income of the recipient assessee. A plain reading of Section 14A would go to show that the income must not be includible in the total income of the assessee. Once the said condition is satisfied, the expenditure incurred in earning the said income cannot be allowed to be deducted. The section does not contemplate a situation where even though the income is taxable in the hands of the dividend paying company the same to be treated as not includible in the total income of the recipient assessee, yet, the expenditure incurred to earn that income must be allowed on the basis that no tax on such income has been paid by the assessee. Such a meaning, if ascribed to Section 14A, would be plainly beyond what the language of Section 14A can be understood to reasonably convey.We do not see how the aforesaid principle of law in K.P. Varghese (supra) can assist the Assessee in the present case. The literal meaning of Section 14A, far from giving rise to any absurdity, appears to be wholly consistent with the scheme of the Act and the object/purpose of levy of tax on income. Therefore, the well entrenched principle of interpretation that where the words of the statute are clear and unambiguous recourse cannot be had to principles of interpretation other than the literal view will apply.While it is correct that Section 10(33) exempts only dividend income under Section 115-O of the Act and there are other species of dividend income on which tax is levied under the Act, we do not see how the said position in law would assist the assessee in understanding the provisions of Section 14A in the manner indicated. What is required to be construed is the provisions of Section 10(33) read in the light of Section 115-O of the Act. So far as the species of dividend income on which tax is payable under Section 115-O of the Act is concerned, the earning of the said dividend is tax free in the hands of the assessee and not includible in the total income of the said assessee. If that is so, we do not see how the operation of Section 14A of the Act to such dividend income can be foreclosed. The fact that Section 10(33) and Section 115-O of the Act were brought in together; deleted and reintroduced later in a composite manner, also, does not assist the assessee. Rather, the aforesaid facts would countenance a situation that so long as the dividend income is taxable in the hands of the dividend paying company, the same is not includible in the total income of the recipient assessee. At such point of time when the said position was reversed (by the Finance Act of 2002; reintroduced again by the Finance Act, 2003), it was the assessee who was liable to pay tax on such dividend income. In such a situation the assessee was entitled under Section 57 of the Act to claim the benefit of exemption of expenditure incurred to earn such income. Once Section 10(33) and 115-O was reintroduced the position was reversed. The above, actually fortifies the situation that Section 14A of the Act would operate to disallow deduction of all expenditure incurred in earning the dividend income under Section 115-O which is not includible in the total income of the assessee.31. So far as the provisions of Section 115-O of the Act are concerned, even if it is assumed that the additional income tax under the aforesaid provision is on the dividend and not on the distributed profits of the dividend paying company, no material difference to the applicability of Section 14A would arise. Sub-sections (4) and (5) of Section 115-O of the Act makes it very clear that the further benefit of such payments cannot be claimed either by the dividend paying company or by the recipient assessee. The provisions of Sections 194, 195, 196C and 199 of the Act, quoted above, would further fortify the fact that the dividend income under Section 115-O of the Act is a special category of income which has been treated differently by the Act making the same non-includible in the total income of the recipient assessee as tax thereon had already been paid by the dividend distributing company. The other species of dividend income which attracts levy of income tax at the hands of the recipient assessee has been treated differently and made liable to tax under the aforesaid provisions of the Act. In fact, if the argument is that tax paid by the dividend paying company under Section 115-O is to be understood to be on behalf of the recipient assessee, the provisions of Section 57 should enable the assessee to claim deduction of expenditure incurred to earn the income on which such tax is paid. Such a position in law would be wholly incongruous in view of Section 10(33) of the Act.For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case.In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions. | 1 | 9,395 | 2,276 | ### 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 Act and, if so read, it is clear that it disallows certain expenditure incurred to earn exempt income from being deducted from other income which is includible in the "total income" for the purpose of chargeability to tax."The views expressed in Walfort Share and Stock Brokers P. Ltd. (supra), in our considered opinion, yet again militate against the plea urged on behalf of the Assessee.34. For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case. In this regard we may remind ourselves of what has been observed by this Court in Radhasoami Satsang v. Commissioner of Income-Tax, (1992) 193 ITR (SC) 321 [ At Page 329]."We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year."39. In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions.
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of such payments cannot be claimed either by the dividend paying company or by the recipient assessee. The provisions of Sections 194, 195, 196C and 199 of the Act, quoted above, would further fortify the fact that the dividend income under Section 115-O of the Act is a special category of income which has been treated differently by the Act making the same non-includible in the total income of the recipient assessee as tax thereon had already been paid by the dividend distributing company. The other species of dividend income which attracts levy of income tax at the hands of the recipient assessee has been treated differently and made liable to tax under the aforesaid provisions of the Act. In fact, if the argument is that tax paid by the dividend paying company under Section 115-O is to be understood to be on behalf of the recipient assessee, the provisions of Section 57 should enable the assessee to claim deduction of expenditure incurred to earn the income on which such tax is paid. Such a position in law would be wholly incongruous in view of Section 10(33) of the Act.For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case.In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions.
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Babu Singh Chauhan Vs. Rajkumari Jain and Others | District Judge who had affirmed that order and confirmed the order of allotment in favour of the appellant. The High Court by the impugned order allowed the writ petition and sent the matter back to the Rent Control and Eviction officer to consider the question of allotment afresh in view of the observations Made by the High Court.7. The appellant then obtained special leave of this Court against the order of the High Court and hence this appeal before us.8. In supp ort of the appeal, Mr. Shanti Bhushan, learned counsel for the appellant submitted that the High Court had no jurisdiction to interfere with the concurrent finding of fact given by the District Supply officer and the District Judge confirming the al lotment in favour of the appellant and that too in a writ jurisdiction. He also submitted that the landlady was not at all in actual physical possession of the premises and had been living outside Bijnor and, there fore, neither the provisions of s. 1 6(1) (b) nor those of s. 17(2) of the Act would apply to the facts of the present case. On the other hand, the counsel for the respondent submitted that initially the only question before the Rent Control Authority was whether th e allotment should be made to the appellant even though he was not nominated by the landlady under s. 17(2) of the Act. It is common ground that the appellant was not a nominee of the landlady and, as discussed above, the District Judge in his first order had quashed the allotment on the ground that the provisions of s. 17(2) had not been complied with.It was also argued on behalf of the respondent-landlady that the circumstances having changed, she now wanted to stay in Bijnor permanently and as she wanted additional accommodation she had applied to the District Magistrate under s. 16(1) (b) for releasing the building in her favour. This application was not at all considered on merits by the District Magistrate or by any court for that matter. If the respondent could succeed in convincing the District Magistrate that a case for release of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at all.9. We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make s. 17(2) inapplicable. Possession by a landlord of his property may assume various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye of law.10. It was further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town. That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property. Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.So far as the second point is concerned, Viz., the question of allotment of the premises to the appellant, the High Court was fully justified in quashing the order of the District Supply officer as affirmed by t he District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant. There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so. All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent o n the Rent Control authorities to have fulfilled the essential conditions of s. 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person. It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply. We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of s. 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise he r/his privilege of nominating a tenant.11. We have already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell. Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of s. 17(2) of the Act.As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.12. | 0[ds]We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make s. 17(2) inapplicable. Possession by a landlord of his property may assume various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye ofwas further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town. That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property. Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.So far as the second point is concerned, Viz., the question of allotment of the premises to the appellant, the High Court was fully justified in quashing the order of the District Supply officer as affirmed by t he District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant. There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so. All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent o n the Rent Control authorities to have fulfilled the essential conditions of s. 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person. It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply. We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of s. 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise he r/his privilege of nominating ahave already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell. Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of s. 17(2) of the Act.As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court. | 0 | 2,195 | 657 | ### Instruction:
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District Judge who had affirmed that order and confirmed the order of allotment in favour of the appellant. The High Court by the impugned order allowed the writ petition and sent the matter back to the Rent Control and Eviction officer to consider the question of allotment afresh in view of the observations Made by the High Court.7. The appellant then obtained special leave of this Court against the order of the High Court and hence this appeal before us.8. In supp ort of the appeal, Mr. Shanti Bhushan, learned counsel for the appellant submitted that the High Court had no jurisdiction to interfere with the concurrent finding of fact given by the District Supply officer and the District Judge confirming the al lotment in favour of the appellant and that too in a writ jurisdiction. He also submitted that the landlady was not at all in actual physical possession of the premises and had been living outside Bijnor and, there fore, neither the provisions of s. 1 6(1) (b) nor those of s. 17(2) of the Act would apply to the facts of the present case. On the other hand, the counsel for the respondent submitted that initially the only question before the Rent Control Authority was whether th e allotment should be made to the appellant even though he was not nominated by the landlady under s. 17(2) of the Act. It is common ground that the appellant was not a nominee of the landlady and, as discussed above, the District Judge in his first order had quashed the allotment on the ground that the provisions of s. 17(2) had not been complied with.It was also argued on behalf of the respondent-landlady that the circumstances having changed, she now wanted to stay in Bijnor permanently and as she wanted additional accommodation she had applied to the District Magistrate under s. 16(1) (b) for releasing the building in her favour. This application was not at all considered on merits by the District Magistrate or by any court for that matter. If the respondent could succeed in convincing the District Magistrate that a case for release of the entire building was made out, then the question of allotting the premises to the appellant would not have arisen at all.9. We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make s. 17(2) inapplicable. Possession by a landlord of his property may assume various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye of law.10. It was further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town. That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property. Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.So far as the second point is concerned, Viz., the question of allotment of the premises to the appellant, the High Court was fully justified in quashing the order of the District Supply officer as affirmed by t he District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant. There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so. All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent o n the Rent Control authorities to have fulfilled the essential conditions of s. 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person. It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply. We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of s. 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise he r/his privilege of nominating a tenant.11. We have already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell. Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of s. 17(2) of the Act.As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.12.
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We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make s. 17(2) inapplicable. Possession by a landlord of his property may assume various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it incharge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye ofwas further argued by Mr. Shanti Bhushan that the landlady had absolutely no reason to stay in Bijnor because she was staying with her son in some other town. That by itself is hardly a good ground for the landlady who was a widow to sever her connections with her own property. Moreover, we do not want to make any observations on the merits of this matter as the High Court has rightly remanded the case for a fresh decision on all the points involved.So far as the second point is concerned, Viz., the question of allotment of the premises to the appellant, the High Court was fully justified in quashing the order of the District Supply officer as affirmed by t he District Judge because despite several opportunities no attempt had been made to approach the landlady to nominate a tenant. There is no evidence to show that either the prescribed authority or the Rent Control and Eviction officer ever approached the landlady for making a nomination in respect of the premises vacated by the original tenant and she refused to do so. All that the landlady did was to ask for the release of the premises but even if this was refused it was incumbent o n the Rent Control authorities to have fulfilled the essential conditions of s. 17(2) of the Act before making any allotment in favour of the appellant or for that matter any other person. It was suggested that as the landlady was not living 4 in the premises which were locked up, section 17(2) did not apply. We have already rejected this argument because even occupation of apart of a building by the owner which she may visit off and on is possession in the legal sense of the term and, therefore, it cannot be said that the provision of s. 17(2) would not apply and that the Rent Control authorities could make an allotment in favour of any person without giving an opportunity to the landlady or the landlord to exercise he r/his privilege of nominating ahave already pointed out that the object of the Act seems to be to arm the owner with the power of nomination so as to protect him/her from unpleasant tenants or indecent neighbours who may make the life of the owner a hell. Moreover, the conduct displayed by the appellant in this case clearly shows that if he was thrust on the respondent without her being allowed an opportunity to nominate a tenant, it will violate the very spirit and tenor of s. 17(2) of the Act.As we are of the opinion that the order of the High Court has to be upheld we refrain from making any further observations on the merits or any aspect of the matter which have to be gone into afresh as directed by the High Court.
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Himalayan Tiles & Marbles (P) Ltd Vs. Francis Victor Coutinho (Dead) By Lrs & Ors | etc., shall be deemed always as valid as if the provisions of Section 40 and 41 of the Act, as amended by the amending Act, were in the force at all material times; and (d) that by virtue of Section 7 validity to the acquisition is given to all actions taken in connection therewith in spite of any judgment, decree or order of any court to the contrary. 17. We are, however, satisfied that in the instant case the first condition adumbrated by this Court, viz., that there must be a complete acquisition before Section 7 could validate the same, has not been fulfilled at all. In this view of the matter we need not go into the other conditions indicated by this Court. 18. It was contended by Mr. Desai that according to the unchallenged pleadings of the respondents including the government, which was a party before the District Court and also before the Single Judge of the High Court, there is nothing to show that after the issue of notification the government had taken possession of the land so that it could be said that the land had vested in the government in which case alone the acquisition proceedings would have been completed. In this connection, our attention was drawn to para 1 of the petition filed by the respondents before the High Court, which runs thus :"The petitioners have become the owners of the said lands by inheritance, and the present lands records in respect of said lands stand in the name of the petitioners. There is no dispute between the petitioners and the respondents that the petitioners are the owners of the said immovable property. The petitioners were at all times and still are in possession of the said immovable properties." 19. According to this averment, it is clearly pleaded that in spite of the notifications, the possession had not been given to the government and the respondents (petitioners before the High Court) were still in possession of the properties in question. A similar averment has been made in para 15 of the petition which may be extracted thus : The petitioners say that they are still in possession of the said lands and possession of the said lands has not been taken away from them and the tenants of the petitioners numbering about 53 at present are in physical occupation of the same. 20. It was also alleged that the government had threatened the petitioners in the High Court that possession would be taken through police but despite such threats given by the government, the petitioners are still in possession of the said lands and the structures were in possession of the tenants. The government in its reply affidavit did not deny these averments. On the other hand, they admitted the same. Para 8 of the reply-affidavit may be extracted thus : With reference to paragraph 1 of the petition, I believe the contents thereof to be substantially correct though as stated above the petitioners names do not appear as occupants or owners in the record of rights relating to the land in question. Similarly in para 21 of the reply, the contents of para 15 of the petition were admitted and further the fact that possession was with the petitioners, was not denied but was admitted to be correct. Para 21 of the reply-affidavit runs thus : With reference to paragraph 15 of the petition, I believe the contents thereof to be substantially correct. 21. Learned counsel for the appellant, however, drew our attention to a letter sent by the respondents and went on to show that possession of only one acre of land has been taken by the government. Even the High Court clearly found that possession had not been fully delivered to the government after the notification. In this connection, the Division Bench observed as follows :On the question of possession being delivered to the government the petitioners specifically averred at the end of paragraph 15 of the petition : "The petitioners further say that notwithstanding the said letter and the threat therein contained the petitioners are still in possession of the said lands and their tenants are occupying the said structures standing thereon and possession thereof has not been taken by the respondents". They made similar averments at the end of paragraph 1 of the petition, that "the petitioners were at all times and still are in possession of the said immovable properties". 22. Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was contested only by the State. Perhaps the appellant may have thought that as its interests were fully safeguarded by the government it was not necessary for it at that stage to appear before the High Court. Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the government and thus no title vested in the government despite the notification acquiring the land. In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the government the acquisition was not complete and its invalidity could not be cured by Section 7 of the amendment Act as pointed out by this Court in the case referred to above. On this ground alone the appellant must fail. Dr. Chitale however, suggested that out of 2.2 acres, possession of one acre may have been taken by the government. Assuming that to be so, until the possession of the entire land acquired was taken by the government, the acquisition could not be a complete acquisition so as to attract the operation of Section 7 of the amending Act. In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of Section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been fulfilled. | 0[ds]8. It seems to us that the definition of a person interested given in Section 18 is an inclusive and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested in the government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the government. Thus, it cannot be said that the company had no claim or title to the land at all. Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. For this purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation14. Thus, the preponderance of judicial opinion seems to favour the view that the definition of person interested must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view accords with the principals of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital ? For instance, the land in acquisition proceedings may be held to be invalid and thus a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a court, he could have satisfied it that the compensation was for too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person for whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefor because both these factors concern its future course of action and if decided against him, seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by Section 18(1) of the Act. The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench17. We are, however, satisfied that in the instant case the first condition adumbrated by this Court, viz., that there must be a complete acquisition before Section 7 could validate the same, has not been fulfilled at all. In this view of the matter we need not go into the other conditions indicated by this Court22. Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was contested only by the State. Perhaps the appellant may have thought that as its interests were fully safeguarded by the government it was not necessary for it at that stage to appear before the High Court. Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the government and thus no title vested in the government despite the notification acquiring the land. In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the government the acquisition was not complete and its invalidity could not be cured by Section 7 of the amendment Act as pointed out by this Court in the case referred to above. On this ground alone the appellant must fail. Dr. Chitale however, suggested that out of 2.2 acres, possession of one acre may have been taken by the government. Assuming that to be so, until the possession of the entire land acquired was taken by the government, the acquisition could not be a complete acquisition so as to attract the operation of Section 7 of the amending Act. In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of Section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been fulfilledIn this connection, the Division Bench observed as follows :On the question of possession being delivered to the government the petitioners specifically averred at the end of paragraph 15 of the petition : "The petitioners further say that notwithstanding the said letter and the threat therein contained the petitioners are still in possession of the said lands and their tenants are occupying the said structures standing thereon and possession thereof has not been taken by the respondents". They made similar averments at the end of paragraph 1 of the petition, that "the petitioners were at all times and still are in possession of the said immovable properties"22. Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was contested only by the State. Perhaps the appellant may have thought that as its interests were fully safeguarded by the government it was not necessary for it at that stage to appear before the High Court. Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the government and thus no title vested in the government despite the notification acquiring the land. In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the government the acquisition was not complete and its invalidity could not be cured by Section 7 of the amendment Act as pointed out by this Court in the case referred to above. On this ground alone the appellant must fail. Dr. Chitale however, suggested that out of 2.2 acres, possession of one acre may have been taken by the government. Assuming that to be so, until the possession of the entire land acquired was taken by the government, the acquisition could not be a complete acquisition so as to attract the operation of Section 7 of the amending Act. In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of Section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been | 0 | 4,600 | 1,286 | ### Instruction:
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etc., shall be deemed always as valid as if the provisions of Section 40 and 41 of the Act, as amended by the amending Act, were in the force at all material times; and (d) that by virtue of Section 7 validity to the acquisition is given to all actions taken in connection therewith in spite of any judgment, decree or order of any court to the contrary. 17. We are, however, satisfied that in the instant case the first condition adumbrated by this Court, viz., that there must be a complete acquisition before Section 7 could validate the same, has not been fulfilled at all. In this view of the matter we need not go into the other conditions indicated by this Court. 18. It was contended by Mr. Desai that according to the unchallenged pleadings of the respondents including the government, which was a party before the District Court and also before the Single Judge of the High Court, there is nothing to show that after the issue of notification the government had taken possession of the land so that it could be said that the land had vested in the government in which case alone the acquisition proceedings would have been completed. In this connection, our attention was drawn to para 1 of the petition filed by the respondents before the High Court, which runs thus :"The petitioners have become the owners of the said lands by inheritance, and the present lands records in respect of said lands stand in the name of the petitioners. There is no dispute between the petitioners and the respondents that the petitioners are the owners of the said immovable property. The petitioners were at all times and still are in possession of the said immovable properties." 19. According to this averment, it is clearly pleaded that in spite of the notifications, the possession had not been given to the government and the respondents (petitioners before the High Court) were still in possession of the properties in question. A similar averment has been made in para 15 of the petition which may be extracted thus : The petitioners say that they are still in possession of the said lands and possession of the said lands has not been taken away from them and the tenants of the petitioners numbering about 53 at present are in physical occupation of the same. 20. It was also alleged that the government had threatened the petitioners in the High Court that possession would be taken through police but despite such threats given by the government, the petitioners are still in possession of the said lands and the structures were in possession of the tenants. The government in its reply affidavit did not deny these averments. On the other hand, they admitted the same. Para 8 of the reply-affidavit may be extracted thus : With reference to paragraph 1 of the petition, I believe the contents thereof to be substantially correct though as stated above the petitioners names do not appear as occupants or owners in the record of rights relating to the land in question. Similarly in para 21 of the reply, the contents of para 15 of the petition were admitted and further the fact that possession was with the petitioners, was not denied but was admitted to be correct. Para 21 of the reply-affidavit runs thus : With reference to paragraph 15 of the petition, I believe the contents thereof to be substantially correct. 21. Learned counsel for the appellant, however, drew our attention to a letter sent by the respondents and went on to show that possession of only one acre of land has been taken by the government. Even the High Court clearly found that possession had not been fully delivered to the government after the notification. In this connection, the Division Bench observed as follows :On the question of possession being delivered to the government the petitioners specifically averred at the end of paragraph 15 of the petition : "The petitioners further say that notwithstanding the said letter and the threat therein contained the petitioners are still in possession of the said lands and their tenants are occupying the said structures standing thereon and possession thereof has not been taken by the respondents". They made similar averments at the end of paragraph 1 of the petition, that "the petitioners were at all times and still are in possession of the said immovable properties". 22. Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was contested only by the State. Perhaps the appellant may have thought that as its interests were fully safeguarded by the government it was not necessary for it at that stage to appear before the High Court. Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the government and thus no title vested in the government despite the notification acquiring the land. In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the government the acquisition was not complete and its invalidity could not be cured by Section 7 of the amendment Act as pointed out by this Court in the case referred to above. On this ground alone the appellant must fail. Dr. Chitale however, suggested that out of 2.2 acres, possession of one acre may have been taken by the government. Assuming that to be so, until the possession of the entire land acquired was taken by the government, the acquisition could not be a complete acquisition so as to attract the operation of Section 7 of the amending Act. In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of Section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been fulfilled.
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view that the definition of person interested must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view accords with the principals of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is to pay the compensation is not a person interested even though its stake may be extremely vital ? For instance, the land in acquisition proceedings may be held to be invalid and thus a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a court, he could have satisfied it that the compensation was for too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person for whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefor because both these factors concern its future course of action and if decided against him, seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by Section 18(1) of the Act. The High Court, therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench17. We are, however, satisfied that in the instant case the first condition adumbrated by this Court, viz., that there must be a complete acquisition before Section 7 could validate the same, has not been fulfilled at all. In this view of the matter we need not go into the other conditions indicated by this Court22. Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was contested only by the State. Perhaps the appellant may have thought that as its interests were fully safeguarded by the government it was not necessary for it at that stage to appear before the High Court. Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the government and thus no title vested in the government despite the notification acquiring the land. In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the government the acquisition was not complete and its invalidity could not be cured by Section 7 of the amendment Act as pointed out by this Court in the case referred to above. On this ground alone the appellant must fail. Dr. Chitale however, suggested that out of 2.2 acres, possession of one acre may have been taken by the government. Assuming that to be so, until the possession of the entire land acquired was taken by the government, the acquisition could not be a complete acquisition so as to attract the operation of Section 7 of the amending Act. In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of Section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been fulfilledIn this connection, the Division Bench observed as follows :On the question of possession being delivered to the government the petitioners specifically averred at the end of paragraph 15 of the petition : "The petitioners further say that notwithstanding the said letter and the threat therein contained the petitioners are still in possession of the said lands and their tenants are occupying the said structures standing thereon and possession thereof has not been taken by the respondents". They made similar averments at the end of paragraph 1 of the petition, that "the petitioners were at all times and still are in possession of the said immovable properties"22. Admittedly, the appellant did not appear before the Single Judge in the writ petition filed by the respondents and the petition was contested only by the State. Perhaps the appellant may have thought that as its interests were fully safeguarded by the government it was not necessary for it at that stage to appear before the High Court. Even so, the pleas of both the parties taken together clearly show that the entire possession of the property did not pass to the government and thus no title vested in the government despite the notification acquiring the land. In these circumstances, therefore, it is unmistakably clear that the properties not having vested in the government the acquisition was not complete and its invalidity could not be cured by Section 7 of the amendment Act as pointed out by this Court in the case referred to above. On this ground alone the appellant must fail. Dr. Chitale however, suggested that out of 2.2 acres, possession of one acre may have been taken by the government. Assuming that to be so, until the possession of the entire land acquired was taken by the government, the acquisition could not be a complete acquisition so as to attract the operation of Section 7 of the amending Act. In this view of the matter, we are satisfied that the appellant has failed to prove that one of the essential conditions for application of Section 7 of the amending Act, which would cure the infirmities from which the acquisition proceedings suffer, has been
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Saraswat Co-Op. Bank Ltd. Vs. State Of Maharasthra | on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class or persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, ...................." 13. Learned counsel appearing for the State adopted Mr. Ramachandrans submissions. Mr.Soli J. Sorabjee, learned senior advocate, who appeared for the landlords-respondents in the appeal filed by Hindustan Petroleum Corporation Ltd. (Civil Appeal Nos. 4830-4831/2005) urged that the Legislature was fully aware of the prevailing economic conditions while including public sector undertakings with those institutions which were kept out of the protection of the 1999 Act. He urged that petrol pumps, such as the one being run by the appellant, require a good deal of open space, which the landlord could better utilize for getting higher returns. The amount of rent paid for the utilization of such lands were extremely meagre in relation to the value of the property and the very object of the 1999 Act would be frustrated if such lands were not kept out of the purview of the Act so that the same could be utilized by the landlords for constructing new buildings which would ensure a fair return to them. Mr. Sorabjee submitted that some of the petrol pumps were of necessity, situated in prime areas within metropolitan cities and the Legislature had very correctly excluded them from the protection of the 1999 Act. Much the same views were expressed by Mr. Gaurav Agarwal, who appeared for the respondent No.2 in Civil Appeal No. 4830-31of 2005. It was pointed out that 1228 Sq.Ft. of a commercial premises in the Fort area in Mumbai had been let out initially for a sum of Rs.2732/- per month and the present valuation in terms of the Valuers report suggested that the rent should be Rs.2,45,600/- per month. 14. As will be evident from the submissions made on behalf of the appellants and the writ petitioner, the main challenge is to the constitutionality of Section 3 (1) (b) of the 1999 Act. In view of the categorization of different premises, some of which have been excluded from the protection of the Act, an attempt has been made to establish that the Legislature had acted arbitrarily in discriminating between the different sets of premises and tenants and in prescribing the standard for the purpose of excluding certain companies from the protection of the Act. Although, earlier a view had been taken by this Court that prescribing such a standard or differentiating between categories of tenancies was violative of Article 14 of the Constitution, the subsequent view taken by this Court is that so long as the classification sought to be made was based on an intelligible differentia and had a nexus with the object sought to be achieved by the statute, the same would not offend the equality clause contained in Article 14 of the Constitution. 15. Resultingly, it is quite clear that it is within the legislative competence of the State to enact laws for the protection of certain sections of society on the basis of economic criteria and so long as it does not result in unreasonable classification, it is for the Legislature to decide whom it should include or exclude from the application of such laws. Although, the decision to exclude private limited companies and public limited companies having a paid up share capital of Rs. One crore from the protection of the Act has been questioned on the ground of discrimination, we are unable to accept such contention, since in our view, it is in consonance with the object sought to be achieved by the Act as indicated in its preamble. In order to achieve such object, a cut-off point has to be settled and the Legislature in its wisdom has settled such cut-off point in excluding companies having a paid up share capital of Rs. One crore or more from the protection of the Act. 16. We are also unable to accept the contention that the paid up share capital of the company is not a fair indicator of a companys worth and that its net worth is a better indicator. As submitted by Mr. Ramachandran, the net worth of a company may vary from time to time, but its paid up share capital is more stable. Which of the two methods ought to have been adopted by the Legislature is not for us to decide once we have taken a view that the method as adopted is not arbitrary or violative of Article 14 of the Constitution. Of the two methods available, the Legislature has chosen the one which appeared to it to be reasonable. 17. The other submission relating to the inclusion of scheduled banks, along with other banks, which have been excluded from the protection of the Act, is also without substance since clause (iv) of Section 3 (1) (b) is, in our view, of general application intended to cover all banks forming part of the Schedule of the Reserve Bank of India Act which may or may not overlap those banks which have been indicated in clauses (i) (ii) and (iii). 18. The submission of Mr. Jaspal Singh that the 1999 Act would not apply to the appellant-bank represented by him, appears to be an argument of desperation and not of conviction. Once the Act of 1999 was enacted and came into force, it would have equal application to all premises let out either before or after the commencement of the Act. 19. The issues raised before us have been elaborately considered by the High Court, and, in our view, no fault can be found with the findings arrived at by the High Court. The provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, are intra vires and as has been held by the Bombay High Court, they do not violate Article 14 of the Constitution. | 0[ds]In view of the categorization of different premises, some of which have been excluded from the protection of the Act, an attempt has been made to establish that the Legislature had acted arbitrarily in discriminating between the different sets of premises and tenants and in prescribing the standard for the purpose of excluding certain companies from the protection of the Act. Although, earlier a view had been taken by this Court that prescribing such a standard or differentiating between categories of tenancies was violative of Article 14 of the Constitution, the subsequent view taken by this Court is that so long as the classification sought to be made was based on an intelligible differentia and had a nexus with the object sought to be achieved by the statute, the same would not offend the equality clause contained in Article 14 of the Constitution15. Resultingly, it is quite clear that it is within the legislative competence of the State to enact laws for the protection of certain sections of society on the basis of economic criteria and so long as it does not result in unreasonable classification, it is for the Legislature to decide whom it should include or exclude from the application of such laws. Although, the decision to exclude private limited companies and public limited companies having a paid up share capital of Rs. One crore from the protection of the Act has been questioned on the ground of discrimination, we are unable to accept such contention, since in our view, it is in consonance with the object sought to be achieved by the Act as indicated in its preamble. In order to achieve such object, a cut-off point has to be settled and the Legislature in its wisdom has settled such cut-off point in excluding companies having a paid up share capital of Rs. One crore or more from the protection of the Act16. We are also unable to accept the contention that the paid up share capital of the company is not a fair indicator of a companys worth and that its net worth is a better indicator. As submitted by Mr. Ramachandran, the net worth of a company may vary from time to time, but its paid up share capital is more stable. Which of the two methods ought to have been adopted by the Legislature is not for us to decide once we have taken a view that the method as adopted is not arbitrary or violative of Article 14 of the Constitution. Of the two methods available, the Legislature has chosen the one which appeared to it to be reasonable17. The other submission relating to the inclusion of scheduled banks, along with other banks, which have been excluded from the protection of the Act, is also without substance since clause (iv) of Section 3 (1) (b) is, in our view, of general application intended to cover all banks forming part of the Schedule of the Reserve Bank of India Act which may or may not overlap those banks which have been indicated in clauses (i) (ii) and (iii)18. The submission of Mr. Jaspal Singh that the 1999 Act would not apply to the appellant-bank represented by him, appears to be an argument of desperation and not of conviction. Once the Act of 1999 was enacted and came into force, it would have equal application to all premises let out either before or after the commencement of the Act19. The issues raised before us have been elaborately considered by the High Court, and, in our view, no fault can be found with the findings arrived at by the High Court. The provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, are intra vires and as has been held by the Bombay High Court, they do not violate Article 14 of the Constitution | 0 | 5,035 | 705 | ### Instruction:
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on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class or persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, ...................." 13. Learned counsel appearing for the State adopted Mr. Ramachandrans submissions. Mr.Soli J. Sorabjee, learned senior advocate, who appeared for the landlords-respondents in the appeal filed by Hindustan Petroleum Corporation Ltd. (Civil Appeal Nos. 4830-4831/2005) urged that the Legislature was fully aware of the prevailing economic conditions while including public sector undertakings with those institutions which were kept out of the protection of the 1999 Act. He urged that petrol pumps, such as the one being run by the appellant, require a good deal of open space, which the landlord could better utilize for getting higher returns. The amount of rent paid for the utilization of such lands were extremely meagre in relation to the value of the property and the very object of the 1999 Act would be frustrated if such lands were not kept out of the purview of the Act so that the same could be utilized by the landlords for constructing new buildings which would ensure a fair return to them. Mr. Sorabjee submitted that some of the petrol pumps were of necessity, situated in prime areas within metropolitan cities and the Legislature had very correctly excluded them from the protection of the 1999 Act. Much the same views were expressed by Mr. Gaurav Agarwal, who appeared for the respondent No.2 in Civil Appeal No. 4830-31of 2005. It was pointed out that 1228 Sq.Ft. of a commercial premises in the Fort area in Mumbai had been let out initially for a sum of Rs.2732/- per month and the present valuation in terms of the Valuers report suggested that the rent should be Rs.2,45,600/- per month. 14. As will be evident from the submissions made on behalf of the appellants and the writ petitioner, the main challenge is to the constitutionality of Section 3 (1) (b) of the 1999 Act. In view of the categorization of different premises, some of which have been excluded from the protection of the Act, an attempt has been made to establish that the Legislature had acted arbitrarily in discriminating between the different sets of premises and tenants and in prescribing the standard for the purpose of excluding certain companies from the protection of the Act. Although, earlier a view had been taken by this Court that prescribing such a standard or differentiating between categories of tenancies was violative of Article 14 of the Constitution, the subsequent view taken by this Court is that so long as the classification sought to be made was based on an intelligible differentia and had a nexus with the object sought to be achieved by the statute, the same would not offend the equality clause contained in Article 14 of the Constitution. 15. Resultingly, it is quite clear that it is within the legislative competence of the State to enact laws for the protection of certain sections of society on the basis of economic criteria and so long as it does not result in unreasonable classification, it is for the Legislature to decide whom it should include or exclude from the application of such laws. Although, the decision to exclude private limited companies and public limited companies having a paid up share capital of Rs. One crore from the protection of the Act has been questioned on the ground of discrimination, we are unable to accept such contention, since in our view, it is in consonance with the object sought to be achieved by the Act as indicated in its preamble. In order to achieve such object, a cut-off point has to be settled and the Legislature in its wisdom has settled such cut-off point in excluding companies having a paid up share capital of Rs. One crore or more from the protection of the Act. 16. We are also unable to accept the contention that the paid up share capital of the company is not a fair indicator of a companys worth and that its net worth is a better indicator. As submitted by Mr. Ramachandran, the net worth of a company may vary from time to time, but its paid up share capital is more stable. Which of the two methods ought to have been adopted by the Legislature is not for us to decide once we have taken a view that the method as adopted is not arbitrary or violative of Article 14 of the Constitution. Of the two methods available, the Legislature has chosen the one which appeared to it to be reasonable. 17. The other submission relating to the inclusion of scheduled banks, along with other banks, which have been excluded from the protection of the Act, is also without substance since clause (iv) of Section 3 (1) (b) is, in our view, of general application intended to cover all banks forming part of the Schedule of the Reserve Bank of India Act which may or may not overlap those banks which have been indicated in clauses (i) (ii) and (iii). 18. The submission of Mr. Jaspal Singh that the 1999 Act would not apply to the appellant-bank represented by him, appears to be an argument of desperation and not of conviction. Once the Act of 1999 was enacted and came into force, it would have equal application to all premises let out either before or after the commencement of the Act. 19. The issues raised before us have been elaborately considered by the High Court, and, in our view, no fault can be found with the findings arrived at by the High Court. The provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, are intra vires and as has been held by the Bombay High Court, they do not violate Article 14 of the Constitution.
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In view of the categorization of different premises, some of which have been excluded from the protection of the Act, an attempt has been made to establish that the Legislature had acted arbitrarily in discriminating between the different sets of premises and tenants and in prescribing the standard for the purpose of excluding certain companies from the protection of the Act. Although, earlier a view had been taken by this Court that prescribing such a standard or differentiating between categories of tenancies was violative of Article 14 of the Constitution, the subsequent view taken by this Court is that so long as the classification sought to be made was based on an intelligible differentia and had a nexus with the object sought to be achieved by the statute, the same would not offend the equality clause contained in Article 14 of the Constitution15. Resultingly, it is quite clear that it is within the legislative competence of the State to enact laws for the protection of certain sections of society on the basis of economic criteria and so long as it does not result in unreasonable classification, it is for the Legislature to decide whom it should include or exclude from the application of such laws. Although, the decision to exclude private limited companies and public limited companies having a paid up share capital of Rs. One crore from the protection of the Act has been questioned on the ground of discrimination, we are unable to accept such contention, since in our view, it is in consonance with the object sought to be achieved by the Act as indicated in its preamble. In order to achieve such object, a cut-off point has to be settled and the Legislature in its wisdom has settled such cut-off point in excluding companies having a paid up share capital of Rs. One crore or more from the protection of the Act16. We are also unable to accept the contention that the paid up share capital of the company is not a fair indicator of a companys worth and that its net worth is a better indicator. As submitted by Mr. Ramachandran, the net worth of a company may vary from time to time, but its paid up share capital is more stable. Which of the two methods ought to have been adopted by the Legislature is not for us to decide once we have taken a view that the method as adopted is not arbitrary or violative of Article 14 of the Constitution. Of the two methods available, the Legislature has chosen the one which appeared to it to be reasonable17. The other submission relating to the inclusion of scheduled banks, along with other banks, which have been excluded from the protection of the Act, is also without substance since clause (iv) of Section 3 (1) (b) is, in our view, of general application intended to cover all banks forming part of the Schedule of the Reserve Bank of India Act which may or may not overlap those banks which have been indicated in clauses (i) (ii) and (iii)18. The submission of Mr. Jaspal Singh that the 1999 Act would not apply to the appellant-bank represented by him, appears to be an argument of desperation and not of conviction. Once the Act of 1999 was enacted and came into force, it would have equal application to all premises let out either before or after the commencement of the Act19. The issues raised before us have been elaborately considered by the High Court, and, in our view, no fault can be found with the findings arrived at by the High Court. The provisions of Section 3(1)(b) of the Maharashtra Rent Control Act, 1999, are intra vires and as has been held by the Bombay High Court, they do not violate Article 14 of the Constitution
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India United Mills Limited, Bombay Vs. S Rashtriya Mill Mazdoor Sangh, Bombay | In the case of dismissal an employee would be deprived of quite a number of benefits. It is also incorrect to say that action under standing order 19 is confined only to ceases of discharge proceeding from reason other than an employees alleged misconduct, for the language of standing order 19 makes it clear that the reason inducing the termination of service may be so serious that a communication thereof might directly or indirectly lay the company and the manager or the person signing it open to criminal or civil proceedings at the instance of the operative. The fact remains that when a question of discharge arises under standing order 19 no chargesheet or enquiry is indicated by the standing order, whereas under standing order 22 no order of dismissal can be made unless the operative concerned is informed in writing of the alleged misconduct, and is given an opportunity to explain the circumstances alleged against him and a proper enquiry has been held. We agree that a discharge under standing order 19 could be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice, but no such considerations arise in this case. "A discharge under standing order 19 can, therefore, be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice. The Supreme Court decision relied on by Sri Narayanaswami did not purport to lay down that in a case of discharge simpliciter the tribunal cannot interfere even if the discharge was actuated by motives of victimization or unfair labour practice. That question did not arise in that case and there was no allegation of discharge being mala fide. In the present case, there was no allegation of mala fides or victimization or unfair labour practice, much less any proof of any such thing and there is no doubt that the action of the manager in terminating the services of the employee was bona fide. The employee had, after marking his presence, left without permission at about 3-45 p. m. The learned labour judge has gone into the question whether the employee left at 3-45 p. m. as alleged by the management or at 5 p. m. as alleged by him. The time at which the employee left is not material. It is not disputed that the employee was engaged in the second shift and he left during the shift without taking anybody permission. The employees explanation before the manager was as follows :"i came down at 5 p. m. near the gate to see my brother for enquiring whether he has called the doctor in the house or not. When I met my brother, I was told that my father is serious and the doctor has visited the house. I went away from the gate to my house. While going I did not ask permission from any of the masters. When father felt better I phoned up to the mills to tell Mr. Abraham for my leaving the department and taking his permission. "Now the record produced in the case shows that on no less than five previous occasions this employee was shown in the records to be "not found in the department. " On those occasions it appears that the management did not take action against him but treated him as on leave for that portion of the day. The employee stated before the labour court that he was absent on two previous occasions as his father was ill. It is, therefore, evident that this was not the first occasion on which the employee left his place of work on the ground that his father was ill. The company has stated in the written statement that assuming without admitting that the employees father was ill, the employee could have approached his superior officer and obtained leave of absence. Admittedly, the employee did not take anybodys permission or inform anybody before he left the mill. The learned labour judge has observed : "in the present case there was no evidence to disbelieve the employees explanation. " but the company was not expected to lead evidence of the negative, viz. , that his father was not ill, and it cannot be conceded that if an employee gets information that a relation of his is ill, he has right to walk out of the mill without taking anybodys leave or permission. As on the previous occasions also the employee had been found absent from his place of work, the manager cannot be blamed if he did not believe the explanation after taking into consideration the employees previous record. The manager decided to terminate his services under standing order 19 after giving him thirteen days wages in lieu of notice. Such an order cannot be interfered with unless there is mala fides or victimization or unfair labour practice and there is none in this case. Sri Deshpande has urged that standing order 10 covers the case and under that standing order the wages could be cut for the period of absence. Now standing order 10 days down that wages may be deducted for the period of absence in accordance with the provisions of the Payment of Wages Act. This standing order prescribes the periods for which such wages could be deducted in accordance with the provisions of the Payment of Wages Act. It is not a standing order dealing with punishment and it cannot be said that if an employee is in the habit of leaving the mill without permission after making his presence, the only thing that can be done is to deduct his wages for the period of absence. If the employer in the interest of efficient work in the factory terminates the services of such an employee by giving him fourteen days notice or thirteen days wages in lieu of notice, the action cannot be interfered by the labour court or the industrial court. | 1[ds]But it is seen from the standing orders that whenever distinction is made between permanent and temporary operatives it has been expressly made, e. g. , the expression, permanent employee finds place in standing orders 9, 19 (a) 20The expression badli or temporary operative occurs in standing order 19 (b ). In standing order 22 we do not find any such adjective as permanent or temporary before the word "operative. " It would, therefore, appear that the procedure prescribed by standing order 22 for suspension or dismissal of an operative would not be inapplicable to badli operatives, and if a badli operative commits misconduct as defined in standing order 21, the employer can dismiss him under standingit may be noted that standing order 22 prescribes two types of punishment, viz. , suspension for a period not exceeding four days and dismissal. Discharge by giving thirteen days wages in lieu of notice is not a punishment prescribed by this standing order, but as stated above, standing order 19 (a) provides that the employment of any permanent operative may be terminated by fourteen days notice or by payment of thirteen days wages in lieu of4 ) THERE is, therefore, a clear distinction between a discharge under standing order 19 (a) and (b)and punishment under standingdischarge under standing order 19 can, therefore, be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice. The Supreme Court decision relied on by Sri Narayanaswami did not purport to lay down that in a case of discharge simpliciter the tribunal cannot interfere even if the discharge was actuated by motives of victimization or unfair labour practice. That question did not arise in that case and there was no allegation of discharge being mala fide. In the present case, there was no allegation of mala fides or victimization or unfair labour practice, much less any proof of any such thing and there is no doubt that the action of the manager in terminating the services of the employee was bona fide. The employee had, after marking his presence, left without permission at about 3-45 p. m. The learned labour judge has gone into the question whether the employee left at 3-45 p. m. as alleged by the management or at 5 p. m. as alleged by him. The time at which the employee left is not material. It is not disputed that the employee was engaged in the second shift and he left during the shift without taking anybody permission. The employees explanation before the manager was as follows :"i came down at 5 p. m. near the gate to see my brother for enquiring whether he has called the doctor in the house or not. When I met my brother, I was told that my father is serious and the doctor has visited the house. I went away from the gate to my house. While going I did not ask permission from any of the masters. When father felt better I phoned up to the mills to tell Mr. Abraham for my leaving the department and taking his permission. "Now the record produced in the case shows that on no less than five previous occasions this employee was shown in the records to be "not found in the department. " On those occasions it appears that the management did not take action against him but treated him as on leave for that portion of the day. The employee stated before the labour court that he was absent on two previous occasions as his father was ill. It is, therefore, evident that this was not the first occasion on which the employee left his place of work on the ground that his father was ill. The company has stated in the written statement that assuming without admitting that the employees father was ill, the employee could have approached his superior officer and obtained leave of absence. Admittedly, the employee did not take anybodys permission or inform anybody before he left the mill. The learned labour judge has observed : "in the present case there was no evidence to disbelieve the employees explanation. " but the company was not expected to lead evidence of the negative, viz. , that his father was not ill, and it cannot be conceded that if an employee gets information that a relation of his is ill, he has right to walk out of the mill without taking anybodys leave or permission. As on the previous occasions also the employee had been found absent from his place of work, the manager cannot be blamed if he did not believe the explanation after taking into consideration the employees previous record. The manager decided to terminate his services under standing order 19 after giving him thirteen days wages in lieu of notice. Such an order cannot be interfered with unless there is mala fides or victimization or unfair labour practice and there is none in thisstanding order 10 days down that wages may be deducted for the period of absence in accordance with the provisions of the Payment of Wages Act. This standing order prescribes the periods for which such wages could be deducted in accordance with the provisions of the Payment of Wages Act. It is not a standing order dealing with punishment and it cannot be said that if an employee is in the habit of leaving the mill without permission after making his presence, the only thing that can be done is to deduct his wages for the period of absence. If the employer in the interest of efficient work in the factory terminates the services of such an employee by giving him fourteen days notice or thirteen days wages in lieu of notice, the action cannot be interfered by the labour court or the industrial court. | 1 | 2,839 | 1,060 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
In the case of dismissal an employee would be deprived of quite a number of benefits. It is also incorrect to say that action under standing order 19 is confined only to ceases of discharge proceeding from reason other than an employees alleged misconduct, for the language of standing order 19 makes it clear that the reason inducing the termination of service may be so serious that a communication thereof might directly or indirectly lay the company and the manager or the person signing it open to criminal or civil proceedings at the instance of the operative. The fact remains that when a question of discharge arises under standing order 19 no chargesheet or enquiry is indicated by the standing order, whereas under standing order 22 no order of dismissal can be made unless the operative concerned is informed in writing of the alleged misconduct, and is given an opportunity to explain the circumstances alleged against him and a proper enquiry has been held. We agree that a discharge under standing order 19 could be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice, but no such considerations arise in this case. "A discharge under standing order 19 can, therefore, be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice. The Supreme Court decision relied on by Sri Narayanaswami did not purport to lay down that in a case of discharge simpliciter the tribunal cannot interfere even if the discharge was actuated by motives of victimization or unfair labour practice. That question did not arise in that case and there was no allegation of discharge being mala fide. In the present case, there was no allegation of mala fides or victimization or unfair labour practice, much less any proof of any such thing and there is no doubt that the action of the manager in terminating the services of the employee was bona fide. The employee had, after marking his presence, left without permission at about 3-45 p. m. The learned labour judge has gone into the question whether the employee left at 3-45 p. m. as alleged by the management or at 5 p. m. as alleged by him. The time at which the employee left is not material. It is not disputed that the employee was engaged in the second shift and he left during the shift without taking anybody permission. The employees explanation before the manager was as follows :"i came down at 5 p. m. near the gate to see my brother for enquiring whether he has called the doctor in the house or not. When I met my brother, I was told that my father is serious and the doctor has visited the house. I went away from the gate to my house. While going I did not ask permission from any of the masters. When father felt better I phoned up to the mills to tell Mr. Abraham for my leaving the department and taking his permission. "Now the record produced in the case shows that on no less than five previous occasions this employee was shown in the records to be "not found in the department. " On those occasions it appears that the management did not take action against him but treated him as on leave for that portion of the day. The employee stated before the labour court that he was absent on two previous occasions as his father was ill. It is, therefore, evident that this was not the first occasion on which the employee left his place of work on the ground that his father was ill. The company has stated in the written statement that assuming without admitting that the employees father was ill, the employee could have approached his superior officer and obtained leave of absence. Admittedly, the employee did not take anybodys permission or inform anybody before he left the mill. The learned labour judge has observed : "in the present case there was no evidence to disbelieve the employees explanation. " but the company was not expected to lead evidence of the negative, viz. , that his father was not ill, and it cannot be conceded that if an employee gets information that a relation of his is ill, he has right to walk out of the mill without taking anybodys leave or permission. As on the previous occasions also the employee had been found absent from his place of work, the manager cannot be blamed if he did not believe the explanation after taking into consideration the employees previous record. The manager decided to terminate his services under standing order 19 after giving him thirteen days wages in lieu of notice. Such an order cannot be interfered with unless there is mala fides or victimization or unfair labour practice and there is none in this case. Sri Deshpande has urged that standing order 10 covers the case and under that standing order the wages could be cut for the period of absence. Now standing order 10 days down that wages may be deducted for the period of absence in accordance with the provisions of the Payment of Wages Act. This standing order prescribes the periods for which such wages could be deducted in accordance with the provisions of the Payment of Wages Act. It is not a standing order dealing with punishment and it cannot be said that if an employee is in the habit of leaving the mill without permission after making his presence, the only thing that can be done is to deduct his wages for the period of absence. If the employer in the interest of efficient work in the factory terminates the services of such an employee by giving him fourteen days notice or thirteen days wages in lieu of notice, the action cannot be interfered by the labour court or the industrial court.
### Response:
1
### Explanation:
But it is seen from the standing orders that whenever distinction is made between permanent and temporary operatives it has been expressly made, e. g. , the expression, permanent employee finds place in standing orders 9, 19 (a) 20The expression badli or temporary operative occurs in standing order 19 (b ). In standing order 22 we do not find any such adjective as permanent or temporary before the word "operative. " It would, therefore, appear that the procedure prescribed by standing order 22 for suspension or dismissal of an operative would not be inapplicable to badli operatives, and if a badli operative commits misconduct as defined in standing order 21, the employer can dismiss him under standingit may be noted that standing order 22 prescribes two types of punishment, viz. , suspension for a period not exceeding four days and dismissal. Discharge by giving thirteen days wages in lieu of notice is not a punishment prescribed by this standing order, but as stated above, standing order 19 (a) provides that the employment of any permanent operative may be terminated by fourteen days notice or by payment of thirteen days wages in lieu of4 ) THERE is, therefore, a clear distinction between a discharge under standing order 19 (a) and (b)and punishment under standingdischarge under standing order 19 can, therefore, be challenged if the discharge proceeded from any mala fides on the part of the company or any victimization or unfair labour practice. The Supreme Court decision relied on by Sri Narayanaswami did not purport to lay down that in a case of discharge simpliciter the tribunal cannot interfere even if the discharge was actuated by motives of victimization or unfair labour practice. That question did not arise in that case and there was no allegation of discharge being mala fide. In the present case, there was no allegation of mala fides or victimization or unfair labour practice, much less any proof of any such thing and there is no doubt that the action of the manager in terminating the services of the employee was bona fide. The employee had, after marking his presence, left without permission at about 3-45 p. m. The learned labour judge has gone into the question whether the employee left at 3-45 p. m. as alleged by the management or at 5 p. m. as alleged by him. The time at which the employee left is not material. It is not disputed that the employee was engaged in the second shift and he left during the shift without taking anybody permission. The employees explanation before the manager was as follows :"i came down at 5 p. m. near the gate to see my brother for enquiring whether he has called the doctor in the house or not. When I met my brother, I was told that my father is serious and the doctor has visited the house. I went away from the gate to my house. While going I did not ask permission from any of the masters. When father felt better I phoned up to the mills to tell Mr. Abraham for my leaving the department and taking his permission. "Now the record produced in the case shows that on no less than five previous occasions this employee was shown in the records to be "not found in the department. " On those occasions it appears that the management did not take action against him but treated him as on leave for that portion of the day. The employee stated before the labour court that he was absent on two previous occasions as his father was ill. It is, therefore, evident that this was not the first occasion on which the employee left his place of work on the ground that his father was ill. The company has stated in the written statement that assuming without admitting that the employees father was ill, the employee could have approached his superior officer and obtained leave of absence. Admittedly, the employee did not take anybodys permission or inform anybody before he left the mill. The learned labour judge has observed : "in the present case there was no evidence to disbelieve the employees explanation. " but the company was not expected to lead evidence of the negative, viz. , that his father was not ill, and it cannot be conceded that if an employee gets information that a relation of his is ill, he has right to walk out of the mill without taking anybodys leave or permission. As on the previous occasions also the employee had been found absent from his place of work, the manager cannot be blamed if he did not believe the explanation after taking into consideration the employees previous record. The manager decided to terminate his services under standing order 19 after giving him thirteen days wages in lieu of notice. Such an order cannot be interfered with unless there is mala fides or victimization or unfair labour practice and there is none in thisstanding order 10 days down that wages may be deducted for the period of absence in accordance with the provisions of the Payment of Wages Act. This standing order prescribes the periods for which such wages could be deducted in accordance with the provisions of the Payment of Wages Act. It is not a standing order dealing with punishment and it cannot be said that if an employee is in the habit of leaving the mill without permission after making his presence, the only thing that can be done is to deduct his wages for the period of absence. If the employer in the interest of efficient work in the factory terminates the services of such an employee by giving him fourteen days notice or thirteen days wages in lieu of notice, the action cannot be interfered by the labour court or the industrial court.
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State of Punjab Vs. Amar Nath Aggarwal Const. and Others | Arbitrator will be appointed. The Arbitrator, who was the Chief Engineer, was compulsorily retired from service on 28.5.1990 and he made an Award on 9.6.1990, thus it is contended that the Arbitrator had no jurisdiction to pass the Award in question. From the material on record it is clear that the Arbitrator commenced the proceedings on 28.7.1989 and concluded the same by passing the Award on 9.6.1990. In between these two dates several proceedings were held by him, evidence recorded and the appellant also participated in those proceedings on 4.6.1990. By an order made on 5.9.1990 the Chief Engineer was reinstated by setting aside the order of compulsory retirement. The contention urged on behalf of the appellant, relying upon the decision of this Court in Khardah Company Ltd. vs. Raymon & Co. (India) Pvt. Ltd., is that when the Arbitrator lacks jurisdiction, mere participation in the proceedings will not confer any jurisdiction upon the Arbitrator and, therefore, in the present case also even though the appellant may have participated in the proceedings held by the Arbitrator on the date when he was not holding the office, the Arbitrator could not be deemed to be continuing in service. We do not think the contention put forth on behalf of the appellant is tenable. What is held by this Court in Khardah Company Ltd. vs. Raymon & Co. (India) Pvt. Ltd. (supra), is that in the event the agreement for arbitration does not exist, then it will not be open to the Arbitrator to enter into arbitration and any action taken by him will be without jurisdiction. The defect will not be cured in such an event, even by the participation of the parties in the proceedings. In the present case when the proceedings for arbitration commenced, the Arbitrator did have jurisdiction and when he continued the proceedings whether he would act or not, may be a question of legality of proceedings and not one of lack of jurisdiction. In that view of the matter when the Arbitrators services were reinstated and he continued in service, it must be deemed that there is no hiatus in the proceedings. In that view of the matter we find no substance in the first contention urged on behalf of the appellant.The next contention urged is one on the claim made by the respondent regarding jungle clearance by way of extra work. It is contended that in regard to such extra work a claim could be made only in the event the contractor had submitted a return to the office of the Executive Engineer on or before 10th day of each month with regard to any additional work done or will have to be done and details of the work claiming extra work which also contains value of such work. In the present case this clause is sought to be held against the claim made by the contractor and it is urged that the Award made by the Arbitrator suffers from an error apparent on the face of the Award inasmuch as the Arbitrator travels far beyond the terms of the agreement itself. The contention is not justified because the appellant itself had made certain payments in regard to the jungle clearance at certain rates. The question was, in such an event if really the work had been done was there any material for the authorities concerned to find out the extent of the work done. But no claim was disallowed on the ground that such claim had not been made in terms of the Clause 39. The Arbitrator has gone into this question in detail and has found that there was correspondence between the appellant and the respondents in this connection and there is material to show that such work is really done and as to what quantum of Award should be granted is a matter which must be left to the Arbitrators discretion. In that view of the matter we do not think there is any substance in this contention either. So far as the third contention is concerned, it is urged that stripping of the earth was required to be used for filling placement in the random zone. It was acknowledged that the earth becoming available on account of stripping of earth was of no use at all. This finding of fact has been recorded by the Arbitrator and we do not think there is any justification for the appellant to make any complaint. Even though the Arbitrator may have taken note of the decision taken by the Chief Engineer in December, 1987 but that would only afford a basis and guide to him to arrive at a proper conclusion and it is not the foundation for the reasoning adopted by him.It was next contended that for lip cutting he had done extra filling of one metre for which the quantity of earth work involved was to the tune of 11, 310 cum. It was contended that it was done on the ground that the tendered rate in item No. 6 relating to lining of the canal was inclusive of lip cutting and therefore it was not permissible to the Arbitrator to have awarded extra payment. This aspect has been considered in detail by the Arbitrator and no ground as such is pointed out to us which can be characterised as one to constitute an error apparent on the face of the Award to set aside the Award. In that view of the matter we think the Award made by the Arbitrator does not suffer from any infirmity as could be urged under Sections 30 and 33 of the Arbitration Act. As regards the question of interest is concerned, it is covered by the judgment of a Constitution Bench in case of Executive Engineer, Dhenkanal Minor Irrigation Division etc. vs. N. C. Budharaj (dead) by LRs etc. 2001 SC 19768 = 2001 SC 19768 (SC)), and in that view of the matter no further consideration is required on that aspect in these appeals. | 0[ds]From the material on record it is clear that the Arbitrator commenced the proceedings on 28.7.1989 and concluded the same by passing the Award on 9.6.1990. In between these two dates several proceedings were held by him, evidence recorded and the appellant also participated in those proceedings on 4.6.1990. By an order made on 5.9.1990 the Chief Engineer was reinstated by setting aside the order of compulsory retirementWe do not think the contention put forth on behalf of the appellant is tenableIn that view of the matter we find no substance in the first contention urged on behalf of the appellant.The next contention urged is one on the claim made by the respondent regarding jungle clearance by way of extra work. It is contended that in regard to such extra work a claim could be made only in the event the contractor had submitted a return to the office of the Executive Engineer on or before 10th day of each month with regard to any additional work done or will have to be done and details of the work claiming extra work which also contains value of such work. In the present case this clause is sought to be held against the claim made by the contractor and it is urged that the Award made by the Arbitrator suffers from an error apparent on the face of the Award inasmuch as the Arbitrator travels far beyond the terms of the agreement itself. The contention is not justified because the appellant itself had made certain payments in regard to the jungle clearance at certain rates. The question was, in such an event if really the work had been done was there any material for the authorities concerned to find out the extent of the work done. But no claim was disallowed on the ground that such claim had not been made in terms of the Clause 39. The Arbitrator has gone into this question in detail and has found that there was correspondence between the appellant and the respondents in this connection and there is material to show that such work is really done and as to what quantum of Award should be granted is a matter which must be left to the Arbitrators discretion. In that view of the matter we do not think there is any substance in this contention eitherIt was contended that it was done on the ground that the tendered rate in item No. 6 relating to lining of the canal was inclusive of lip cutting and therefore it was not permissible to the Arbitrator to have awarded extra payment. This aspect has been considered in detail by the Arbitrator and no ground as such is pointed out to us which can be characterised as one to constitute an error apparent on the face of the Award to set aside the AwardIn that view of the matter we think the Award made by the Arbitrator does not suffer from any infirmity as could be urged under Sections 30 and 33 of the Arbitration Act. As regards the question of interest is concerned, it is covered by the judgment of a Constitution Bench in case of Executive Engineer, Dhenkanal Minor Irrigation Division etc. vs. N. C. Budharaj (dead) by LRs etc. 2001 SC 19768 = 2001 SC 19768 (SC)), and in that view of the matter no further consideration is required on that aspect in these appeals. | 0 | 1,164 | 599 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
Arbitrator will be appointed. The Arbitrator, who was the Chief Engineer, was compulsorily retired from service on 28.5.1990 and he made an Award on 9.6.1990, thus it is contended that the Arbitrator had no jurisdiction to pass the Award in question. From the material on record it is clear that the Arbitrator commenced the proceedings on 28.7.1989 and concluded the same by passing the Award on 9.6.1990. In between these two dates several proceedings were held by him, evidence recorded and the appellant also participated in those proceedings on 4.6.1990. By an order made on 5.9.1990 the Chief Engineer was reinstated by setting aside the order of compulsory retirement. The contention urged on behalf of the appellant, relying upon the decision of this Court in Khardah Company Ltd. vs. Raymon & Co. (India) Pvt. Ltd., is that when the Arbitrator lacks jurisdiction, mere participation in the proceedings will not confer any jurisdiction upon the Arbitrator and, therefore, in the present case also even though the appellant may have participated in the proceedings held by the Arbitrator on the date when he was not holding the office, the Arbitrator could not be deemed to be continuing in service. We do not think the contention put forth on behalf of the appellant is tenable. What is held by this Court in Khardah Company Ltd. vs. Raymon & Co. (India) Pvt. Ltd. (supra), is that in the event the agreement for arbitration does not exist, then it will not be open to the Arbitrator to enter into arbitration and any action taken by him will be without jurisdiction. The defect will not be cured in such an event, even by the participation of the parties in the proceedings. In the present case when the proceedings for arbitration commenced, the Arbitrator did have jurisdiction and when he continued the proceedings whether he would act or not, may be a question of legality of proceedings and not one of lack of jurisdiction. In that view of the matter when the Arbitrators services were reinstated and he continued in service, it must be deemed that there is no hiatus in the proceedings. In that view of the matter we find no substance in the first contention urged on behalf of the appellant.The next contention urged is one on the claim made by the respondent regarding jungle clearance by way of extra work. It is contended that in regard to such extra work a claim could be made only in the event the contractor had submitted a return to the office of the Executive Engineer on or before 10th day of each month with regard to any additional work done or will have to be done and details of the work claiming extra work which also contains value of such work. In the present case this clause is sought to be held against the claim made by the contractor and it is urged that the Award made by the Arbitrator suffers from an error apparent on the face of the Award inasmuch as the Arbitrator travels far beyond the terms of the agreement itself. The contention is not justified because the appellant itself had made certain payments in regard to the jungle clearance at certain rates. The question was, in such an event if really the work had been done was there any material for the authorities concerned to find out the extent of the work done. But no claim was disallowed on the ground that such claim had not been made in terms of the Clause 39. The Arbitrator has gone into this question in detail and has found that there was correspondence between the appellant and the respondents in this connection and there is material to show that such work is really done and as to what quantum of Award should be granted is a matter which must be left to the Arbitrators discretion. In that view of the matter we do not think there is any substance in this contention either. So far as the third contention is concerned, it is urged that stripping of the earth was required to be used for filling placement in the random zone. It was acknowledged that the earth becoming available on account of stripping of earth was of no use at all. This finding of fact has been recorded by the Arbitrator and we do not think there is any justification for the appellant to make any complaint. Even though the Arbitrator may have taken note of the decision taken by the Chief Engineer in December, 1987 but that would only afford a basis and guide to him to arrive at a proper conclusion and it is not the foundation for the reasoning adopted by him.It was next contended that for lip cutting he had done extra filling of one metre for which the quantity of earth work involved was to the tune of 11, 310 cum. It was contended that it was done on the ground that the tendered rate in item No. 6 relating to lining of the canal was inclusive of lip cutting and therefore it was not permissible to the Arbitrator to have awarded extra payment. This aspect has been considered in detail by the Arbitrator and no ground as such is pointed out to us which can be characterised as one to constitute an error apparent on the face of the Award to set aside the Award. In that view of the matter we think the Award made by the Arbitrator does not suffer from any infirmity as could be urged under Sections 30 and 33 of the Arbitration Act. As regards the question of interest is concerned, it is covered by the judgment of a Constitution Bench in case of Executive Engineer, Dhenkanal Minor Irrigation Division etc. vs. N. C. Budharaj (dead) by LRs etc. 2001 SC 19768 = 2001 SC 19768 (SC)), and in that view of the matter no further consideration is required on that aspect in these appeals.
### Response:
0
### Explanation:
From the material on record it is clear that the Arbitrator commenced the proceedings on 28.7.1989 and concluded the same by passing the Award on 9.6.1990. In between these two dates several proceedings were held by him, evidence recorded and the appellant also participated in those proceedings on 4.6.1990. By an order made on 5.9.1990 the Chief Engineer was reinstated by setting aside the order of compulsory retirementWe do not think the contention put forth on behalf of the appellant is tenableIn that view of the matter we find no substance in the first contention urged on behalf of the appellant.The next contention urged is one on the claim made by the respondent regarding jungle clearance by way of extra work. It is contended that in regard to such extra work a claim could be made only in the event the contractor had submitted a return to the office of the Executive Engineer on or before 10th day of each month with regard to any additional work done or will have to be done and details of the work claiming extra work which also contains value of such work. In the present case this clause is sought to be held against the claim made by the contractor and it is urged that the Award made by the Arbitrator suffers from an error apparent on the face of the Award inasmuch as the Arbitrator travels far beyond the terms of the agreement itself. The contention is not justified because the appellant itself had made certain payments in regard to the jungle clearance at certain rates. The question was, in such an event if really the work had been done was there any material for the authorities concerned to find out the extent of the work done. But no claim was disallowed on the ground that such claim had not been made in terms of the Clause 39. The Arbitrator has gone into this question in detail and has found that there was correspondence between the appellant and the respondents in this connection and there is material to show that such work is really done and as to what quantum of Award should be granted is a matter which must be left to the Arbitrators discretion. In that view of the matter we do not think there is any substance in this contention eitherIt was contended that it was done on the ground that the tendered rate in item No. 6 relating to lining of the canal was inclusive of lip cutting and therefore it was not permissible to the Arbitrator to have awarded extra payment. This aspect has been considered in detail by the Arbitrator and no ground as such is pointed out to us which can be characterised as one to constitute an error apparent on the face of the Award to set aside the AwardIn that view of the matter we think the Award made by the Arbitrator does not suffer from any infirmity as could be urged under Sections 30 and 33 of the Arbitration Act. As regards the question of interest is concerned, it is covered by the judgment of a Constitution Bench in case of Executive Engineer, Dhenkanal Minor Irrigation Division etc. vs. N. C. Budharaj (dead) by LRs etc. 2001 SC 19768 = 2001 SC 19768 (SC)), and in that view of the matter no further consideration is required on that aspect in these appeals.
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Akash Coke Inds.Pvt.Ltd. Vs. The Coal Controller | 5th May, 1998. 2. Briefly stated the facts are as follows:The Appellants are engaged in the production of hard coke. For that purpose they had to purchase coal from various sources. The Appellants have been receiving allotment of coal at the rate of 4800 M.T. They however made a representation that they should be supplied 2400 M.T. from the North Tistra Colliery or Lodhana Colliery. The representations of the Appellants were not considered by the Bharat Coking Coal Ltd. They therefore lodged a protest with the Coal Controller. The Coal Controller passed an order dated 16th June, 1997, the relevant portion of which reads as follows: "Since no action has been taken so far till date and the Unit is facing hardship and other problems in production, I am directed to inform you that the coal controller in exercise of the power under provisions of the Colliery Control Order, 1945, allows the prayer of M/s. Akash Coke Industries Pvt. Ltd. as per their representation dated 5.5.1997 for change of source of supply of 2400 MT New Coal as mentioned above with immediate effect". 3. It seems that in spite of this order delivery was not effected by Bharat Coking Coal Ltd. The Appellants were informed that the change of supply and grade of coal could not be acceded to. The Appellants therefore again complained to the Coal Controller. The Deputy Coal Controller by letter dated 8th August, 1997 directed Bharat Coking Coal Ltd. to supply with the earlier order dated 16th June, 1997. It appears that in spite of these directions, coal was not released to the Appellants from North Tistra Colliery or Lodhana Colliery. The Appellants therefore filed a Writ Petition, which has been disposed of by the impugned Judgment.4. In the impugned Judgment it has been held that the Coal Controller is bound to follow directions issued by the Central Government from time to time. Note has been taken of a Circular dated 5th January, 1995 wherein it is provided that it is only Coal India Ltd. which could give linkages to new applicants upto a quantity of 5000 tonnes and for more than 5000 tones the Ministry of Coal could consider the applications. This Circular also provides that no allocation of coal should be made to private collieries from any mine, which is linked to a washery. Taking note of this Circular it has been held that the Coal Controller could not pass any directions contrary to the Circular. The orders of the Coal Controller have been set aside. The High Court has directed the Coal Controller to pass a fresh order taking into consideration the Circular dated 5th January, 1995. 5. We have today in a Judgment delivered in Civil Appeal No. 6310 of 1998 [The Chief of Marketing (Marketing Division), Coal India ltd. & Anr. vs. Mewat Chemicals & Tiny S.S.I. Coal Pulverising Unit & Ors.] held that the Coal Controller is bound by the directions issued by the Central Government. We have also held that the Circular dated 5th January, 1995 would be binding on the Coal Controller and that he cannot pass any Order contrary thereto. In this view of the matter, we find no infirmity in the impugned Judgment. It must however be mentioned that after the Special Leave Petition was filed, this Court permitted the Coal Controller to proceed to consider the application of the Appellants. The Coal Controller has now passed an order dated 20th December, 1998 wherein it has been concluded as follows: "Conclusion: It is therefore concluded that-i) while allocating coal by transfer of source from North Tisra, W-III, IX/X (Local-X) seam, the then Coal Controller had not violated the stipulations of Govt. of India, Ministry of Coals Circular dated 5.1.95 prohibiting release of linked washery coal to private cookeries. In fact, coal from this source was not at all linked to any washer.ii) As explained above coal from Lodna, W-III, 4 Pit, IX/X(Local-X) is linked washery source coal and also partially non-linked washery to the extent coal from this source was also being supplied to Lodna Coke Plant (BCCLs own plant) concurrently. Since Clause-iv of the Central Govt.s Circular dated 5.1.95 does not prohibit supply of coal from linked washery source to any cookery belonging to the same coal producing company (it is prohibited only for private cookeries), this source can be treated as Linked washery source and not Non-linked washery source.The order of the then Coal Controller allocating coal from Lodna, W-III, 4 Pit, IX/X(Local-X) seam thus can be considered to be in violation of the spirit of Central Government, Ministry of Coals directive dated 5.1.95." 6. This Court directed that this Order of the Coal Controller shall operate as an interim order. Pursuant to this Order the Appellants have been receiving 1200 M.T. from Lodhana Colliery. They have also been receiving a further 300 M.T. of coal from Lodhana Colliery as per a subsequent Order. Neither party has challenged the Order dated 20th December, 1999. 7. Mr. Dholakia however submitted that even though the Appellants have been receiving 1500 M.T. from Lodhana Colliery and they had an allotment of 4800 M.T., they should have received the balance as per the original allotment. He submitted that the Respondents should be directed to deliver the backlog for all these years. In counter to this it is pointed out by Mr. Salve that the Appellants did not apply or approach the Coal Company for delivery from the original source. To this only answer given by Mr. Dholakia was that they could not apply, as this Appeal was pending. In our view there is no substance in this contention. During the pendency of this Appeal the Appellants could have taken coal from their original source without prejudice to their rights and contentions. If they chose not to apply or to approach the Coal Company, they cannot make a grievance and ask that the entire backlog be now given to them. We therefore see no substance in the submission. 8. | 0[ds]5. We have today in a Judgment delivered in Civil Appeal No. 6310 of 1998 [The Chief of Marketing (Marketing Division), Coal India ltd. & Anr. vs. Mewat Chemicals & Tiny S.S.I. Coal Pulverising Unit & Ors.] held that the Coal Controller is bound by the directions issued by the Central Government. We have also held that the Circular dated 5th January, 1995 would be binding on the Coal Controller and that he cannot pass any Order contrary thereto. In this view of the matter, we find no infirmity in the impugned Judgment. It must however be mentioned that after the Special Leave Petition was filed, this Court permitted the Coal Controller to proceed to consider the application of the Appellants. The Coal Controller has now passed an order dated 20th December, 1998 wherein it has been concluded asIt is therefore concludedwhile allocating coal by transfer of source from North Tisra,X) seam, the then Coal Controller had not violated the stipulations of Govt. of India, Ministry of Coals Circular dated 5.1.95 prohibiting release of linked washery coal to private cookeries. In fact, coal from this source was not at all linked to any washer.ii) As explained above coal from Lodna,is linked washery source coal and also partiallywashery to the extent coal from this source was also being supplied to Lodna Coke Plant (BCCLs own plant) concurrently. Sinceof the Central Govt.s Circular dated 5.1.95 does not prohibit supply of coal from linked washery source to any cookery belonging to the same coal producing company (it is prohibited only for private cookeries), this source can be treated as Linked washery source and notwashery source.The order of the then Coal Controller allocating coal from Lodna,seam thus can be considered to be in violation of the spirit of Central Government, Ministry of Coals directive dated 5.1.95.This Court directed that this Order of the Coal Controller shall operate as an interim order. Pursuant to this Order the Appellants have been receiving 1200 M.T. from Lodhana Colliery. They have also been receiving a further 300 M.T. of coal from Lodhana Colliery as per a subsequent Order. Neither party has challenged the Order dated 20th December,our view there is no substance in this contention. During the pendency of this Appeal the Appellants could have taken coal from their original source without prejudice to their rights and contentions. If they chose not to apply or to approach the Coal Company, they cannot make a grievance and ask that the entire backlog be now given to them. We therefore see no substance in the submission. | 0 | 1,140 | 482 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
5th May, 1998. 2. Briefly stated the facts are as follows:The Appellants are engaged in the production of hard coke. For that purpose they had to purchase coal from various sources. The Appellants have been receiving allotment of coal at the rate of 4800 M.T. They however made a representation that they should be supplied 2400 M.T. from the North Tistra Colliery or Lodhana Colliery. The representations of the Appellants were not considered by the Bharat Coking Coal Ltd. They therefore lodged a protest with the Coal Controller. The Coal Controller passed an order dated 16th June, 1997, the relevant portion of which reads as follows: "Since no action has been taken so far till date and the Unit is facing hardship and other problems in production, I am directed to inform you that the coal controller in exercise of the power under provisions of the Colliery Control Order, 1945, allows the prayer of M/s. Akash Coke Industries Pvt. Ltd. as per their representation dated 5.5.1997 for change of source of supply of 2400 MT New Coal as mentioned above with immediate effect". 3. It seems that in spite of this order delivery was not effected by Bharat Coking Coal Ltd. The Appellants were informed that the change of supply and grade of coal could not be acceded to. The Appellants therefore again complained to the Coal Controller. The Deputy Coal Controller by letter dated 8th August, 1997 directed Bharat Coking Coal Ltd. to supply with the earlier order dated 16th June, 1997. It appears that in spite of these directions, coal was not released to the Appellants from North Tistra Colliery or Lodhana Colliery. The Appellants therefore filed a Writ Petition, which has been disposed of by the impugned Judgment.4. In the impugned Judgment it has been held that the Coal Controller is bound to follow directions issued by the Central Government from time to time. Note has been taken of a Circular dated 5th January, 1995 wherein it is provided that it is only Coal India Ltd. which could give linkages to new applicants upto a quantity of 5000 tonnes and for more than 5000 tones the Ministry of Coal could consider the applications. This Circular also provides that no allocation of coal should be made to private collieries from any mine, which is linked to a washery. Taking note of this Circular it has been held that the Coal Controller could not pass any directions contrary to the Circular. The orders of the Coal Controller have been set aside. The High Court has directed the Coal Controller to pass a fresh order taking into consideration the Circular dated 5th January, 1995. 5. We have today in a Judgment delivered in Civil Appeal No. 6310 of 1998 [The Chief of Marketing (Marketing Division), Coal India ltd. & Anr. vs. Mewat Chemicals & Tiny S.S.I. Coal Pulverising Unit & Ors.] held that the Coal Controller is bound by the directions issued by the Central Government. We have also held that the Circular dated 5th January, 1995 would be binding on the Coal Controller and that he cannot pass any Order contrary thereto. In this view of the matter, we find no infirmity in the impugned Judgment. It must however be mentioned that after the Special Leave Petition was filed, this Court permitted the Coal Controller to proceed to consider the application of the Appellants. The Coal Controller has now passed an order dated 20th December, 1998 wherein it has been concluded as follows: "Conclusion: It is therefore concluded that-i) while allocating coal by transfer of source from North Tisra, W-III, IX/X (Local-X) seam, the then Coal Controller had not violated the stipulations of Govt. of India, Ministry of Coals Circular dated 5.1.95 prohibiting release of linked washery coal to private cookeries. In fact, coal from this source was not at all linked to any washer.ii) As explained above coal from Lodna, W-III, 4 Pit, IX/X(Local-X) is linked washery source coal and also partially non-linked washery to the extent coal from this source was also being supplied to Lodna Coke Plant (BCCLs own plant) concurrently. Since Clause-iv of the Central Govt.s Circular dated 5.1.95 does not prohibit supply of coal from linked washery source to any cookery belonging to the same coal producing company (it is prohibited only for private cookeries), this source can be treated as Linked washery source and not Non-linked washery source.The order of the then Coal Controller allocating coal from Lodna, W-III, 4 Pit, IX/X(Local-X) seam thus can be considered to be in violation of the spirit of Central Government, Ministry of Coals directive dated 5.1.95." 6. This Court directed that this Order of the Coal Controller shall operate as an interim order. Pursuant to this Order the Appellants have been receiving 1200 M.T. from Lodhana Colliery. They have also been receiving a further 300 M.T. of coal from Lodhana Colliery as per a subsequent Order. Neither party has challenged the Order dated 20th December, 1999. 7. Mr. Dholakia however submitted that even though the Appellants have been receiving 1500 M.T. from Lodhana Colliery and they had an allotment of 4800 M.T., they should have received the balance as per the original allotment. He submitted that the Respondents should be directed to deliver the backlog for all these years. In counter to this it is pointed out by Mr. Salve that the Appellants did not apply or approach the Coal Company for delivery from the original source. To this only answer given by Mr. Dholakia was that they could not apply, as this Appeal was pending. In our view there is no substance in this contention. During the pendency of this Appeal the Appellants could have taken coal from their original source without prejudice to their rights and contentions. If they chose not to apply or to approach the Coal Company, they cannot make a grievance and ask that the entire backlog be now given to them. We therefore see no substance in the submission. 8.
### Response:
0
### Explanation:
5. We have today in a Judgment delivered in Civil Appeal No. 6310 of 1998 [The Chief of Marketing (Marketing Division), Coal India ltd. & Anr. vs. Mewat Chemicals & Tiny S.S.I. Coal Pulverising Unit & Ors.] held that the Coal Controller is bound by the directions issued by the Central Government. We have also held that the Circular dated 5th January, 1995 would be binding on the Coal Controller and that he cannot pass any Order contrary thereto. In this view of the matter, we find no infirmity in the impugned Judgment. It must however be mentioned that after the Special Leave Petition was filed, this Court permitted the Coal Controller to proceed to consider the application of the Appellants. The Coal Controller has now passed an order dated 20th December, 1998 wherein it has been concluded asIt is therefore concludedwhile allocating coal by transfer of source from North Tisra,X) seam, the then Coal Controller had not violated the stipulations of Govt. of India, Ministry of Coals Circular dated 5.1.95 prohibiting release of linked washery coal to private cookeries. In fact, coal from this source was not at all linked to any washer.ii) As explained above coal from Lodna,is linked washery source coal and also partiallywashery to the extent coal from this source was also being supplied to Lodna Coke Plant (BCCLs own plant) concurrently. Sinceof the Central Govt.s Circular dated 5.1.95 does not prohibit supply of coal from linked washery source to any cookery belonging to the same coal producing company (it is prohibited only for private cookeries), this source can be treated as Linked washery source and notwashery source.The order of the then Coal Controller allocating coal from Lodna,seam thus can be considered to be in violation of the spirit of Central Government, Ministry of Coals directive dated 5.1.95.This Court directed that this Order of the Coal Controller shall operate as an interim order. Pursuant to this Order the Appellants have been receiving 1200 M.T. from Lodhana Colliery. They have also been receiving a further 300 M.T. of coal from Lodhana Colliery as per a subsequent Order. Neither party has challenged the Order dated 20th December,our view there is no substance in this contention. During the pendency of this Appeal the Appellants could have taken coal from their original source without prejudice to their rights and contentions. If they chose not to apply or to approach the Coal Company, they cannot make a grievance and ask that the entire backlog be now given to them. We therefore see no substance in the submission.
|
Krishna Kumar Vs. Municipal Committee | the owner of the grain so brought, the bye laws provide several regulations intended for his benefit and for the obligations and liabilities incurred by him in stocking his produce at the market. He has to pay the market dues to the Municipality for which he gets a receipt. All sales of grain, except less than a bag, are to be made by auction conducted by the Moharrir of the Municipality. If the seller accepts the bid then the sale is made to the highest bidder and the purchaser is bound to purchase the grain at that price. Thereafter the purchaser has to pay to the seller forthwith two rupees per cart if he has not already deposited twenty five rupees as security with the Municipality. The purchaser then gets the grains measured between sunrise and sunset and has to pay to the seller the entire sale price within twenty four hours of the bargain. The sale price must be paid to the seller in the presence of the Municipal Moharrir of the market. The purchaser then has to fill in certain entries in the Ganj receipts in the possession of the seller. The grain remaining on the ground after the measurement is over, belongs to the seller and no broker, measurer or hamal is entitled to any share of it. Under Bye law 21, no deduction in kind or cost for any grain or commodity exposed for sale or purchase can be demanded by the buyer, Adatyas or weighmen on account of charity, alms, private service or on any other plea. The benefit and the protection afforded by these provisions would not be available to the owner of the grain for sale in the market if the receipts and passes in question were issued in someone elses name and that person is regarded in the records of the Municipality as the owner of the grain. The records of the Municipality, however, should contain an accurate and faithful statement about the transactions of sale and purchase in the market belonging to it and controlled and managed by it. Neither in law nor on the grounds of morality can such records be expected to be otherwise. The materials before us do disclose that for some time the practice of issuing the receipts and passes in question in the name of Adatyas with respect to sales of grain had grown up and was thought at first to be beneficial to the owners of the grain who brought their produce to the market for sale. In due course, it was, however, realised that in fact this had become an evil practice resulting in loss to the owners of the grain. We have no good reason to doubt the case of the Municipality to the effect that simple villagers, owners of the grain, often were not paid the full amount of the sale price of their grain and in some cases no payment at all was made to them. It was due to the complaints received by the Municipality that the resolution dated 4-9-1949 was passed with a view to effectively stop the continuance of such practice. The Municipality does not deny the petitioner entry into the market on legitimate business as will appear from its affidavit. What it insists on is that the receipts and passes in question shall be issued in the name of the owner of the grain brought to the market for sale. We think that the Municipality is within its rights to refuse to issue receipts and passes to anyone except the owner with respect to the grain brought to the market for sale. No provision of law has been brought to our notice which gives the right to the petitioner to have receipts and passes issued in his name with respect to grain which does not belong to him. The impugned resolution does not in terms prevent the petitioner from carrying on his business as an Adatya. That resolution merely prohibits employees of the Municipality from issuing Ganj receipts to Adatyas. It was within the competence of the Municipality to direct its employees in that way and no right of the petitioner can be said to have been violated, having regard to the real purpose for which the resolution was passed.10. Even if the petitioner has a fundamental right under Art.19(1)(g) of the Constitution to carry on his business as an Adatya, the bye laws of the Municipality do not constitute a general prohibition against him in carrying on such business. The Municipality asserts in its affidavit that by the resolution dated 4-9-1949 it did stop the system of charging "adat" from the sellers of grain by the petitioner and other commission agents carrying on business in the market, as this system was not warranted by any bye law regulating business in the market. It would be reasonable to infer from this admission and the absence of any mention (sic) of an Adatya of a seller of grain in Bye law 5(a) that it was (sic not) intended by the bye laws to prohibit the petitioner and other Adatyas of sellers of grain in the market from carrying on their business as such and (sic but only prohibited them from) receiving Ganj receipts in their own names as sellers though they were in fact merely agents and not owners of the grain to be sold. In our opinion, this amounts to a restriction on the exercise of the petitioners occupation as an Adatya of a seller of grain but does not amount to a total prohibition. Having regard to the evidence that the market, of which the Municipality is the owner, is primarily intended for the sale of produce of agriculturists and having regard to the various bye laws which are intended for the protection of such sellers, the restriction is a reasonable restriction on the fundamental right of the petitioner. That being so, the petitioners grievance that his fundamental right has been violated cannot be legally sustained. | 0[ds]The Municipality in its affidavit has denied that those receipts were issued to any Adatya. These receipts were issued to the owners who brought grain to the market. There is no reason to doubt the affidavit of the Municipality. We are, accordingly of the opinion that there is no reliable material before us to establish that the petitioner is being discriminated against. In such circumstances, there could be no question, if it ever arose, of infringement by the Municipality of the fundamental right under Art.14 of the Constitution.8. We have examined the bye laws framed by the Municipality and we find that none of its provisions violates any fundamental right of any citizen ofcareful reading of the bye laws indicates that what the Municipality aimed at was that persons should enter the market on legitimate business. Indeed, the petitioner himself relies on Bye law 5(a) for his claim that there is nothing in it to prevent an Adatya of sellers of grain from entering the market and carrying on hisvirtue of this resolution Nakka and Ganj receipts and passes are not issued to the petitioner by the Municipality. Such receipts and passes are issued to the owner of the grain who brings his produce to the market for sale. That the owner of the grain sold at the market has a right to ask for and is entitled to have such receipts and passes issued to him seems obviousbye laws of the Municipality contain no provision for the issuing of Nakka and Ganj receipts and passes in the name of the Adatya of the owner of the grain brought for sale. With reference to the owner of the grain so brought, the bye laws provide several regulations intended for his benefit and for the obligations and liabilities incurred by him in stocking his produce at thebenefit and the protection afforded by these provisions would not be available to the owner of the grain for sale in the market if the receipts and passes in question were issued in someone elses name and that person is regarded in the records of the Municipality as the owner of the grain. The records of the Municipality, however, should contain an accurate and faithful statement about the transactions of sale and purchase in the market belonging to it and controlled and managed by it. Neither in law nor on the grounds of morality can such records be expected to be otherwise. The materials before us do disclose that for some time the practice of issuing the receipts and passes in question in the name of Adatyas with respect to sales of grain had grown up and was thought at first to be beneficial to the owners of the grain who brought their produce to the market for sale. In due course, it was, however, realised that in fact this had become an evil practice resulting in loss to the owners of the grain. We have no good reason to doubt the case of the Municipality to the effect that simple villagers, owners of the grain, often were not paid the full amount of the sale price of their grain and in some cases no payment at all was made to them. It was due to the complaints received by the Municipality that the resolution dated 4-9-1949 was passed with a view to effectively stop the continuance of such practice. The Municipality does not deny the petitioner entry into the market on legitimate business as will appear from its affidavit. What it insists on is that the receipts and passes in question shall be issued in the name of the owner of the grain brought to the market for sale. We think that the Municipality is within its rights to refuse to issue receipts and passes to anyone except the owner with respect to the grain brought to the market for sale. No provision of law has been brought to our notice which gives the right to the petitioner to have receipts and passes issued in his name with respect to grain which does not belong to him. The impugned resolution does not in terms prevent the petitioner from carrying on his business as an Adatya. That resolution merely prohibits employees of the Municipality from issuing Ganj receipts to Adatyas. It was within the competence of the Municipality to direct its employees in that way and no right of the petitioner can be said to have been violated, having regard to the real purpose for which the resolution was passed.10. Even if the petitioner has a fundamental right under Art.19(1)(g) of the Constitution to carry on his business as an Adatya, the bye laws of the Municipality do not constitute a general prohibition against him in carrying on such business. The Municipality asserts in its affidavit that by the resolution dated 4-9-1949 it did stop the system of charging "adat" from the sellers of grain by the petitioner and other commission agents carrying on business in the market, as this system was not warranted by any bye law regulating business in the market. It would be reasonable to infer from this admission and the absence of any mention (sic) of an Adatya of a seller of grain in Bye law 5(a) that it was (sic not) intended by the bye laws to prohibit the petitioner and other Adatyas of sellers of grain in the market from carrying on their business as such and (sic but only prohibited them from) receiving Ganj receipts in their own names as sellers though they were in fact merely agents and not owners of the grain to be sold. In our opinion, this amounts to a restriction on the exercise of the petitioners occupation as an Adatya of a seller of grain but does not amount to a total prohibition. Having regard to the evidence that the market, of which the Municipality is the owner, is primarily intended for the sale of produce of agriculturists and having regard to the various bye laws which are intended for the protection of such sellers, the restriction is a reasonable restriction on the fundamental right of the petitioner. That being so, the petitioners grievance that his fundamental right has been violated cannot be legally sustained. | 0 | 3,006 | 1,117 | ### 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:
the owner of the grain so brought, the bye laws provide several regulations intended for his benefit and for the obligations and liabilities incurred by him in stocking his produce at the market. He has to pay the market dues to the Municipality for which he gets a receipt. All sales of grain, except less than a bag, are to be made by auction conducted by the Moharrir of the Municipality. If the seller accepts the bid then the sale is made to the highest bidder and the purchaser is bound to purchase the grain at that price. Thereafter the purchaser has to pay to the seller forthwith two rupees per cart if he has not already deposited twenty five rupees as security with the Municipality. The purchaser then gets the grains measured between sunrise and sunset and has to pay to the seller the entire sale price within twenty four hours of the bargain. The sale price must be paid to the seller in the presence of the Municipal Moharrir of the market. The purchaser then has to fill in certain entries in the Ganj receipts in the possession of the seller. The grain remaining on the ground after the measurement is over, belongs to the seller and no broker, measurer or hamal is entitled to any share of it. Under Bye law 21, no deduction in kind or cost for any grain or commodity exposed for sale or purchase can be demanded by the buyer, Adatyas or weighmen on account of charity, alms, private service or on any other plea. The benefit and the protection afforded by these provisions would not be available to the owner of the grain for sale in the market if the receipts and passes in question were issued in someone elses name and that person is regarded in the records of the Municipality as the owner of the grain. The records of the Municipality, however, should contain an accurate and faithful statement about the transactions of sale and purchase in the market belonging to it and controlled and managed by it. Neither in law nor on the grounds of morality can such records be expected to be otherwise. The materials before us do disclose that for some time the practice of issuing the receipts and passes in question in the name of Adatyas with respect to sales of grain had grown up and was thought at first to be beneficial to the owners of the grain who brought their produce to the market for sale. In due course, it was, however, realised that in fact this had become an evil practice resulting in loss to the owners of the grain. We have no good reason to doubt the case of the Municipality to the effect that simple villagers, owners of the grain, often were not paid the full amount of the sale price of their grain and in some cases no payment at all was made to them. It was due to the complaints received by the Municipality that the resolution dated 4-9-1949 was passed with a view to effectively stop the continuance of such practice. The Municipality does not deny the petitioner entry into the market on legitimate business as will appear from its affidavit. What it insists on is that the receipts and passes in question shall be issued in the name of the owner of the grain brought to the market for sale. We think that the Municipality is within its rights to refuse to issue receipts and passes to anyone except the owner with respect to the grain brought to the market for sale. No provision of law has been brought to our notice which gives the right to the petitioner to have receipts and passes issued in his name with respect to grain which does not belong to him. The impugned resolution does not in terms prevent the petitioner from carrying on his business as an Adatya. That resolution merely prohibits employees of the Municipality from issuing Ganj receipts to Adatyas. It was within the competence of the Municipality to direct its employees in that way and no right of the petitioner can be said to have been violated, having regard to the real purpose for which the resolution was passed.10. Even if the petitioner has a fundamental right under Art.19(1)(g) of the Constitution to carry on his business as an Adatya, the bye laws of the Municipality do not constitute a general prohibition against him in carrying on such business. The Municipality asserts in its affidavit that by the resolution dated 4-9-1949 it did stop the system of charging "adat" from the sellers of grain by the petitioner and other commission agents carrying on business in the market, as this system was not warranted by any bye law regulating business in the market. It would be reasonable to infer from this admission and the absence of any mention (sic) of an Adatya of a seller of grain in Bye law 5(a) that it was (sic not) intended by the bye laws to prohibit the petitioner and other Adatyas of sellers of grain in the market from carrying on their business as such and (sic but only prohibited them from) receiving Ganj receipts in their own names as sellers though they were in fact merely agents and not owners of the grain to be sold. In our opinion, this amounts to a restriction on the exercise of the petitioners occupation as an Adatya of a seller of grain but does not amount to a total prohibition. Having regard to the evidence that the market, of which the Municipality is the owner, is primarily intended for the sale of produce of agriculturists and having regard to the various bye laws which are intended for the protection of such sellers, the restriction is a reasonable restriction on the fundamental right of the petitioner. That being so, the petitioners grievance that his fundamental right has been violated cannot be legally sustained.
### Response:
0
### Explanation:
of the opinion that there is no reliable material before us to establish that the petitioner is being discriminated against. In such circumstances, there could be no question, if it ever arose, of infringement by the Municipality of the fundamental right under Art.14 of the Constitution.8. We have examined the bye laws framed by the Municipality and we find that none of its provisions violates any fundamental right of any citizen ofcareful reading of the bye laws indicates that what the Municipality aimed at was that persons should enter the market on legitimate business. Indeed, the petitioner himself relies on Bye law 5(a) for his claim that there is nothing in it to prevent an Adatya of sellers of grain from entering the market and carrying on hisvirtue of this resolution Nakka and Ganj receipts and passes are not issued to the petitioner by the Municipality. Such receipts and passes are issued to the owner of the grain who brings his produce to the market for sale. That the owner of the grain sold at the market has a right to ask for and is entitled to have such receipts and passes issued to him seems obviousbye laws of the Municipality contain no provision for the issuing of Nakka and Ganj receipts and passes in the name of the Adatya of the owner of the grain brought for sale. With reference to the owner of the grain so brought, the bye laws provide several regulations intended for his benefit and for the obligations and liabilities incurred by him in stocking his produce at thebenefit and the protection afforded by these provisions would not be available to the owner of the grain for sale in the market if the receipts and passes in question were issued in someone elses name and that person is regarded in the records of the Municipality as the owner of the grain. The records of the Municipality, however, should contain an accurate and faithful statement about the transactions of sale and purchase in the market belonging to it and controlled and managed by it. Neither in law nor on the grounds of morality can such records be expected to be otherwise. The materials before us do disclose that for some time the practice of issuing the receipts and passes in question in the name of Adatyas with respect to sales of grain had grown up and was thought at first to be beneficial to the owners of the grain who brought their produce to the market for sale. In due course, it was, however, realised that in fact this had become an evil practice resulting in loss to the owners of the grain. We have no good reason to doubt the case of the Municipality to the effect that simple villagers, owners of the grain, often were not paid the full amount of the sale price of their grain and in some cases no payment at all was made to them. It was due to the complaints received by the Municipality that the resolution dated 4-9-1949 was passed with a view to effectively stop the continuance of such practice. The Municipality does not deny the petitioner entry into the market on legitimate business as will appear from its affidavit. What it insists on is that the receipts and passes in question shall be issued in the name of the owner of the grain brought to the market for sale. We think that the Municipality is within its rights to refuse to issue receipts and passes to anyone except the owner with respect to the grain brought to the market for sale. No provision of law has been brought to our notice which gives the right to the petitioner to have receipts and passes issued in his name with respect to grain which does not belong to him. The impugned resolution does not in terms prevent the petitioner from carrying on his business as an Adatya. That resolution merely prohibits employees of the Municipality from issuing Ganj receipts to Adatyas. It was within the competence of the Municipality to direct its employees in that way and no right of the petitioner can be said to have been violated, having regard to the real purpose for which the resolution was passed.10. Even if the petitioner has a fundamental right under Art.19(1)(g) of the Constitution to carry on his business as an Adatya, the bye laws of the Municipality do not constitute a general prohibition against him in carrying on such business. The Municipality asserts in its affidavit that by the resolution dated 4-9-1949 it did stop the system of charging "adat" from the sellers of grain by the petitioner and other commission agents carrying on business in the market, as this system was not warranted by any bye law regulating business in the market. It would be reasonable to infer from this admission and the absence of any mention (sic) of an Adatya of a seller of grain in Bye law 5(a) that it was (sic not) intended by the bye laws to prohibit the petitioner and other Adatyas of sellers of grain in the market from carrying on their business as such and (sic but only prohibited them from) receiving Ganj receipts in their own names as sellers though they were in fact merely agents and not owners of the grain to be sold. In our opinion, this amounts to a restriction on the exercise of the petitioners occupation as an Adatya of a seller of grain but does not amount to a total prohibition. Having regard to the evidence that the market, of which the Municipality is the owner, is primarily intended for the sale of produce of agriculturists and having regard to the various bye laws which are intended for the protection of such sellers, the restriction is a reasonable restriction on the fundamental right of the petitioner. That being so, the petitioners grievance that his fundamental right has been violated cannot be legally sustained.
|
Roshan Lal Vs. Madan Lal | of the fact that there is no express provisions in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure" was approved.In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex-parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances is entitled to have such a decree under the law.5. It is too late in the day to contend that the provisions of Order 23, Rule 3 of the Code of Civil Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, a compromise of such suit is permissible under the said provision of law. The protection of the tenant is inherent in the language of Order 23, Rule 3 when it says "Where it is proved to the satisfaction of the Court that a suit has been adjusted by any lawful agreement or compromise.... the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit". If the agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit the Court is bound to record the compromise and pass a decree in accordance therewith. Passing a decree for eviction on adjudication of the requisite facts on or their admission in a compromise, either express or implied, is not different.We now proceed to consider the facts of the case in hand. The ground for eviction from the accommodation let for non-residential purposes mentioned in clause (f) of section 12(1) of the Act is that the accommodation "is required bona fide by the landlord for the purpose of continuing or starting his business..........and that the land- lord......... has no other reasonably suitable non- residential accommodation of his own in his occupation in the city or town concerned". In paragraph 3 of the plaint the respondents necessity was pleaded both in the positive and the negative aspects of clause (f). Both were denied in paragraph 3 of the written statement of the appellants. Paragraph 1 of the compromise petition says: "That due to the necessity of the plaintiffs for their own business- opening grocery shop, decree for ejectment may be granted to them against the defendants". In this case it is not necessary to refer to any piece of evidence adduced at the inconclusive trial. The meaning of paragraph 1 of the compromise petition is clear and definite especially in the background of the pleadings of the parties and in our opinion it squarely makes out a case of eviction within the meaning of Section 12(1) (f) of the Act on admission of the appellants. We reject the argument of Mr. Andley, learned counsel for the appellants, that paragraph 1 of the compromise petition was an admission in respect of only the first p art, namely, the positive aspect of clause (f) and not of the second part, namely, that the landlord has no other reasonably suitable nonresidential accommodation. The admission, by necessary implication, was in respect of both.6. In the order recording the compromise the Court said:"On a perusal of the joint compromise it was found that the same is legal and is within the purview of the plaint. Therefore, plaint verification is accepted and the case is decreed in accordance with the conditions of the compromise as under:1. That the defendants shall vacate the shop in dispute by 31-12-1971".7. The order so recorded in our judgment was in full compliance with the requirement of Order 23, Rule 3 of the Code of Civil Procedure. The Court found that the compromise was legal, that is to say, lawful and was in accordance with the plaint. The averment in the plaint was, therefore, accepted and the suit was decreed. It is regrettable that though the appellants got about three years time to vacate the shop in dispute from the date of the compromise decree, they were ill-advised to fight the litigation further and thus cause delay in the vacating of the shop by another five years. We have no doubt in our mind that on the facts and in the circumstances of this case the compromise decree was clearly valid and executable. We uphold the decision of the High Court but on a slightly different basis.8. | 0[ds]The point which fails for determination in this appeal is not res integra and has been the subject matter of consideration in several decisions of thisthe section as a whole and remembering the beneficial object of the Act for the protection of a tenant based upon public policy, we do not find much difficulty in bringing the section at par with other similar State Statutes and holding as a matter of construction that no decree for the eviction of a tenant from any accommodation can be passed except on one or more of the grounds mentioned in Sectionorder to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex-parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances is entitled to have such a decree under theis too late in the day to contend that the provisions of Order 23, Rule 3 of theCode of Civil Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, a compromise of such suit is permissible under the said provision ofthis case it is not necessary to refer to any piece of evidence adduced at the inconclusive trial. The meaning of paragraph 1 of the compromise petition is clear and definite especially in the background of the pleadings of the parties and in our opinion it squarely makes out a case of eviction within the meaning of Section 12(1) (f) of the Act on admission of the appellants. We reject the argument ofMr. Andley, learned counsel for the appellants, that paragraph 1 of the compromise petition was an admission in respect of only the first p art, namely, the positive aspect of clause (f) and not of the second part, namely, that the landlord has no other reasonably suitable nonresidential accommodation.The admission, by necessary implication, was in respect oforder so recorded in our judgment was in full compliance with the requirement of Order 23, Rule 3 of theCode of Civil Procedure. The Court found that the compromise was legal, that is to say, lawful and was in accordance with the plaint. The averment in the plaint was, therefore, accepted and the suit was decreed. It is regrettable that though the appellants got about three years time to vacate the shop in dispute from the date of the compromise decree, they were ill-advised to fight the litigation further and thus cause delay in the vacating of the shop by another five years. We have no doubt in our mind that on the facts and in the circumstances of this case the compromise decree was clearly valid and executable. We uphold the decision of the High Court but on a slightly different basis. | 0 | 2,592 | 688 | ### 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:
of the fact that there is no express provisions in the Bombay Rent Act prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure" was approved.In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex-parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances is entitled to have such a decree under the law.5. It is too late in the day to contend that the provisions of Order 23, Rule 3 of the Code of Civil Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, a compromise of such suit is permissible under the said provision of law. The protection of the tenant is inherent in the language of Order 23, Rule 3 when it says "Where it is proved to the satisfaction of the Court that a suit has been adjusted by any lawful agreement or compromise.... the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit". If the agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit the Court is bound to record the compromise and pass a decree in accordance therewith. Passing a decree for eviction on adjudication of the requisite facts on or their admission in a compromise, either express or implied, is not different.We now proceed to consider the facts of the case in hand. The ground for eviction from the accommodation let for non-residential purposes mentioned in clause (f) of section 12(1) of the Act is that the accommodation "is required bona fide by the landlord for the purpose of continuing or starting his business..........and that the land- lord......... has no other reasonably suitable non- residential accommodation of his own in his occupation in the city or town concerned". In paragraph 3 of the plaint the respondents necessity was pleaded both in the positive and the negative aspects of clause (f). Both were denied in paragraph 3 of the written statement of the appellants. Paragraph 1 of the compromise petition says: "That due to the necessity of the plaintiffs for their own business- opening grocery shop, decree for ejectment may be granted to them against the defendants". In this case it is not necessary to refer to any piece of evidence adduced at the inconclusive trial. The meaning of paragraph 1 of the compromise petition is clear and definite especially in the background of the pleadings of the parties and in our opinion it squarely makes out a case of eviction within the meaning of Section 12(1) (f) of the Act on admission of the appellants. We reject the argument of Mr. Andley, learned counsel for the appellants, that paragraph 1 of the compromise petition was an admission in respect of only the first p art, namely, the positive aspect of clause (f) and not of the second part, namely, that the landlord has no other reasonably suitable nonresidential accommodation. The admission, by necessary implication, was in respect of both.6. In the order recording the compromise the Court said:"On a perusal of the joint compromise it was found that the same is legal and is within the purview of the plaint. Therefore, plaint verification is accepted and the case is decreed in accordance with the conditions of the compromise as under:1. That the defendants shall vacate the shop in dispute by 31-12-1971".7. The order so recorded in our judgment was in full compliance with the requirement of Order 23, Rule 3 of the Code of Civil Procedure. The Court found that the compromise was legal, that is to say, lawful and was in accordance with the plaint. The averment in the plaint was, therefore, accepted and the suit was decreed. It is regrettable that though the appellants got about three years time to vacate the shop in dispute from the date of the compromise decree, they were ill-advised to fight the litigation further and thus cause delay in the vacating of the shop by another five years. We have no doubt in our mind that on the facts and in the circumstances of this case the compromise decree was clearly valid and executable. We uphold the decision of the High Court but on a slightly different basis.8.
### Response:
0
### Explanation:
The point which fails for determination in this appeal is not res integra and has been the subject matter of consideration in several decisions of thisthe section as a whole and remembering the beneficial object of the Act for the protection of a tenant based upon public policy, we do not find much difficulty in bringing the section at par with other similar State Statutes and holding as a matter of construction that no decree for the eviction of a tenant from any accommodation can be passed except on one or more of the grounds mentioned in Sectionorder to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex-parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances is entitled to have such a decree under theis too late in the day to contend that the provisions of Order 23, Rule 3 of theCode of Civil Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, a compromise of such suit is permissible under the said provision ofthis case it is not necessary to refer to any piece of evidence adduced at the inconclusive trial. The meaning of paragraph 1 of the compromise petition is clear and definite especially in the background of the pleadings of the parties and in our opinion it squarely makes out a case of eviction within the meaning of Section 12(1) (f) of the Act on admission of the appellants. We reject the argument ofMr. Andley, learned counsel for the appellants, that paragraph 1 of the compromise petition was an admission in respect of only the first p art, namely, the positive aspect of clause (f) and not of the second part, namely, that the landlord has no other reasonably suitable nonresidential accommodation.The admission, by necessary implication, was in respect oforder so recorded in our judgment was in full compliance with the requirement of Order 23, Rule 3 of theCode of Civil Procedure. The Court found that the compromise was legal, that is to say, lawful and was in accordance with the plaint. The averment in the plaint was, therefore, accepted and the suit was decreed. It is regrettable that though the appellants got about three years time to vacate the shop in dispute from the date of the compromise decree, they were ill-advised to fight the litigation further and thus cause delay in the vacating of the shop by another five years. We have no doubt in our mind that on the facts and in the circumstances of this case the compromise decree was clearly valid and executable. We uphold the decision of the High Court but on a slightly different basis.
|
T .P. Srivastava Vs. National Tobacco Co. Of India Ltd | parties that the respondent company sells its product i.e. cigarettes manufactured by it directly through their wholesales who in their turn sell the product to the various dealers appointed by the company in the area. The section salesman neither sells not collects any money from the wholesaler or retail dealers. The company controls this through the territory office at Delhi. Neither the section salesmen nor the local salesmen or local travelling salesmen are employed in the shop of the wholesaler or any retail dealer to sell the products of the company and to collect the amount of sale. The section salesmen and the local salesmen and local travelling salesmen were employed by the company in order to canvass and promote the sales of the company. From perusal of the records produced before the Labour Court the Tribunal further observed. "It was apparent that the appellant is required to send reports about the publicity and advertisement and of placing posters, holders, cinema slides and suggest means to canvass the sale in this area. Some of the documents relate to matters of publicity in melas, some relate to the existing position of the stock of the goods of the company in the area and the action taken to ameliorate stocks". It was not the duty of the appellant to procure orders for the company. None of the salesmen were employed to sell the product of the company in any particular area or collecting the sale proceeds and depositing the same with the company. However, the Tribunal noted that the appellant was required to supervise the work of the local salesmen and local travelling salesmen appointed in the area of his operation as well but it was only incidental to his main function of canvassing and promoting the sale of the product of the company in the four districts allotted to him. On these facts found, the Tribunal came to the conclusion that the appellant cannot be held to be a workman employed for manual, skilled, unskilled and/or clerical nature and that the provisions of the Industrial Disputes Act was not applicable and the reference, therefore, was incompetent. It is against this order the appeal was filed 3. In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellants service was terminated, the employee has to be under the employment to do the work of one of the types of work referred to in the section i.e. manual, skilled and/or clerical in nature. The finding of the Tribunal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court. It is seen from the facts found that the appellant was employed to do canvassing and promoting sales for the company. The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition. He was also required to suggest about the publicity in markets and melas, advertisements including the need for posters, holders and cinema slides. These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature. The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation. Such a person cannot be termed as a workman is also the ration of the decision of this Court in Burmah Shell Oil Storage and Distribution Company v. Burmah Shell Management Staff Assn. ( 1970 (3) SCC 378 : 1971 AIR(SC) 922 : 1970 (2) LLJ 590), D. S. Nagaraj v. Labour Officer, Kurnool ( 1972 (42) FJR 440 (AP)), J&J Dechane Distributors v. State of Kerala ( 1974 (2) LLJ 9 (Ker)). We may also refer to the subsequent passing of the Sales Promotion Employees (Conditions of Service) Act, 1976. This Act defines "sales promotion employees" as meaning a persons employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both. This Act is to apply in the first instance to every establishment engaged in pharmaceuticals industry. It enables the Central Government by notification to apply the provisions to any other establishment engaged in any notified industry. If an industry is notified under this Act then the provisions of the Industrial Disputes Act, 1947 would also be attracted to these types of workmen. This is a subsequent enactment and it is not applicable to the termination in the instant case which was long prior to the enactment of this Act. Further no notification under this Act bringing the provisions to the employees like that of the company has been made under the provisions of this Act. The object of this enactment and the employees covered by the enactment also go to show that persons employed for sales promotion normally would not come within the definition of workmen under the Industrial Disputes Act 4. The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the Industrial Disputes Act was not applicable. We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman. In the light of our holding that the Industrial Disputes Act is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage. In the circumstances, we consider that a direction to the management to pay some compensation is necessary to meet the ends of justice. | 0[ds]3. In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellants service was terminated, the employee has to be under the employment to do the work of one of the types of work referred to in the section i.e. manual, skilled and/or clerical in nature. The finding of the Tribunal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court. It is seen from the facts found that the appellant was employed to do canvassing and promoting sales for the company. The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition. He was also required to suggest about the publicity in markets and melas, advertisements including the need for posters, holders and cinema slides. These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature. The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation.The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the Industrial Disputes Act was not applicable. We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman. In the light of our holding that the Industrial Disputes Act is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage. In the circumstances, we consider that a direction to the management to pay some compensation is necessary to meet the ends of justice. | 0 | 1,439 | 383 | ### 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:
parties that the respondent company sells its product i.e. cigarettes manufactured by it directly through their wholesales who in their turn sell the product to the various dealers appointed by the company in the area. The section salesman neither sells not collects any money from the wholesaler or retail dealers. The company controls this through the territory office at Delhi. Neither the section salesmen nor the local salesmen or local travelling salesmen are employed in the shop of the wholesaler or any retail dealer to sell the products of the company and to collect the amount of sale. The section salesmen and the local salesmen and local travelling salesmen were employed by the company in order to canvass and promote the sales of the company. From perusal of the records produced before the Labour Court the Tribunal further observed. "It was apparent that the appellant is required to send reports about the publicity and advertisement and of placing posters, holders, cinema slides and suggest means to canvass the sale in this area. Some of the documents relate to matters of publicity in melas, some relate to the existing position of the stock of the goods of the company in the area and the action taken to ameliorate stocks". It was not the duty of the appellant to procure orders for the company. None of the salesmen were employed to sell the product of the company in any particular area or collecting the sale proceeds and depositing the same with the company. However, the Tribunal noted that the appellant was required to supervise the work of the local salesmen and local travelling salesmen appointed in the area of his operation as well but it was only incidental to his main function of canvassing and promoting the sale of the product of the company in the four districts allotted to him. On these facts found, the Tribunal came to the conclusion that the appellant cannot be held to be a workman employed for manual, skilled, unskilled and/or clerical nature and that the provisions of the Industrial Disputes Act was not applicable and the reference, therefore, was incompetent. It is against this order the appeal was filed 3. In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellants service was terminated, the employee has to be under the employment to do the work of one of the types of work referred to in the section i.e. manual, skilled and/or clerical in nature. The finding of the Tribunal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court. It is seen from the facts found that the appellant was employed to do canvassing and promoting sales for the company. The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition. He was also required to suggest about the publicity in markets and melas, advertisements including the need for posters, holders and cinema slides. These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature. The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation. Such a person cannot be termed as a workman is also the ration of the decision of this Court in Burmah Shell Oil Storage and Distribution Company v. Burmah Shell Management Staff Assn. ( 1970 (3) SCC 378 : 1971 AIR(SC) 922 : 1970 (2) LLJ 590), D. S. Nagaraj v. Labour Officer, Kurnool ( 1972 (42) FJR 440 (AP)), J&J Dechane Distributors v. State of Kerala ( 1974 (2) LLJ 9 (Ker)). We may also refer to the subsequent passing of the Sales Promotion Employees (Conditions of Service) Act, 1976. This Act defines "sales promotion employees" as meaning a persons employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both. This Act is to apply in the first instance to every establishment engaged in pharmaceuticals industry. It enables the Central Government by notification to apply the provisions to any other establishment engaged in any notified industry. If an industry is notified under this Act then the provisions of the Industrial Disputes Act, 1947 would also be attracted to these types of workmen. This is a subsequent enactment and it is not applicable to the termination in the instant case which was long prior to the enactment of this Act. Further no notification under this Act bringing the provisions to the employees like that of the company has been made under the provisions of this Act. The object of this enactment and the employees covered by the enactment also go to show that persons employed for sales promotion normally would not come within the definition of workmen under the Industrial Disputes Act 4. The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the Industrial Disputes Act was not applicable. We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman. In the light of our holding that the Industrial Disputes Act is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage. In the circumstances, we consider that a direction to the management to pay some compensation is necessary to meet the ends of justice.
### Response:
0
### Explanation:
3. In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellants service was terminated, the employee has to be under the employment to do the work of one of the types of work referred to in the section i.e. manual, skilled and/or clerical in nature. The finding of the Tribunal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court. It is seen from the facts found that the appellant was employed to do canvassing and promoting sales for the company. The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition. He was also required to suggest about the publicity in markets and melas, advertisements including the need for posters, holders and cinema slides. These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature. The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation.The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the Industrial Disputes Act was not applicable. We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman. In the light of our holding that the Industrial Disputes Act is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage. In the circumstances, we consider that a direction to the management to pay some compensation is necessary to meet the ends of justice.
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Mayawati Vs. Markandeya Chand and Ors. | conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him. 41. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the aforecited illustration. 42. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule. 43. In the light of our above finding, it is unnecessary to consider the next question relating to sub-clause (b) of Paragraph 2(1) of the Xth schedule because such a venture would only be of academic utility now. 44. Learned senior counsel for the respondents made an alternative contention that in the event this court holds that the finding of the Speaker is perverse, the next course to be adopted is to remit the matter to the Speaker for his final decision. Learned counsel cited some decisions of this Court which held the proposition that it is not the function of courts of law to substitute their wisdom and decision for that of the authority to whose judgment the matter in question is entrusted by law. The Vice Chancellor, Utkal University v. S.K. Ghosh, [1954] 1 SCR 883 and Mansukh Lal Vithal das Chauhan v. State of Gujarat, 1997 Cri LJ 4059 . 45. Learned counsel then invited our attention to the following passage from Frasers speech in Re Amin 1983 (2) All ER 864. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer. 46. The above passage has been quoted with approval by a three Judge Bench of this Court in Tata Cellular v. Union of India, AIR 1996 SC 11 . 47. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision, it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will not serve any additional purpose because there is nothing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the cover provided in Paragraph 3 of the Xth Schedule, the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is not available to them under law in substitution of the contra finding made by the Speaker, its inevitable sequester is that all the twelve respondents stand disqualified under Paragraph 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would stand thus altered. 48. I may point out, in this context, that the action of the Speaker, in allowing the 12 respondents to register their votes in a composite poll held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in Special Leave Petition (Civil) No. 4495 of 1998. This Court then noted in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs (who supported Sri Jagdambika Pal) the votes of 12 respondents were also counted. However, the Court did not in that case pursue the said criticism made against the Speaker mainly for the following reasoning: Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when subtracted from those polled, still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do not go to Sri Jagdambika Pal who would still be in minority. 49. Presumably on the above premise, it was submitted before us that disqualification of 12 respondents would not affect the government of Sri Kalyan Singh which even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended to disturb the government of Sri Kalyan Singh in any manner so long as he commands majority in the Legislative Assembly. But that aspect cannot detract us from exercising power of judicial review of the impugned verdict. | 1[ds]10. Two conditions are sine qua non for avoiding the disqualification when any member of the House voluntarily gives up membership of his original political party. First is that the member concerned should have made a claim that the split in the original Political Party has arisen resulting in the Constitution of a group in its Legislature Party representing a faction thereof. Second is that such group should consist of not less than l/3rd of the members of such Legislature Party.11. In order to establish that the first condition has been fulfilled the first respondent (Shri Markandeya Chand) has made a statement in the House on 21-10-1997 that the split of BSP Legislature Party had arisen consisting of a group which represents a faction of not less than l/3rd of the members thereof. It appears that the Speaker has proceeded on the assumption that a claim has been made as provided in the said Paragraph.12. Regarding the second condition the Speaker held that there was a split in the Bahujan Samaj Party on 21-10-1997 and a faction had arisen as a result of the split in the BSP and a group consisting of 26 BSP MLAs was constituted on 21-10-97 itself representing the faction which did arise and that group is known as Janatantrik BSP.15. Venkatachaliah, J (as the learned Chief Justice then was) has delved into the importance of the office of the Speaker and found that the Speaker holds a high, important and ceremonial office, he is the very embodiment of propriety and impartiality and he performs wide ranging functions including the performance of important functions of a judicial character, and observed thus:It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside.16. Accordingly, the contention that vesting of adjudicatory functions in the Speaker would vitiate the provision on the ground of likelihood of political bias was rejected.17. Paragraph 6 of the Xth Schedule renders the decision of the Speaker final. The Constitution Bench considered its validity in Kihoto Hollohan (supra). In the majority judgment it was held that the finality clause in Paragraph 6 does not completely exclude the jurisdiction of the court under Articles 136, 226 and 227 of the Constitution. Ultimately the Constitution Bench upheld the validity of the Xth Schedule subject to the aforesaid rider. However, the Bench further held that the scope of judicial scrutiny is limited to ascertain whether the decision of the Speaker is vitiated by jurisdictional errors viz. infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.22. Learned Judges who decided Ravi S. Naik were considering the contention that petitions filed before the Speaker did not fulfil the requirements of Rule 6(5)(a)(b) and (6) of the Disqualification Rules inasmuch as those petitions were bereft of facts on which petitioner therein was relying and also for not appending copies of the documents and evidence in those petitions. It was hence contended before the Bench that such petitions were liable to be dismissed on that count alone. Learned Judges, while dealing with the above contention have observed thus:The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Xth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case.23. In Kihoto Hollohan the Constitution Bench, while dealing with the deeming provision contained in Para 6(2) of the Xth Schedule, made the observation that the immunity adumbrated therein is only for the irregularities of the procedures. In this context it is worthwhile to refer to the next observations made by the Bench in the succeeding portion in Kihoto Hollohan:The very deeming provision implies that the proceedings of disqualification are, in fact, not before the house; but only before the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.24. We will not say that rules of procedure are on par with the constitutional mandate incorporated in the Xth Schedule of the Constitution. Nonetheless, the procedure prescribed in the Disqualification Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority conferred by the Xth Schedule that Disqualification Rules are formulated for giving effect to the provisions of this Schedule. What would have happened if the Rules have not been formulated as enjoined by Paragraph 8 of the Xth Schedule? The provisions of the Xth Schedule would remain ineffective. So the Rules cannot be read in isolation from the provisions of the Xth Schedule, in stead they must be read as part of it. Of course, mere violation of a Rule is not enough to constitute violation of the provisions of the Xth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the non-adopted of the procedure cannot be side-lined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the Rules of procedure would very much help the authorities to decide whether there was violation of the constitutional provision envisaged in the Xth Schedule.25. Before a claim is made by a member of the House under Paragraph 3 of the Xth Schedule a split in the political party should have arisen. Such a split must have caused its reaction in the Legislature Party also by formation of a group consisting of not less than one third of the members of that Legislature party. We have to bear in mind that Clause (b) of Paragraph 3 mandates that for the purposes of this paragraph such factions shall be deemed to be the original political party of the member concerned from the time of such split. What is the overt act through which formation of such a group can be perceived by the Speaker? It is in this context that Rule 3 of the Disqualification Rules assumes relevance and importance. Unless the particulars required in the Rule are furnished how would the Speaker know, authoritatively, of the formation of such a group? Ordinarily such information must be furnished as early as possible. But there can be rare cases in which it may not be possible, due to situational reasons, to furnish the particulars soon after the formation of such a group. But the 30 days time provided in the Rule is not to be understood as any indication to dispense with the promptitude in furnishing those particulars. The time 30 days fixed in Rule 3 must be treated as the outer limit within which the Speaker should be informed of the particulars required. So the need for compliance with Rule 3 is not a bare formality. Insistence on compliance with the Rule is, therefore, to enable the Speaker to decide whether the protection envisaged in the 3rd Paragraph can be afforded to the members concerned.26. We are of the opinion that a Speaker has to consider the repercussions of non-compliance of a particular rule in the Disqualification Rules to ascertain how far it has affected the credibility of the case of a claimant who seeks protection under Paragraph 3 of the Xth Schedule.27. The Speaker has accepted the plea of the respondents that there was a split as envisaged in Paragraph 3 of the Xth Schedule. The said finding can be subjected to judicial scrutiny only in the limited sphere indicated in Kihoto Hollohan (supra) viz. whether the infirmities are based on violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. This is a case where appellant did not succeed in showing a case of mala fides or non-compliance with the rules of natural justice as for the conclusion arrived at by the Speaker. As pointed out earlier the main endeavour of the learned counsel was to show that the finding of the Speaker is vitiated by perversity in the sense that the conclusion is so unreasonable that no tribunal would have arrived at it on the given facts.29. The said extreme proposition may lead to the situation that, no matter, however illegal the order may be, it cannot be touched if its author is the Speaker. I am unable to concede such an immunity to any constitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is whether the conclusion or the finding made by the Speaker is so unreasonable or so unconscionable that no tribunal should have arrived at it on the given materials.30. Parameters for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. It was perhaps that approach which made Lord Hailsham to make his quaint comment that two reasonable persons can reach diametrically opposite conclusion on the same set of facts without either of them forfeiting the credential to be reasonable. However, the test of perversity has now bogged down to this: No conclusion can be dubbed as perverse unless the unreasonableness is of such a dimension that no authority vested with the jurisdiction would have come to such a conclusion. Even the oft-quoted Wednesbury principle of reasonableness as propounded by Lord Greene MR Picture House v. Wednesbury Corporation, (1947) 2 All ER 680 has not changed the said approach.32. No departure from the said principle is warranted, more so because the Wednesbury ratio has gained approval of this Court in a number of decisions vide Sitaram Sugar Company Limited v. Union of India, [1990] 1 SCR 909 ; Tata Cellular v. Union of India, AIR1996SC11; Union of India v. Ganayutham, (2000) II LLJ 648 SC.34. In substance the crucial circumstance which persuaded the Speaker to rely on the ipse dixit in the affidavit filed by Markandeya Chand and Vansh Narain Patel on 25-2-1998 is that appellant has not controverted it.35. It must be remembered that it is an undisputed fact that at no time the number of BSP MLAs who voted for Kalyan Singhs Government had reached the number 23 (which is the minimum number necessary to constitute the required percentage for forming a split as envisaged under the 3rd Paragraph of the Xth Schedule). It must further be remembered that the number of individual MLAs who held out that they left BSP had never reached 23 either then or even now. (Of course appellant had admitted that in addition to 12 respondents, who had defected on 21-10-1997, some more MLAs subsequently crossed the floor and their number was only 5 and thus the total number of defectors reached 17).36. If what the Speaker has pointed out is correct (that the assertion contained in the affidavit filed by R-l and R-6 on 25-2-1998 have not been controverted despite granting opportunity to do so) it is not proper to question the conclusion arrived at by the Speaker that there was a split as envisaged in the Third Paragraph of the Xth Schedule. If that is the position, this Court will not probe into all other criticisms made against the order passed by the Speaker. But a scrutiny of the materials first shows that as a matter of fact no opportunity whatsoever was given to the appellant to controvert the assertions made in the affidavit of 25-2-1998. The observation of the Speaker to the contrary is without any foundation. The proceedings minuted by the Speaker himself on 25-2-1998 at 6.00 P.M. contained the following entries after referring to the two affidavits being filed by Shri Narendra Singh and Markandeya Chand:The same was objected to by Shri Umesh Chand learned counsel for the petitioner on the ground that those affidavits have been filed after 9-2-1998 which was the last date to produce evidence. Whether the above affidavits should be taken on record or not, or whether they should be read in evidence or not, will be considered presently during argument.37. The second glaring feature which has winched to the fore during judicial scrutiny is that the appellant had in fact strongly controverted the stand of the respondents regarding formation of a split. On the same day when 6th respondent filed the affidavit (i.e. 25.2.1998) specifying the names of 26 MLAs, the appellant had, on her own initiative, filed a petition at 7.40 P.M. pointedly repudiating the above claim of the respondents. The relevant passage from the said petition is extracted below:Today at about 4 P.M. I have been informed that Shri Narendra Singh submitted an additional list of 9 MLAs in addition to the above referred (2+5=7) MLAs before you, claiming that they were also with him and that they have not returned to the BSP....I submit that the above referred claims of Shri Narendra Singh are totally false and baseless excepting the above referred 12 MLAs. Other MLAs belong to the BSP and they are continuing in the BSP.But when we perceived the promptitude with which appellant controverted it and supported her statement with the affidavits of all the 9 MLAs, we feel that it is very unfortunate that she is accused of the charge that she has not controverted the affidavits filed by the respondents on 25.2.1998.40. Thus the basis of Speakers conclusion i.e. appellant has not denied the assertion of the respondents made in the affidavit dated 25.2.1998, is nonexistent. If so, the Speaker must necessarily have other materials to decide that the number of deserters reached the crucial limit of 23. Even on the day when 1st respondent announced in the Assembly (21.10.1997) that 23 BSP MLAs under his leadership have separated from the parent party and decided to support Kalyan Singhs Government, the fact remained that only 12 MLAs (who are the respondents) voted in favour of the Government. The other MLAs who are alleged to have joined the faction repudiated the allegation in unmistakable terms. Thus, when admittedly the number of BSP MLAs who supported Kalyan Singhs Government had never reached the figure 23 at any time, even subsequently, and when respondents could never even mention the names of those 23 MLAs at any time in spite of the Speaker granting opportunities to them for that purpose, including the last opportunity on 09.02.1998, it is a perverse conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him.41. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the aforecited illustration.42. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule.43. In the light of our above finding, it is unnecessary to consider the next question relating to sub-clause (b) of Paragraph 2(1) of the Xth schedule because such a venture would only be of academic utility now.47. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision, it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will not serve any additional purpose because there is nothing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the cover provided in Paragraph 3 of the Xth Schedule, the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is not available to them under law in substitution of the contra finding made by the Speaker, its inevitable sequester is that all the twelve respondents stand disqualified under Paragraph 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would stand thus altered.48. I may point out, in this context, that the action of the Speaker, in allowing the 12 respondents to register their votes in a composite poll held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in Special Leave Petition (Civil) No. 4495 of 1998. This Court then noted in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs (who supported Sri Jagdambika Pal) the votes of 12 respondents were also counted. However, the Court did not in that case pursue the said criticism made against the Speaker mainly for the following reasoning:Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when subtracted from those polled, still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do not go to Sri Jagdambika Pal who would still be in minority.49. Presumably on the above premise, it was submitted before us that disqualification of 12 respondents would not affect the government of Sri Kalyan Singh which even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended to disturb the government of Sri Kalyan Singh in any manner so long as he commands majority in the Legislative Assembly. But that aspect cannot detract us from exercising power of judicial review of the impugned verdict. | 1 | 7,505 | 3,667 | ### Instruction:
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conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him. 41. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the aforecited illustration. 42. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule. 43. In the light of our above finding, it is unnecessary to consider the next question relating to sub-clause (b) of Paragraph 2(1) of the Xth schedule because such a venture would only be of academic utility now. 44. Learned senior counsel for the respondents made an alternative contention that in the event this court holds that the finding of the Speaker is perverse, the next course to be adopted is to remit the matter to the Speaker for his final decision. Learned counsel cited some decisions of this Court which held the proposition that it is not the function of courts of law to substitute their wisdom and decision for that of the authority to whose judgment the matter in question is entrusted by law. The Vice Chancellor, Utkal University v. S.K. Ghosh, [1954] 1 SCR 883 and Mansukh Lal Vithal das Chauhan v. State of Gujarat, 1997 Cri LJ 4059 . 45. Learned counsel then invited our attention to the following passage from Frasers speech in Re Amin 1983 (2) All ER 864. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer. 46. The above passage has been quoted with approval by a three Judge Bench of this Court in Tata Cellular v. Union of India, AIR 1996 SC 11 . 47. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision, it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will not serve any additional purpose because there is nothing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the cover provided in Paragraph 3 of the Xth Schedule, the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is not available to them under law in substitution of the contra finding made by the Speaker, its inevitable sequester is that all the twelve respondents stand disqualified under Paragraph 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would stand thus altered. 48. I may point out, in this context, that the action of the Speaker, in allowing the 12 respondents to register their votes in a composite poll held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in Special Leave Petition (Civil) No. 4495 of 1998. This Court then noted in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs (who supported Sri Jagdambika Pal) the votes of 12 respondents were also counted. However, the Court did not in that case pursue the said criticism made against the Speaker mainly for the following reasoning: Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when subtracted from those polled, still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do not go to Sri Jagdambika Pal who would still be in minority. 49. Presumably on the above premise, it was submitted before us that disqualification of 12 respondents would not affect the government of Sri Kalyan Singh which even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended to disturb the government of Sri Kalyan Singh in any manner so long as he commands majority in the Legislative Assembly. But that aspect cannot detract us from exercising power of judicial review of the impugned verdict.
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when we perceived the promptitude with which appellant controverted it and supported her statement with the affidavits of all the 9 MLAs, we feel that it is very unfortunate that she is accused of the charge that she has not controverted the affidavits filed by the respondents on 25.2.1998.40. Thus the basis of Speakers conclusion i.e. appellant has not denied the assertion of the respondents made in the affidavit dated 25.2.1998, is nonexistent. If so, the Speaker must necessarily have other materials to decide that the number of deserters reached the crucial limit of 23. Even on the day when 1st respondent announced in the Assembly (21.10.1997) that 23 BSP MLAs under his leadership have separated from the parent party and decided to support Kalyan Singhs Government, the fact remained that only 12 MLAs (who are the respondents) voted in favour of the Government. The other MLAs who are alleged to have joined the faction repudiated the allegation in unmistakable terms. Thus, when admittedly the number of BSP MLAs who supported Kalyan Singhs Government had never reached the figure 23 at any time, even subsequently, and when respondents could never even mention the names of those 23 MLAs at any time in spite of the Speaker granting opportunities to them for that purpose, including the last opportunity on 09.02.1998, it is a perverse conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him.41. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the aforecited illustration.42. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule.43. In the light of our above finding, it is unnecessary to consider the next question relating to sub-clause (b) of Paragraph 2(1) of the Xth schedule because such a venture would only be of academic utility now.47. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision, it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will not serve any additional purpose because there is nothing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the cover provided in Paragraph 3 of the Xth Schedule, the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is not available to them under law in substitution of the contra finding made by the Speaker, its inevitable sequester is that all the twelve respondents stand disqualified under Paragraph 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would stand thus altered.48. I may point out, in this context, that the action of the Speaker, in allowing the 12 respondents to register their votes in a composite poll held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in Special Leave Petition (Civil) No. 4495 of 1998. This Court then noted in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs (who supported Sri Jagdambika Pal) the votes of 12 respondents were also counted. However, the Court did not in that case pursue the said criticism made against the Speaker mainly for the following reasoning:Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when subtracted from those polled, still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do not go to Sri Jagdambika Pal who would still be in minority.49. Presumably on the above premise, it was submitted before us that disqualification of 12 respondents would not affect the government of Sri Kalyan Singh which even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended to disturb the government of Sri Kalyan Singh in any manner so long as he commands majority in the Legislative Assembly. But that aspect cannot detract us from exercising power of judicial review of the impugned verdict.
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M/S. Kanpur Vanaspati Stores, Kanpur Vs. The Commissioner Of Sales Tax, U.P. Lucknow | 3 is the general provision. It provides for multipoint tax. To this general Rule certain exceptions are provided. One of the exceptions is that provided under Section 3A. That section permits the Government to select certain items of goods for a single point levy. Vanaspati is one of the items selected for a single-point levy. The appellant does not contest the competence of the legislature to enact Section 3A. It also does not contest the validity of the power conferred on the Government to select sale of certain goods for single-point taxation. What is contended on its behalf is that Section 3A provides that single-point levy can be imposed only on the "successive dealers" in the series of dealers; an importer is not one such dealer; he being the very first dealer in the State.Undoubtedly, an importer is one of the dealers. He is the first dealer in the State. The chain of successive dealers begins from the first dealer and it goes up to the last dealer. Any one of the dealers in this chain can be considered as a "successive dealer".The series do not begin in the middle. It must necessarily begin at the very beginning. This is also the view taken by the Allahabad High Court in Ram Kumar Rajendra Swaroop v. Commr. of Sales Tax, (1967) 19 STC 241 (All) . It is an obvious conclusion. If an importer is one of the successive dealers, which undoubtedly he is, necessarily the notification issued by the Government must be considered to be a valid notification. In this view we reject the last two contentions advanced by Mr. Gupte.9. Now turning our attention to the first contention advanced by Mr. Gupte, we find there are several difficulties in the way of accepting the same. As mentioned earlier the assessee in his return has shown what its turnover was and at what rate the tax is payable by it. It had admitted before the assessing authority what its turnover was. Further it had also admitted before that authority that it was liable to pay tax at the rate of one anna per rupee on its turnover which comes to Rs. 10,339.19P. It had also admitted before the same authority that it had collected that amount from its purchasers. It did not dispute before the assessing authority the validity of the notification issued under Section 3A. Under Rule 41 (2) read with Rule 12 it was bound to submit quarterly returns. We take it that it must have submitted its quarterly returns. Under sub-rule (2) of Rule 41 the assessee was bound to deposit the tax due from it according to its returns. In other words even according to the assessee it was bound to deposit into the Treasury or pay cheque to the assessing authority of Rs.. l0,339.19P. Admittedly, it had not done so. What is urged by the learned counsel is that whatever might be the facts admitted in the return and whatever might be the admissions made before the assessing authority it was open to the assessee to take a different stand in its memorandum of appeal and what is relevant for the purpose of Section 9 is the stand taken by the assessee in the memorandum of appeal. In support of that contention two decisions, one of the Allahabad High Court in Ghanshyam Dass Balmukund v. State of Uttar Pradesh, (1969) 23 STC 282 (All) , and the other of the Kerala High Court in United Timber and Cashew Products (P.) Ltd. v. Sales Tax Officer, Cannanore, (1971) 28 STC 526 = (1971 Tax LR 1245) (Ker) were cited. Those decisions undoubtedly support the contention of the Appellant but we find it difficult to accept the conclusions reached by the Allahabad High Court and the Kerala High Court. In his decision the learned single Judge of the Kerala High Court has merely followed the Allahabad High Courts decision. If we come to the conclusion that the expression "tax admitted" in the proviso to Section 9 (1) means that admitted in the memorandum of appeal, Section 9 can be made wholly useless. All that an assessee has to do is not to admit his liability in the memorandum of appeal, whatever his stand might have been before the assessing authority. Ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. Further, to find out the true meaning of the expression "tax admitted" we must take into consideration the remaining words of the proviso namely "or such instalments thereof as may become payable". Those words furnish a key to the interpretation. If one of the conditions for maintainability of the appeal is payment of the instalments which have become payable under Rule 41 (2), It means that the admission that has got to be taken into consideration is that made before the assessing authority and not before the appellate authority. That apart, we do not think that the stand taken by the appellant before the appellate authority can be considered as a bona fide stand.We are of the opinion that the contention taken by the appellant before the appellate authority that it cannot be brought within the scope of Section 3A of the Act was an afterthought. No such contention was taken before the assessing authority. It the assessee believed that contention to be true it would not have collected from its purchasers the tax at the rate of one anna per rupee. Further it is now well settled by the decision of this court that no one can challenge the validity of a provision of an Act or Rule made thereunder or even a notification issued either under the Act or under the Rules made, before the authorities constituted under the Act. It is true as contended by Mr. Gupte that these decisions were rendered long after 1962 but the fact remains that the decisions in question merely interpret what the law is. | 0[ds]It may be noted that Section 3 is the general provision. It provides for multipoint tax. To this general Rule certain exceptions are provided. One of the exceptions is that provided under Section 3A. That section permits the Government to select certain items of goods for a single point levy. Vanaspati is one of the items selected for a single-point levy. The appellant does not contest the competence of the legislature to enact Section 3A. It also does not contest the validity of the power conferred on the Government to select sale of certain goods for single-point taxation. What is contended on its behalf is that Section 3A provides that single-point levy can be imposed only on the "successive dealers" in the series of dealers; an importer is not one such dealer; he being the very first dealer in the State.Undoubtedly, an importer is one of the dealers. He is the first dealer in the State. The chain of successive dealers begins from the first dealer and it goes up to the last dealer. Any one of the dealers in this chain can be considered as a "successive dealer".The series do not begin in the middle. It must necessarily begin at the very beginning. This is also the view taken by the Allahabad High Court in Ram Kumar Rajendra Swaroop v. Commr. of Sales Tax, (1967) 19 STC 241 (All) . It is an obvious conclusion. If an importer is one of the successive dealers, which undoubtedly he is, necessarily the notification issued by the Government must be considered to be a valid notification. In this view we reject the last two contentions advanced by Mr. Gupte.9. Now turning our attention to the first contention advanced by Mr. Gupte, we find there are several difficulties in the way of accepting the same. As mentioned earlier the assessee in his return has shown what its turnover was and at what rate the tax is payable by it. It had admitted before the assessing authority what its turnover was. Further it had also admitted before that authority that it was liable to pay tax at the rate of one anna per rupee on its turnover which comes to Rs. 10,339.19P. It had also admitted before the same authority that it had collected that amount from its purchasers. It did not dispute before the assessing authority the validity of the notification issued under Section 3A. Under Rule 41 (2) read with Rule 12 it was bound to submit quarterly returns. We take it that it must have submitted its quarterly returns. Under sub-rule (2) of Rule 41 the assessee was bound to deposit the tax due from it according to its returns. In other words even according to the assessee it was bound to deposit into the Treasury or pay cheque to the assessing authority of Rs.. l0,339.19P. Admittedly, it had not donewe come to the conclusion that the expression "tax admitted" in the proviso to Section 9 (1) means that admitted in the memorandum of appeal, Section 9 can be made wholly useless. All that an assessee has to do is not to admit his liability in the memorandum of appeal, whatever his stand might have been before the assessing authority. Ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. Further, to find out the true meaning of the expression "tax admitted" we must take into consideration the remaining words of the proviso namely "or such instalments thereof as may become payable". Those words furnish a key to the interpretation. If one of the conditions for maintainability of the appeal is payment of the instalments which have become payable under Rule 41 (2), It means that the admission that has got to be taken into consideration is that made before the assessing authority and not before the appellate authority. That apart, we do not think that the stand taken by the appellant before the appellate authority can be considered as a bona fide stand.We are of the opinion that the contention taken by the appellant before the appellate authority that it cannot be brought within the scope of Section 3A of the Act was an afterthought. No such contention was taken before the assessing authority. It the assessee believed that contention to be true it would not have collected from its purchasers the tax at the rate of one anna per rupee. Further it is now well settled by the decision of this court that no one can challenge the validity of a provision of an Act or Rule made thereunder or even a notification issued either under the Act or under the Rules made, before the authorities constituted under the Act. | 0 | 2,365 | 876 | ### 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:
3 is the general provision. It provides for multipoint tax. To this general Rule certain exceptions are provided. One of the exceptions is that provided under Section 3A. That section permits the Government to select certain items of goods for a single point levy. Vanaspati is one of the items selected for a single-point levy. The appellant does not contest the competence of the legislature to enact Section 3A. It also does not contest the validity of the power conferred on the Government to select sale of certain goods for single-point taxation. What is contended on its behalf is that Section 3A provides that single-point levy can be imposed only on the "successive dealers" in the series of dealers; an importer is not one such dealer; he being the very first dealer in the State.Undoubtedly, an importer is one of the dealers. He is the first dealer in the State. The chain of successive dealers begins from the first dealer and it goes up to the last dealer. Any one of the dealers in this chain can be considered as a "successive dealer".The series do not begin in the middle. It must necessarily begin at the very beginning. This is also the view taken by the Allahabad High Court in Ram Kumar Rajendra Swaroop v. Commr. of Sales Tax, (1967) 19 STC 241 (All) . It is an obvious conclusion. If an importer is one of the successive dealers, which undoubtedly he is, necessarily the notification issued by the Government must be considered to be a valid notification. In this view we reject the last two contentions advanced by Mr. Gupte.9. Now turning our attention to the first contention advanced by Mr. Gupte, we find there are several difficulties in the way of accepting the same. As mentioned earlier the assessee in his return has shown what its turnover was and at what rate the tax is payable by it. It had admitted before the assessing authority what its turnover was. Further it had also admitted before that authority that it was liable to pay tax at the rate of one anna per rupee on its turnover which comes to Rs. 10,339.19P. It had also admitted before the same authority that it had collected that amount from its purchasers. It did not dispute before the assessing authority the validity of the notification issued under Section 3A. Under Rule 41 (2) read with Rule 12 it was bound to submit quarterly returns. We take it that it must have submitted its quarterly returns. Under sub-rule (2) of Rule 41 the assessee was bound to deposit the tax due from it according to its returns. In other words even according to the assessee it was bound to deposit into the Treasury or pay cheque to the assessing authority of Rs.. l0,339.19P. Admittedly, it had not done so. What is urged by the learned counsel is that whatever might be the facts admitted in the return and whatever might be the admissions made before the assessing authority it was open to the assessee to take a different stand in its memorandum of appeal and what is relevant for the purpose of Section 9 is the stand taken by the assessee in the memorandum of appeal. In support of that contention two decisions, one of the Allahabad High Court in Ghanshyam Dass Balmukund v. State of Uttar Pradesh, (1969) 23 STC 282 (All) , and the other of the Kerala High Court in United Timber and Cashew Products (P.) Ltd. v. Sales Tax Officer, Cannanore, (1971) 28 STC 526 = (1971 Tax LR 1245) (Ker) were cited. Those decisions undoubtedly support the contention of the Appellant but we find it difficult to accept the conclusions reached by the Allahabad High Court and the Kerala High Court. In his decision the learned single Judge of the Kerala High Court has merely followed the Allahabad High Courts decision. If we come to the conclusion that the expression "tax admitted" in the proviso to Section 9 (1) means that admitted in the memorandum of appeal, Section 9 can be made wholly useless. All that an assessee has to do is not to admit his liability in the memorandum of appeal, whatever his stand might have been before the assessing authority. Ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. Further, to find out the true meaning of the expression "tax admitted" we must take into consideration the remaining words of the proviso namely "or such instalments thereof as may become payable". Those words furnish a key to the interpretation. If one of the conditions for maintainability of the appeal is payment of the instalments which have become payable under Rule 41 (2), It means that the admission that has got to be taken into consideration is that made before the assessing authority and not before the appellate authority. That apart, we do not think that the stand taken by the appellant before the appellate authority can be considered as a bona fide stand.We are of the opinion that the contention taken by the appellant before the appellate authority that it cannot be brought within the scope of Section 3A of the Act was an afterthought. No such contention was taken before the assessing authority. It the assessee believed that contention to be true it would not have collected from its purchasers the tax at the rate of one anna per rupee. Further it is now well settled by the decision of this court that no one can challenge the validity of a provision of an Act or Rule made thereunder or even a notification issued either under the Act or under the Rules made, before the authorities constituted under the Act. It is true as contended by Mr. Gupte that these decisions were rendered long after 1962 but the fact remains that the decisions in question merely interpret what the law is.
### Response:
0
### Explanation:
It may be noted that Section 3 is the general provision. It provides for multipoint tax. To this general Rule certain exceptions are provided. One of the exceptions is that provided under Section 3A. That section permits the Government to select certain items of goods for a single point levy. Vanaspati is one of the items selected for a single-point levy. The appellant does not contest the competence of the legislature to enact Section 3A. It also does not contest the validity of the power conferred on the Government to select sale of certain goods for single-point taxation. What is contended on its behalf is that Section 3A provides that single-point levy can be imposed only on the "successive dealers" in the series of dealers; an importer is not one such dealer; he being the very first dealer in the State.Undoubtedly, an importer is one of the dealers. He is the first dealer in the State. The chain of successive dealers begins from the first dealer and it goes up to the last dealer. Any one of the dealers in this chain can be considered as a "successive dealer".The series do not begin in the middle. It must necessarily begin at the very beginning. This is also the view taken by the Allahabad High Court in Ram Kumar Rajendra Swaroop v. Commr. of Sales Tax, (1967) 19 STC 241 (All) . It is an obvious conclusion. If an importer is one of the successive dealers, which undoubtedly he is, necessarily the notification issued by the Government must be considered to be a valid notification. In this view we reject the last two contentions advanced by Mr. Gupte.9. Now turning our attention to the first contention advanced by Mr. Gupte, we find there are several difficulties in the way of accepting the same. As mentioned earlier the assessee in his return has shown what its turnover was and at what rate the tax is payable by it. It had admitted before the assessing authority what its turnover was. Further it had also admitted before that authority that it was liable to pay tax at the rate of one anna per rupee on its turnover which comes to Rs. 10,339.19P. It had also admitted before the same authority that it had collected that amount from its purchasers. It did not dispute before the assessing authority the validity of the notification issued under Section 3A. Under Rule 41 (2) read with Rule 12 it was bound to submit quarterly returns. We take it that it must have submitted its quarterly returns. Under sub-rule (2) of Rule 41 the assessee was bound to deposit the tax due from it according to its returns. In other words even according to the assessee it was bound to deposit into the Treasury or pay cheque to the assessing authority of Rs.. l0,339.19P. Admittedly, it had not donewe come to the conclusion that the expression "tax admitted" in the proviso to Section 9 (1) means that admitted in the memorandum of appeal, Section 9 can be made wholly useless. All that an assessee has to do is not to admit his liability in the memorandum of appeal, whatever his stand might have been before the assessing authority. Ordinarily no interpretation should be placed on a provision which would have the effect of making the provision either otiose or a dead letter. Further, to find out the true meaning of the expression "tax admitted" we must take into consideration the remaining words of the proviso namely "or such instalments thereof as may become payable". Those words furnish a key to the interpretation. If one of the conditions for maintainability of the appeal is payment of the instalments which have become payable under Rule 41 (2), It means that the admission that has got to be taken into consideration is that made before the assessing authority and not before the appellate authority. That apart, we do not think that the stand taken by the appellant before the appellate authority can be considered as a bona fide stand.We are of the opinion that the contention taken by the appellant before the appellate authority that it cannot be brought within the scope of Section 3A of the Act was an afterthought. No such contention was taken before the assessing authority. It the assessee believed that contention to be true it would not have collected from its purchasers the tax at the rate of one anna per rupee. Further it is now well settled by the decision of this court that no one can challenge the validity of a provision of an Act or Rule made thereunder or even a notification issued either under the Act or under the Rules made, before the authorities constituted under the Act.
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M/s. Goa Shipyard Ltd Vs. Babu Thomas | The respondent was not denied the right of appeal. Undisputedly, the respondent filed an appeal before the Board of Directors, as the order of dismissal was passed by the CMD, and the Board of Directors considered his appeal and by a detailed order dismissed the appeal on 27.9.1997. In fact, the Board of Directors independently considered the appeal and while dismissing the appeal held that charges (ii), (v), (x)(a), (x)(b), (xi) and (xiii) are not fully or entirely proved and confirmed the dismissal order on charges (i), (vi), (vii), (x)(c) and (xii). The appeal was considered independently by the Appellate authority and a detailed order passed after application of mind. In such circumstances, we are clearly of the view that no prejudice whatsoever has been caused to the respondent as he availed an opportunity of an appeal before the Board of Directors as an Appellate Authority. 14. Mr. Rao invited our attention to the decision of this Court rendered in Surjit Ghosh vs. Chairman & Managing Director (1995) 2 SCC 474 , where this Court observed as under:- "However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned". In our view, this decision would be of no help to the respondents case on facts. As already noticed in the present case, the respondent in fact, had availed the remedy of appeal and filed the appeal before the Board of Directors. That apart, the decision in Surjit Ghosh (supra) has been distinguished by this Court in Balbir Chand vs. Food Corporation of India Ltd. (1997) 3 SCC 371. It was pointed out as under: "The learned Counsel for the petitioner has raised the contention that since the petitioner was required to be dismissed by the disciplinary authority, namely, Zonal Manager, who alone is competent to remove him, the order of dismissal passed by the Managing Director is bad in law. In support thereof, he placed reliance on a judgment of this Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank (1995) 2 SCC 474. It is an admitted position that as a joint enquiry was conducted against all the delinquent officials, the highest in the hierarchy of competent authority who could take disciplinary action against the delinquents was none other than the Managing Director of the Corporation. In normal circumstances the Managing Director being the appellate authority should not pass the order of punishment so as to enable the delinquent employee to avail of right of appeal. It is now a well settled legal position that an authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action. On that basis, it cannot be said that there will be discrimination violating Article 14 of the Constitution or causing material prejudice. In the judgment relied on by the counsel, it would appear that in the Rules, officer lower in hierarchy was the disciplinary authority but the appellate authority had passed the order removing the officer from service. Thereby, the appellate remedy provided under the Rules was denied. In those circumstances, this Court opined that it caused prejudice to the delinquent as he would have otherwise availed of the appellate remedy and his right to consider his case by an appellate authority on question of fact was not available. But it cannot be laid as a rule of law that in all circumstances the higher authority should consider and decide the case imposing penalty as a primary authority under the Rules, In this case, a right of second appeal/revision also was provided to the Board. In fact, appeal was preferred to the Board. The Board elaborately considered the matter through the Chairman. It is not violative of Article 14 of the Constitution". [Emphasis supplied] 15. The High Court had allowed the respondents writ petition by upholding the preliminary contention that the CMD did not have the authority and jurisdiction to pass the order of dismissal. It did not consider the several contentions raised by the respondent on merits. In the view that we have taken, the decision of the High Court dated 25.11.2003 on the preliminary contention cannot be sustained. We, therefore, set aside the Order of the High Court dated 25.11.2003 which allowed Writ Petition No. 414 of 1997 on a preliminary ground. Consequently the writ petition shall stand restored to the file of the High Court. The High Court shall now consider the other contentions raised by the respondent-writ petitioner other than the issue answered by this Court.16. This Court on 23.8.2004 stayed the operation of the judgment of the High Court subject to the appellant making payment of the amount equivalent to subsistence allowance from the date of the judgment of the High Court within four weeks. This order was passed keeping in view that the order of dismissal was set aside by the High Court. As we have set aside the order of the High Court, the order of dismissal dated 21.1.1997 confirmed by Appellate Authoritys order dated 27.9.1997 stands restored subject to the final decision of the writ petition. The respondent-writ petitioner shall not be entitled to any subsistence allowance from today till the writ petition is finally disposed of by the High Court in accordance with law. | 1[ds]15. The High Court had allowed the respondents writ petition by upholding the preliminary contention that the CMD did not have the authority and jurisdiction to pass the order of dismissal. It did not consider the several contentions raised by the respondent on merits. In the view that we have taken, the decision of the High Court dated 25.11.2003 on the preliminary contention cannot be sustained. We, therefore, set aside the Order of the High Court dated 25.11.2003 which allowed Writ Petition No. 414 of 1997 on a preliminary ground. Consequently the writ petition shall stand restored to the file of the High Court. The High Court shall now consider the other contentions raised by the respondent-writ petitioner other than the issue answered by this Court.16. This Court on 23.8.2004 stayed the operation of the judgment of the High Court subject to the appellant making payment of the amount equivalent to subsistence allowance from the date of the judgment of the High Court within four weeks. This order was passed keeping in view that the order of dismissal was set aside by the High Court. As we have set aside the order of the High Court, the order of dismissal dated 21.1.1997 confirmed by Appellate Authoritys order dated 27.9.1997 stands restored subject to the final decision of the writ petition. The respondent-writ petitioner shall not be entitled to any subsistence allowance from today till the writ petition is finally disposed of by the High Court in accordance with law. | 1 | 5,023 | 270 | ### 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 respondent was not denied the right of appeal. Undisputedly, the respondent filed an appeal before the Board of Directors, as the order of dismissal was passed by the CMD, and the Board of Directors considered his appeal and by a detailed order dismissed the appeal on 27.9.1997. In fact, the Board of Directors independently considered the appeal and while dismissing the appeal held that charges (ii), (v), (x)(a), (x)(b), (xi) and (xiii) are not fully or entirely proved and confirmed the dismissal order on charges (i), (vi), (vii), (x)(c) and (xii). The appeal was considered independently by the Appellate authority and a detailed order passed after application of mind. In such circumstances, we are clearly of the view that no prejudice whatsoever has been caused to the respondent as he availed an opportunity of an appeal before the Board of Directors as an Appellate Authority. 14. Mr. Rao invited our attention to the decision of this Court rendered in Surjit Ghosh vs. Chairman & Managing Director (1995) 2 SCC 474 , where this Court observed as under:- "However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned". In our view, this decision would be of no help to the respondents case on facts. As already noticed in the present case, the respondent in fact, had availed the remedy of appeal and filed the appeal before the Board of Directors. That apart, the decision in Surjit Ghosh (supra) has been distinguished by this Court in Balbir Chand vs. Food Corporation of India Ltd. (1997) 3 SCC 371. It was pointed out as under: "The learned Counsel for the petitioner has raised the contention that since the petitioner was required to be dismissed by the disciplinary authority, namely, Zonal Manager, who alone is competent to remove him, the order of dismissal passed by the Managing Director is bad in law. In support thereof, he placed reliance on a judgment of this Court in Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank (1995) 2 SCC 474. It is an admitted position that as a joint enquiry was conducted against all the delinquent officials, the highest in the hierarchy of competent authority who could take disciplinary action against the delinquents was none other than the Managing Director of the Corporation. In normal circumstances the Managing Director being the appellate authority should not pass the order of punishment so as to enable the delinquent employee to avail of right of appeal. It is now a well settled legal position that an authority lower than the appointing authority cannot take any decision in the matter of disciplinary action. But there is no prohibition in law that the higher authority should not take decision or impose the penalty as the primary authority in the matter of disciplinary action. On that basis, it cannot be said that there will be discrimination violating Article 14 of the Constitution or causing material prejudice. In the judgment relied on by the counsel, it would appear that in the Rules, officer lower in hierarchy was the disciplinary authority but the appellate authority had passed the order removing the officer from service. Thereby, the appellate remedy provided under the Rules was denied. In those circumstances, this Court opined that it caused prejudice to the delinquent as he would have otherwise availed of the appellate remedy and his right to consider his case by an appellate authority on question of fact was not available. But it cannot be laid as a rule of law that in all circumstances the higher authority should consider and decide the case imposing penalty as a primary authority under the Rules, In this case, a right of second appeal/revision also was provided to the Board. In fact, appeal was preferred to the Board. The Board elaborately considered the matter through the Chairman. It is not violative of Article 14 of the Constitution". [Emphasis supplied] 15. The High Court had allowed the respondents writ petition by upholding the preliminary contention that the CMD did not have the authority and jurisdiction to pass the order of dismissal. It did not consider the several contentions raised by the respondent on merits. In the view that we have taken, the decision of the High Court dated 25.11.2003 on the preliminary contention cannot be sustained. We, therefore, set aside the Order of the High Court dated 25.11.2003 which allowed Writ Petition No. 414 of 1997 on a preliminary ground. Consequently the writ petition shall stand restored to the file of the High Court. The High Court shall now consider the other contentions raised by the respondent-writ petitioner other than the issue answered by this Court.16. This Court on 23.8.2004 stayed the operation of the judgment of the High Court subject to the appellant making payment of the amount equivalent to subsistence allowance from the date of the judgment of the High Court within four weeks. This order was passed keeping in view that the order of dismissal was set aside by the High Court. As we have set aside the order of the High Court, the order of dismissal dated 21.1.1997 confirmed by Appellate Authoritys order dated 27.9.1997 stands restored subject to the final decision of the writ petition. The respondent-writ petitioner shall not be entitled to any subsistence allowance from today till the writ petition is finally disposed of by the High Court in accordance with law.
### Response:
1
### Explanation:
15. The High Court had allowed the respondents writ petition by upholding the preliminary contention that the CMD did not have the authority and jurisdiction to pass the order of dismissal. It did not consider the several contentions raised by the respondent on merits. In the view that we have taken, the decision of the High Court dated 25.11.2003 on the preliminary contention cannot be sustained. We, therefore, set aside the Order of the High Court dated 25.11.2003 which allowed Writ Petition No. 414 of 1997 on a preliminary ground. Consequently the writ petition shall stand restored to the file of the High Court. The High Court shall now consider the other contentions raised by the respondent-writ petitioner other than the issue answered by this Court.16. This Court on 23.8.2004 stayed the operation of the judgment of the High Court subject to the appellant making payment of the amount equivalent to subsistence allowance from the date of the judgment of the High Court within four weeks. This order was passed keeping in view that the order of dismissal was set aside by the High Court. As we have set aside the order of the High Court, the order of dismissal dated 21.1.1997 confirmed by Appellate Authoritys order dated 27.9.1997 stands restored subject to the final decision of the writ petition. The respondent-writ petitioner shall not be entitled to any subsistence allowance from today till the writ petition is finally disposed of by the High Court in accordance with law.
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BHARAT BROADBAND NETWORK LIMITED Vs. UNITED TELECOMS LIMITED | an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: “9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 21. The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487 , and referred to paragraph 21 thereof, which reads as follows: “21. Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of contract, Section 63 of the Contract Act, 1872 governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.” This judgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [ “BSNL”], for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5). | 1[ds]14. From a conspectus of the above decisions, it is clear that Section 12(1), as substituted by the Arbitration and Conciliation (Amendment) Act, 2015 [], makes it clear that when a person is approached in connection with his possible appointment as an arbitrator, it is his duty to disclose in writing any circumstances which are likely to give rise to justifiable doubts as to his independence or impartiality. The disclosure is to be made in the form specified in the Sixth Schedule, and the grounds stated in the Fifth Schedule are to serve as a guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Once this is done, the appointment of the arbitrator may be challenged on the ground that justifiable doubts have arisen under sub-section (3) of Section 12 subject to the caveat entered by sub- section (4) of Section 12. The challenge procedure is then set out in Section 13, together with the time limit laid down in Section 13(2). What is important to note is that the arbitral tribunal must first decide on the said challenge, and if it is not successful, the tribunal shall continue the proceedings and make an award. It is only post award that the party challenging the appointment of an arbitrator may make an application for setting aside such an award in accordance with Section 34 of the Act.15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall beto be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by anObviously, thehas reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.16. The Law Commission Report, which has been extensively referred to in some of our judgments, makes it clear that there are certain minimum levels of independence and impartiality that should be required of the arbitral process, regardless of theagreement. This being the case, the Law Commission thenThe Commission has proposed the requirement of having specific disclosures by the arbitrator, at the stage of his possible appointment, regarding existence of any relationship or interest of any kind which is likely to give rise to justifiable doubts. The Commission has proposed the incorporation of the Fourth Schedule, which has drawn from the Red and Orange lists of the IBA Guidelines on Conflicts of Interest in International Arbitration, and which would be treated as ato determine whether circumstances exist which give rise to such justifiable doubts. On the other hand, in terms of the proposed section 12 (5) of the Act and the Fifth Schedule which incorporates the categories from the Red list of the IBA Guidelines (as above), the person proposed to be appointed as an arbitrator shall be ineligible to be so appointed, notwithstanding any prior agreement to the contrary. In the event such an ineligible person is purported to be appointed as an arbitrator, he shall be de jure deemed to be unable to perform his functions, in terms of the proposed explanation to section 14. Therefore, while the disclosure is required with respect to a broader list of categories (as set out in the Fourth Schedule, and as based on the Red and Orange lists of the IBA Guidelines), the ineligibility to be appointed as an arbitrator (and the consequent de jure inability to so act) follows from a smaller and more serious sub-set of situations (as set out in the Fifth Schedule, and as based on the Red list of the IBA Guidelines).The Commission, however, feels that real and genuine party autonomy must be respected, and, in certain situations, parties should be allowed to waive even the categories of ineligibility as set in the proposed Fifth Schedule. This could be in situations of family arbitrations or other arbitrations where a person commands the blind faith and trust of the parties to the dispute, despite the existence of objectiveng his independence and impartiality. To deal with such situations, the Commission has proposed the proviso to section 12 (5), where parties may, subsequent to disputes having arisen between them, waive the applicability of the proposed section 12 (5) by an express agreement in writing. In all other cases, the general rule in the proposed section 12 (5) must be followed. In the event the High Court is approached in connection with appointment of an arbitrator, the Commission has proposed seeking the disclosure in terms of section 12 (1), and in which context the High Court or the designate is to haveto the contents of such disclosure in appointing thes, it will be seen that party autonomy is to be respected only in certain exceptional situations which could be situations which arise in family arbitrations or other arbitrations where a person subjectively commands blind faith and trust of the parties to the dispute, despite the existence of objective justifiable doubts regarding his independence and impartiality.17. The scheme of Sections 12, 13, and 14, therefore, is that where an arbitrator makes a disclosure in writing which is likely to give justifiable doubts as to his independence or impartiality, the appointment of such arbitrator may be challenged under Sections 12(1) to 12(4) read with Section 13. However, where such person becomesto be appointed as an arbitrator, there is no question of challenge to such arbitrator, before such arbitrator. In such a case, i.e., a case which falls under Section 12(5), Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under Section 12(5), being ineligible to be appointed as an arbitrator. This being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator under Section 14(1) itself. It is only if a controversy occurs concerning whether he has become de jure unable to perform his functions as such, that a party has to apply to the Court to decide on the termination of the mandate, unless otherwise agreed by the parties. Thus, in all Section 12(5) cases, there is no challenge procedure to be availed of. If an arbitrator continues as such, being de jure unable to perform his functions, as he falls within any of the categories mentioned in Section 12(5), read with the Seventh Schedule, a party may apply to the Court, which will then decide on whether his mandate has terminated. Questions which may typically arise under Section 14 may be as to whether such person falls within any of the categories mentioned in the Seventh Schedule, or whether there is a waiver as provided in the proviso to Section 12(5) of the Act. As a matter of law, it is important to note that the proviso to Section 12(5) must be contrasted with Section 4 of the Act. Section 4 deals with cases of deemed waiver by conduct; whereas the proviso to Section 12(5) deals with waiver by express agreement in writing between the parties only if made subsequent to disputes having arisen between them.18. On the facts of the present case, it is clear that the Managing Director of the appellant could not have acted as an arbitrator himself, being rendered ineligible to act as arbitrator under Item 5 of the Seventh Schedule, which reads asrelationship with the parties or counselxxx xxx xxx5. The arbitrator is a manager, director or part of the management, or has a similar controlling influence, in an affiliate of one of the parties if the affiliate is directly involved in the matters in dispute in thesuch ineligible person could himself appoint another arbitrator was only made clear by thisjudgment in TRF Ltd. (supra) on 03.07.2017, this Court holding that an appointment made by an ineligible person is itself void ab initio. Thus, it was only on 03.07.2017, that it became clear beyond doubt that the appointment of Shri Khan would be void ab initio. Since such appointment goes toi.e., to the root of the matter, it is obvious that Shriappointment would be void. There is no doubt in this case that disputes arose only after the introduction of Section 12(5) into the statute book, and Shri Khan was appointed long after 23.10.2015. The judgment in TRF Ltd. (supra) nowhere states that it will apply only prospectively, i.e., the appointments that have been made of persons such as Shri Khan would be valid if made before the date of the judgment. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. Indeed, the judgment itself set aside the order appointing the arbitrator, which was an order dated 27.01.2016, by which the Managing Director of the respondent nominated a former Judge of this Court as sole arbitrator in terms of clause 33(d) of the Purchase Order dated 10.05.2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014, whereas the appointment by the Managing Director is after the Amendment Act, 2015, just as in the case of TRF Ltd. (supra). Considering that the appointment in the case of TRF Ltd. (supra) of a retired Judge of this Court was set aside as being non-est in law, the appointment of Shri Khan in the present case must follow suit.19. However, the learned Senior Advocate appearing on behalf of the respondent has argued that Section 12(4) would bar theapplication before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to anThe expressionrefers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. ItPromises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to beis thus necessary that there be anagreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shriinvalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shriappointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing theattention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shriappointment itself would be invalid, it filed an application before the sole arbitrator for termination of hisjudgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5). | 1 | 7,722 | 2,969 | ### Instruction:
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an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an “express agreement in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: “9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 21. The learned Additional Solicitor General appearing on behalf of the appellant has relied upon All India Power Engineer Federation v. Sasan Power Ltd., (2017) 1 SCC 487 , and referred to paragraph 21 thereof, which reads as follows: “21. Regard being had to the aforesaid decisions, it is clear that when waiver is spoken of in the realm of contract, Section 63 of the Contract Act, 1872 governs. But it is important to note that waiver is an intentional relinquishment of a known right, and that, therefore, unless there is a clear intention to relinquish a right that is fully known to a party, a party cannot be said to waive it. But the matter does not end here. It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to such public interest. This is clear from a reading of the following authorities.” This judgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [ “BSNL”], for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5).
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as Shri Khan would be valid if made before the date of the judgment. Section 26 of the Amendment Act, 2015 makes it clear that the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after 23.10.2015. Indeed, the judgment itself set aside the order appointing the arbitrator, which was an order dated 27.01.2016, by which the Managing Director of the respondent nominated a former Judge of this Court as sole arbitrator in terms of clause 33(d) of the Purchase Order dated 10.05.2014. It will be noticed that the facts in the present case are somewhat similar. The APO itself is of the year 2014, whereas the appointment by the Managing Director is after the Amendment Act, 2015, just as in the case of TRF Ltd. (supra). Considering that the appointment in the case of TRF Ltd. (supra) of a retired Judge of this Court was set aside as being non-est in law, the appointment of Shri Khan in the present case must follow suit.19. However, the learned Senior Advocate appearing on behalf of the respondent has argued that Section 12(4) would bar theapplication before the Court. Section 12(4) will only apply when a challenge is made to an arbitrator, inter alia, by the same party who has appointed such arbitrator. This then refers to the challenge procedure set out in Section 13 of the Act. Section 12(4) has no applicability to an application made to the Court under Section 14(2) to determine whether the mandate of an arbitrator has terminated as he has, in law, become unable to perform his functions because he is ineligible to be appointed as such under Section 12(5) of the Act.20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to anThe expressionrefers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. ItPromises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to beis thus necessary that there be anagreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shriinvalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shriappointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing theattention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shriappointment itself would be invalid, it filed an application before the sole arbitrator for termination of hisjudgment cannot possibly apply as the present case is governed by the express language of the proviso to Section 12(5) of the Act. Similarly, the judgments relied upon by the learned Senior Advocate appearing on behalf of the respondent, namely, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660 , and BSNL v. Motorola India (P) Ltd., (2009) 2 SCC 337 [for the same reason, cannot be said to have any application to the express language of the proviso to Section 12(5). It may be noted that BSNL (supra) deals with Section 4 of the Act which, as has been stated hereinabove, has no application, and must be contrasted with the language of the proviso to Section 12(5).
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Carborandum Co Vs. Commissioner of Income Tax, Madras | business, either all or a part, are carried out in the taxable territories. If all such operations are carried out in the taxable territories, sub-section (1) would apply and the entire income accruing or arising outside the taxable territories but as a result of the operations in connection with the business giving rise to the income would be deemed to accrue or arise in the taxable territories. If, however, all the operations are not carried out in the taxable territories the profits and gains of the business deemed to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. Thus comes in the question of apportionment under sub-section (3) of section 42. In Commissioner of Income-tax v. R. D. Aggarwal and Co. [1965] 56 ITR 20 (SC), Shah J., as he then was, speaking for this court, said at page 24: A business connection in section 42 involves a relation between a business carried on by a non-resident which yields profits or gains and some activity in the taxable territories which contributes directly or indirectly to the earning of those profits, or gains. It predicates an element of continuity between the business of the non-resident and the activity in the taxable territories: a stray or isolated transaction is normally not to be regarded as a business connection. Business connection may take several forms: it may include carrying on a part of the main business or activity incidental to the main business of the non-resident through an agent, or it may merely be a relation between the business of the non-resident and the activity in the taxable territories which facilitates or assists the carrying on of that business. In each case the question whether there is a business connection from or through which income, profits or gains arise or accrue to a non-resident must be determined upon the facts and circumstances of the case. 12. The learned judge says further: A relation to be a business connection must be real and intimate, and through or from which income must accrue or arise whether directly or indirectly to the non-resident. But it must in all cases be remembered that by section 42 income, profit or gain which accrues or arises to a non-resident outside the taxable territories is sought to be brought within the net of the income-tax law, and not income, profit or gain which accrues or arises or is deemed to accrue or arise within the taxable territories. Income received or deemed to be received, or accruing or arising or deemed to be accruing or arising within the taxable territories in the previous year is taxable by section 4(1)(a) and (c) of the Act, whether the person earning is a resident or non-resident. If the agent of a non-resident receives that income or is entitled to receive that income, it may be taxed in the hands of the agent by the machinery provision enacted in section 40(2). Income not taxable under section 4 of the Act of a non-resident becomes taxable under section 42(1) if there subsists a connection between the activity in the taxable territories and the business of the non-resident, and if through or from that connection income directly or indirectly arises. 13. The High Court was wrong in its view that activities of the foreign personnel lent or deputed by the American company amounted to a business activity carried on by that company in the taxable territory. The finding of the Tribunal in that regard was specific and clear and was unassailable in the reference in question. The American company had made the services of the foreign personnel available to the Indian company outside the taxable territory. The latter took them as their employees, paid their salary and they worked under the direct control of the Indian company. The service rendered by the American company in that connection was wholly and solely rendered in the foreign territory. Even assuming however, that there was any business connection between the earning of the income in the shape of the technical fee by the American company and the affairs of the Indian company, yet no part of the activity or operation could be said to have been carried on by the American company in India. And in the absence of such a sustainable finding by the High Court the provisions of section 42, either of sub-section (1) or of sub-section (3), were not attracted at all. The judgment of the High Court under appeal in Commissioner of Income-tax v. Carborandum Company [1973] 92 ITR 411 (Mad) is not correct. It has rightly been pointed out by the Bombay High Court in Commissioner of Income-tax v. Tata Chemicals Ltd. [1974] 94 ITR 85 (Bom) with reference to the similar or almost identical provisions in section 9(1) of the Income-tax Act, 1961, that in order to rope in the income of a non-resident under the deeming provision it must be shown by the department that some of the operations were carried out in India in respect of which the income is sought to be assessed. The finding of fact recorded by the Tribunal being against the department in that connection the Bombay High Court refused to call for a referenceFor the reasons stated above we hold that, on the facts and in the circumstances of the case, the technical service fee received by the assessee-company from the Indian company during the accounting year relevant to the assessment year 1957-58 did not accrue or arise in India nor could it be deemed to have accrued or arisen in India. But since 5% of the technical service fee was brought to tax by the Income-tax Officer and no appeal was filed against it on behalf of the assessee-company, we cannot interfere with the addition of this 5% but it must be held that the technical fee in excess of 5% was not taxable. 14. | 1[ds]The income assessable to income-tax, therefore, is of two kinds, viz., (i) accruing or arising in the taxable territories; and (ii) deemed to accrue or arise to the non-resident in the taxable territory. The concept of actual accrual or arising of income in the taxable territories, although not dependent upon the receipt of the income in the taxable territories, is quite distinct and apart from the notion of deemed accrual or arising of the income. The High Court does not appear to have kept this distinction in view and mixed the one with the other while deciding the reference in question. Section 42 of the Act concerns itself with a deemed accrual or arising of the income within the taxable territories. Under sub-section (1)All income, profits or gains accruing or arising, whether directly or indirectly, through or from any business connection in the taxable territories... shall be deemed to be income accruing or arising within the taxable territories, and where the person entitled to the income, profits or gains is not resident in the taxable territories, shall be chargeable to income-tax either in his name or in the name of his agent, and in the latter case such agent shall be deemed to be, for all the purposes of this Act, the assessee in respect of such income-taxThe High Court, therefore, was wrong in entertaining this new point at the reference stage on the basis of the allegedly general and compendious nature of the question referred to it by the Tribunal. But we do not propose to rest our judgment only on this technical aspect of the matter as we find that even on merits the assessee-company has a good case to succeed before usThe High Court agreed with the Tribunal that the technical information furnished by the assessee-company by post was a service which could not be said to have been rendered in India; putting it to use in India is not relevant as opined by the Commissioner. But in regard to the fact of the foreign technicians having been employed by the Indian company on payment of salary in India, it took the view that the service was rendered in India as foreign technicians were deputed by the assessee-company. In the opinion of the High Court it did amount to some activity or service in IndiaEven though, according to the High Court, the finding aforesaid was sufficient to rope in the entire receipts of the assessee-company as income, having accrued or arisen in India as a result of its business connection, it felt obliged to make the apportionment to the extent of 75% because of the apportionment so made by the Commissioner. In our judgment the High Court went wrong in its approach to the question raised before it and did not quite correctly appreciate the scope and applicability of section 42 of the ActOn a plain reading of sub-sections (1) and (3) of section 42 it would appear that income accruing or arising from any business connection in the taxable territories-even though the income may accrue or arise outside the taxable territories-will be deemed to be income accruing or arising in such territory provided operations in connection with such business, either all or a part, are carried out in the taxable territories. If all such operations are carried out in the taxable territories, sub-section (1) would apply and the entire income accruing or arising outside the taxable territories but as a result of the operations in connection with the business giving rise to the income would be deemed to accrue or arise in the taxable territories. If, however, all the operations are not carried out in the taxable territories the profits and gains of the business deemed to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. Thus comes in the question of apportionment under sub-section (3) of section 42The High Court was wrong in its view that activities of the foreign personnel lent or deputed by the American company amounted to a business activity carried on by that company in the taxable territory. The finding of the Tribunal in that regard was specific and clear and was unassailable in the reference in question. The American company had made the services of the foreign personnel available to the Indian company outside the taxable territory. The latter took them as their employees, paid their salary and they worked under the direct control of the Indian company. The service rendered by the American company in that connection was wholly and solely rendered in the foreign territory. Even assuming however, that there was any business connection between the earning of the income in the shape of the technical fee by the American company and the affairs of the Indian company, yet no part of the activity or operation could be said to have been carried on by the American company in India. And in the absence of such a sustainable finding by the High Court the provisions of section 42, either of sub-section (1) or of sub-section (3), were not attracted at all. The judgment of the High Court under appeal in Commissioner of Income-tax v. Carborandum Company [1973] 92 ITR 411 (Mad) is not correct. It has rightly been pointed out by the Bombay High Court in Commissioner of Income-tax v. Tata Chemicals Ltd. [1974] 94 ITR 85 (Bom) with reference to the similar or almost identical provisions in section 9(1) ofthe Income-tax Act, 1961, that in order to rope in the income of a non-resident under the deeming provision it must be shown by the department that some of the operations were carried out in India in respect of which the income is sought to be assessed. The finding of fact recorded by the Tribunal being against the department in that connection the Bombay High Court refused to call for a referenceFor the reasons stated above we hold that, on the facts and in the circumstances of the case, the technical service fee received by the assessee-company from the Indian company during the accounting year relevant to the assessment year 1957-58 did not accrue or arise in India nor could it be deemed to have accrued or arisen in India. But since 5% of the technical service fee was brought to tax by the Income-tax Officer and no appeal was filed against it on behalf of the assessee-company, we cannot interfere with the addition of this 5% but it must be held that the technical fee in excess of 5% was not taxableThe High Court, therefore, was wrong in entertaining this new point at the reference stage on the basis of the allegedly general and compendious nature of the question referred to it by the Tribunal. But we do not propose to rest our judgment only on this technical aspect of the matter as we find that even on merits they has a good case to succeed before usThe High Court agreed with the Tribunal that the technical information furnished by they by post was a service which could not be said to have been rendered in India; putting it to use in India is not relevant as opined by the Commissioner. But in regard to the fact of the foreign technicians having been employed by the Indian company on payment of salary in India, it took the view that the service was rendered in India as foreign technicians were deputed by the. In the opinion of the High Court it did amount to some activity or service inThen the High Court proceeds to | 1 | 3,757 | 1,384 | ### 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:
business, either all or a part, are carried out in the taxable territories. If all such operations are carried out in the taxable territories, sub-section (1) would apply and the entire income accruing or arising outside the taxable territories but as a result of the operations in connection with the business giving rise to the income would be deemed to accrue or arise in the taxable territories. If, however, all the operations are not carried out in the taxable territories the profits and gains of the business deemed to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. Thus comes in the question of apportionment under sub-section (3) of section 42. In Commissioner of Income-tax v. R. D. Aggarwal and Co. [1965] 56 ITR 20 (SC), Shah J., as he then was, speaking for this court, said at page 24: A business connection in section 42 involves a relation between a business carried on by a non-resident which yields profits or gains and some activity in the taxable territories which contributes directly or indirectly to the earning of those profits, or gains. It predicates an element of continuity between the business of the non-resident and the activity in the taxable territories: a stray or isolated transaction is normally not to be regarded as a business connection. Business connection may take several forms: it may include carrying on a part of the main business or activity incidental to the main business of the non-resident through an agent, or it may merely be a relation between the business of the non-resident and the activity in the taxable territories which facilitates or assists the carrying on of that business. In each case the question whether there is a business connection from or through which income, profits or gains arise or accrue to a non-resident must be determined upon the facts and circumstances of the case. 12. The learned judge says further: A relation to be a business connection must be real and intimate, and through or from which income must accrue or arise whether directly or indirectly to the non-resident. But it must in all cases be remembered that by section 42 income, profit or gain which accrues or arises to a non-resident outside the taxable territories is sought to be brought within the net of the income-tax law, and not income, profit or gain which accrues or arises or is deemed to accrue or arise within the taxable territories. Income received or deemed to be received, or accruing or arising or deemed to be accruing or arising within the taxable territories in the previous year is taxable by section 4(1)(a) and (c) of the Act, whether the person earning is a resident or non-resident. If the agent of a non-resident receives that income or is entitled to receive that income, it may be taxed in the hands of the agent by the machinery provision enacted in section 40(2). Income not taxable under section 4 of the Act of a non-resident becomes taxable under section 42(1) if there subsists a connection between the activity in the taxable territories and the business of the non-resident, and if through or from that connection income directly or indirectly arises. 13. The High Court was wrong in its view that activities of the foreign personnel lent or deputed by the American company amounted to a business activity carried on by that company in the taxable territory. The finding of the Tribunal in that regard was specific and clear and was unassailable in the reference in question. The American company had made the services of the foreign personnel available to the Indian company outside the taxable territory. The latter took them as their employees, paid their salary and they worked under the direct control of the Indian company. The service rendered by the American company in that connection was wholly and solely rendered in the foreign territory. Even assuming however, that there was any business connection between the earning of the income in the shape of the technical fee by the American company and the affairs of the Indian company, yet no part of the activity or operation could be said to have been carried on by the American company in India. And in the absence of such a sustainable finding by the High Court the provisions of section 42, either of sub-section (1) or of sub-section (3), were not attracted at all. The judgment of the High Court under appeal in Commissioner of Income-tax v. Carborandum Company [1973] 92 ITR 411 (Mad) is not correct. It has rightly been pointed out by the Bombay High Court in Commissioner of Income-tax v. Tata Chemicals Ltd. [1974] 94 ITR 85 (Bom) with reference to the similar or almost identical provisions in section 9(1) of the Income-tax Act, 1961, that in order to rope in the income of a non-resident under the deeming provision it must be shown by the department that some of the operations were carried out in India in respect of which the income is sought to be assessed. The finding of fact recorded by the Tribunal being against the department in that connection the Bombay High Court refused to call for a referenceFor the reasons stated above we hold that, on the facts and in the circumstances of the case, the technical service fee received by the assessee-company from the Indian company during the accounting year relevant to the assessment year 1957-58 did not accrue or arise in India nor could it be deemed to have accrued or arisen in India. But since 5% of the technical service fee was brought to tax by the Income-tax Officer and no appeal was filed against it on behalf of the assessee-company, we cannot interfere with the addition of this 5% but it must be held that the technical fee in excess of 5% was not taxable. 14.
### Response:
1
### Explanation:
good case to succeed before usThe High Court agreed with the Tribunal that the technical information furnished by the assessee-company by post was a service which could not be said to have been rendered in India; putting it to use in India is not relevant as opined by the Commissioner. But in regard to the fact of the foreign technicians having been employed by the Indian company on payment of salary in India, it took the view that the service was rendered in India as foreign technicians were deputed by the assessee-company. In the opinion of the High Court it did amount to some activity or service in IndiaEven though, according to the High Court, the finding aforesaid was sufficient to rope in the entire receipts of the assessee-company as income, having accrued or arisen in India as a result of its business connection, it felt obliged to make the apportionment to the extent of 75% because of the apportionment so made by the Commissioner. In our judgment the High Court went wrong in its approach to the question raised before it and did not quite correctly appreciate the scope and applicability of section 42 of the ActOn a plain reading of sub-sections (1) and (3) of section 42 it would appear that income accruing or arising from any business connection in the taxable territories-even though the income may accrue or arise outside the taxable territories-will be deemed to be income accruing or arising in such territory provided operations in connection with such business, either all or a part, are carried out in the taxable territories. If all such operations are carried out in the taxable territories, sub-section (1) would apply and the entire income accruing or arising outside the taxable territories but as a result of the operations in connection with the business giving rise to the income would be deemed to accrue or arise in the taxable territories. If, however, all the operations are not carried out in the taxable territories the profits and gains of the business deemed to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. Thus comes in the question of apportionment under sub-section (3) of section 42The High Court was wrong in its view that activities of the foreign personnel lent or deputed by the American company amounted to a business activity carried on by that company in the taxable territory. The finding of the Tribunal in that regard was specific and clear and was unassailable in the reference in question. The American company had made the services of the foreign personnel available to the Indian company outside the taxable territory. The latter took them as their employees, paid their salary and they worked under the direct control of the Indian company. The service rendered by the American company in that connection was wholly and solely rendered in the foreign territory. Even assuming however, that there was any business connection between the earning of the income in the shape of the technical fee by the American company and the affairs of the Indian company, yet no part of the activity or operation could be said to have been carried on by the American company in India. And in the absence of such a sustainable finding by the High Court the provisions of section 42, either of sub-section (1) or of sub-section (3), were not attracted at all. The judgment of the High Court under appeal in Commissioner of Income-tax v. Carborandum Company [1973] 92 ITR 411 (Mad) is not correct. It has rightly been pointed out by the Bombay High Court in Commissioner of Income-tax v. Tata Chemicals Ltd. [1974] 94 ITR 85 (Bom) with reference to the similar or almost identical provisions in section 9(1) ofthe Income-tax Act, 1961, that in order to rope in the income of a non-resident under the deeming provision it must be shown by the department that some of the operations were carried out in India in respect of which the income is sought to be assessed. The finding of fact recorded by the Tribunal being against the department in that connection the Bombay High Court refused to call for a referenceFor the reasons stated above we hold that, on the facts and in the circumstances of the case, the technical service fee received by the assessee-company from the Indian company during the accounting year relevant to the assessment year 1957-58 did not accrue or arise in India nor could it be deemed to have accrued or arisen in India. But since 5% of the technical service fee was brought to tax by the Income-tax Officer and no appeal was filed against it on behalf of the assessee-company, we cannot interfere with the addition of this 5% but it must be held that the technical fee in excess of 5% was not taxableThe High Court, therefore, was wrong in entertaining this new point at the reference stage on the basis of the allegedly general and compendious nature of the question referred to it by the Tribunal. But we do not propose to rest our judgment only on this technical aspect of the matter as we find that even on merits they has a good case to succeed before usThe High Court agreed with the Tribunal that the technical information furnished by they by post was a service which could not be said to have been rendered in India; putting it to use in India is not relevant as opined by the Commissioner. But in regard to the fact of the foreign technicians having been employed by the Indian company on payment of salary in India, it took the view that the service was rendered in India as foreign technicians were deputed by the. In the opinion of the High Court it did amount to some activity or service inThen the High Court proceeds to
|
Ajai Pal Singh & Ors Vs. State of Uttar Pradesh & Anr | First Appeal No. 1100 of 2004 in the case of Mangu and Ors. (supra); (ii) It appears that inadvertently and without noticing that so far as the First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 are concerned, they were with regard to the acquisition of the year 1977, inadvertently and by mistake they were tagged alongwith First Appeal No. 1100 of 2004; (iii) Nobody specifically pointed out that First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 were with regard to the acquisition of 1977. Therefore, without noticing the aforesaid reference mechanically First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 with regard to the acquisition of year 1977 came to be disposed of along with First Appeal No.1100 of 2004 and mechanically the compensation with regard to the acquisition of 1977 came to be enhanced to Rs.297/- per square yard; (iv) That as such it was a mistake on the part of the High Court in not noticing the difference with regard to the acquisition of the years 1977 and 1991; (v) Nobody can be permitted to take the benefit of the mistake either of the Court or of any party, which mistake has occurred inadvertently and without noticing the peculiar facts. As such it was the duty of the Advocate for the claimants to point out the correct facts; (vi) Even otherwise it is to be noted that immediately after noticing the above, the review applications have been preferred in the aforesaid first appeals and which are reported to be pending. 13.1 Assuming for the time being that as the review applications are pending, this Court may not take note of the subsequent events of filing the review applications, which are yet to be decided by the High Court, in that case also and for the reasons stated above and considering the obvious mistake referred to herein above, the claimants in the present case cannot claim the compensation @ Rs.297/- per square yard relying upon the decision in the case of Mangu and Ors. (supra) with regard to the acquisition of the year 1991. 13.2 At this stage, it is also required to be noted that the claimants have also heavily relied upon the judgment of the High Court in the case of Jagmal Vs. State of U.P. in First Appeal No. 458 of 1984 determining the compensation @ Rs. 297/- per square yard with respect to the lands acquired by notification dated 16.09.1976. However, it is required to be noted that the judgment and order dated 11.03.2015 passed in First Appeal No.458 of 1984 in the case of Jagmal Vs. State of U.P. (supra) came to be subsequently reviewed by the High Court allowing the Civil Misc. Review Application No.174702 of 2015 in which the High Court subsequently noted and determined the compensation @ Rs.28.12 paisa per square yard by observing in paragraph 31 as under:- 31. Since in the matter of same acquisition and of the same village and also in acquisitions of land adjoining or nearby villages by notifications of Section 4(1) of the Act of the years 1976 and 1977, this court determined the compensation @ Rs.28.12 per square yard and also since the claimants appellants or the respondents have failed to point out any distinguishing feature in the present set of facts and as such I have no hesitation to hold that the claimants appellants are entitled to compensation of their acquired land @ Rs.28.12 per square yard. It is reiterated that decision in I.A. No. 116578 of 2021 reducing the compensation to Rs.28.12 paisa per square yard for the lands acquired in the year 1976 has been confirmed by this Court vide order dated 30.09.2016. 13.3 From the table reproduced hereinabove, it can also be seen that with regard to the acquisition pertaining to the year 1976-1977 consistently the High Court has determined the compensation @ Rs.28.12 paisa per square yard. Even in one case, i.e., in the case of Jagdish Chand Vs. State of U.P. (supra) where the High Court determined the compensation @ Rs.28.12 paisa per square yard with regard to the acquisition pertaining to the year 1976-1977, the special leave petition has been dismissed as withdrawn by this Court. Therefore, as such at the most, the claimants can be said to be entitled to compensation @ Rs.28.12 paisa per square yard with regard to the lands acquired in the year 1976-1977. 14. Now, so far as the alternative submission made on behalf of the claimants in Civil Appeal No. 5740 of 2021 to determine the compensation on the basis of the judgment of the High Court in the case of Khazan and Ors. Vs. State of U.P. (supra) where the acquisition proceedings commenced in the year 1983 and the compensation was determined @ Rs.297/- per square yard is concerned, the aforesaid cannot be accepted. The appellants are claiming that in the case of the appellants, the land was acquired in the year 1976 and in the case of Khazan and Ors. Vs. State of U.P. (supra) the land was acquired in the year 1983, by adopting a formula of deducting 10% depreciation each year and after deducting 10% depreciation for 07 years, the compensation may be determined, the aforesaid cannot be accepted. As per the settled preposition of law, the compensation determined for the lands acquired subsequently cannot be said to be comparable at all. Even otherwise in the facts and circumstances, the same cannot be said to be comparable because of the fact that it has come on record that in the year 1976 when the lands in question were acquired, there was no development at all, however, subsequently, after 1980 the development had taken place and even the development plan has been sanctioned at the time when the land was acquired in the year 1983, therefore, the aforesaid request cannot be accepted. | 1[ds]13. Having heard the learned counsel for the respective parties and having perused the decision of the High Court in the case of Mangu and Ors. (supra), which has been heavily relied upon by the claimants- landowners, it emerges that as such in the case of Mangu and Ors. (supra), notification under Section 4 of the Act was issued in the year 1991, but in the present case the notification under Section 4 of the Act had been issued on 01.06.1976. Even the possession of the land in the case of Mangu and Ors. (supra) was taken over in 1992 and in the present case the possession of the land had been taken over in 1976. In the present case, the award was declared by the Special Land Acquisition Officer on 25.02.1978 whereas in the case of Mangu and Ors. (supra), the award was declared by the Special Land Acquisition Officer on 20.09.1993 and, therefore, the said judgment and order passed by the High Court in the case of Mangu and Ors. (supra) cannot be said to be comparable at all because of the time gap of approximately 15 years between the dates of acquisition. However, it is the case on behalf of the appellants that while disposing of the First Appeal No.1100 of 2004 in the case of Mangu and Ors. (supra), the High Court also disposed of the First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 with regard to the acquisition of the year 1977 and the High Court also enhanced the compensation to Rs.297/- per square yard in the said first appeals with regard to the acquisition in the year 1977 and therefore on the ground of parity and equality, the claimants with regard to the acquisition of the year 1976 are entitled to the enhanced compensation of Rs.297/- per square yard.The aforesaid seems to be very attractive but cannot be accepted for the following reasons:-(i) That High Court decided the batch of appeals alongwith First Appeal No. 1100 of 2004 in the case of Mangu and Ors. (supra);(ii) It appears that inadvertently and without noticing that so far as the First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 are concerned, they were with regard to the acquisition of the year 1977, inadvertently and by mistake they were tagged alongwith First Appeal No. 1100 of 2004;(iii) Nobody specifically pointed out that First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 were with regard to the acquisition of 1977. Therefore, without noticing the aforesaid reference mechanically First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 with regard to the acquisition of year 1977 came to be disposed of along with First Appeal No.1100 of 2004 and mechanically the compensation with regard to the acquisition of 1977 came to be enhanced to Rs.297/- per square yard;(iv) That as such it was a mistake on the part of the High Court in not noticing the difference with regard to the acquisition of the years 1977 and 1991;(v) Nobody can be permitted to take the benefit of the mistake either of the Court or of any party, which mistake has occurred inadvertently and without noticing the peculiar facts. As such it was the duty of the Advocate for the claimants to point out the correct facts;(vi) Even otherwise it is to be noted that immediately after noticing the above, the review applications have been preferred in the aforesaid first appeals and which are reported to be pending.13.1 Assuming for the time being that as the review applications are pending, this Court may not take note of the subsequent events of filing the review applications, which are yet to be decided by the High Court, in that case also and for the reasons stated above and considering the obvious mistake referred to herein above, the claimants in the present case cannot claim the compensation @ Rs.297/- per square yard relying upon the decision in the case of Mangu and Ors. (supra) with regard to the acquisition of the year 1991.13.2 At this stage, it is also required to be noted that the claimants have also heavily relied upon the judgment of the High Court in the case of Jagmal Vs. State of U.P. in First Appeal No. 458 of 1984 determining the compensation @ Rs. 297/- per square yard with respect to the lands acquired by notification dated 16.09.1976. However, it is required to be noted that the judgment and order dated 11.03.2015 passed in First Appeal No.458 of 1984 in the case of Jagmal Vs. State of U.P. (supra) came to be subsequently reviewed by the High Court allowing the Civil Misc. Review Application No.174702 of 2015 in which the High Court subsequently noted and determined the compensation @ Rs.28.12 paisa per square yard by observing in paragraph 31 as under:-31. Since in the matter of same acquisition and of the same village and also in acquisitions of land adjoining or nearby villages by notifications of Section 4(1) of the Act of the years 1976 and 1977, this court determined the compensation @ Rs.28.12 per square yard and also since the claimants appellants or the respondents have failed to point out any distinguishing feature in the present set of facts and as such I have no hesitation to hold that the claimants appellants are entitled to compensation of their acquired land @ Rs.28.12 per square yard.It is reiterated that decision in I.A. No. 116578 of 2021 reducing the compensation to Rs.28.12 paisa per square yard for the lands acquired in the year 1976 has been confirmed by this Court vide order dated 30.09.2016.13.3 From the table reproduced hereinabove, it can also be seen that with regard to the acquisition pertaining to the year 1976-1977 consistently the High Court has determined the compensation @ Rs.28.12 paisa per square yard. Even in one case, i.e., in the case of Jagdish Chand Vs. State of U.P. (supra) where the High Court determined the compensation @ Rs.28.12 paisa per square yard with regard to the acquisition pertaining to the year 1976-1977, the special leave petition has been dismissed as withdrawn by this Court. Therefore, as such at the most, the claimants can be said to be entitled to compensation @ Rs.28.12 paisa per square yard with regard to the lands acquired in the year 1976-1977.14. Now, so far as the alternative submission made on behalf of the claimants inCivil Appeal No. 5740 of 2021to determine the compensation on the basis of the judgment of the High Court in the case of Khazan and Ors. Vs. State of U.P. (supra) where the acquisition proceedings commenced in the year 1983 and the compensation was determined @ Rs.297/- per square yard is concerned, the aforesaid cannot be accepted. The appellants are claiming that in the case of the appellants, the land was acquired in the year 1976 and in the case of Khazan and Ors. Vs. State of U.P. (supra) the land was acquired in the year 1983, by adopting a formula of deducting 10% depreciation each year and after deducting 10% depreciation for 07 years, the compensation may be determined, the aforesaid cannot be accepted.As per the settled preposition of law, the compensation determined for the lands acquired subsequently cannot be said to be comparable at all. Even otherwise in the facts and circumstances, the same cannot be said to be comparable because of the fact that it has come on record that in the year 1976 when the lands in question were acquired, there was no development at all, however, subsequently, after 1980 the development had taken place and even the development plan has been sanctioned at the time when the land was acquired in the year 1983, therefore, the aforesaid request cannot be accepted. | 1 | 4,347 | 1,491 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
First Appeal No. 1100 of 2004 in the case of Mangu and Ors. (supra); (ii) It appears that inadvertently and without noticing that so far as the First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 are concerned, they were with regard to the acquisition of the year 1977, inadvertently and by mistake they were tagged alongwith First Appeal No. 1100 of 2004; (iii) Nobody specifically pointed out that First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 were with regard to the acquisition of 1977. Therefore, without noticing the aforesaid reference mechanically First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 with regard to the acquisition of year 1977 came to be disposed of along with First Appeal No.1100 of 2004 and mechanically the compensation with regard to the acquisition of 1977 came to be enhanced to Rs.297/- per square yard; (iv) That as such it was a mistake on the part of the High Court in not noticing the difference with regard to the acquisition of the years 1977 and 1991; (v) Nobody can be permitted to take the benefit of the mistake either of the Court or of any party, which mistake has occurred inadvertently and without noticing the peculiar facts. As such it was the duty of the Advocate for the claimants to point out the correct facts; (vi) Even otherwise it is to be noted that immediately after noticing the above, the review applications have been preferred in the aforesaid first appeals and which are reported to be pending. 13.1 Assuming for the time being that as the review applications are pending, this Court may not take note of the subsequent events of filing the review applications, which are yet to be decided by the High Court, in that case also and for the reasons stated above and considering the obvious mistake referred to herein above, the claimants in the present case cannot claim the compensation @ Rs.297/- per square yard relying upon the decision in the case of Mangu and Ors. (supra) with regard to the acquisition of the year 1991. 13.2 At this stage, it is also required to be noted that the claimants have also heavily relied upon the judgment of the High Court in the case of Jagmal Vs. State of U.P. in First Appeal No. 458 of 1984 determining the compensation @ Rs. 297/- per square yard with respect to the lands acquired by notification dated 16.09.1976. However, it is required to be noted that the judgment and order dated 11.03.2015 passed in First Appeal No.458 of 1984 in the case of Jagmal Vs. State of U.P. (supra) came to be subsequently reviewed by the High Court allowing the Civil Misc. Review Application No.174702 of 2015 in which the High Court subsequently noted and determined the compensation @ Rs.28.12 paisa per square yard by observing in paragraph 31 as under:- 31. Since in the matter of same acquisition and of the same village and also in acquisitions of land adjoining or nearby villages by notifications of Section 4(1) of the Act of the years 1976 and 1977, this court determined the compensation @ Rs.28.12 per square yard and also since the claimants appellants or the respondents have failed to point out any distinguishing feature in the present set of facts and as such I have no hesitation to hold that the claimants appellants are entitled to compensation of their acquired land @ Rs.28.12 per square yard. It is reiterated that decision in I.A. No. 116578 of 2021 reducing the compensation to Rs.28.12 paisa per square yard for the lands acquired in the year 1976 has been confirmed by this Court vide order dated 30.09.2016. 13.3 From the table reproduced hereinabove, it can also be seen that with regard to the acquisition pertaining to the year 1976-1977 consistently the High Court has determined the compensation @ Rs.28.12 paisa per square yard. Even in one case, i.e., in the case of Jagdish Chand Vs. State of U.P. (supra) where the High Court determined the compensation @ Rs.28.12 paisa per square yard with regard to the acquisition pertaining to the year 1976-1977, the special leave petition has been dismissed as withdrawn by this Court. Therefore, as such at the most, the claimants can be said to be entitled to compensation @ Rs.28.12 paisa per square yard with regard to the lands acquired in the year 1976-1977. 14. Now, so far as the alternative submission made on behalf of the claimants in Civil Appeal No. 5740 of 2021 to determine the compensation on the basis of the judgment of the High Court in the case of Khazan and Ors. Vs. State of U.P. (supra) where the acquisition proceedings commenced in the year 1983 and the compensation was determined @ Rs.297/- per square yard is concerned, the aforesaid cannot be accepted. The appellants are claiming that in the case of the appellants, the land was acquired in the year 1976 and in the case of Khazan and Ors. Vs. State of U.P. (supra) the land was acquired in the year 1983, by adopting a formula of deducting 10% depreciation each year and after deducting 10% depreciation for 07 years, the compensation may be determined, the aforesaid cannot be accepted. As per the settled preposition of law, the compensation determined for the lands acquired subsequently cannot be said to be comparable at all. Even otherwise in the facts and circumstances, the same cannot be said to be comparable because of the fact that it has come on record that in the year 1976 when the lands in question were acquired, there was no development at all, however, subsequently, after 1980 the development had taken place and even the development plan has been sanctioned at the time when the land was acquired in the year 1983, therefore, the aforesaid request cannot be accepted.
### Response:
1
### Explanation:
accepted for the following reasons:-(i) That High Court decided the batch of appeals alongwith First Appeal No. 1100 of 2004 in the case of Mangu and Ors. (supra);(ii) It appears that inadvertently and without noticing that so far as the First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 are concerned, they were with regard to the acquisition of the year 1977, inadvertently and by mistake they were tagged alongwith First Appeal No. 1100 of 2004;(iii) Nobody specifically pointed out that First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 were with regard to the acquisition of 1977. Therefore, without noticing the aforesaid reference mechanically First Appeal (D) Nos. 21 of 1987; 52 of 1987; 162 of 1987 and 17 of 1987 with regard to the acquisition of year 1977 came to be disposed of along with First Appeal No.1100 of 2004 and mechanically the compensation with regard to the acquisition of 1977 came to be enhanced to Rs.297/- per square yard;(iv) That as such it was a mistake on the part of the High Court in not noticing the difference with regard to the acquisition of the years 1977 and 1991;(v) Nobody can be permitted to take the benefit of the mistake either of the Court or of any party, which mistake has occurred inadvertently and without noticing the peculiar facts. As such it was the duty of the Advocate for the claimants to point out the correct facts;(vi) Even otherwise it is to be noted that immediately after noticing the above, the review applications have been preferred in the aforesaid first appeals and which are reported to be pending.13.1 Assuming for the time being that as the review applications are pending, this Court may not take note of the subsequent events of filing the review applications, which are yet to be decided by the High Court, in that case also and for the reasons stated above and considering the obvious mistake referred to herein above, the claimants in the present case cannot claim the compensation @ Rs.297/- per square yard relying upon the decision in the case of Mangu and Ors. (supra) with regard to the acquisition of the year 1991.13.2 At this stage, it is also required to be noted that the claimants have also heavily relied upon the judgment of the High Court in the case of Jagmal Vs. State of U.P. in First Appeal No. 458 of 1984 determining the compensation @ Rs. 297/- per square yard with respect to the lands acquired by notification dated 16.09.1976. However, it is required to be noted that the judgment and order dated 11.03.2015 passed in First Appeal No.458 of 1984 in the case of Jagmal Vs. State of U.P. (supra) came to be subsequently reviewed by the High Court allowing the Civil Misc. Review Application No.174702 of 2015 in which the High Court subsequently noted and determined the compensation @ Rs.28.12 paisa per square yard by observing in paragraph 31 as under:-31. Since in the matter of same acquisition and of the same village and also in acquisitions of land adjoining or nearby villages by notifications of Section 4(1) of the Act of the years 1976 and 1977, this court determined the compensation @ Rs.28.12 per square yard and also since the claimants appellants or the respondents have failed to point out any distinguishing feature in the present set of facts and as such I have no hesitation to hold that the claimants appellants are entitled to compensation of their acquired land @ Rs.28.12 per square yard.It is reiterated that decision in I.A. No. 116578 of 2021 reducing the compensation to Rs.28.12 paisa per square yard for the lands acquired in the year 1976 has been confirmed by this Court vide order dated 30.09.2016.13.3 From the table reproduced hereinabove, it can also be seen that with regard to the acquisition pertaining to the year 1976-1977 consistently the High Court has determined the compensation @ Rs.28.12 paisa per square yard. Even in one case, i.e., in the case of Jagdish Chand Vs. State of U.P. (supra) where the High Court determined the compensation @ Rs.28.12 paisa per square yard with regard to the acquisition pertaining to the year 1976-1977, the special leave petition has been dismissed as withdrawn by this Court. Therefore, as such at the most, the claimants can be said to be entitled to compensation @ Rs.28.12 paisa per square yard with regard to the lands acquired in the year 1976-1977.14. Now, so far as the alternative submission made on behalf of the claimants inCivil Appeal No. 5740 of 2021to determine the compensation on the basis of the judgment of the High Court in the case of Khazan and Ors. Vs. State of U.P. (supra) where the acquisition proceedings commenced in the year 1983 and the compensation was determined @ Rs.297/- per square yard is concerned, the aforesaid cannot be accepted. The appellants are claiming that in the case of the appellants, the land was acquired in the year 1976 and in the case of Khazan and Ors. Vs. State of U.P. (supra) the land was acquired in the year 1983, by adopting a formula of deducting 10% depreciation each year and after deducting 10% depreciation for 07 years, the compensation may be determined, the aforesaid cannot be accepted.As per the settled preposition of law, the compensation determined for the lands acquired subsequently cannot be said to be comparable at all. Even otherwise in the facts and circumstances, the same cannot be said to be comparable because of the fact that it has come on record that in the year 1976 when the lands in question were acquired, there was no development at all, however, subsequently, after 1980 the development had taken place and even the development plan has been sanctioned at the time when the land was acquired in the year 1983, therefore, the aforesaid request cannot be accepted.
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Mukesh Kumar Aggarwal & Ors Vs. State Of Madhya Pradesh & Ors | that the finding that the goods was Timber appears to have been reached as a necessary consequence and logical corollory of the goods not being fire-wood: If the wood is not "fire-wood", it need not necessarily and for that reason alone be Timber. All wood is not timber as, indeed, all wood is not fire-wood either though perhaps it may not be incorrect to say that both firewood and Timber are wood in its generic sense.The High Court further reasoned: " ... It has also been mentioned that timber is obtained by cutting standing trees. It may be hard wood timber or soft wood timber. Eucalyptus trees are covered by soft wood timber .. " " ... The petitioners offered to purchase the goods which could be used for manufacture of woodware, furniture, etc. as well as manufacture of Pulp. The petitioners deal in timber ......Here again, pushed to its logical conclusions, the reasoning incur s the criticism of proceeding to determine the nature of the goods by the test of the use to which they are capable of being put. The user-test is logical; but is, again, inconclusive. The particular use to which an article can be applied i n the hands of a special consumer is not determinative of the nature of the goods. Even as the description of the goods by the authorities of the forest- department who called them varyingly as eucalyptus fuel- wood eucalyptus wood-heap etc. is not determinative, the fact that the purchasers were dealers in timber is also not conclusive.The High Court also observed:"..... The length of the pieces is not relevant criteria to determine whether the wood is timber or not. The goods A offered for sale were eucalyptus wood- stacks .....Length is, no doubt a relevant consideration; but it is a relative concept and associated with the idea of utility. A piece of rope, it is said, is itself a rope, provided It serves the purpose of one. 6. The question is not really whether "Eucalyptus"(Nilgiri) Tree is or is not a Timber tree. By every reckoning it is. Eucalyptus is a large, rapid growing, eve rgreen tree of the myrtle family, originally a native of Austrailia, Tasmania and Malaysis. There are a large number of its species. The ideal species under ideal conditions, it would appear, reaches a height of 370 ft. with a girth of nearly 25 ft. Apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength size and durability (See: Encyclopaedia Britannica: 1968: Vol. 8 page 806 &807; Encyclopaedia American: Vol. 10 pages 648 &649). But the question is whether the subsidiary parts of the tree sold in heaps after the Ballies and poles are separated, can be called Imarathi-Lakdi or Timber. We think, it would be somewhat of a strain on the popular meaning of the expression Timber with the sense size and utility implicit in the idea. to call these wood-heaps Timber, meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps Timber whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the goods were not timber; but only "fire-wood". We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid-down. The point to note and emphasis is that all parts or portions of even a timber-tree need not necessarily be Timber. Some parts are timber, some parts merely "fire- wood" and yet others merely wood. Having regard to the nature and description of the wood in the present case, we think, the wood-heaps are not susceptible to be or admit of being called Timber with all the concomitants and associations of that idea. Perhaps, different considerations might apply if, say, the pieces of eucalyptus wood are of a longer-length or of a higher girth. Differences of degree can bring about differences of kind.7. What emerges therefore, is that the goods in question are not Timber within the meaning and for purposes of entry 32A of the Act.In regard to the question as to what other description the goods answer and which other entry they fall under, learned counsel on both sides submitted that, if we hold that entry 32 A is not the appropriate one, the matter be remitted to the High Court for a fresh consideration of the matter in the light of such other or further material the parties may place before the High Court. We accept this submission. 8. In the result, these appeals are allowed in part and the finding of the High Court that the goods in question fall within and attract entry 32 A of Part II of Schedule II of the Act is set aside and the matter is remitted to the High Court for an appropriate decision as to which other entry the goods in question attract. The appeals are disposed of accordingly. 9. We might advert to yet another submission of Sri Sanghi. He submitted that consistent with the finding that the goods do not attract tax at 16% under the said entry 32A respondents cannot retain the tax already collected at 16%. Learned Counsel submitted that even if the goods are said to fall under the Residuary entry, the rate of tax would only be 10% and that respondents, accordingly, should be directed to refund to the appellants sums equivalent to 6% of the tax, wherever tax at 16% has been collected, without waiting for a decision on remand as indeed, the re would be no prospect of the goods attracting tax at a rate higher than 10% now that entry 32 A is held inapplicable. This, in our opinion is a reasonable request and requires to be accepted. The concerned Respondents are directed to refund to the appellants sums equivalent to 6% wherever the taxes are already recovered at | 1[ds]3. Though, the notification inviting tenders and certain other documents appear to describes the goods variously as "eucalyputs fire-wood stacks., "eucalyptus wood stacks", Nilgiri fuel wood etc., the nomenclature is not determinative or conclusive of the nature of the "goods" which will have to be determined by the application of certain well-settled principles, guiding the matter.In its popular sense, timber is understood to be Imarathi-Lakdi. In a popular-sense Timber has certain association of ideas: as to its size, stability, utility, durability, the unit or measure of quantity and of valuation etc. The question is whether by the standards of these popular connotations, the wood-stacks or wood-heaps sold to, and purchased by, the appellants can be held to answer the popular notions of Timber. When standing-timber, is sold as uncut tree different considerations may arise.The nature of the "wood" sold is described in the letter, dated, 30.5.1985, addressed by the Divisional Forest officer. The subject matter of the sale has been referred to as Nilgiri fuel-wood. The wood was offered for sale in stacks of the size of l x 1. 25 x 2 mtrs. With each piece of a length of 1.25 meters and a girth, at the thinner end, of not less than 10 cms. They were sold not by volume or by the number of pieces. The wood was offered with a particular kind of user in mind, viz, as a source of industrial-raw material for pulp in the manufacture of synthetic fibre. As pointed out by the High-Court, in the returns filed by the respondents, it was mentioned that eucalyptus-plantation was a recent development and promoted with the specific purpose for use in specifically in the preparation of pulp and sold throughout the state with this specific object.Respondents in their endeavor to controvert appellants contention that the wood sold was "fire-wood" went on to say that while stacks of fire-wood of similar sizes fetch prices between Rs.20 to Rs.80 each, the stacks of the eucalyptus- wood on the other hand, fetch to Rs.300 to Rs.600 per stack and that, therefore, nobody uses eucalyptus as "fire-wood". The High Court, felt persuaded to the view that the wood sold did not admit of being described as "fire-wood".The question is not really whether "Eucalyptus"(Nilgiri) Tree is or is not a Timber tree. By every reckoning it is. Eucalyptus is a large, rapid growing, eve rgreen tree of the myrtle family, originally a native of Austrailia, Tasmania and Malaysis. There are a large number of its species. The ideal species under ideal conditions, it would appear, reaches a height of 370 ft. with a girth of nearly 25 ft. Apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength size and durability (See: Encyclopaedia Britannica: 1968: Vol. 8 page 806 &807; Encyclopaedia American: Vol. 10 pages 648 &649). But the question is whether the subsidiary parts of the tree sold in heaps after the Ballies and poles are separated, can be called Imarathi-Lakdi or Timber. We think, it would be somewhat of a strain on the popular meaning of the expression Timber with the sense size and utility implicit in the idea. to call these wood-heaps Timber, meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps Timber whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the goods were not timber; but only "fire-wood". We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid-down. The point to note and emphasis is that all parts or portions of even a timber-tree need not necessarily be Timber. Some parts are timber, some parts merely "fire- wood" and yet others merely wood. Having regard to the nature and description of the wood in the present case, we think, the wood-heaps are not susceptible to be or admit of being called Timber with all the concomitants and associations of that idea. Perhaps, different considerations might apply if, say, the pieces of eucalyptus wood are of a longer-length or of a higher girth. Differences of degree can bring about differences of kind.7. What emerges therefore, is that the goods in question are not Timber within the meaning and for purposes of entry 32A of the Act.In regard to the question as to what other description the goods answer and which other entry they fall under, learned counsel on both sides submitted that, if we hold that entry 32 A is not the appropriate one, the matter be remitted to the High Court for a fresh consideration of the matter in the light of such other or further material the parties may place before the High Court. We accept thiscontention did not find favour with the Highin our opinion is a reasonable request and requires to be accepted. The concerned Respondents are directed to refund to the appellants sums equivalent to 6% wherever the taxes are already recovered atn our opinion is a reasonable request and requires to be accepted. | 1 | 2,997 | 983 | ### 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:
that the finding that the goods was Timber appears to have been reached as a necessary consequence and logical corollory of the goods not being fire-wood: If the wood is not "fire-wood", it need not necessarily and for that reason alone be Timber. All wood is not timber as, indeed, all wood is not fire-wood either though perhaps it may not be incorrect to say that both firewood and Timber are wood in its generic sense.The High Court further reasoned: " ... It has also been mentioned that timber is obtained by cutting standing trees. It may be hard wood timber or soft wood timber. Eucalyptus trees are covered by soft wood timber .. " " ... The petitioners offered to purchase the goods which could be used for manufacture of woodware, furniture, etc. as well as manufacture of Pulp. The petitioners deal in timber ......Here again, pushed to its logical conclusions, the reasoning incur s the criticism of proceeding to determine the nature of the goods by the test of the use to which they are capable of being put. The user-test is logical; but is, again, inconclusive. The particular use to which an article can be applied i n the hands of a special consumer is not determinative of the nature of the goods. Even as the description of the goods by the authorities of the forest- department who called them varyingly as eucalyptus fuel- wood eucalyptus wood-heap etc. is not determinative, the fact that the purchasers were dealers in timber is also not conclusive.The High Court also observed:"..... The length of the pieces is not relevant criteria to determine whether the wood is timber or not. The goods A offered for sale were eucalyptus wood- stacks .....Length is, no doubt a relevant consideration; but it is a relative concept and associated with the idea of utility. A piece of rope, it is said, is itself a rope, provided It serves the purpose of one. 6. The question is not really whether "Eucalyptus"(Nilgiri) Tree is or is not a Timber tree. By every reckoning it is. Eucalyptus is a large, rapid growing, eve rgreen tree of the myrtle family, originally a native of Austrailia, Tasmania and Malaysis. There are a large number of its species. The ideal species under ideal conditions, it would appear, reaches a height of 370 ft. with a girth of nearly 25 ft. Apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength size and durability (See: Encyclopaedia Britannica: 1968: Vol. 8 page 806 &807; Encyclopaedia American: Vol. 10 pages 648 &649). But the question is whether the subsidiary parts of the tree sold in heaps after the Ballies and poles are separated, can be called Imarathi-Lakdi or Timber. We think, it would be somewhat of a strain on the popular meaning of the expression Timber with the sense size and utility implicit in the idea. to call these wood-heaps Timber, meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps Timber whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the goods were not timber; but only "fire-wood". We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid-down. The point to note and emphasis is that all parts or portions of even a timber-tree need not necessarily be Timber. Some parts are timber, some parts merely "fire- wood" and yet others merely wood. Having regard to the nature and description of the wood in the present case, we think, the wood-heaps are not susceptible to be or admit of being called Timber with all the concomitants and associations of that idea. Perhaps, different considerations might apply if, say, the pieces of eucalyptus wood are of a longer-length or of a higher girth. Differences of degree can bring about differences of kind.7. What emerges therefore, is that the goods in question are not Timber within the meaning and for purposes of entry 32A of the Act.In regard to the question as to what other description the goods answer and which other entry they fall under, learned counsel on both sides submitted that, if we hold that entry 32 A is not the appropriate one, the matter be remitted to the High Court for a fresh consideration of the matter in the light of such other or further material the parties may place before the High Court. We accept this submission. 8. In the result, these appeals are allowed in part and the finding of the High Court that the goods in question fall within and attract entry 32 A of Part II of Schedule II of the Act is set aside and the matter is remitted to the High Court for an appropriate decision as to which other entry the goods in question attract. The appeals are disposed of accordingly. 9. We might advert to yet another submission of Sri Sanghi. He submitted that consistent with the finding that the goods do not attract tax at 16% under the said entry 32A respondents cannot retain the tax already collected at 16%. Learned Counsel submitted that even if the goods are said to fall under the Residuary entry, the rate of tax would only be 10% and that respondents, accordingly, should be directed to refund to the appellants sums equivalent to 6% of the tax, wherever tax at 16% has been collected, without waiting for a decision on remand as indeed, the re would be no prospect of the goods attracting tax at a rate higher than 10% now that entry 32 A is held inapplicable. This, in our opinion is a reasonable request and requires to be accepted. The concerned Respondents are directed to refund to the appellants sums equivalent to 6% wherever the taxes are already recovered at
### Response:
1
### Explanation:
3. Though, the notification inviting tenders and certain other documents appear to describes the goods variously as "eucalyputs fire-wood stacks., "eucalyptus wood stacks", Nilgiri fuel wood etc., the nomenclature is not determinative or conclusive of the nature of the "goods" which will have to be determined by the application of certain well-settled principles, guiding the matter.In its popular sense, timber is understood to be Imarathi-Lakdi. In a popular-sense Timber has certain association of ideas: as to its size, stability, utility, durability, the unit or measure of quantity and of valuation etc. The question is whether by the standards of these popular connotations, the wood-stacks or wood-heaps sold to, and purchased by, the appellants can be held to answer the popular notions of Timber. When standing-timber, is sold as uncut tree different considerations may arise.The nature of the "wood" sold is described in the letter, dated, 30.5.1985, addressed by the Divisional Forest officer. The subject matter of the sale has been referred to as Nilgiri fuel-wood. The wood was offered for sale in stacks of the size of l x 1. 25 x 2 mtrs. With each piece of a length of 1.25 meters and a girth, at the thinner end, of not less than 10 cms. They were sold not by volume or by the number of pieces. The wood was offered with a particular kind of user in mind, viz, as a source of industrial-raw material for pulp in the manufacture of synthetic fibre. As pointed out by the High-Court, in the returns filed by the respondents, it was mentioned that eucalyptus-plantation was a recent development and promoted with the specific purpose for use in specifically in the preparation of pulp and sold throughout the state with this specific object.Respondents in their endeavor to controvert appellants contention that the wood sold was "fire-wood" went on to say that while stacks of fire-wood of similar sizes fetch prices between Rs.20 to Rs.80 each, the stacks of the eucalyptus- wood on the other hand, fetch to Rs.300 to Rs.600 per stack and that, therefore, nobody uses eucalyptus as "fire-wood". The High Court, felt persuaded to the view that the wood sold did not admit of being described as "fire-wood".The question is not really whether "Eucalyptus"(Nilgiri) Tree is or is not a Timber tree. By every reckoning it is. Eucalyptus is a large, rapid growing, eve rgreen tree of the myrtle family, originally a native of Austrailia, Tasmania and Malaysis. There are a large number of its species. The ideal species under ideal conditions, it would appear, reaches a height of 370 ft. with a girth of nearly 25 ft. Apart from its utility as a source of gum and medicinal oils, the slow-growing species are especially known for the quality of its timber marked for strength size and durability (See: Encyclopaedia Britannica: 1968: Vol. 8 page 806 &807; Encyclopaedia American: Vol. 10 pages 648 &649). But the question is whether the subsidiary parts of the tree sold in heaps after the Ballies and poles are separated, can be called Imarathi-Lakdi or Timber. We think, it would be somewhat of a strain on the popular meaning of the expression Timber with the sense size and utility implicit in the idea. to call these wood-heaps Timber, meant or fit for building purposes. Persons conversant with the subject-matter will not call these wood-heaps Timber whatever else the goods might, otherwise, be. It would appear that at one stage the forest department itself opined that the goods were not timber; but only "fire-wood". We must, however, add that no tests of general validity applicable to or governing all cases can at all be laid-down. The point to note and emphasis is that all parts or portions of even a timber-tree need not necessarily be Timber. Some parts are timber, some parts merely "fire- wood" and yet others merely wood. Having regard to the nature and description of the wood in the present case, we think, the wood-heaps are not susceptible to be or admit of being called Timber with all the concomitants and associations of that idea. Perhaps, different considerations might apply if, say, the pieces of eucalyptus wood are of a longer-length or of a higher girth. Differences of degree can bring about differences of kind.7. What emerges therefore, is that the goods in question are not Timber within the meaning and for purposes of entry 32A of the Act.In regard to the question as to what other description the goods answer and which other entry they fall under, learned counsel on both sides submitted that, if we hold that entry 32 A is not the appropriate one, the matter be remitted to the High Court for a fresh consideration of the matter in the light of such other or further material the parties may place before the High Court. We accept thiscontention did not find favour with the Highin our opinion is a reasonable request and requires to be accepted. The concerned Respondents are directed to refund to the appellants sums equivalent to 6% wherever the taxes are already recovered atn our opinion is a reasonable request and requires to be accepted.
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Janapareddy Latchan Naidu Vs. Janapareddy Sanyasamma | to her charge could not maintain a fresh application for the sale of the other properties. The subordinate Judge of Visakhapatnam upheld the contention of the appellant and dismissed the execution petition as not maintainable. The respondent appealed to the High Court. The High Court reversed the decision of the subordinate Judge and ordered the execution to proceed. The appellant has now appealed after obtaining special leave from this Court.3. The short question is whether the decree must be held to be satisfied because the respondent purchased in an earlier execution one lot of properties subject to her charge for maintenance. Learned counsel for the appellant contends that the respondent must now look to the properties purchased by her for satisfaction of her claim in respect of maintenance past or future. In the alternative he contends that execution against the properties in his possession cannot proceed till the respondent has first proceeded against the properties with her. In our opinion neither proposition is correct.4. The maintenance decree passed by the Subordinate Judge of Visakhapatnam is not only a declaratory decree but also an executory decree. It provides that the appellant shall pay to the respondent Rs. 3,000 per year as maintenance on the 28th day of February of every year as long as she lives. When the first execution was levied the amounts due upto June 28, 1952, were realised by the sale of the properties of lots 1 and 2. The respondent as the auction purchaser deposited Rs. 6,010 towards the balance of the purchase price after deducting the maintenance amount under the decree as it then stood. The present execution concerns the sum which fell due between June 28, 1952, and February 28, 1955. Included in this sum are Rs. 8,000 towards maintenance and Rs. 867-8-0 towards costs.5. The contention of the appellant is that the respondent having purchased the first lot of properties subject to the charge cannot now recover this amount from the properties remaining with the appellant. In other words, the appellant contends that there is some kind of merger of the right under the maintenance decree with the right arising from the auction purchase and the respondent which she has purchased and not against properties which remain with the appellant.6. The argument involves a fallacy because it assumes that a charge created by a decree on a number of properties disappears when the charge-holder in execution of the charge-decree purchases one lot of properties. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amount cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirely to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge-holder and those that remain. It is not permissible to seek an analogy from the case of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage there is a personal liability express or implied but in the case of charge there is not such personal liability and the decree, if it seeks to charge the judgment debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellants contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced against all the properties or severally.7. In the present case the respondent could proceed at her option to recover the arrears of maintenance as they fell due from any of the properties which were the subject of the charge, that is to say, those which were in the possession and ownership of the appellant and those in her possession and ownership as auction-purchaser. There is nothing in law which requires the respondent to proceed against the properties which she had earlier purchased. There is no question of marshalling of these properties. It is true that the Court may decide which of the properties charged should be sold and in what order and the Court does choose between different properties when ordering sale. To that extent the Court can assist a judgment-debtor. But this can only be in respect of the properties which the judgment-debtor holds and against which the charge-holder wants to proceed. But the Court cannot say to the charge-holder that he must exhaust his remedies over and over again against the properties purchased by him in execution of his charge-decree and subject to his own charge. Therefore, between the appellant and the respondent the Court cannot order the respondent to proceed against properties in her possession even though it can make an election on behalf of the appellant and enforce the charge against one item in preference to another belonging to him.8. In our opinion the respondent was entitled to proceed against the remaining properties in the hands of the appellant which continued charged. The executing Court may, of course, sell only such items as may be sufficient to meet the present does under the decree but the appellant cannot insist that the respondent should proceed against the properties acquired by her under the first sale. We express no opinion on the question whether the decree can be personally executed against the appellant because that question did not arise here. | 0[ds]4. The maintenance decree passed by the Subordinate Judge of Visakhapatnam is not only a declaratory decree but also an executory decree.The argument involves a fallacy because it assumes that a charge created by a decree on a number of properties disappears when the charge-holder in execution of the charge-decree purchases one lot of properties. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amount cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirely to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge-holder and those that remain. It is not permissible to seek an analogy from the case of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage there is a personal liability express or implied but in the case of charge there is not such personal liability and the decree, if it seeks to charge the judgment debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellants contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced against all the properties orbetween the appellant and the respondent the Court cannot order the respondent to proceed against properties in her possession even though it can make an election on behalf of the appellant and enforce the charge against one item in preference to another belonging to him.8. In our opinion the respondent was entitled to proceed against the remaining properties in the hands of the appellant which continued charged. The executing Court may, of course, sell only such items as may be sufficient to meet the present does under the decree but the appellant cannot insist that the respondent should proceed against the properties acquired by her under the first sale. We express no opinion on the question whether the decree can be personally executed against the appellant because that question did not arise here. | 0 | 1,289 | 489 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
to her charge could not maintain a fresh application for the sale of the other properties. The subordinate Judge of Visakhapatnam upheld the contention of the appellant and dismissed the execution petition as not maintainable. The respondent appealed to the High Court. The High Court reversed the decision of the subordinate Judge and ordered the execution to proceed. The appellant has now appealed after obtaining special leave from this Court.3. The short question is whether the decree must be held to be satisfied because the respondent purchased in an earlier execution one lot of properties subject to her charge for maintenance. Learned counsel for the appellant contends that the respondent must now look to the properties purchased by her for satisfaction of her claim in respect of maintenance past or future. In the alternative he contends that execution against the properties in his possession cannot proceed till the respondent has first proceeded against the properties with her. In our opinion neither proposition is correct.4. The maintenance decree passed by the Subordinate Judge of Visakhapatnam is not only a declaratory decree but also an executory decree. It provides that the appellant shall pay to the respondent Rs. 3,000 per year as maintenance on the 28th day of February of every year as long as she lives. When the first execution was levied the amounts due upto June 28, 1952, were realised by the sale of the properties of lots 1 and 2. The respondent as the auction purchaser deposited Rs. 6,010 towards the balance of the purchase price after deducting the maintenance amount under the decree as it then stood. The present execution concerns the sum which fell due between June 28, 1952, and February 28, 1955. Included in this sum are Rs. 8,000 towards maintenance and Rs. 867-8-0 towards costs.5. The contention of the appellant is that the respondent having purchased the first lot of properties subject to the charge cannot now recover this amount from the properties remaining with the appellant. In other words, the appellant contends that there is some kind of merger of the right under the maintenance decree with the right arising from the auction purchase and the respondent which she has purchased and not against properties which remain with the appellant.6. The argument involves a fallacy because it assumes that a charge created by a decree on a number of properties disappears when the charge-holder in execution of the charge-decree purchases one lot of properties. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amount cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirely to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge-holder and those that remain. It is not permissible to seek an analogy from the case of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage there is a personal liability express or implied but in the case of charge there is not such personal liability and the decree, if it seeks to charge the judgment debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellants contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced against all the properties or severally.7. In the present case the respondent could proceed at her option to recover the arrears of maintenance as they fell due from any of the properties which were the subject of the charge, that is to say, those which were in the possession and ownership of the appellant and those in her possession and ownership as auction-purchaser. There is nothing in law which requires the respondent to proceed against the properties which she had earlier purchased. There is no question of marshalling of these properties. It is true that the Court may decide which of the properties charged should be sold and in what order and the Court does choose between different properties when ordering sale. To that extent the Court can assist a judgment-debtor. But this can only be in respect of the properties which the judgment-debtor holds and against which the charge-holder wants to proceed. But the Court cannot say to the charge-holder that he must exhaust his remedies over and over again against the properties purchased by him in execution of his charge-decree and subject to his own charge. Therefore, between the appellant and the respondent the Court cannot order the respondent to proceed against properties in her possession even though it can make an election on behalf of the appellant and enforce the charge against one item in preference to another belonging to him.8. In our opinion the respondent was entitled to proceed against the remaining properties in the hands of the appellant which continued charged. The executing Court may, of course, sell only such items as may be sufficient to meet the present does under the decree but the appellant cannot insist that the respondent should proceed against the properties acquired by her under the first sale. We express no opinion on the question whether the decree can be personally executed against the appellant because that question did not arise here.
### Response:
0
### Explanation:
4. The maintenance decree passed by the Subordinate Judge of Visakhapatnam is not only a declaratory decree but also an executory decree.The argument involves a fallacy because it assumes that a charge created by a decree on a number of properties disappears when the charge-holder in execution of the charge-decree purchases one lot of properties. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amount cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirely to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge-holder and those that remain. It is not permissible to seek an analogy from the case of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage there is a personal liability express or implied but in the case of charge there is not such personal liability and the decree, if it seeks to charge the judgment debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellants contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced against all the properties orbetween the appellant and the respondent the Court cannot order the respondent to proceed against properties in her possession even though it can make an election on behalf of the appellant and enforce the charge against one item in preference to another belonging to him.8. In our opinion the respondent was entitled to proceed against the remaining properties in the hands of the appellant which continued charged. The executing Court may, of course, sell only such items as may be sufficient to meet the present does under the decree but the appellant cannot insist that the respondent should proceed against the properties acquired by her under the first sale. We express no opinion on the question whether the decree can be personally executed against the appellant because that question did not arise here.
|
Icici Bank Limited Vs. Officl.Liquir.Of Aps Star Indus.Ld | the account of a borrower(s) (customer) is a debt due and payable by the borrower(s) to the bank. Secondly, the bank is the owner of such debt. Such debt is an asset in the hands of the bank as a secured creditor or mortgagee or hypothecatee. The bank can always transfer its asset. Such transfer in no manner affects any right or interest of the borrower(s) (customer). Further, there is no prohibition in the BR Act, 1949 in the bank transferring its assets inter se. Even in the matter of assigning debts, it cannot be said that the banks are trading in debts, as held by the High Court(s). The assignor bank has never purchased the debt(s). It has advanced loans against security as part of its banking business. The account of a client in the books of the bank becomes Non Performing Asset when the client fails to repay. In assigning the debts with underlying security, the bank is only transferring its asset and is not acquiring any rights of its client(s). The bank transfers its asset for a particular agreed price and is no longer entitled to recover anything from the borrower(s). The moment ICICI Bank Ltd. transfers the debt with underlying security, the borrower(s) ceases to be the borrower(s) of the ICICI Bank Ltd. and becomes the borrower(s) of Kotak Mahindra Bank Ltd. (assignee). At this stage, we wish to once again emphasize that debts are assets of the assignor bank. The High Court(s) has erred in not appreciating that the assignor bank is only transferring its rights under a contract and its own asset, namely, the debt as also the mortgagees rights in the mortgaged properties without in any manner affecting the rights of the borrower(s)/mortgagor(s) in the contract or in the assets. None of the clauses of the impugned Deed of Assignment transfers any obligations of the assignor towards the assignee. In the case of Khardah Company Ltd. v. Raymon & Co. (India) Private Ltd. reported in (1963) 3 S.C.R. 183 the Supreme Court has held that the law on the subject of assignment of a contract is well settled. An assignment of a contract might result by transfer either of the rights or by transfer of obligations thereunder. There is a well recognized distinction between the two classes of assignments. As a rule, obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. That, rights under a contract are always assignable unless the contract is personal in its nature or unless the rights are incapable of assignment, either under the law or under an agreement between the parties. A benefit under the contract can always be assigned. That, there is, in law, a clear distinction between assignment of rights under a contract by a party who has performed his obligation thereunder and an assignment of a claim for compensation which one party has against the other for breach of contract. 19. In the case of Camdex International Ltd. v. Bank of Zambia reported in (1998) Q.B. 22 (CA) the following observation which is relevant to the present case needs to be quoted: "The assignment of a debt will not be contrary to public policy solely on the grounds that the assignee has purchased the debt for a considerably discounted price or because that price is only payable after a period of credit. Nor will the assignment be contrary to public policy simply because the assignee may make a profit on the transaction at the end of the day. If there was no prospect of a profit, Hobhouse LJ observed, commercial entities would never purchase debts." 20. Similarly, the following proposition in Chitty on Contracts, 27th edn. (1994) at para 19.027 is relevant to be noted. "It is also well established that a claim to a simple debt is assignable even if the debtor has refused to pay. The practice of assigning or `selling debts to debt collecting agencies and credit factors could hardly be carried on if the law were otherwise. " 21. In view of the above exposition of law, we find that under the impugned Deed of Assignment only the Account Receivables in the books of ICICI Bank Ltd. has been transferred to Kotak Mahindra Bank Ltd. The obligations of ICICI Bank Ltd. towards its borrower(s) (customer) under the loan agreement secured by deed of hypothecation/mortgage have not been assigned by ICICI Bank Ltd. to the assignee bank, namely, Kotak Mahindra Bank Ltd. Hence, it cannot be said that the impugned Deed of Assignment is unsustainable in law. The obligations referred to in the impugned Deed of Assignment are the obligations, if any, of ICICI Bank Ltd. towards Kotak Mahindra Bank Ltd. (assignee) in the matter of transfer of NPAs. For example, when an Account Receivable is treated as NPA and assigned to the assignee bank, the parties have to follow certain Guidelines issued by RBI. If there is a breach of the Guidelines or statutory directions issued by RBI by Assignor in regard to transfer of NPA then the assignee bank can enforce such obligations vis-à-vis the assignor bank. It is these obligations which are referred to in the impugned Deed of Assignment. That, an Account Receivable becomes an NPA only because of the default committed by the borrower(s) who fails to repay. Lastly, it may be mentioned that the said SARFAESI Act, 2002 was enacted enabling specified SPVs to buy the NPAs from banks. However, from that it does not follow that banks inter se cannot transfer their own assets. Hence the said SARFAESI Act, 2002 has no relevance in this case.22. Before concluding, we may state that NPAs are created on account of the breaches committed by the borrower. He violates his obligation to repay the debts. One fails to appreciate the opportunity he seeks to participate in the "Transfer of Account Receivable" from one bank to the other. | 1[ds]13. The above analysis of the various provisions of the 1949 Act shows that RBI is empowered to regulate the business of the banking companies. That, RBI is empowered to control management of banking companies in certain situations. It is empowered to lay down conditions on which the banking companies will operate. It is empowered to regulate paid-up capital, reserve fund, cash fund and above all to lay down policies in the matter of advances to be made by the banking companies, allocation of resources etc. While laying down such policies under the said Act, RBI can lay down parameters enabling banking companies to expand its business. For example, RBIs permission is required to be obtained if a banking company seeks to deal in "derivatives". It is a business which will not fall in clauses (a) to (o) of Section 6(1)(a) and yet RBI can lay down guidelines and directions enabling banking companies to deal in derivatives like futures and options. The point we are trying to make is that apart from the principal business of accepting deposits and lending the said 1949 Act leaves ample scope for the banking companies to venture into new businesses subject to such businesses being subject to the control of the Regulator, viz. RBI. In other words, the 1949 Act allows banking companies to undertake activities and businesses as long as they do not attract prohibitions and restrictions like those contained in Sections 8 and 9. In this connection we need to emphasize that Section 6(1)(n) enables a banking company to do all things as are incidental or conducive to promotion or advancement of the business of the company. Section 6(1) enables banking companies to carry on different types of businesses. Under Section 6(1), these different types of businesses are in addition to business of banking, viz., core banking. The importance of the words "in addition to" in Section 6(1) is that even if different businesses under clauses (a) to (o) are shut down, the company would still be a banking company as long as it is in the core banking of accepting deposits and lending so that its main income is from the spread or what is called as "interest income". Thus, we may broadly categorise the functions of the banking company into two parts, viz., core banking of accepting deposits and lending and miscellaneous functions and services. Section 6 of the BR Act, 1949 provides for the form of business in which banking companies may engage. Thus, RBI is empowered to enact a policy which would enable banking companies to engage in activities in addition to core banking and in the process it defines as to what constitutes "banking business". The BR Act, 1949 basically seeks to regulate banking business. In the cases in hand we are not concerned with the definition of banking but with what constitutes "banking business". Thus, the said BR Act, 1949 is an open-ended Act. It empowers RBI (regulator and policy framer in matter of advances and capital adequacy norms) to develop a healthy secondary market, by allowing banks inter se to deal in NPAs in order to clean the balance sheets of the banks which guideline/policy falls under Section 6(1)(a) r/w Section 6(1)(n). Therefore, it cannot be said that assignment of debts/NPAs is not an activity permissible under the BR Act, 1949. Thus, accepting deposits and lending by itself is not enough to constitute the "business of banking". The dependence of commerce on banking is so great that in modern money economy the cessation even for a day of the banking activities would completely paralyse the economic life of the nation. Thus, the BR Act, 1949 mandates a statutory comprehensive and formal structure of banking regulation and supervision intest is satisfied in this case. The guidelines issued by RBI dated 13.7.2005 itself authorizes banks to deal inter se in NPAs. These guidelines have been issued by the Regulator in exercise of the powers conferred by Sections 21 and 35A of the Act. They have a statutory force of law. They have allowed banks to engage in trading in NPAs with the purpose of cleaning the balance sheets so that they could raise the capital adequacy ratio. All this comes within the ambit of Section 21 which enables RBI to frame the policy in relation to Advances to be followed by the banking companies and which empowers RBI to give directions to banking companies under Section 21(2). These guidelines and directions following them have a statutory force. When a delegate is empowered by the Parliament to enact a Policy and to issue directions which have a statutory force and when the delegate (RBI) issues such guidelines (Policy) having statutory force, such guidelines have got to be read as supplement to the provisions of the BR Act, 1949. The "banking policy" is enunciated by RBI. Such policy cannot be said to be ultra vires the Act. The idea behind empowering RBI to determine the Policy in relation to Advances is to enable banking companies to expand their business of banking and in that sense such guidelines also define - as to what constitutes banking business.Thus, in our view on reading the provisions of the BR Act, 1949 with the Guidelines of RBI issued from time to time in relation to Advances and Re-structuring/Management of NPAs we are of the view that the BR Act, 1949 is a complete Code on banking and that dealing in NPAs inter se by the banks needs to be looked in the larger framework of "Re-structuring of banking System". Thus, we need not go into the provisions of the said TP Act. In fact, it is the case of the borrower(s) that provisions of the said TP Act has nofind no merit in the above arguments.18. As stated above, an outstanding in the account of a borrower(s) (customer) is a debt due and payable by the borrower(s) to the bank. Secondly, the bank is the owner of such debt. Such debt is an asset in the hands of the bank as a secured creditor or mortgagee or hypothecatee. The bank can always transfer its asset. Such transfer in no manner affects any right or interest of the borrower(s) (customer). Further, there is no prohibition in the BR Act, 1949 in the bank transferring its assets inter se. Even in the matter of assigning debts, it cannot be said that the banks are trading in debts, as held by the High Court(s). The assignor bank has never purchased the debt(s). It has advanced loans against security as part of its banking business. The account of a client in the books of the bank becomes Non Performing Asset when the client fails to repay. In assigning the debts with underlying security, the bank is only transferring its asset and is not acquiring any rights of its client(s). The bank transfers its asset for a particular agreed price and is no longer entitled to recover anything from the borrower(s). The moment ICICI Bank Ltd. transfers the debt with underlying security, the borrower(s) ceases to be the borrower(s) of the ICICI Bank Ltd. and becomes the borrower(s) of Kotak Mahindra Bank Ltd. (assignee). At this stage, we wish to once again emphasize that debts are assets of the assignor bank. The High Court(s) has erred in not appreciating that the assignor bank is only transferring its rights under a contract and its own asset, namely, the debt as also the mortgagees rights in the mortgaged properties without in any manner affecting the rights of the borrower(s)/mortgagor(s) in the contract or in the assets. None of the clauses of the impugned Deed of Assignment transfers any obligations of the assignor towards the assignee.In view of the above exposition of law, we find that under the impugned Deed of Assignment only the Account Receivables in the books of ICICI Bank Ltd. has been transferred to Kotak Mahindra Bank Ltd. The obligations of ICICI Bank Ltd. towards its borrower(s) (customer) under the loan agreement secured by deed of hypothecation/mortgage have not been assigned by ICICI Bank Ltd. to the assignee bank, namely, Kotak Mahindra Bank Ltd. Hence, it cannot be said that the impugned Deed of Assignment is unsustainable in law. The obligations referred to in the impugned Deed of Assignment are the obligations, if any, of ICICI Bank Ltd. towards Kotak Mahindra Bank Ltd. (assignee) in the matter of transfer of NPAs. For example, when an Account Receivable is treated as NPA and assigned to the assignee bank, the parties have to follow certain Guidelines issued by RBI. If there is a breach of the Guidelines or statutory directions issued by RBI by Assignor in regard to transfer of NPA then the assignee bank can enforce such obligations vis-à-vis the assignor bank. It is these obligations which are referred to in the impugned Deed of Assignment. That, an Account Receivable becomes an NPA only because of the default committed by the borrower(s) who fails to repay. Lastly, it may be mentioned that the said SARFAESI Act, 2002 was enacted enabling specified SPVs to buy the NPAs from banks. However, from that it does not follow that banks inter se cannot transfer their own assets. Hence the said SARFAESI Act, 2002 has no relevance in this case.22. Before concluding, we may state that NPAs are created on account of the breaches committed by the borrower. He violates his obligation to repay the debts. One fails to appreciate the opportunity he seeks to participate in the "Transfer of Account Receivable" from one bank to the other. | 1 | 12,962 | 1,856 | ### 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 account of a borrower(s) (customer) is a debt due and payable by the borrower(s) to the bank. Secondly, the bank is the owner of such debt. Such debt is an asset in the hands of the bank as a secured creditor or mortgagee or hypothecatee. The bank can always transfer its asset. Such transfer in no manner affects any right or interest of the borrower(s) (customer). Further, there is no prohibition in the BR Act, 1949 in the bank transferring its assets inter se. Even in the matter of assigning debts, it cannot be said that the banks are trading in debts, as held by the High Court(s). The assignor bank has never purchased the debt(s). It has advanced loans against security as part of its banking business. The account of a client in the books of the bank becomes Non Performing Asset when the client fails to repay. In assigning the debts with underlying security, the bank is only transferring its asset and is not acquiring any rights of its client(s). The bank transfers its asset for a particular agreed price and is no longer entitled to recover anything from the borrower(s). The moment ICICI Bank Ltd. transfers the debt with underlying security, the borrower(s) ceases to be the borrower(s) of the ICICI Bank Ltd. and becomes the borrower(s) of Kotak Mahindra Bank Ltd. (assignee). At this stage, we wish to once again emphasize that debts are assets of the assignor bank. The High Court(s) has erred in not appreciating that the assignor bank is only transferring its rights under a contract and its own asset, namely, the debt as also the mortgagees rights in the mortgaged properties without in any manner affecting the rights of the borrower(s)/mortgagor(s) in the contract or in the assets. None of the clauses of the impugned Deed of Assignment transfers any obligations of the assignor towards the assignee. In the case of Khardah Company Ltd. v. Raymon & Co. (India) Private Ltd. reported in (1963) 3 S.C.R. 183 the Supreme Court has held that the law on the subject of assignment of a contract is well settled. An assignment of a contract might result by transfer either of the rights or by transfer of obligations thereunder. There is a well recognized distinction between the two classes of assignments. As a rule, obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. That, rights under a contract are always assignable unless the contract is personal in its nature or unless the rights are incapable of assignment, either under the law or under an agreement between the parties. A benefit under the contract can always be assigned. That, there is, in law, a clear distinction between assignment of rights under a contract by a party who has performed his obligation thereunder and an assignment of a claim for compensation which one party has against the other for breach of contract. 19. In the case of Camdex International Ltd. v. Bank of Zambia reported in (1998) Q.B. 22 (CA) the following observation which is relevant to the present case needs to be quoted: "The assignment of a debt will not be contrary to public policy solely on the grounds that the assignee has purchased the debt for a considerably discounted price or because that price is only payable after a period of credit. Nor will the assignment be contrary to public policy simply because the assignee may make a profit on the transaction at the end of the day. If there was no prospect of a profit, Hobhouse LJ observed, commercial entities would never purchase debts." 20. Similarly, the following proposition in Chitty on Contracts, 27th edn. (1994) at para 19.027 is relevant to be noted. "It is also well established that a claim to a simple debt is assignable even if the debtor has refused to pay. The practice of assigning or `selling debts to debt collecting agencies and credit factors could hardly be carried on if the law were otherwise. " 21. In view of the above exposition of law, we find that under the impugned Deed of Assignment only the Account Receivables in the books of ICICI Bank Ltd. has been transferred to Kotak Mahindra Bank Ltd. The obligations of ICICI Bank Ltd. towards its borrower(s) (customer) under the loan agreement secured by deed of hypothecation/mortgage have not been assigned by ICICI Bank Ltd. to the assignee bank, namely, Kotak Mahindra Bank Ltd. Hence, it cannot be said that the impugned Deed of Assignment is unsustainable in law. The obligations referred to in the impugned Deed of Assignment are the obligations, if any, of ICICI Bank Ltd. towards Kotak Mahindra Bank Ltd. (assignee) in the matter of transfer of NPAs. For example, when an Account Receivable is treated as NPA and assigned to the assignee bank, the parties have to follow certain Guidelines issued by RBI. If there is a breach of the Guidelines or statutory directions issued by RBI by Assignor in regard to transfer of NPA then the assignee bank can enforce such obligations vis-à-vis the assignor bank. It is these obligations which are referred to in the impugned Deed of Assignment. That, an Account Receivable becomes an NPA only because of the default committed by the borrower(s) who fails to repay. Lastly, it may be mentioned that the said SARFAESI Act, 2002 was enacted enabling specified SPVs to buy the NPAs from banks. However, from that it does not follow that banks inter se cannot transfer their own assets. Hence the said SARFAESI Act, 2002 has no relevance in this case.22. Before concluding, we may state that NPAs are created on account of the breaches committed by the borrower. He violates his obligation to repay the debts. One fails to appreciate the opportunity he seeks to participate in the "Transfer of Account Receivable" from one bank to the other.
### Response:
1
### Explanation:
activities would completely paralyse the economic life of the nation. Thus, the BR Act, 1949 mandates a statutory comprehensive and formal structure of banking regulation and supervision intest is satisfied in this case. The guidelines issued by RBI dated 13.7.2005 itself authorizes banks to deal inter se in NPAs. These guidelines have been issued by the Regulator in exercise of the powers conferred by Sections 21 and 35A of the Act. They have a statutory force of law. They have allowed banks to engage in trading in NPAs with the purpose of cleaning the balance sheets so that they could raise the capital adequacy ratio. All this comes within the ambit of Section 21 which enables RBI to frame the policy in relation to Advances to be followed by the banking companies and which empowers RBI to give directions to banking companies under Section 21(2). These guidelines and directions following them have a statutory force. When a delegate is empowered by the Parliament to enact a Policy and to issue directions which have a statutory force and when the delegate (RBI) issues such guidelines (Policy) having statutory force, such guidelines have got to be read as supplement to the provisions of the BR Act, 1949. The "banking policy" is enunciated by RBI. Such policy cannot be said to be ultra vires the Act. The idea behind empowering RBI to determine the Policy in relation to Advances is to enable banking companies to expand their business of banking and in that sense such guidelines also define - as to what constitutes banking business.Thus, in our view on reading the provisions of the BR Act, 1949 with the Guidelines of RBI issued from time to time in relation to Advances and Re-structuring/Management of NPAs we are of the view that the BR Act, 1949 is a complete Code on banking and that dealing in NPAs inter se by the banks needs to be looked in the larger framework of "Re-structuring of banking System". Thus, we need not go into the provisions of the said TP Act. In fact, it is the case of the borrower(s) that provisions of the said TP Act has nofind no merit in the above arguments.18. As stated above, an outstanding in the account of a borrower(s) (customer) is a debt due and payable by the borrower(s) to the bank. Secondly, the bank is the owner of such debt. Such debt is an asset in the hands of the bank as a secured creditor or mortgagee or hypothecatee. The bank can always transfer its asset. Such transfer in no manner affects any right or interest of the borrower(s) (customer). Further, there is no prohibition in the BR Act, 1949 in the bank transferring its assets inter se. Even in the matter of assigning debts, it cannot be said that the banks are trading in debts, as held by the High Court(s). The assignor bank has never purchased the debt(s). It has advanced loans against security as part of its banking business. The account of a client in the books of the bank becomes Non Performing Asset when the client fails to repay. In assigning the debts with underlying security, the bank is only transferring its asset and is not acquiring any rights of its client(s). The bank transfers its asset for a particular agreed price and is no longer entitled to recover anything from the borrower(s). The moment ICICI Bank Ltd. transfers the debt with underlying security, the borrower(s) ceases to be the borrower(s) of the ICICI Bank Ltd. and becomes the borrower(s) of Kotak Mahindra Bank Ltd. (assignee). At this stage, we wish to once again emphasize that debts are assets of the assignor bank. The High Court(s) has erred in not appreciating that the assignor bank is only transferring its rights under a contract and its own asset, namely, the debt as also the mortgagees rights in the mortgaged properties without in any manner affecting the rights of the borrower(s)/mortgagor(s) in the contract or in the assets. None of the clauses of the impugned Deed of Assignment transfers any obligations of the assignor towards the assignee.In view of the above exposition of law, we find that under the impugned Deed of Assignment only the Account Receivables in the books of ICICI Bank Ltd. has been transferred to Kotak Mahindra Bank Ltd. The obligations of ICICI Bank Ltd. towards its borrower(s) (customer) under the loan agreement secured by deed of hypothecation/mortgage have not been assigned by ICICI Bank Ltd. to the assignee bank, namely, Kotak Mahindra Bank Ltd. Hence, it cannot be said that the impugned Deed of Assignment is unsustainable in law. The obligations referred to in the impugned Deed of Assignment are the obligations, if any, of ICICI Bank Ltd. towards Kotak Mahindra Bank Ltd. (assignee) in the matter of transfer of NPAs. For example, when an Account Receivable is treated as NPA and assigned to the assignee bank, the parties have to follow certain Guidelines issued by RBI. If there is a breach of the Guidelines or statutory directions issued by RBI by Assignor in regard to transfer of NPA then the assignee bank can enforce such obligations vis-à-vis the assignor bank. It is these obligations which are referred to in the impugned Deed of Assignment. That, an Account Receivable becomes an NPA only because of the default committed by the borrower(s) who fails to repay. Lastly, it may be mentioned that the said SARFAESI Act, 2002 was enacted enabling specified SPVs to buy the NPAs from banks. However, from that it does not follow that banks inter se cannot transfer their own assets. Hence the said SARFAESI Act, 2002 has no relevance in this case.22. Before concluding, we may state that NPAs are created on account of the breaches committed by the borrower. He violates his obligation to repay the debts. One fails to appreciate the opportunity he seeks to participate in the "Transfer of Account Receivable" from one bank to the other.
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Union Of India & Ors Vs. K. Rajappa Menon | then served in September 1963 giving the finding of the Enquiring Officer (Assistance Commercial Superintendent) and it was stated that it had been tentatively decided by the Chief Commercial Superintendent that respondent should be dismissed for service. This notice was served after the Chief Commercial Superintendent had recorded the following order (Exh. R. 8):"The employee, in his reply dated 3-8-1963 to this charge-sheet, has not accepted the charges contained in the same. An enquiry, therefore was arranged. It was held by the Assistant Commercial Superintendent of Olavakkot from 22-8-63 to 29-8-1963. I have seen the enquiry proceedings. I find that the procedure has been followed correctly; that the accused has been given every reasonable opportunity for his defence and I agree with the findings of the Enquiry Officer that all the charges mentioned in the charge-sheet have been established. Since these are serious charges, it is tentatively decided to impose the penalty of dismissal from service on Shri K. Rajappa Menon, Assistant Station Master Chalakudi. He should, therefore, be asked to show cause why he should not be dismissed from service accordingly." He was given a week for showing cause why the proposed penalty should not be inflicted on him. After the explanation of the respondent had been received his dismissal was ordered by the Chief Commercial Superintendent. 3. The respondent filed a petition under Article 226 of the Constitution in the High Court and a number of points were raised before the learned single Judge. The only point which prevailed with him was that the Chief Commercial Superintendent had not recorded an order as required by Rule 1713. He examined the other contention raised on behalf of the respondent before him that at the stage of the second show cause notice the Chief Commercial Superintendent had finally made up his mind which he could not or ought not to have done until the reply or the explanation of the respondent had been received and considered by him. In view of a Full Bench decision of the Kerala High Court he did not rest his decision on the second point but decided in favour of the respondent on the first point holding that the Chief Commercial Superintendent had not given findings on each of the charges. In his opinion the rule contemplated that the evidence which had been adduced at the enquiry in relation to each charge should be examined and considered by the punishing authority and he should give his own assessment and finding relating to each individual charge which was not done in the present case. The Division Bench on appeal by the present appellant affirmed the judgment of the learned Single Judge. 4. Now Rule 1713 provides that if the disciplinary authority is not the Enquiring Authority it shall consider the record of the enquiry and record its findings on each charge. The argument which prevailed with the High Court was that the order embodied Exh. R8 did not comply with the aforesaid rule because findings relating to each charge were not given after a proper discussion and analysis of the evidence produced at the departmental enquiry. In other words, the Chief Commercial Superintendent was bound to pass a detailed order expressing his views about each charge and that a general agreement with the findings of the Enquiry Officer did not satisfy the requirements of Rule 1713. 5. We are altogether unable to agree with the view expressed by the High Court. Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is that the record of the enquiry should be considered and the disciplinary authority should proceed to give its findings on each charge. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental enquiry in details and write as if it were an order or a judgment of a judicial tribunal.The rule certainly requires the disciplinary authority to give consideration to the record of the proceedings, which as expressly stated in Exh. R. 8, was done by the Chief Commercial Superintendent.When he agreed with the findings of the Enquiry Officer that all the charges mentioned in the charge-sheet had been established it meant that he was affirming the findings on each charge and that would certainly fulfil the requirement of the Rule. The Rule after all has to be read not in a pedantic manner but in a practical and reasonable way and so read it is difficult to escape from the conclusion that the Chief Commercial Superintendent had substantially complied with the requirements of the Rule.The interference by the High Court, therefore, on the ground that there had been non-compliance with R. 1713 was not justified. 6. Learned counsel for the respondent has sought to raise the second point which the High Court had declined to decide, namely, that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice. Such a contention is wholly untenable in view of the decisions of this Court. It has been made quite clear in Khem Chand v. The Union of India 1958 SCR 1080 = (AIR 1958 SC 300 )that the procedure which is to be followed under Art. 311 (2) of the Constitution of affording a reasonable opportunity includes the giving of two notices, one at the enquiry stage and the other when the competent authority as a result of the enquiry tentatively determines of inflict a particular punishment. It is quite obvious that unless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination. | 1[ds]5. We are altogether unable to agree with the view expressed by the High Court. Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is that the record of the enquiry should be considered and the disciplinary authority should proceed to give its findings on each charge. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental enquiry in details and write as if it were an order or a judgment of a judicial tribunal.The rule certainly requires the disciplinary authority to give consideration to the record of the proceedings, which as expressly stated in Exh. R. 8, was done by the Chief Commercial Superintendent.When he agreed with the findings of the Enquiry Officer that all the charges mentioned in the charge-sheet had been established it meant that he was affirming the findings on each charge and that would certainly fulfil the requirement of the Rule. The Rule after all has to be read not in a pedantic manner but in a practical and reasonable way and so read it is difficult to escape from the conclusion that the Chief Commercial Superintendent had substantially complied with the requirements of the Rule.The interference by the High Court, therefore, on the ground that there had been non-compliance with R. 1713 was not justified6. Learned counsel for the respondent has sought to raise the second point which the High Court had declined to decide, namely, that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice. Such a contention is wholly untenable in view of the decisions of this Court. | 1 | 1,237 | 341 | ### 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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then served in September 1963 giving the finding of the Enquiring Officer (Assistance Commercial Superintendent) and it was stated that it had been tentatively decided by the Chief Commercial Superintendent that respondent should be dismissed for service. This notice was served after the Chief Commercial Superintendent had recorded the following order (Exh. R. 8):"The employee, in his reply dated 3-8-1963 to this charge-sheet, has not accepted the charges contained in the same. An enquiry, therefore was arranged. It was held by the Assistant Commercial Superintendent of Olavakkot from 22-8-63 to 29-8-1963. I have seen the enquiry proceedings. I find that the procedure has been followed correctly; that the accused has been given every reasonable opportunity for his defence and I agree with the findings of the Enquiry Officer that all the charges mentioned in the charge-sheet have been established. Since these are serious charges, it is tentatively decided to impose the penalty of dismissal from service on Shri K. Rajappa Menon, Assistant Station Master Chalakudi. He should, therefore, be asked to show cause why he should not be dismissed from service accordingly." He was given a week for showing cause why the proposed penalty should not be inflicted on him. After the explanation of the respondent had been received his dismissal was ordered by the Chief Commercial Superintendent. 3. The respondent filed a petition under Article 226 of the Constitution in the High Court and a number of points were raised before the learned single Judge. The only point which prevailed with him was that the Chief Commercial Superintendent had not recorded an order as required by Rule 1713. He examined the other contention raised on behalf of the respondent before him that at the stage of the second show cause notice the Chief Commercial Superintendent had finally made up his mind which he could not or ought not to have done until the reply or the explanation of the respondent had been received and considered by him. In view of a Full Bench decision of the Kerala High Court he did not rest his decision on the second point but decided in favour of the respondent on the first point holding that the Chief Commercial Superintendent had not given findings on each of the charges. In his opinion the rule contemplated that the evidence which had been adduced at the enquiry in relation to each charge should be examined and considered by the punishing authority and he should give his own assessment and finding relating to each individual charge which was not done in the present case. The Division Bench on appeal by the present appellant affirmed the judgment of the learned Single Judge. 4. Now Rule 1713 provides that if the disciplinary authority is not the Enquiring Authority it shall consider the record of the enquiry and record its findings on each charge. The argument which prevailed with the High Court was that the order embodied Exh. R8 did not comply with the aforesaid rule because findings relating to each charge were not given after a proper discussion and analysis of the evidence produced at the departmental enquiry. In other words, the Chief Commercial Superintendent was bound to pass a detailed order expressing his views about each charge and that a general agreement with the findings of the Enquiry Officer did not satisfy the requirements of Rule 1713. 5. We are altogether unable to agree with the view expressed by the High Court. Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is that the record of the enquiry should be considered and the disciplinary authority should proceed to give its findings on each charge. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental enquiry in details and write as if it were an order or a judgment of a judicial tribunal.The rule certainly requires the disciplinary authority to give consideration to the record of the proceedings, which as expressly stated in Exh. R. 8, was done by the Chief Commercial Superintendent.When he agreed with the findings of the Enquiry Officer that all the charges mentioned in the charge-sheet had been established it meant that he was affirming the findings on each charge and that would certainly fulfil the requirement of the Rule. The Rule after all has to be read not in a pedantic manner but in a practical and reasonable way and so read it is difficult to escape from the conclusion that the Chief Commercial Superintendent had substantially complied with the requirements of the Rule.The interference by the High Court, therefore, on the ground that there had been non-compliance with R. 1713 was not justified. 6. Learned counsel for the respondent has sought to raise the second point which the High Court had declined to decide, namely, that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice. Such a contention is wholly untenable in view of the decisions of this Court. It has been made quite clear in Khem Chand v. The Union of India 1958 SCR 1080 = (AIR 1958 SC 300 )that the procedure which is to be followed under Art. 311 (2) of the Constitution of affording a reasonable opportunity includes the giving of two notices, one at the enquiry stage and the other when the competent authority as a result of the enquiry tentatively determines of inflict a particular punishment. It is quite obvious that unless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination.
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5. We are altogether unable to agree with the view expressed by the High Court. Rule 1713 does not lay down any particular form or manner in which the disciplinary authority should record its findings on each charge. All that the Rule requires is that the record of the enquiry should be considered and the disciplinary authority should proceed to give its findings on each charge. This does not and cannot mean that it is obligatory on the disciplinary authority to discuss the evidence and the facts and circumstances established at the departmental enquiry in details and write as if it were an order or a judgment of a judicial tribunal.The rule certainly requires the disciplinary authority to give consideration to the record of the proceedings, which as expressly stated in Exh. R. 8, was done by the Chief Commercial Superintendent.When he agreed with the findings of the Enquiry Officer that all the charges mentioned in the charge-sheet had been established it meant that he was affirming the findings on each charge and that would certainly fulfil the requirement of the Rule. The Rule after all has to be read not in a pedantic manner but in a practical and reasonable way and so read it is difficult to escape from the conclusion that the Chief Commercial Superintendent had substantially complied with the requirements of the Rule.The interference by the High Court, therefore, on the ground that there had been non-compliance with R. 1713 was not justified6. Learned counsel for the respondent has sought to raise the second point which the High Court had declined to decide, namely, that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice. Such a contention is wholly untenable in view of the decisions of this Court.
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Ramesh Vs. State Of Karnataka | police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same. 18. Mr. Chaudhary would submit that in all cases, it is not necessary to hold test identification parade. That may be so. In a case of this nature, the test identification parade would have been meaningless as appellant were shown to PW3 in the police station. Appellant was shown to PW3 at the police station. He was identified in court also. Reliance has been placed by Mr. Chaudhary on Malkhansingh & Ors. V. State of M.P. [(2003) 5 SCC 746] , wherein this Court opined : "The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration." It was furthermore held : "It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court." 19. Judged by the aforementioned legal principles laid down therein, in our opinion, the identification of appellant PW3 in court cannot be held to be trustworthy. Reliance has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi & Ors. V. The State [AIR 1961 All. 153 ], wherein it was held that identification by only one person may not be relied upon stating : "Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge." In Heera & Anr. V. State of Rajasthan [(2007) 10 SCC 175] , a test identification had been held in presence of a Civil Judge and a Judicial Magistrate. The said decision, therefore, is not applicable. In Ravindra Laxman Mahadik v. State of Maharashtra [(1997 Criminal Law Journal 3833) in a case involving Section 395 of the Code of Criminal Procedure, it was opined: "I find merit in Mr. Moomans submission that it would not be safe to accept the identification evidence of Manda Sahani. Manda Sahani in her examination-in-chief stated that on the place of the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. The learned trial Judge has observed that the evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft. from the Gandhi statute, where the meeting was held. What he wanted to convey was that hence there must have been light at the place of incident in my view, on the face of the definite statement of Manda that it was dark as there was only slight light, and bearing in mind that the incident took place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was sufficient light on the place of the incident enabling Manda Sahani to identify the appellant." The decision of the Allahabad High Court in Asharfi lal (supra) was followed therein. In Kanan & Ors. V. State of Kerala [AIR 1979 SC 1127 ], this Court held : "It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court." | 1[ds]We have noticed heretobefore that no test identification parade was held. In the First Information Report, the appellant was not named. We, however, are conscious of the fact that PW2, Puttaswamy, when lodged the First Information Report, might not have received the details of incident from PW3 as he was undergoing treatment in the nursing home. According to PW3, however, he came to know the names of all the assailants during the incident as one would call the other by his name. In his statement before the police, however, admittedly he did not disclose the name of the appellant. Strangely enough, according to PW30, the Head Constable, PW23, and another constable produced accused No.5 before him at about 3.45 pm on 12.1.1999. She was arrested and interrogated. It was on that day itself, he called PW3 who identified her whereupon his further statement was recorded. The said prosecution witness, however does not state that even accused No.5, on interrogation, disclosed the name of accused No.s 1 to 4. Accused No.3 was arrested on 9.2.1999. It is not in dispute that he is a taxi driver. He was kept in custody during the night. On the next day, allegedly, he was taken to the house of one Ibrahim who is said to have purchased from him the tarpaulin in question.13. PW4, in his evidence disclosed that the tarpaulin purchased by him was blue in colour. PW2 and PW3, in their evidences, however, stated that the tarpaulin which was used in the truck was of mash green colour. Yet again when the tarpaulin was produced, its colour had faded but despite the same, it was identified as the same tarpaulin.14. We have noticed hereinbefore that according to PW3, he was called upon to identify the accused No.3 first in the police station. He, after three weeks, was again called to the police station to identify accused No.5. PW13, however, as indicated hereinbefore, in his statement stated the date of arrest of accused No.5 as 12.1.1999. The incident having taken place on 24.12.1998 and PW3 being in hospital for at least 20 days and he having been called to police station three weeks thereafter, it is beyond comprehension as to how he could be asked to identify accused No.3 first and then accused No.5, although accused No.5 was arrested on 12.1.1999 and the appellant was arrested on 9.2.1999. PW4, Ibrahim, was the owner of hotel. He knew the appellant No.3 as he used to take his meals in his hotel. In his statement, the appellant was a regular customer as he had been transporting sand in his truck regularly. He was examined on 19.11.2002. According to him, about four years prior thereto, he had asked for some loan stating that he had no money to pay for food. When, however, he expressed his inability to pay the said sum stating that he had no money, he allegedly borrowed the said amount from another person on pledging a terpauline. After one and a half months, he came with the Kudur police and asked him to give his money back. At the instance of the police, the terpauline was produced. Measurement of the terpauline was taken. A panchnama was prepared. What was the measurement of the terpauline, however, has not been disclosed. The purported measurement of the terpauline said to have been stolen had not been verified with the recovered one. None of the prosecution witnesses denied or disputed the fact that appellant was a driver. It appears rather strange that Shanthakumar PW6 would be panch witnesses for recovery of MO.12 although he had advanced the amount of Rs.500 to PW4. If the tarpauline was pledged to him, there was no reason as to why it should be recovered from PW4. The special features of the tarpauline which could be identified by PW2 and PW3 have not been stated. Tarpaulines are common goods being available in the market. It has also been accepted by Shanthakumar, PW6.15. In view of the fact that other accused are not before us, we are of the opinion that it is difficult to uphold the judgment of conviction and sentence against the appellant herein. The place where the assault took place was said to be at a distance of 400 to 500 meters from the factory. Not only the place of occurrence was agricultural fields as stated by PW3 but the crop had also been standing thereon.16. If accused No.5 was arrested first and accused No.3 one month thereafter, it does not stand to any reason as to why PW3 would be called to identify accused No.3 first which according to him took place 20 days after his discharge from the hospital and 15 days thereafter he was again summoned to identify accused No.5.17. We have noticed hereinbefore the respective dates of arrest of accused No.5 and accused No.3 respectively. It is difficult to conceive that accused No.5 would still be available so that the Investigating Officer could ask the witnesses to come to the police station. There is nothing to show that she was in custody of the police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same. | 1 | 3,589 | 1,065 | ### 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:
police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same. 18. Mr. Chaudhary would submit that in all cases, it is not necessary to hold test identification parade. That may be so. In a case of this nature, the test identification parade would have been meaningless as appellant were shown to PW3 in the police station. Appellant was shown to PW3 at the police station. He was identified in court also. Reliance has been placed by Mr. Chaudhary on Malkhansingh & Ors. V. State of M.P. [(2003) 5 SCC 746] , wherein this Court opined : "The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration." It was furthermore held : "It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court." 19. Judged by the aforementioned legal principles laid down therein, in our opinion, the identification of appellant PW3 in court cannot be held to be trustworthy. Reliance has also been placed by Mr. Chaudhary on a judgment of this Court in Asharfi & Ors. V. The State [AIR 1961 All. 153 ], wherein it was held that identification by only one person may not be relied upon stating : "Hence, only one identification cannot eliminate the possibility of the pointing out being purely through chance and for this reason is insufficient to establish the charge." In Heera & Anr. V. State of Rajasthan [(2007) 10 SCC 175] , a test identification had been held in presence of a Civil Judge and a Judicial Magistrate. The said decision, therefore, is not applicable. In Ravindra Laxman Mahadik v. State of Maharashtra [(1997 Criminal Law Journal 3833) in a case involving Section 395 of the Code of Criminal Procedure, it was opined: "I find merit in Mr. Moomans submission that it would not be safe to accept the identification evidence of Manda Sahani. Manda Sahani in her examination-in-chief stated that on the place of the incident, there was no light. In her cross-examination (para 6) she stated that it was dark at the place of the incident but, slight light was emanating from the building situate on the shore. The distance between the building and the place where Manda Sahani and her husband were looted has not been unfolded in the evidence. The learned trial Judge has observed that the evidence of Vinod Sahani is that the incident took place at a distance of about 100 ft. from the Gandhi statute, where the meeting was held. What he wanted to convey was that hence there must have been light at the place of incident in my view, on the face of the definite statement of Manda that it was dark as there was only slight light, and bearing in mind that the incident took place at 9.30 p.m. in the month of February, 1992, it would not be safe to conclude that there was sufficient light on the place of the incident enabling Manda Sahani to identify the appellant." The decision of the Allahabad High Court in Asharfi lal (supra) was followed therein. In Kanan & Ors. V. State of Kerala [AIR 1979 SC 1127 ], this Court held : "It is well settled that where a witness Identifies an accused who is not known to him in the Court for the first time, his evidence Is absolutely valueless unless there has been a previous T. I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court."
### Response:
1
### Explanation:
We have noticed heretobefore that no test identification parade was held. In the First Information Report, the appellant was not named. We, however, are conscious of the fact that PW2, Puttaswamy, when lodged the First Information Report, might not have received the details of incident from PW3 as he was undergoing treatment in the nursing home. According to PW3, however, he came to know the names of all the assailants during the incident as one would call the other by his name. In his statement before the police, however, admittedly he did not disclose the name of the appellant. Strangely enough, according to PW30, the Head Constable, PW23, and another constable produced accused No.5 before him at about 3.45 pm on 12.1.1999. She was arrested and interrogated. It was on that day itself, he called PW3 who identified her whereupon his further statement was recorded. The said prosecution witness, however does not state that even accused No.5, on interrogation, disclosed the name of accused No.s 1 to 4. Accused No.3 was arrested on 9.2.1999. It is not in dispute that he is a taxi driver. He was kept in custody during the night. On the next day, allegedly, he was taken to the house of one Ibrahim who is said to have purchased from him the tarpaulin in question.13. PW4, in his evidence disclosed that the tarpaulin purchased by him was blue in colour. PW2 and PW3, in their evidences, however, stated that the tarpaulin which was used in the truck was of mash green colour. Yet again when the tarpaulin was produced, its colour had faded but despite the same, it was identified as the same tarpaulin.14. We have noticed hereinbefore that according to PW3, he was called upon to identify the accused No.3 first in the police station. He, after three weeks, was again called to the police station to identify accused No.5. PW13, however, as indicated hereinbefore, in his statement stated the date of arrest of accused No.5 as 12.1.1999. The incident having taken place on 24.12.1998 and PW3 being in hospital for at least 20 days and he having been called to police station three weeks thereafter, it is beyond comprehension as to how he could be asked to identify accused No.3 first and then accused No.5, although accused No.5 was arrested on 12.1.1999 and the appellant was arrested on 9.2.1999. PW4, Ibrahim, was the owner of hotel. He knew the appellant No.3 as he used to take his meals in his hotel. In his statement, the appellant was a regular customer as he had been transporting sand in his truck regularly. He was examined on 19.11.2002. According to him, about four years prior thereto, he had asked for some loan stating that he had no money to pay for food. When, however, he expressed his inability to pay the said sum stating that he had no money, he allegedly borrowed the said amount from another person on pledging a terpauline. After one and a half months, he came with the Kudur police and asked him to give his money back. At the instance of the police, the terpauline was produced. Measurement of the terpauline was taken. A panchnama was prepared. What was the measurement of the terpauline, however, has not been disclosed. The purported measurement of the terpauline said to have been stolen had not been verified with the recovered one. None of the prosecution witnesses denied or disputed the fact that appellant was a driver. It appears rather strange that Shanthakumar PW6 would be panch witnesses for recovery of MO.12 although he had advanced the amount of Rs.500 to PW4. If the tarpauline was pledged to him, there was no reason as to why it should be recovered from PW4. The special features of the tarpauline which could be identified by PW2 and PW3 have not been stated. Tarpaulines are common goods being available in the market. It has also been accepted by Shanthakumar, PW6.15. In view of the fact that other accused are not before us, we are of the opinion that it is difficult to uphold the judgment of conviction and sentence against the appellant herein. The place where the assault took place was said to be at a distance of 400 to 500 meters from the factory. Not only the place of occurrence was agricultural fields as stated by PW3 but the crop had also been standing thereon.16. If accused No.5 was arrested first and accused No.3 one month thereafter, it does not stand to any reason as to why PW3 would be called to identify accused No.3 first which according to him took place 20 days after his discharge from the hospital and 15 days thereafter he was again summoned to identify accused No.5.17. We have noticed hereinbefore the respective dates of arrest of accused No.5 and accused No.3 respectively. It is difficult to conceive that accused No.5 would still be available so that the Investigating Officer could ask the witnesses to come to the police station. There is nothing to show that she was in custody of the police for more than 30 days. A presumption must be drawn that by that time, she was in judicial custody. It is also wholly unlikely that names of all the accused person would be disclosed during commission of the offence by one another. It furthermore appears to be somewhat unusual that although PW3 and accused No.5 were caught while they were indulging in illicit sex and all of them came from behind and the first attack was on the back of his neck, still conversations would not only took place by and between PW3 and the accused persons; the former even in that condition would be able to follow the same.
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Jagannath Das Vs. The State of W.B | Force sustained burn injury on his person. The above explosion of bombs created panic in the station area and in the adjoining locality and, as such, there was disturbance of public order.3. The petitioner in pursuance of the detention order was arrested on July 2, 1971 and was served with the said order and the ground of detention together with vernacular translation thereof. The order of detention was approved by the State Government on July 9, 1971. Representation made by the petitioner against his detention was received by the State Government on July 10, 1971 and after being considered was rejected by the State Government on July 30, 1971. The case of the petitioner was placed before the Advisory Board on July 31, 1971. The representation of the petitioner was also forwarded to the Advisory Board. The Board, after considering the material before it and after hearing the petitioner in person submitted its report on September 3, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner. The detention order was confirmed by the State Government on September 11, 1971 and intimation about the confirmation of the detention order was immediately thereafter sent to the petitioner.4. The petition has been resisted on behalf of the State of West Bengal and the affidavit of Shri Chandi Charan Bose, Deputy Secretary, Home (Special) department has been filed in opposition to the petition.5. We have heard Mr. S. S. Khanduja, who had addressed arguments amicus curiae on behalf of the petitioner, and Mr. G. S. Chatterjee on behalf of the respondent State, and are of the opinion that there is no merit in the petition. The first contention which has been advanced by Mr. Khanduja is that has been no valid communication of the ground of detention to the petitioner. It is stated that the petitioner is an illiterate person as would appear from the fact that he affixed his thumb impression on the detention order at the time it was served upon him. The service of the detention order and the ground of detention which were in English upon the petitioner who was illiterate, according to the learned counsel, was not a sufficient compliance with law as it had the effect of denying him the right of making a representation against the order. In this connection, we find that the affidavit of Shri Chandi Charan Bose shows that at the time of his arrest the petitioner was served not merely with the order of detention and the ground of detention but also with the vernacular translation thereof. It, therefore, cannot be said that the order of detention and the ground thereof were in a language which the petitioner could not understand. No ground was taken by the petitioner either in the representation submitted by him or in the petition sent to this Court that the order of detention and the ground thereof had not been comprehended by him as they were in a language which he could not understand. No grievance can, consequently, be made by the petitioner on that score. It may also be stated that the petitioner does not appear to be illiterate as the petition sent by him from jail has been signed by him. The signature of the petitioner on the petition has been attested by the jail authorities.6. In the case of Hadibandhu Das v. District Magistrate, Cuttack (1969) 1 SCR 227 = (AIR 1969 SC 43 ), to which a reference has been made by Mr. Khanduja, the District Magistrate served an order on the appellant on December 15, 1967 under Section 3 of the Preventive Detention Act for his detention. The appellant filed a petition in the High Court on December 19, 1967 challenging the order of detention on the ground, inter alia, that the order and grounds in support thereof, which had been served upon the appellant, were written in English language which he did not understand. On January 18, 1968 the District Magistrate supplied to the appellant Oriya translation of the order and the grounds. Dealing with the order of detention passed on December 15, 1967, this Court referred to the fact that the said order ran into 14 typed pages. It was held that mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation thereof in a script or language which he understood would amount to denial of the right of being communicated the grounds and of being afforded an opportunity of making a representation against the order. The subsequent supply of the Oriya translation of the order of detention and the grounds thereof was found to be of no avail as under section 7 (1) of the Preventive Detention Act the authority making the order of detention has to communicate to the detenu the ground on which the detention order has been made within five days from the date of detention. None of the infirmities which were noticed by this Court in the cited case vitiates the impugned order of detention. As mentioned earlier, the Petitioner was supplied at the time of his arrest with vernacular translation of the order of detention and the ground on which it was based. As such, the cited case can be of no assistance to the petitioner.7. It has also been argued by Mr. Khanduja that the representation submitted by the petitioner was not placed before the Advisory Board within 30 days of the date of receipt of representation. This contention is devoid of force because we find from the affidavit of Shri Chandi Charan Bose that the representation of the petitioner was received by the State Government on July 10, 1971 and the same was forwarded immediately after being rejected by the State Government on July 30, 1971 to the Advisory Board. It, therefore, cannot be said that the State Government failed to forward the representation to the Advisory Board within 30 days of its receipt. | 0[ds]5. We have heard Mr. S. S. Khanduja, who had addressed arguments amicus curiae on behalf of the petitioner, and Mr. G. S. Chatterjee on behalf of the respondent State, and are of the opinion that there is no merit in theThe first contention which has been advanced by Mr. Khanduja is that has been no valid communication of the ground of detention to the petitioner. It is stated that the petitioner is an illiterate person as would appear from the fact that he affixed his thumb impression on the detention order at the time it was served upon him. The service of the detention order and the ground of detention which were in English upon the petitioner who was illiterate, according to the learned counsel, was not a sufficient compliance with law as it had the effect of denying him the right of making a representation against the order.In this connection, we find that the affidavit of Shri Chandi Charan Bose shows that at the time of his arrest the petitioner was served not merely with the order of detention and the ground of detention but also with the vernacular translation thereof. It, therefore, cannot be said that the order of detention and the ground thereof were in a language which the petitioner could not understand. No ground was taken by the petitioner either in the representation submitted by him or in the petition sent to this Court that the order of detention and the ground thereof had not been comprehended by him as they were in a language which he could not understand. No grievance can, consequently, be made by the petitioner on that score. It may also be stated that the petitioner does not appear to be illiterate as the petition sent by him from jail has been signed by him. The signature of the petitioner on the petition has been attested by the jailof the infirmities which were noticed by this Court in the cited case vitiates the impugned order of detention. As mentioned earlier, the Petitioner was supplied at the time of his arrest with vernacular translation of the order of detention and the ground on which it was based. As such, the cited case can be of no assistance to the petitioner.7.It has also been argued by Mr. Khanduja that the representation submitted by the petitioner was not placed before the Advisory Board within 30 days of the date of receipt of representation.This contention is devoid of force because we find from the affidavit of Shri Chandi Charan Bose that the representation of the petitioner was received by the State Government on July 10, 1971 and the same was forwarded immediately after being rejected by the State Government on July 30, 1971 to the Advisory Board. It, therefore, cannot be said that the State Government failed to forward the representation to the Advisory Board within 30 days of its receipt. | 0 | 1,372 | 520 | ### Instruction:
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Force sustained burn injury on his person. The above explosion of bombs created panic in the station area and in the adjoining locality and, as such, there was disturbance of public order.3. The petitioner in pursuance of the detention order was arrested on July 2, 1971 and was served with the said order and the ground of detention together with vernacular translation thereof. The order of detention was approved by the State Government on July 9, 1971. Representation made by the petitioner against his detention was received by the State Government on July 10, 1971 and after being considered was rejected by the State Government on July 30, 1971. The case of the petitioner was placed before the Advisory Board on July 31, 1971. The representation of the petitioner was also forwarded to the Advisory Board. The Board, after considering the material before it and after hearing the petitioner in person submitted its report on September 3, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petitioner. The detention order was confirmed by the State Government on September 11, 1971 and intimation about the confirmation of the detention order was immediately thereafter sent to the petitioner.4. The petition has been resisted on behalf of the State of West Bengal and the affidavit of Shri Chandi Charan Bose, Deputy Secretary, Home (Special) department has been filed in opposition to the petition.5. We have heard Mr. S. S. Khanduja, who had addressed arguments amicus curiae on behalf of the petitioner, and Mr. G. S. Chatterjee on behalf of the respondent State, and are of the opinion that there is no merit in the petition. The first contention which has been advanced by Mr. Khanduja is that has been no valid communication of the ground of detention to the petitioner. It is stated that the petitioner is an illiterate person as would appear from the fact that he affixed his thumb impression on the detention order at the time it was served upon him. The service of the detention order and the ground of detention which were in English upon the petitioner who was illiterate, according to the learned counsel, was not a sufficient compliance with law as it had the effect of denying him the right of making a representation against the order. In this connection, we find that the affidavit of Shri Chandi Charan Bose shows that at the time of his arrest the petitioner was served not merely with the order of detention and the ground of detention but also with the vernacular translation thereof. It, therefore, cannot be said that the order of detention and the ground thereof were in a language which the petitioner could not understand. No ground was taken by the petitioner either in the representation submitted by him or in the petition sent to this Court that the order of detention and the ground thereof had not been comprehended by him as they were in a language which he could not understand. No grievance can, consequently, be made by the petitioner on that score. It may also be stated that the petitioner does not appear to be illiterate as the petition sent by him from jail has been signed by him. The signature of the petitioner on the petition has been attested by the jail authorities.6. In the case of Hadibandhu Das v. District Magistrate, Cuttack (1969) 1 SCR 227 = (AIR 1969 SC 43 ), to which a reference has been made by Mr. Khanduja, the District Magistrate served an order on the appellant on December 15, 1967 under Section 3 of the Preventive Detention Act for his detention. The appellant filed a petition in the High Court on December 19, 1967 challenging the order of detention on the ground, inter alia, that the order and grounds in support thereof, which had been served upon the appellant, were written in English language which he did not understand. On January 18, 1968 the District Magistrate supplied to the appellant Oriya translation of the order and the grounds. Dealing with the order of detention passed on December 15, 1967, this Court referred to the fact that the said order ran into 14 typed pages. It was held that mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation thereof in a script or language which he understood would amount to denial of the right of being communicated the grounds and of being afforded an opportunity of making a representation against the order. The subsequent supply of the Oriya translation of the order of detention and the grounds thereof was found to be of no avail as under section 7 (1) of the Preventive Detention Act the authority making the order of detention has to communicate to the detenu the ground on which the detention order has been made within five days from the date of detention. None of the infirmities which were noticed by this Court in the cited case vitiates the impugned order of detention. As mentioned earlier, the Petitioner was supplied at the time of his arrest with vernacular translation of the order of detention and the ground on which it was based. As such, the cited case can be of no assistance to the petitioner.7. It has also been argued by Mr. Khanduja that the representation submitted by the petitioner was not placed before the Advisory Board within 30 days of the date of receipt of representation. This contention is devoid of force because we find from the affidavit of Shri Chandi Charan Bose that the representation of the petitioner was received by the State Government on July 10, 1971 and the same was forwarded immediately after being rejected by the State Government on July 30, 1971 to the Advisory Board. It, therefore, cannot be said that the State Government failed to forward the representation to the Advisory Board within 30 days of its receipt.
### Response:
0
### Explanation:
5. We have heard Mr. S. S. Khanduja, who had addressed arguments amicus curiae on behalf of the petitioner, and Mr. G. S. Chatterjee on behalf of the respondent State, and are of the opinion that there is no merit in theThe first contention which has been advanced by Mr. Khanduja is that has been no valid communication of the ground of detention to the petitioner. It is stated that the petitioner is an illiterate person as would appear from the fact that he affixed his thumb impression on the detention order at the time it was served upon him. The service of the detention order and the ground of detention which were in English upon the petitioner who was illiterate, according to the learned counsel, was not a sufficient compliance with law as it had the effect of denying him the right of making a representation against the order.In this connection, we find that the affidavit of Shri Chandi Charan Bose shows that at the time of his arrest the petitioner was served not merely with the order of detention and the ground of detention but also with the vernacular translation thereof. It, therefore, cannot be said that the order of detention and the ground thereof were in a language which the petitioner could not understand. No ground was taken by the petitioner either in the representation submitted by him or in the petition sent to this Court that the order of detention and the ground thereof had not been comprehended by him as they were in a language which he could not understand. No grievance can, consequently, be made by the petitioner on that score. It may also be stated that the petitioner does not appear to be illiterate as the petition sent by him from jail has been signed by him. The signature of the petitioner on the petition has been attested by the jailof the infirmities which were noticed by this Court in the cited case vitiates the impugned order of detention. As mentioned earlier, the Petitioner was supplied at the time of his arrest with vernacular translation of the order of detention and the ground on which it was based. As such, the cited case can be of no assistance to the petitioner.7.It has also been argued by Mr. Khanduja that the representation submitted by the petitioner was not placed before the Advisory Board within 30 days of the date of receipt of representation.This contention is devoid of force because we find from the affidavit of Shri Chandi Charan Bose that the representation of the petitioner was received by the State Government on July 10, 1971 and the same was forwarded immediately after being rejected by the State Government on July 30, 1971 to the Advisory Board. It, therefore, cannot be said that the State Government failed to forward the representation to the Advisory Board within 30 days of its receipt.
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Pravesh Kumar Sachdeva Vs. State of Uttar Pradesh and Ors | No. 6 Alok Mitra to act for them and on their behalf, and were also not ratified the act and action taken by said Sri Alok Mitra.4. That the applicants never asked, directed and consented with Sri Alok Mitra opposite party No. 6 not to press or to withdraw the aforesaid objection/application No. 5 of 2004.14. A reading of the aforesaid two paragraphs indicates an inherent self-contradiction. While it is stated in paragraph 3 that the applicants had not given any power of attorney to Alok Mitra to act for them and on their behalf whereas in paragraph 4 they say that they had not asked, directed and consented to the withdrawal of the objections/application filed by Alok Mitra. The inherent contradiction is that if they had not authorized Alok Mitra to file an application, there cannot be any question of their authorizing Alok Mitra to withdraw the application since it was not filed on their behalf. The two paragraphs quoted above confirm that the application/objections of 16th December, 2004 were not filed by the private Respondents.15. Unfortunately, by an order dated 21st November, 2005 the application filed by the private Respondents (other than Alok Mitra) was allowed by the Competent Authority and the confirmation of sale in favour of Sachdeva was set aside. This led Sachdeva to file a writ petition1 in the Allahabad High Court, which came to be dismissed by the impugned judgment and order dated 23rd March, 2006. This resulted in Sachdeva and the vendee, Pawan Kumar Agarwal to prefer the present appeals in this Court.16. As mentioned above, on these facts, the only question for our consideration is whether the High Court was in error in setting aside the confirmed auction sale.17. It is quite clear from the narration of facts that the objections raised to the auction sale were only by Alok Mitra, who did not communicate the objections to the District Magistrate in time. No other objection was raised to the auction sale and it was duly confirmed by the District Magistrate. Alok Mitra later withdrew his objections.18. The other private Respondents contended that even they were parties to the objections filed by Alok Mitra. We cannot agree for the simple reason that the objections were signed only by R.K. Pandey, advocate and the vakalatnama given to him was signed only by Alok Mitra. None of the other private Respondents signed the vakalatnama in favour of R.K. Pandey. On the contrary, when the other private Respondents objected to the withdrawal of the objections by Alok Mitra, they categorically stated that they had not given a power of attorney to Alok Mitra. In that view of the matter, it can hardly lie in the mouth of these private Respondents to contend that the objections filed by Alok Mitra were also filed on their behalf. The private Respondents other than Alok Mitra have come out with an unbelievable story only to somehow or other keep the issue alive through litigation and unfortunately, they have been successful in doing so for the last more than one decade.19. We also find that the conduct of all the private Respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private Respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private Respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private Respondents by the Competent Authority. It appears that the present litigation is being fought by the private Respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private Respondents is a clear indication, if any is required, that they had no objection to the auction sale.20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private Respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private Respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever.21. In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. 1959 Supp (2) SCR 217 it was observed as follows:Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied.22. In Municipal Corporation of Greater Bombay v. Dr Hakimwadi Tenants Association 1988 Supp SCC 55 it was held that"In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case."23. Finally, in P. Dasa Muni Reddy v. P. Appa Rao (1974) 2 SCC 725 this Court held:...Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right......The doctrine which the courts of law will recognise is a Rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts.24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal. | 1[ds]In our opinion, the High Court was in error in setting aside the auction of the land belonging to the private Respondents (Alok Mitra, Ashok Mitra, Deepak Mitra, Manmohan Mitra and Madhurima Ghosh) and thereby prejudicing the rights of the Appellants17. It is quite clear from the narration of facts that the objections raised to the auction sale were only by Alok Mitra, who did not communicate the objections to the District Magistrate in time. No other objection was raised to the auction sale and it was duly confirmed by the District Magistrate. Alok Mitra later withdrew his objections18. The other private Respondents contended that even they were parties to the objections filed by Alok Mitra. We cannot agree for the simple reason that the objections were signed only by R.K. Pandey, advocate and the vakalatnama given to him was signed only by Alok Mitra. None of the other private Respondents signed the vakalatnama in favour of R.K. Pandey. On the contrary, when the other private Respondents objected to the withdrawal of the objections by Alok Mitra, they categorically stated that they had not given a power of attorney to Alok Mitra. In that view of the matter, it can hardly lie in the mouth of these private Respondents to contend that the objections filed by Alok Mitra were also filed on their behalf. The private Respondents other than Alok Mitra have come out with an unbelievable story only to somehow or other keep the issue alive through litigation and unfortunately, they have been successful in doing so for the last more than one decade19. We also find that the conduct of all the private Respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private Respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private Respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private Respondents by the Competent Authority. It appears that the present litigation is being fought by the private Respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private Respondents is a clear indication, if any is required, that they had no objection to the auction sale20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private Respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private Respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal. | 1 | 2,032 | 582 | ### Instruction:
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No. 6 Alok Mitra to act for them and on their behalf, and were also not ratified the act and action taken by said Sri Alok Mitra.4. That the applicants never asked, directed and consented with Sri Alok Mitra opposite party No. 6 not to press or to withdraw the aforesaid objection/application No. 5 of 2004.14. A reading of the aforesaid two paragraphs indicates an inherent self-contradiction. While it is stated in paragraph 3 that the applicants had not given any power of attorney to Alok Mitra to act for them and on their behalf whereas in paragraph 4 they say that they had not asked, directed and consented to the withdrawal of the objections/application filed by Alok Mitra. The inherent contradiction is that if they had not authorized Alok Mitra to file an application, there cannot be any question of their authorizing Alok Mitra to withdraw the application since it was not filed on their behalf. The two paragraphs quoted above confirm that the application/objections of 16th December, 2004 were not filed by the private Respondents.15. Unfortunately, by an order dated 21st November, 2005 the application filed by the private Respondents (other than Alok Mitra) was allowed by the Competent Authority and the confirmation of sale in favour of Sachdeva was set aside. This led Sachdeva to file a writ petition1 in the Allahabad High Court, which came to be dismissed by the impugned judgment and order dated 23rd March, 2006. This resulted in Sachdeva and the vendee, Pawan Kumar Agarwal to prefer the present appeals in this Court.16. As mentioned above, on these facts, the only question for our consideration is whether the High Court was in error in setting aside the confirmed auction sale.17. It is quite clear from the narration of facts that the objections raised to the auction sale were only by Alok Mitra, who did not communicate the objections to the District Magistrate in time. No other objection was raised to the auction sale and it was duly confirmed by the District Magistrate. Alok Mitra later withdrew his objections.18. The other private Respondents contended that even they were parties to the objections filed by Alok Mitra. We cannot agree for the simple reason that the objections were signed only by R.K. Pandey, advocate and the vakalatnama given to him was signed only by Alok Mitra. None of the other private Respondents signed the vakalatnama in favour of R.K. Pandey. On the contrary, when the other private Respondents objected to the withdrawal of the objections by Alok Mitra, they categorically stated that they had not given a power of attorney to Alok Mitra. In that view of the matter, it can hardly lie in the mouth of these private Respondents to contend that the objections filed by Alok Mitra were also filed on their behalf. The private Respondents other than Alok Mitra have come out with an unbelievable story only to somehow or other keep the issue alive through litigation and unfortunately, they have been successful in doing so for the last more than one decade.19. We also find that the conduct of all the private Respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private Respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private Respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private Respondents by the Competent Authority. It appears that the present litigation is being fought by the private Respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private Respondents is a clear indication, if any is required, that they had no objection to the auction sale.20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private Respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private Respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever.21. In Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. 1959 Supp (2) SCR 217 it was observed as follows:Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied.22. In Municipal Corporation of Greater Bombay v. Dr Hakimwadi Tenants Association 1988 Supp SCC 55 it was held that"In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case."23. Finally, in P. Dasa Muni Reddy v. P. Appa Rao (1974) 2 SCC 725 this Court held:...Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right......The doctrine which the courts of law will recognise is a Rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts.24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal.
### Response:
1
### Explanation:
In our opinion, the High Court was in error in setting aside the auction of the land belonging to the private Respondents (Alok Mitra, Ashok Mitra, Deepak Mitra, Manmohan Mitra and Madhurima Ghosh) and thereby prejudicing the rights of the Appellants17. It is quite clear from the narration of facts that the objections raised to the auction sale were only by Alok Mitra, who did not communicate the objections to the District Magistrate in time. No other objection was raised to the auction sale and it was duly confirmed by the District Magistrate. Alok Mitra later withdrew his objections18. The other private Respondents contended that even they were parties to the objections filed by Alok Mitra. We cannot agree for the simple reason that the objections were signed only by R.K. Pandey, advocate and the vakalatnama given to him was signed only by Alok Mitra. None of the other private Respondents signed the vakalatnama in favour of R.K. Pandey. On the contrary, when the other private Respondents objected to the withdrawal of the objections by Alok Mitra, they categorically stated that they had not given a power of attorney to Alok Mitra. In that view of the matter, it can hardly lie in the mouth of these private Respondents to contend that the objections filed by Alok Mitra were also filed on their behalf. The private Respondents other than Alok Mitra have come out with an unbelievable story only to somehow or other keep the issue alive through litigation and unfortunately, they have been successful in doing so for the last more than one decade19. We also find that the conduct of all the private Respondents is a clear indication of their acceptance of the validity of the auction sale. It has come on record that the auction sale resulted in a sale price which was over and above the dues and liabilities of the private Respondents by an amount of about Rs. 14 lakhs. Through applications filed by the private Respondents on 11th January, 2005 and 25th January, 2005 requests were made for being given back the excess amount raised by the auction sale. In fact this request was acceded to and the amount was given back to the private Respondents by the Competent Authority. It appears that the present litigation is being fought by the private Respondents on the basis of the amounts received by them from the Competent Authority. In any event, the conduct of the private Respondents is a clear indication, if any is required, that they had no objection to the auction sale20. Through their conduct, in failing to file objections to the auction sale and making an application and accepting the excess amount recovered from the auction sale, the private Respondents have waived off their rights in respect of the auction sale and have acquiesced in the auction sale. Today, the private Respondents are estopped through their conduct from challenging the auction sale in any manner whatsoever24. We are of the clear opinion that in view of the law, the High Court erred in ignoring the basic and primary facts on record and setting aside the auction sale in favour of Sachdeva, and thereby also prejudicing Pawan Kumar Agarwal.
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CHANDRA PRAKASH BUDAKOTI Vs. UNION OF INDIA | provisions of the Forest (Conservation) Act. He relied upon a judgment in T.N. Godavarman Thirumulpad v. Union of India (1997) 2 SCC 267 to submit that the words ‘forest? should be understood according to its dictionary meaning. He relied upon Google images from 2007 to 2014 which would show that the area which was densely populated with trees has gradually undergone a change.9. He submitted that Oak and Kukat trees were cut and construction was commenced by Respondent No.9 i.e. Mahananda Spa and Resorts Pvt. Ltd. without obtaining clearance under the Forest (Conservation) Act. He referred to the reports submitted by the Forest Survey of India and the joint inspection report of the forest authorities in support of his submission that there has been a progressive reduction in the forest area in Khasra No.605. He also placed reliance on the judgements of this Court in M.C. Mehta (Kant Enclave matters) v. Union of India (2018) 18 SCC 397 and Kerala State Coastal Zone Management Authority v. State of Kerala (2019) 7 SCC 248 to argue that any construction carried out without requisite permissions is liable to be demolished.10. Mr. C. A. Sundaram, learned Senior Counsel appearing for Respondent No.9 submitted that the land of Respondent No.9 in Khasra No.605/1 is recorded as barren (banjar) land in the revenue records. He referred to the revenue records to contend that the land in Khasra No.605 is neither a forest land nor in the nature of a forest. Initially, according to him, Mahananda Spa and Resorts Limited was to be constructed in 5702.20 sq. meters for which a sanctioned building plan was granted. According to the notification dated 14.09.2006, environment clearance is required only if the built-up area of a project is more than 20,000 sq. meters. As it was decided to increase the built-up area from 13983.67 sq. meters to 32,791 sq. meter, a fresh building plan was submitted for approval. Mr. Sundaram contended that the entire shareholding of the erstwhile promoters of the Respondent No.9 was sold to Mankind Pharmaceuticals Limited company. Thereafter, Respondent No.9 applied for grant of environment clearance on 01.02.2016 and Consent to Establish from the Uttarakhand Environment Protection and Pollution Control Board.11. Mr. Sundaram stated that the State Level Environment Impact Assessment Authority conducted a site inspection on 21.02.2016 pursuant to which the environment clearance was granted on 03.03.2016 permitting construction of the total built-up area of 32,686 sq. meters. He contended that there was no felling of any trees, as alleged by the Appellant. The submission of Mr. Sundaram that the construction taken up by Respondent No.9 was after obtaining all the necessary sanctions and approvals which were not subject matter of challenge in any forum. 12. The Appellant placed heavy reliance on the report of the Forest Survey of India which conducted an inspection on 01.05.2017. It is no doubt true that it was mentioned in the report that there is a gradual degradation of forest in Khasra No.605. The Committee proceeded with the inspection on the basis that Khasra No.605 is a forest on the ground that all lands with the tree canopy density between 10 % to 40 % shall be treated as open forest. The Committee made no reference to the revenue records. The Committee further proceeded on the ground that the total area of Khasra No.605 is 18.02 hectares to conclude that there is a progressive degradation due to construction of golf courts and other buildings in the area. The Tribunal rightly refused to accept the report of the Forest Survey of India as according to the revenue records, the land in Khasra No.605 is only 10.39 hectares. The Tribunal observed that it is difficult to arrive at a conclusion as to which part of Khasra No.605 has been degraded as the report of FSI refers to Khasra No.605 to be more than the area recorded in the revenue records.13. The Appellant filed M.A. No.1672 of 2018 in O.A. 626 of 2016 seeking a direction for a site inspection in view of fact that Respondent No.9 is continuing with the construction in the forest area. By an order dated 19.12.2018, the Tribunal directed the Regional office of Ministry of Environment and Forest, Climate Change, Dehradun to conduct an inspection. After conducting an inspection, a report was submitted on 07.01.2019. The clear findings recorded in the report are that the revenue records show that Khasra No.605 is banjar or barren land. In NOIDA Memorial Complex Near Okhla Bird Sanctuary, In Re v. (2011) 1 SCC 744 , this Court held that due weight has to be given to revenue records, especially those pertaining to a period when the dispute regarding the land being a forest land did not exist. In the instant case, the revenue records relied upon by the Respondent No.9 are very old when nobody could have imagined about the project. 14. The observation in the report dated 07.01.2019 is to the effect that the land in Khasra No.605 was not considered as a deemed forest by the Forest Department in the report filed in Godavarman?s case. There is no evidence of blasting operations. There is also no sign of any fresh felling of trees and finally it was concluded that the land in Khasra No.605 cannot qualify as deemed forest. There is a reference in the report to the judgment of this Court in Godavarman?s case wherein it was held that the Forest Conservation Act would be applicable to all lands recorded as forest in the revenue records. The provisions of the Forest Conservation Act are not applicable to Khasra No.605. We are in agreement with the findings recorded by the Tribunal that the land falling in Khasra No.605 is banjar or barren land and the provisions of the Forest Conservation Act is not applicable.15. In so far as Khasra No.512 and 514 are concerned, the Forest Department, State of Uttarakhand, Ministry of Environment and Forest have been remiss in not initiating the proceedings as directed by the Tribunal. | 0[ds]7. Before we proceed further it is relevant to mention that the direction issued by the Tribunal in respect of Khasra No.512 and 514 has not been challenged by the Respondents.The Appellant placed heavy reliance on the report of the Forest Survey of India which conducted an inspection on 01.05.2017. It is no doubt true that it was mentioned in the report that there is a gradual degradation of forest in Khasra No.605. The Committee proceeded with the inspection on the basis that Khasra No.605 is a forest on the ground that all lands with the tree canopy density between 10 % to 40 % shall be treated as open forest. The Committee made no reference to the revenue records. The Committee further proceeded on the ground that the total area of Khasra No.605 is 18.02 hectares to conclude that there is a progressive degradation due to construction of golf courts and other buildings in the area. The Tribunal rightly refused to accept the report of the Forest Survey of India as according to the revenue records, the land in Khasra No.605 is only 10.39 hectares. The Tribunal observed that it is difficult to arrive at a conclusion as to which part of Khasra No.605 has been degraded as the report of FSI refers to Khasra No.605 to be more than the area recorded in the revenue records.13. The Appellant filed M.A. No.1672 of 2018 in O.A. 626 of 2016 seeking a direction for a site inspection in view of fact that Respondent No.9 is continuing with the construction in the forest area. By an order dated 19.12.2018, the Tribunal directed the Regional office of Ministry of Environment and Forest, Climate Change, Dehradun to conduct an inspection. After conducting an inspection, a report was submitted on 07.01.2019. The clear findings recorded in the report are that the revenue records show that Khasra No.605 is banjar or barrenthe instant case, the revenue records relied upon by the Respondent No.9 are very old when nobody could have imagined about the project. 14. The observation in the report dated 07.01.2019 is to the effect that the land in Khasra No.605 was not considered as a deemed forest by the Forest Department in the report filed in Godavarman?s case. There is no evidence of blasting operations. There is also no sign of any fresh felling of trees and finally it was concluded that the land in Khasra No.605 cannot qualify as deemed forest. There is a reference in the report to the judgment of this Court in Godavarman?s case wherein it was held that the Forest Conservation Act would be applicable to all lands recorded as forest in the revenue records. The provisions of the Forest Conservation Act are not applicable to Khasra No.605. We are in agreement with the findings recorded by the Tribunal that the land falling in Khasra No.605 is banjar or barren land and the provisions of the Forest Conservation Act is not applicable.15. In so far as Khasra No.512 and 514 are concerned, the Forest Department, State of Uttarakhand, Ministry of Environment and Forest have been remiss in not initiating the proceedings as directed by the Tribunal. | 0 | 2,676 | 568 | ### 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:
provisions of the Forest (Conservation) Act. He relied upon a judgment in T.N. Godavarman Thirumulpad v. Union of India (1997) 2 SCC 267 to submit that the words ‘forest? should be understood according to its dictionary meaning. He relied upon Google images from 2007 to 2014 which would show that the area which was densely populated with trees has gradually undergone a change.9. He submitted that Oak and Kukat trees were cut and construction was commenced by Respondent No.9 i.e. Mahananda Spa and Resorts Pvt. Ltd. without obtaining clearance under the Forest (Conservation) Act. He referred to the reports submitted by the Forest Survey of India and the joint inspection report of the forest authorities in support of his submission that there has been a progressive reduction in the forest area in Khasra No.605. He also placed reliance on the judgements of this Court in M.C. Mehta (Kant Enclave matters) v. Union of India (2018) 18 SCC 397 and Kerala State Coastal Zone Management Authority v. State of Kerala (2019) 7 SCC 248 to argue that any construction carried out without requisite permissions is liable to be demolished.10. Mr. C. A. Sundaram, learned Senior Counsel appearing for Respondent No.9 submitted that the land of Respondent No.9 in Khasra No.605/1 is recorded as barren (banjar) land in the revenue records. He referred to the revenue records to contend that the land in Khasra No.605 is neither a forest land nor in the nature of a forest. Initially, according to him, Mahananda Spa and Resorts Limited was to be constructed in 5702.20 sq. meters for which a sanctioned building plan was granted. According to the notification dated 14.09.2006, environment clearance is required only if the built-up area of a project is more than 20,000 sq. meters. As it was decided to increase the built-up area from 13983.67 sq. meters to 32,791 sq. meter, a fresh building plan was submitted for approval. Mr. Sundaram contended that the entire shareholding of the erstwhile promoters of the Respondent No.9 was sold to Mankind Pharmaceuticals Limited company. Thereafter, Respondent No.9 applied for grant of environment clearance on 01.02.2016 and Consent to Establish from the Uttarakhand Environment Protection and Pollution Control Board.11. Mr. Sundaram stated that the State Level Environment Impact Assessment Authority conducted a site inspection on 21.02.2016 pursuant to which the environment clearance was granted on 03.03.2016 permitting construction of the total built-up area of 32,686 sq. meters. He contended that there was no felling of any trees, as alleged by the Appellant. The submission of Mr. Sundaram that the construction taken up by Respondent No.9 was after obtaining all the necessary sanctions and approvals which were not subject matter of challenge in any forum. 12. The Appellant placed heavy reliance on the report of the Forest Survey of India which conducted an inspection on 01.05.2017. It is no doubt true that it was mentioned in the report that there is a gradual degradation of forest in Khasra No.605. The Committee proceeded with the inspection on the basis that Khasra No.605 is a forest on the ground that all lands with the tree canopy density between 10 % to 40 % shall be treated as open forest. The Committee made no reference to the revenue records. The Committee further proceeded on the ground that the total area of Khasra No.605 is 18.02 hectares to conclude that there is a progressive degradation due to construction of golf courts and other buildings in the area. The Tribunal rightly refused to accept the report of the Forest Survey of India as according to the revenue records, the land in Khasra No.605 is only 10.39 hectares. The Tribunal observed that it is difficult to arrive at a conclusion as to which part of Khasra No.605 has been degraded as the report of FSI refers to Khasra No.605 to be more than the area recorded in the revenue records.13. The Appellant filed M.A. No.1672 of 2018 in O.A. 626 of 2016 seeking a direction for a site inspection in view of fact that Respondent No.9 is continuing with the construction in the forest area. By an order dated 19.12.2018, the Tribunal directed the Regional office of Ministry of Environment and Forest, Climate Change, Dehradun to conduct an inspection. After conducting an inspection, a report was submitted on 07.01.2019. The clear findings recorded in the report are that the revenue records show that Khasra No.605 is banjar or barren land. In NOIDA Memorial Complex Near Okhla Bird Sanctuary, In Re v. (2011) 1 SCC 744 , this Court held that due weight has to be given to revenue records, especially those pertaining to a period when the dispute regarding the land being a forest land did not exist. In the instant case, the revenue records relied upon by the Respondent No.9 are very old when nobody could have imagined about the project. 14. The observation in the report dated 07.01.2019 is to the effect that the land in Khasra No.605 was not considered as a deemed forest by the Forest Department in the report filed in Godavarman?s case. There is no evidence of blasting operations. There is also no sign of any fresh felling of trees and finally it was concluded that the land in Khasra No.605 cannot qualify as deemed forest. There is a reference in the report to the judgment of this Court in Godavarman?s case wherein it was held that the Forest Conservation Act would be applicable to all lands recorded as forest in the revenue records. The provisions of the Forest Conservation Act are not applicable to Khasra No.605. We are in agreement with the findings recorded by the Tribunal that the land falling in Khasra No.605 is banjar or barren land and the provisions of the Forest Conservation Act is not applicable.15. In so far as Khasra No.512 and 514 are concerned, the Forest Department, State of Uttarakhand, Ministry of Environment and Forest have been remiss in not initiating the proceedings as directed by the Tribunal.
### Response:
0
### Explanation:
7. Before we proceed further it is relevant to mention that the direction issued by the Tribunal in respect of Khasra No.512 and 514 has not been challenged by the Respondents.The Appellant placed heavy reliance on the report of the Forest Survey of India which conducted an inspection on 01.05.2017. It is no doubt true that it was mentioned in the report that there is a gradual degradation of forest in Khasra No.605. The Committee proceeded with the inspection on the basis that Khasra No.605 is a forest on the ground that all lands with the tree canopy density between 10 % to 40 % shall be treated as open forest. The Committee made no reference to the revenue records. The Committee further proceeded on the ground that the total area of Khasra No.605 is 18.02 hectares to conclude that there is a progressive degradation due to construction of golf courts and other buildings in the area. The Tribunal rightly refused to accept the report of the Forest Survey of India as according to the revenue records, the land in Khasra No.605 is only 10.39 hectares. The Tribunal observed that it is difficult to arrive at a conclusion as to which part of Khasra No.605 has been degraded as the report of FSI refers to Khasra No.605 to be more than the area recorded in the revenue records.13. The Appellant filed M.A. No.1672 of 2018 in O.A. 626 of 2016 seeking a direction for a site inspection in view of fact that Respondent No.9 is continuing with the construction in the forest area. By an order dated 19.12.2018, the Tribunal directed the Regional office of Ministry of Environment and Forest, Climate Change, Dehradun to conduct an inspection. After conducting an inspection, a report was submitted on 07.01.2019. The clear findings recorded in the report are that the revenue records show that Khasra No.605 is banjar or barrenthe instant case, the revenue records relied upon by the Respondent No.9 are very old when nobody could have imagined about the project. 14. The observation in the report dated 07.01.2019 is to the effect that the land in Khasra No.605 was not considered as a deemed forest by the Forest Department in the report filed in Godavarman?s case. There is no evidence of blasting operations. There is also no sign of any fresh felling of trees and finally it was concluded that the land in Khasra No.605 cannot qualify as deemed forest. There is a reference in the report to the judgment of this Court in Godavarman?s case wherein it was held that the Forest Conservation Act would be applicable to all lands recorded as forest in the revenue records. The provisions of the Forest Conservation Act are not applicable to Khasra No.605. We are in agreement with the findings recorded by the Tribunal that the land falling in Khasra No.605 is banjar or barren land and the provisions of the Forest Conservation Act is not applicable.15. In so far as Khasra No.512 and 514 are concerned, the Forest Department, State of Uttarakhand, Ministry of Environment and Forest have been remiss in not initiating the proceedings as directed by the Tribunal.
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Special Land Acquisition Officer Vs. Indian Standard Metal Co. Ltd | collected necessary information regarding sale transactions and valuation of land by studying the sale transactions from 1967 to 1972. 11. In cross-examination, the witness admitted that he did not know that the acquired land was purchased by the claimant in 1967. He also admitted that he did not feel to see sale transactions in respect of the land in question. He denied that he ignored those transactions because otherwise valuation could not be enhanced. He had to admit that there was no industry in Wadghar village and no commercial zone was formed in Wadghar village before 1970. There was no residential colony except college campus quarters. So far as acquired land is concerned, he admitted that in 1970, it was partly agricultural land and partly uncultivable. All the sale instances except the award of NIDC were on the eastern side of the Bombay Highway and the acquired land was about 2 kilometers away from Bombay-Pune Highway and by road it was 2.5 kilometers. All the sale instances were between 500 meters and 1 kilometer from Bombay-Pune Highway. The sale deeds were in respect of minimum area of 500 sq. mtrs. and maximum of 1500 sq.mtrs.12. It is clear from the record and also from the cross-examination of Claimant-Witness No.1 that the Government had acquired some land (12 acres) for the respondent-Company. The Government gave possession of the land to the Company in April, 1967. The witness then stated that he was not aware what was the price paid to the Government for acquisition of the land. He also stated that he could not trace the record in the office. He could not say as to whether the Company had papers when the representation was made to the Government. He could not give the name of the officer who dealt with the purchase of the land. He stated that he had no personal knowledge in the matter. He admitted that though some land was purchased by the Company thereafter, he was unable to produce sale deeds in respect of the said land. He also stated that he had not procured sale transactions of the land nearby. He had not made any enquiry about those transactions. He had flatly stated that he was not going to produce any sale deed. In further cross-examination he admitted that all the industries mentioned by him were towards the north of Panvel. There was no industry near about the acquired land. He admitted that he did not know whether prior to 1970 there was any commercial or industrial area and residential activities within the vicinity of the acquired land. He also did not know the situation of the acquired land in or before 1970. 13. From the evidences of the two witnesses of the claimant as also from other evidence, the Reference Court observed that admittedly some land was purchased in the year 1964 by the Company itself and yet witness No.1 stated that he was not knowing anything about the purchase price. The Court noted that the transactions were of 1964-1965 and thus "not so much immemorial so as to treat the record evidence lost". In the circumstances, those documents ought to have been produced by the company. 14. In our opinion, by making the above observations, the Reference Court has not committed any illegality. The High Court, unfortunately, has not considered this aspect in its proper perspective. Again, the Reference Court was right in stating that when the claimant itself has purchased some land, purchase price of the land was an important factor in determining the value of the acquired land. The Reference Court also observed that according to the Government, some land was subject matter of purchase by the Company in 1964-65 and price paid by the Company was much lower ranging from 0.45 paise to 0.75 paise per sq.mtr. The State also relied upon Index Extracts (Ex.37) showing the price paid by the Company in 1964-65. In view of non-production of documentary evidence of the land purchased by the Company, the Reference Court observed:-- "It cannot be ignored that the price that was actually paid for a particular piece of land by the claimants in the year 1964-65 is within their knowledge and obviously it is a company viz. Indian Standard Metal Company Ltd. that has kept accounts and has furnished extensive list of machinery that was required to be purchased at the time of starting factory on the acquired land and must be presumed to be in possession of the record and the 11 sale deeds that were executed. The year 1964-65 is not so much immemorial so as to treat the record as lost and therefore, obviously it looks that the claimants are not willing to put forth the relevant record and for one reason or the other they want to suppress the fact viz. the price that was paid for the acquired pieces in the year 1964-65." 15. It is thus clear that a relevant and germane consideration has not been taken into account by the High Court in deciding the appeal and enhancing the amount of compensation. To us, the submission on behalf of the appellant is also well-founded that in the instant case, the acquisition of land is on a large scale of more than 2 kilometers, and as such, the instances of small pieces of land would not be of much assistance to the claimant. In our opinion, therefore, the High Court ought not to have given undue importance to sale instances. Since the High Court failed to consider documentary evidence as also the fact of non-production of sale deeds by the Company and also the evidence of two witnesses for the claimants in its proper perspective, it would be appropriate if we set aside the decision of the High Court and remit the matter to the High Court so that the Court may consider the matter afresh in the light of the evidences before it and in the light of observations made by us hereinabove. | 1[ds]10. Having given our thoughtful consideration to the rival contentions of the parties, in our opinion, the appeal deserves to be partly allowed. The High Court allowed the appeal of the Company and granted enhancement in the amount of compensation by deducting development charges @ 20 per cent. To us, however, it appears that the learned counsel for the appellant is right in submitting that the High Court had not appreciated the evidence of witnesses for the claimants properly. From the evidence of Balchandra S/o Shantaram Sule,No.1 it appears that the entire developments was not prior to or in or about 1970 and such development was after the said period. Moreover, the evidence ofs No.2 also relates to the period of August, 1986 and thereafter. In hisitself, he had stated that in August, 1986, he was entrusted with the work of valuation of acquired land by the Company. He thereafter visited the acquired land. He also admitted that he visited the place four times. Afterwards, he studied the development in neighbouring area and its effect on the acquired land. He visited the office of Talathi and collected necessary information regarding sale transactions and valuation of land by studying the sale transactions from 1967 tofar as acquired land is concerned, he admitted that in 1970, it was partly agricultural land and partly uncultivable. All the sale instances except the award of NIDC were on the eastern side of the Bombay Highway and the acquired land was about 2 kilometers away fromHighway and by road it was 2.5 kilometers. All the sale instances were between 500 meters and 1 kilometer fromHighway. The sale deeds were in respect of minimum area of 500 sq. mtrs. and maximum of 1500 sq.mtrs.12. It is clear from the record and also from thess No.1 that the Government had acquired some land (12 acres) for theThe Government gave possession of the land to the Company in April, 1967. The witness then stated that he was not aware what was the price paid to the Government for acquisition of the land. He also stated that he could not trace the record in the office. He could not say as to whether the Company had papers when the representation was made to the Government. He could not give the name of the officer who dealt with the purchase of the land. He stated that he had no personal knowledge in the matter. He admitted that though some land was purchased by the Company thereafter, he was unable to produce sale deeds in respect of the said land. He also stated that he had not procured sale transactions of the land nearby. He had not made any enquiry about those transactions. He had flatly stated that he was not going to produce any sale deed. In furtherhe admitted that all the industries mentioned by him were towards the north of Panvel. There was no industry near about the acquired land. He admitted that he did not know whether prior to 1970 there was any commercial or industrial area and residential activities within the vicinity of the acquired land. He also did not know the situation of the acquired land in or before 1970.In our opinion, by making the above observations, the Reference Court has not committed any illegality. The High Court, unfortunately, has not considered this aspect in its proper perspective. Again, the Reference Court was right in stating that when the claimant itself has purchased some land, purchase price of the land was an important factor in determining the value of the acquired land. The Reference Court also observed that according to the Government, some land was subject matter of purchase by the Company inIt is thus clear that a relevant and germane consideration has not been taken into account by the High Court in deciding the appeal and enhancing the amount of compensation. To us, the submission on behalf of the appellant is alsothat in the instant case, the acquisition of land is on a large scale of more than 2 kilometers, and as such, the instances of small pieces of land would not be of much assistance to the claimant. In our opinion, therefore, the High Court ought not to have given undue importance to sale instances. Since the High Court failed to consider documentary evidence as also the fact ofof sale deeds by the Company and also the evidence of two witnesses for the claimants in its proper perspective, it would be appropriate if we set aside the decision of the High Court and remit the matter to the High Court so that the Court may consider the matter afresh in the light of the evidences before it and in the light of observations made by us hereinabove. | 1 | 2,986 | 864 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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collected necessary information regarding sale transactions and valuation of land by studying the sale transactions from 1967 to 1972. 11. In cross-examination, the witness admitted that he did not know that the acquired land was purchased by the claimant in 1967. He also admitted that he did not feel to see sale transactions in respect of the land in question. He denied that he ignored those transactions because otherwise valuation could not be enhanced. He had to admit that there was no industry in Wadghar village and no commercial zone was formed in Wadghar village before 1970. There was no residential colony except college campus quarters. So far as acquired land is concerned, he admitted that in 1970, it was partly agricultural land and partly uncultivable. All the sale instances except the award of NIDC were on the eastern side of the Bombay Highway and the acquired land was about 2 kilometers away from Bombay-Pune Highway and by road it was 2.5 kilometers. All the sale instances were between 500 meters and 1 kilometer from Bombay-Pune Highway. The sale deeds were in respect of minimum area of 500 sq. mtrs. and maximum of 1500 sq.mtrs.12. It is clear from the record and also from the cross-examination of Claimant-Witness No.1 that the Government had acquired some land (12 acres) for the respondent-Company. The Government gave possession of the land to the Company in April, 1967. The witness then stated that he was not aware what was the price paid to the Government for acquisition of the land. He also stated that he could not trace the record in the office. He could not say as to whether the Company had papers when the representation was made to the Government. He could not give the name of the officer who dealt with the purchase of the land. He stated that he had no personal knowledge in the matter. He admitted that though some land was purchased by the Company thereafter, he was unable to produce sale deeds in respect of the said land. He also stated that he had not procured sale transactions of the land nearby. He had not made any enquiry about those transactions. He had flatly stated that he was not going to produce any sale deed. In further cross-examination he admitted that all the industries mentioned by him were towards the north of Panvel. There was no industry near about the acquired land. He admitted that he did not know whether prior to 1970 there was any commercial or industrial area and residential activities within the vicinity of the acquired land. He also did not know the situation of the acquired land in or before 1970. 13. From the evidences of the two witnesses of the claimant as also from other evidence, the Reference Court observed that admittedly some land was purchased in the year 1964 by the Company itself and yet witness No.1 stated that he was not knowing anything about the purchase price. The Court noted that the transactions were of 1964-1965 and thus "not so much immemorial so as to treat the record evidence lost". In the circumstances, those documents ought to have been produced by the company. 14. In our opinion, by making the above observations, the Reference Court has not committed any illegality. The High Court, unfortunately, has not considered this aspect in its proper perspective. Again, the Reference Court was right in stating that when the claimant itself has purchased some land, purchase price of the land was an important factor in determining the value of the acquired land. The Reference Court also observed that according to the Government, some land was subject matter of purchase by the Company in 1964-65 and price paid by the Company was much lower ranging from 0.45 paise to 0.75 paise per sq.mtr. The State also relied upon Index Extracts (Ex.37) showing the price paid by the Company in 1964-65. In view of non-production of documentary evidence of the land purchased by the Company, the Reference Court observed:-- "It cannot be ignored that the price that was actually paid for a particular piece of land by the claimants in the year 1964-65 is within their knowledge and obviously it is a company viz. Indian Standard Metal Company Ltd. that has kept accounts and has furnished extensive list of machinery that was required to be purchased at the time of starting factory on the acquired land and must be presumed to be in possession of the record and the 11 sale deeds that were executed. The year 1964-65 is not so much immemorial so as to treat the record as lost and therefore, obviously it looks that the claimants are not willing to put forth the relevant record and for one reason or the other they want to suppress the fact viz. the price that was paid for the acquired pieces in the year 1964-65." 15. It is thus clear that a relevant and germane consideration has not been taken into account by the High Court in deciding the appeal and enhancing the amount of compensation. To us, the submission on behalf of the appellant is also well-founded that in the instant case, the acquisition of land is on a large scale of more than 2 kilometers, and as such, the instances of small pieces of land would not be of much assistance to the claimant. In our opinion, therefore, the High Court ought not to have given undue importance to sale instances. Since the High Court failed to consider documentary evidence as also the fact of non-production of sale deeds by the Company and also the evidence of two witnesses for the claimants in its proper perspective, it would be appropriate if we set aside the decision of the High Court and remit the matter to the High Court so that the Court may consider the matter afresh in the light of the evidences before it and in the light of observations made by us hereinabove.
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10. Having given our thoughtful consideration to the rival contentions of the parties, in our opinion, the appeal deserves to be partly allowed. The High Court allowed the appeal of the Company and granted enhancement in the amount of compensation by deducting development charges @ 20 per cent. To us, however, it appears that the learned counsel for the appellant is right in submitting that the High Court had not appreciated the evidence of witnesses for the claimants properly. From the evidence of Balchandra S/o Shantaram Sule,No.1 it appears that the entire developments was not prior to or in or about 1970 and such development was after the said period. Moreover, the evidence ofs No.2 also relates to the period of August, 1986 and thereafter. In hisitself, he had stated that in August, 1986, he was entrusted with the work of valuation of acquired land by the Company. He thereafter visited the acquired land. He also admitted that he visited the place four times. Afterwards, he studied the development in neighbouring area and its effect on the acquired land. He visited the office of Talathi and collected necessary information regarding sale transactions and valuation of land by studying the sale transactions from 1967 tofar as acquired land is concerned, he admitted that in 1970, it was partly agricultural land and partly uncultivable. All the sale instances except the award of NIDC were on the eastern side of the Bombay Highway and the acquired land was about 2 kilometers away fromHighway and by road it was 2.5 kilometers. All the sale instances were between 500 meters and 1 kilometer fromHighway. The sale deeds were in respect of minimum area of 500 sq. mtrs. and maximum of 1500 sq.mtrs.12. It is clear from the record and also from thess No.1 that the Government had acquired some land (12 acres) for theThe Government gave possession of the land to the Company in April, 1967. The witness then stated that he was not aware what was the price paid to the Government for acquisition of the land. He also stated that he could not trace the record in the office. He could not say as to whether the Company had papers when the representation was made to the Government. He could not give the name of the officer who dealt with the purchase of the land. He stated that he had no personal knowledge in the matter. He admitted that though some land was purchased by the Company thereafter, he was unable to produce sale deeds in respect of the said land. He also stated that he had not procured sale transactions of the land nearby. He had not made any enquiry about those transactions. He had flatly stated that he was not going to produce any sale deed. In furtherhe admitted that all the industries mentioned by him were towards the north of Panvel. There was no industry near about the acquired land. He admitted that he did not know whether prior to 1970 there was any commercial or industrial area and residential activities within the vicinity of the acquired land. He also did not know the situation of the acquired land in or before 1970.In our opinion, by making the above observations, the Reference Court has not committed any illegality. The High Court, unfortunately, has not considered this aspect in its proper perspective. Again, the Reference Court was right in stating that when the claimant itself has purchased some land, purchase price of the land was an important factor in determining the value of the acquired land. The Reference Court also observed that according to the Government, some land was subject matter of purchase by the Company inIt is thus clear that a relevant and germane consideration has not been taken into account by the High Court in deciding the appeal and enhancing the amount of compensation. To us, the submission on behalf of the appellant is alsothat in the instant case, the acquisition of land is on a large scale of more than 2 kilometers, and as such, the instances of small pieces of land would not be of much assistance to the claimant. In our opinion, therefore, the High Court ought not to have given undue importance to sale instances. Since the High Court failed to consider documentary evidence as also the fact ofof sale deeds by the Company and also the evidence of two witnesses for the claimants in its proper perspective, it would be appropriate if we set aside the decision of the High Court and remit the matter to the High Court so that the Court may consider the matter afresh in the light of the evidences before it and in the light of observations made by us hereinabove.
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K. Balasubramania Chetty Vs. N. M. Sambandamoorthy Chetty | to passengers that a recent grant in his favour may be no obstacle in his way at all a recent grant could not, considered by itself and singly, be converted into a demerit". Similarly, possession of more than one permit also cannot by itself, divorced from other circumstances, be regarded as a disqualification. It may in a given case show that the applicant has already reached the viable unit of five stage carriages contemplated under clause (3) (F) of rule 155A or that the effect of granting permit to him would be to make him a monopolist on the route - a result disfavoured by the decision of this Court in Sri Rama Vilas Service 1P) Ltd. v. C. Chandrasekaran, (1964) 5 SCR 869 = (AIR 1365 SC 107) as being inconsistent with the interest of the general public - or, on the other hand, it may be a circumstance in his favour enabling him to achieve greater efficiency by moving towards the optimum of viable unit. The learned Single Judge was, therefore, in error in rejecting the claim of the appellant to the grant of permit by mechanically relying on the circumstance that the appellant was a multi bus operator having four stage carriage permits, including a recent grant, without considering how in the light of the other facts and circumstances, it was correlated to the question of public interest. There was nothing to show that this circumstance would have any prejudicial or adverse impact on public interest, if permits were granted to the appellant notwithstanding it. The four stage carriage permits which the appellant had were not on the same route and there was no question of any monopoly being created in his .favour if the permit applied for by him were granted. In fact possession of more than one permit by the appellant was a circumstance in his favour because according to clause (3) (F) of Rule 155A an applicant operating not more than four stage carriages would be entitled to one mark for each stage carriage in order to have a viable unit of five carriages. The guiding principle laid down in clause (3) (F) of Rule 155A proceeds on the hypothesis that an applicant would be able to achieve greater efficiency if he had a larger number of stage carriages, but it sets a limit of five stage carriages as it was thought that that would be sufficient to constitute a viable unit which could legitimately be permitted to an applicant, consistently with the requirement of a socialistic pattern of society that there should be distributive or social justice and no undue economic disparities. So long, therefore, as an applicant has not more than four stage carriages, it cannot by itself be regarded as a factor against him and, as pointed out by Beg, J., in the case cited above, the rule in clause (3) (F) of Rule 155A providing for giving of one mark to the applicant for each stage carriage operated by him should be taken into account unless there is good enough reason to depart from it. "Every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up a viable unit of five". The State Transport Appellate Tribunal was, therefore, right, in the circumstances of the case, in not regarding possession of four stage carriage permits by the appellant, including a recent grant, as a circumstance against him, but treating it as a circumstance in his favour by adding four marks under clause (3) (F) of Rule 155A, and the learned Single Judge acted erroneously in upsetting this view taken by the State Transport Appellate Tribunal7. The learned Single Judge was also in error in holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondent.The history sheet of the appellant related only to his performance as stage carriage operator and the entire history sheet was before the State Transport Appellate Tribunal and it showed that the appellant had a clean record. On the other hand, the respondent had two history sheets, one relating to his performance as stage carriage operator and the other relating: to his performance as lorry operator and both the history sheets showed adverse entries. It can hardly be disputed that this comparison with reference to the past performance of the appellant and the respondent was relevant to the question as to who between the two should be selected for grant of permit. It may be that the history sheet of the respondent as lorry operator related to a period of ten years while that of the appellant as a stage carriage operator covered a shorter period, but that cannot be helped. The comparison has to be made on the basis of the available material and if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent was not satisfactory while the history sheet of the appellant, though for a shorter period, shows that he has had a clean record of performance, that would certainly be a relevant circumstance to be taken into account. The State Transport Appellate Tribunal was plainly right in relying on this circumstance, amongst others, for the purpose of preferring the appellant to the respondent.8. Before we part with this case we may point out that the learned Single Judge overstepped the limits of his revisional jurisdiction and treated the revision application before him as if it were an appeal. That was clearly impermissible as the revisional jurisdiction of the High Court under S. 64B is as severely restricted as that under Section 115 of the Code of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under Section 64B with an order made by the State Transport Appellate Tribunal. | 1[ds]4. We will first dispose of the last two reasons which prevailed with the learned Single Judge in interfering with the order of the State Transport Appellate Tribunal. So far as the claim of the respondent for two marks in respect of workshop under clause (3) (E) of Rule 155 A is concerned. We agree with the learned Single Judge that the State Transport Appellate Tribunal was in error in refusing that claim. The Regional Transport Officer under instructions from the Regional Transport Authority inspected the workshop of the respondent and found that it was in a pucca fire proof building and the respondent was accordingly entitled to two marks under clause (3) (E) of Rule 155A. But that would not make any difference because even with these two marks, the total number of marks of the respondent would not exceed 7.40 as against 9 marks of the appellant. Moreover, these 9 marks do not include two marks on account of sector experience under clause. (3) (C) of Rule 155A. The State Transport Appellate Tribunal gave two marks to the appellant on account of sector experience but the learned Single Judge took a different view. We do not think - the learned Judge was right in refusing two marks to the appellant on this-count. Clause (3) (C) of R. 155A provides that two marks shall be awarded to the applicant who on the date of consideration of the application by the Regional Transport Authority has been plying a stage carriage on the entire route. It does not contain any restriction that in order to be entitled to these two marks the applicant should have been plying on the route on the basis of a permanent permit. It is immaterial whether the applicant has been plying on the route on a temporary permit or a permanent permit. What is material is that the applicant should have experience of plying on the route and this experience would be there whether plying is done on a temporary permit or on a permanent permit. The appellant was, therefore, entitled to two marks on account of sector experience under clause (3) (C) of Rule 155A and that would raise his total number of marks to 11.The position, therefore, was that the appellant was entitled to 11 marks as against 7.40 of the respondent.5. But that by itself would not be determinative of the controversy. The paramount consideration to be taken into account in determining as to which of the applicants should be selected for grant of permit always is public interest. Section 47 (1) provides in so many words that the Regional Transport Authority - shall, in considering an application for a stage carriage permit have regard inter alia, "to the interest of the public generally, and this is a consideration which must necessarily outweigh all others. It is ultimately on the touchstone of public interest that selection of an applicant for grant of permit must be justified. Clause (3) of Rule 155A undoubtedly provides for giving of marks to the rival applicants but the number of marks obtained by each applicant can only provide a guiding principle for the grant of permit It can never override the consideration of public interest which must dominate the selection in all cases. In fact clause (4) of Rule 155A concedes that after the applicants are ranked according to the total marks obtained by them the applications shall be disposed of in accordance with the provisions of Section 47 (1). The fact that the appellant had 11 marks as against 7.40 of the respondent would certainly be a factor in favour of the appellant, but notwithstanding his higher marks, if public interest so requires, he may have to yield place to the respondent in the matter of selection for grant of permit.The learned Single Judge was also in error in holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondent.The history sheet of the appellant related only to his performance as stage carriage operator and the entire history sheet was before the State Transport Appellate Tribunal and it showed that the appellant had a clean record. On the other hand, the respondent had two history sheets, one relating to his performance as stage carriage operator and the other relating: to his performance as lorry operator and both the history sheets showed adverse entries. It can hardly be disputed that this comparison with reference to the past performance of the appellant and the respondent was relevant to the question as to who between the two should be selected for grant of permit. It may be that the history sheet of the respondent as lorry operator related to a period of ten years while that of the appellant as a stage carriage operator covered a shorter period, but that cannot be helped. The comparison has to be made on the basis of the available material and if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent was not satisfactory while the history sheet of the appellant, though for a shorter period, shows that he has had a clean record of performance, that would certainly be a relevant circumstance to be taken into account. The State Transport Appellate Tribunal was plainly right in relying on this circumstance, amongst others, for the purpose of preferring the appellant to the respondent.8. Before we part with this case we may point out that the learned Single Judge overstepped the limits of his revisional jurisdiction and treated the revision application before him as if it were an appeal. That was clearly impermissible as the revisional jurisdiction of the High Court under S. 64B is as severely restricted as that under Section 115 of theCode of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under Section 64B with an order made by the State Transport Appellate Tribunal. | 1 | 3,710 | 1,104 | ### Instruction:
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to passengers that a recent grant in his favour may be no obstacle in his way at all a recent grant could not, considered by itself and singly, be converted into a demerit". Similarly, possession of more than one permit also cannot by itself, divorced from other circumstances, be regarded as a disqualification. It may in a given case show that the applicant has already reached the viable unit of five stage carriages contemplated under clause (3) (F) of rule 155A or that the effect of granting permit to him would be to make him a monopolist on the route - a result disfavoured by the decision of this Court in Sri Rama Vilas Service 1P) Ltd. v. C. Chandrasekaran, (1964) 5 SCR 869 = (AIR 1365 SC 107) as being inconsistent with the interest of the general public - or, on the other hand, it may be a circumstance in his favour enabling him to achieve greater efficiency by moving towards the optimum of viable unit. The learned Single Judge was, therefore, in error in rejecting the claim of the appellant to the grant of permit by mechanically relying on the circumstance that the appellant was a multi bus operator having four stage carriage permits, including a recent grant, without considering how in the light of the other facts and circumstances, it was correlated to the question of public interest. There was nothing to show that this circumstance would have any prejudicial or adverse impact on public interest, if permits were granted to the appellant notwithstanding it. The four stage carriage permits which the appellant had were not on the same route and there was no question of any monopoly being created in his .favour if the permit applied for by him were granted. In fact possession of more than one permit by the appellant was a circumstance in his favour because according to clause (3) (F) of Rule 155A an applicant operating not more than four stage carriages would be entitled to one mark for each stage carriage in order to have a viable unit of five carriages. The guiding principle laid down in clause (3) (F) of Rule 155A proceeds on the hypothesis that an applicant would be able to achieve greater efficiency if he had a larger number of stage carriages, but it sets a limit of five stage carriages as it was thought that that would be sufficient to constitute a viable unit which could legitimately be permitted to an applicant, consistently with the requirement of a socialistic pattern of society that there should be distributive or social justice and no undue economic disparities. So long, therefore, as an applicant has not more than four stage carriages, it cannot by itself be regarded as a factor against him and, as pointed out by Beg, J., in the case cited above, the rule in clause (3) (F) of Rule 155A providing for giving of one mark to the applicant for each stage carriage operated by him should be taken into account unless there is good enough reason to depart from it. "Every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up a viable unit of five". The State Transport Appellate Tribunal was, therefore, right, in the circumstances of the case, in not regarding possession of four stage carriage permits by the appellant, including a recent grant, as a circumstance against him, but treating it as a circumstance in his favour by adding four marks under clause (3) (F) of Rule 155A, and the learned Single Judge acted erroneously in upsetting this view taken by the State Transport Appellate Tribunal7. The learned Single Judge was also in error in holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondent.The history sheet of the appellant related only to his performance as stage carriage operator and the entire history sheet was before the State Transport Appellate Tribunal and it showed that the appellant had a clean record. On the other hand, the respondent had two history sheets, one relating to his performance as stage carriage operator and the other relating: to his performance as lorry operator and both the history sheets showed adverse entries. It can hardly be disputed that this comparison with reference to the past performance of the appellant and the respondent was relevant to the question as to who between the two should be selected for grant of permit. It may be that the history sheet of the respondent as lorry operator related to a period of ten years while that of the appellant as a stage carriage operator covered a shorter period, but that cannot be helped. The comparison has to be made on the basis of the available material and if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent was not satisfactory while the history sheet of the appellant, though for a shorter period, shows that he has had a clean record of performance, that would certainly be a relevant circumstance to be taken into account. The State Transport Appellate Tribunal was plainly right in relying on this circumstance, amongst others, for the purpose of preferring the appellant to the respondent.8. Before we part with this case we may point out that the learned Single Judge overstepped the limits of his revisional jurisdiction and treated the revision application before him as if it were an appeal. That was clearly impermissible as the revisional jurisdiction of the High Court under S. 64B is as severely restricted as that under Section 115 of the Code of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under Section 64B with an order made by the State Transport Appellate Tribunal.
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interfering with the order of the State Transport Appellate Tribunal. So far as the claim of the respondent for two marks in respect of workshop under clause (3) (E) of Rule 155 A is concerned. We agree with the learned Single Judge that the State Transport Appellate Tribunal was in error in refusing that claim. The Regional Transport Officer under instructions from the Regional Transport Authority inspected the workshop of the respondent and found that it was in a pucca fire proof building and the respondent was accordingly entitled to two marks under clause (3) (E) of Rule 155A. But that would not make any difference because even with these two marks, the total number of marks of the respondent would not exceed 7.40 as against 9 marks of the appellant. Moreover, these 9 marks do not include two marks on account of sector experience under clause. (3) (C) of Rule 155A. The State Transport Appellate Tribunal gave two marks to the appellant on account of sector experience but the learned Single Judge took a different view. We do not think - the learned Judge was right in refusing two marks to the appellant on this-count. Clause (3) (C) of R. 155A provides that two marks shall be awarded to the applicant who on the date of consideration of the application by the Regional Transport Authority has been plying a stage carriage on the entire route. It does not contain any restriction that in order to be entitled to these two marks the applicant should have been plying on the route on the basis of a permanent permit. It is immaterial whether the applicant has been plying on the route on a temporary permit or a permanent permit. What is material is that the applicant should have experience of plying on the route and this experience would be there whether plying is done on a temporary permit or on a permanent permit. The appellant was, therefore, entitled to two marks on account of sector experience under clause (3) (C) of Rule 155A and that would raise his total number of marks to 11.The position, therefore, was that the appellant was entitled to 11 marks as against 7.40 of the respondent.5. But that by itself would not be determinative of the controversy. The paramount consideration to be taken into account in determining as to which of the applicants should be selected for grant of permit always is public interest. Section 47 (1) provides in so many words that the Regional Transport Authority - shall, in considering an application for a stage carriage permit have regard inter alia, "to the interest of the public generally, and this is a consideration which must necessarily outweigh all others. It is ultimately on the touchstone of public interest that selection of an applicant for grant of permit must be justified. Clause (3) of Rule 155A undoubtedly provides for giving of marks to the rival applicants but the number of marks obtained by each applicant can only provide a guiding principle for the grant of permit It can never override the consideration of public interest which must dominate the selection in all cases. In fact clause (4) of Rule 155A concedes that after the applicants are ranked according to the total marks obtained by them the applications shall be disposed of in accordance with the provisions of Section 47 (1). The fact that the appellant had 11 marks as against 7.40 of the respondent would certainly be a factor in favour of the appellant, but notwithstanding his higher marks, if public interest so requires, he may have to yield place to the respondent in the matter of selection for grant of permit.The learned Single Judge was also in error in holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondent.The history sheet of the appellant related only to his performance as stage carriage operator and the entire history sheet was before the State Transport Appellate Tribunal and it showed that the appellant had a clean record. On the other hand, the respondent had two history sheets, one relating to his performance as stage carriage operator and the other relating: to his performance as lorry operator and both the history sheets showed adverse entries. It can hardly be disputed that this comparison with reference to the past performance of the appellant and the respondent was relevant to the question as to who between the two should be selected for grant of permit. It may be that the history sheet of the respondent as lorry operator related to a period of ten years while that of the appellant as a stage carriage operator covered a shorter period, but that cannot be helped. The comparison has to be made on the basis of the available material and if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent was not satisfactory while the history sheet of the appellant, though for a shorter period, shows that he has had a clean record of performance, that would certainly be a relevant circumstance to be taken into account. The State Transport Appellate Tribunal was plainly right in relying on this circumstance, amongst others, for the purpose of preferring the appellant to the respondent.8. Before we part with this case we may point out that the learned Single Judge overstepped the limits of his revisional jurisdiction and treated the revision application before him as if it were an appeal. That was clearly impermissible as the revisional jurisdiction of the High Court under S. 64B is as severely restricted as that under Section 115 of theCode of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under Section 64B with an order made by the State Transport Appellate Tribunal.
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Prakash Kumar Singhee & Another Vs. Amrapali Singhee & Another | for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family. The Court has refused to consider the said aspect of the matter.15. The impugned order takes into consideration the potential of the husband to earn the amount as claimed by the wife and concludes that he is fetching a salary of Rs.15 lakhs and perks of Rs.5 lakhs per month. Though the Court expressed doubt with the wifes earning and has recorded that the wife has filed her Income Tax return showing her income from 2014 to 2017 and the Court has recorded, that the explanation given the wife that per year 2016-2017 her income is zero, is unacceptable. The Family Court has also perused the bank statement of the wife and has recorded that the there are various deposits to her account and the Court has found the explanation offered by the wife that her mother is carrying out the business of stock broking from her account to be evasive. The Court has also noted that though the contention of the wife is that she is not doing any business but the documents reflected that she had huge investments and she has income from shares. However, considering the moral responsibility of the husband to maintain the wife and children, the Court has arrived at conclusion that the petitioner must pay maintenance to the wife.16. The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and need of the wife and the children. No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption and surmises.Learned Counsel Mrs.Sarnaik has placed before this Court an order of the Delhi High Court in a company petition reflecting that the Shiv Vani Oil and Gas Exploration Services Limited of which the petitioner is owner has gone into liquidation and he has resigned from the said company by tendering his resignation on 01.06.2013. The aspect is important factor which is to be considered in order to have an estimation of the earning capacity of the husband, since the specific contention of the wife is that he is also the owner of other subsidiary companies. That may be true, however, there should be some material placed before the Court to demonstrate that he is also stake holder in some other companies. The petitioner is catering to the education of the children and he expresses no difficultly to continue to do so. He finances the daughter, who is taking education in USA and he is also catering to the need of the other child. It is no doubt true that wife is entitled for dignified amount so as to maintain herself according to the standards which she is accustomed to. The parties appear to be belonging to affluent background and she is entitled for same standard of living as the husband. What is the present capacity and status of the husband at the time of passing of the order granting award of maintenance must be looked into. The application was filed in the year 2013 whereas the impugned order is passed in 2017 and several events occurred in between two dates, which must be necessarily weighed by the Court while deciding the said application. This is however not done by the Family Court, Pune and it has awarded an amount of Rs.2 lakhs per month to the petitioner-wife without even bothering to take into consideration whether the wife is an aggrieved person. In the application the wife has prayed for an amount of Rs.5 lakhs for herself and reimbursement of school fee of her son. The husband has undertaken that he would continue to pay the fees of the son. However, as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above. The said order thus cannot be sustained and the matter needs to be remanded back to the Family Court for due consideration in light of the observations made above. Both the parties are permitted to tender appropriate material before the Family Court so as to justify the claim of the maintenance by wife and the capability of the husband to pay such maintenance.However, it is noted though the order is passed on 23.01.2017 directing the husband to pay the maintenance amount from the date of application, the husband has not been paid any amount till date. In the execution proceedings filed before the Family Court, the Family Court has already issued a direction of deposit 25% of decretal amount in the Court and or before 20.03.2018 otherwise the husband is directed to be sent to jail. This order was passed on 17.02.2018. The husband has failed to deposit any amount in terms of the order passed by Family Court by the impugned order.Since this Court is of the opinion the matter needs to be remanded so as to the decide the entitlement of maintenance of the wife under Section20 of the D.V.Act, the petitioner-husband is directed to deposit an amount of Rs.25% of the amount of the maintenance in terms of the directions of Judge family Court, by calculating the said amount from the date of the order i.e. 23.01.2017. The said amount is directed to be deposited before the Family Court within a period four weeks from date of this order. The Family Court would then reconsider the matter, on such deposit being made by the petitioner-husband and would also consider the application preferred by the wife for withdrawal of such amount. | 1[ds]11. With the assistance of the learned counsel for the parties I have perused the material placed on record and also perused the impugned order. The impugned order is passed on an application filed by the wife invokingSection20 of theDomestic Violence in Petitionfiled by the wife seeking a relief under the provisions of the Specific Relief Act. Though Mrs.Sarnaik had vehemently argued on the maintainability of the said application, on perusal of the provisions of The Protection of Women from Domestic Violence Act, 2005, it is apparent that the Act has been enacted to provide more effective protection of rights of women guaranteed under the Constitution of India, being victims of violence of any kind occurring in the family and the provisions therein would have to be construed in the backdrop of the object with which the statute is enacted.Section26 of thesaid Act provides for relief in other suits and legal proceedings. The said section contemplates that any relief available under Section 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before the Civil Court, Family Court and a Criminal Court affecting the aggrieved person and the respondent whether such proceedings was initiated before or after the commencement of this26 further provides that any such relief may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceedings before a Civil or Criminal Court. Thus, by virtue of the Section26, any relief available under the Domestic Violence Act can also be sought in any legal proceedings before any Civil Court, Family Court or Criminal Court. The wife had instituted proceedings under the Specific Relief Act before the Family Court, Pune and the said proceedings are pending. She filed application Exh.20 in that petition namely petitionand sought to relief of grant of maintenance or the monetary relief contemplated underSection20 of thesaid Act. In light ofSection26 of theDomestic Violence Act, 2005, the objection raised by Mrs.Sarnaik cannot be entertained.However, at the same time it is to be noted that the reliefs mentioned under Section 12 are available to Aggrieved person and the reliefs which may be availed by invoking Section 17, 18, 19, 20, 21 and 22 are dependent on one important aspect namely the said relief is available to an aggrieved person who alleges to have been subjected to any act of domestic violence by the respondent. The object of D.V. Act 2005, being to protect the rights of women who are offended by the act of domestic violence committed by the respondent which may include any adult male person or with whom the aggrieved person is in domestic relationship. The term Domestic Violence has been given a specific connotation under Section 3 of the Act and any act, omission and commission or conduct of the respondent shall constitute domestic violence in case it :(a) harms or injuries or endangers the health, safety, life, limp or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any lawful demand for any dowry or other property or valuable security; or(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injuries or causes harm, whether physical or mental, to the aggrieved person.12. Thus, in order to claim relief underof the Act which permits an aggrieved person to present an application to the magistrate seeking one or more reliefs under the Act, levelling the allegations of Domestic Violence. Thus, the reliefs contemplated under the Act are thus available to an aggrieved person who alleges that she is or has been in domestic relationship with the respondent and was subjected to any Act of Domestic Violence by the respondent. Allegation about the commission of a Domestic Violence Act is prerequisite for the magistrate or Court of competent jurisdiction to exercise the powers under the Protection from Women from Domestic Violence Act, 2005, and grant of any reliefs contemplated under the Act.13. Perusal of the application filed by the wife claiming maintenance would reveal that apart from making the allegations that the husband is well off and earning a huge amount and the wife is left with no source of livelihood, not a single averment has been made as to any act of domestic violence which would have brought the applicant wife under the category of aggrieved person who would have been entitled for the benefits flowing underincluding to the benefits underLearned counsel Mrs.Sarnaik is perfectly justified in submitting that the provisions under the said enactment cannot be invoked unless the party alleges an act of domestic violence and approach the Court in the capacity as an aggrievedperson. Though the application filed by the applicant can be entertained in the pending proceedings under the Specific Relief Act, while entertaining an application which is filed2, it is imperative that the person approaching the Court is an aggrieved person. Though the Family Court in the impugned order has noted the submissions advanced on behalf of thethat the preliminary requirement of the domestic violence has not been proved by the petitioner and therefore application is not maintainable, the Family Court did not pay any heed to the said submission and rather proceeded to decide the matter on its own merits. The Court has merely noted that as per provision ofD.V. Act aggrieved by had claimed monetary relief for herself and her children however, a whether the applicant is an aggrieved person has not at all been considered by the Family Court. Though the Act of Domestic Violence would be established after rendering evidence before the Court, at least the Court prima facie must be satisfied that the person approaching is as an aggrieved person. It is not every person who can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family. The Court has refused to consider the said aspect of the matter.15. The impugned order takes into consideration the potential of the husband to earn the amount as claimed by the wife and concludes that he is fetching a salary of Rs.15 lakhs and perks of Rs.5 lakhs per month. Though the Court expressed doubt with the wifes earning and has recorded that the wife has filed her Income Tax return showing her income from 2014 to 2017 and the Court has recorded, that the explanation given the wife that per yearher income is zero, is unacceptable. The Family Court has also perused the bank statement of the wife and has recorded that the there are various deposits to her account and the Court has found the explanation offered by the wife that her mother is carrying out the business of stock broking from her account to be evasive. The Court has also noted that though the contention of the wife is that she is not doing any business but the documents reflected that she had huge investments and she has income from shares. However, considering the moral responsibility of the husband to maintain the wife and children, the Court has arrived at conclusion that the petitioner must pay maintenance to the wife.16. The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and need of the wife and the children. No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption and surmises.LearnedCounsel Mrs.Sarnaik has placed before this Court an order of the Delhi High Court in a company petition reflecting that the Shiv Vani Oil and Gas Exploration Services Limited of which the petitioner is owner has gone into liquidation and he has resigned from the said company by tendering his resignation on 01.06.2013.The aspect is important factor which is to be considered in order to have an estimation of the earning capacity of the husband, since the specific contention of the wife is that he is also the owner of other subsidiary companies. That may be true, however, there should be some material placed before the Court to demonstrate that he is also stake holder in some other companies. The petitioner is catering to the education of the children and he expresses no difficultly to continue to do so. He finances the daughter, who is taking education in USA and he is also catering to the need of the other child. It is no doubt true that wife is entitled for dignified amount so as to maintain herself according to the standards which she is accustomed to. The parties appear to be belonging to affluent background and she is entitled for same standard of living as the husband. What is the present capacity and status of the husband at the time of passing of the order granting award of maintenance must be looked into. The application was filed in the year 2013 whereas the impugned order is passed in 2017 and several events occurred in between two dates, which must be necessarily weighed by the Court while deciding the said application. This is however not done by the Family Court, Pune and it has awarded an amount of Rs.2 lakhs per month to thewithout even bothering to take into consideration whether the wife is an aggrieved person. In the application the wife has prayed for an amount of Rs.5 lakhs for herself and reimbursement of school fee of her son. The husband has undertaken that he would continue to pay the fees of the son. However, as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above. The said order thus cannot be sustained and the matter needs to be remanded back to the Family Court for due consideration in light of the observations made above. Both the parties are permitted to tender appropriate material before the Family Court so as to justify the claim of the maintenance by wife and the capability of the husband to pay such maintenance.However, it is noted though the order is passed on 23.01.2017 directing the husband to pay the maintenance amount from the date of application, the husband has not been paid any amount till date. In the execution proceedings filed before the Family Court, the Family Court has already issued a direction of deposit 25% of decretal amount in the Court and or before 20.03.2018 otherwise the husband is directed to be sent to jail. This order was passed on 17.02.2018. The husband has failed to deposit any amount in terms of the order passed by Family Court by the impugned order.Since this Court is of the opinion the matter needs to be remanded so as to the decide the entitlement of maintenance of the wife underSection20 of thend is directed to deposit an amount of Rs.25% of the amount of the maintenance in terms of the directions of Judge family Court, by calculating the said amount from the date of the order i.e. 23.01.2017. The said amount is directed to be deposited before the Family Court within a period four weeks from date of this order. The Family Court would then reconsider the matter, on such deposit being made by theand would also consider the application preferred by the wife for withdrawal of such amount. | 1 | 4,167 | 2,154 | ### 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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for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family. The Court has refused to consider the said aspect of the matter.15. The impugned order takes into consideration the potential of the husband to earn the amount as claimed by the wife and concludes that he is fetching a salary of Rs.15 lakhs and perks of Rs.5 lakhs per month. Though the Court expressed doubt with the wifes earning and has recorded that the wife has filed her Income Tax return showing her income from 2014 to 2017 and the Court has recorded, that the explanation given the wife that per year 2016-2017 her income is zero, is unacceptable. The Family Court has also perused the bank statement of the wife and has recorded that the there are various deposits to her account and the Court has found the explanation offered by the wife that her mother is carrying out the business of stock broking from her account to be evasive. The Court has also noted that though the contention of the wife is that she is not doing any business but the documents reflected that she had huge investments and she has income from shares. However, considering the moral responsibility of the husband to maintain the wife and children, the Court has arrived at conclusion that the petitioner must pay maintenance to the wife.16. The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and need of the wife and the children. No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption and surmises.Learned Counsel Mrs.Sarnaik has placed before this Court an order of the Delhi High Court in a company petition reflecting that the Shiv Vani Oil and Gas Exploration Services Limited of which the petitioner is owner has gone into liquidation and he has resigned from the said company by tendering his resignation on 01.06.2013. The aspect is important factor which is to be considered in order to have an estimation of the earning capacity of the husband, since the specific contention of the wife is that he is also the owner of other subsidiary companies. That may be true, however, there should be some material placed before the Court to demonstrate that he is also stake holder in some other companies. The petitioner is catering to the education of the children and he expresses no difficultly to continue to do so. He finances the daughter, who is taking education in USA and he is also catering to the need of the other child. It is no doubt true that wife is entitled for dignified amount so as to maintain herself according to the standards which she is accustomed to. The parties appear to be belonging to affluent background and she is entitled for same standard of living as the husband. What is the present capacity and status of the husband at the time of passing of the order granting award of maintenance must be looked into. The application was filed in the year 2013 whereas the impugned order is passed in 2017 and several events occurred in between two dates, which must be necessarily weighed by the Court while deciding the said application. This is however not done by the Family Court, Pune and it has awarded an amount of Rs.2 lakhs per month to the petitioner-wife without even bothering to take into consideration whether the wife is an aggrieved person. In the application the wife has prayed for an amount of Rs.5 lakhs for herself and reimbursement of school fee of her son. The husband has undertaken that he would continue to pay the fees of the son. However, as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above. The said order thus cannot be sustained and the matter needs to be remanded back to the Family Court for due consideration in light of the observations made above. Both the parties are permitted to tender appropriate material before the Family Court so as to justify the claim of the maintenance by wife and the capability of the husband to pay such maintenance.However, it is noted though the order is passed on 23.01.2017 directing the husband to pay the maintenance amount from the date of application, the husband has not been paid any amount till date. In the execution proceedings filed before the Family Court, the Family Court has already issued a direction of deposit 25% of decretal amount in the Court and or before 20.03.2018 otherwise the husband is directed to be sent to jail. This order was passed on 17.02.2018. The husband has failed to deposit any amount in terms of the order passed by Family Court by the impugned order.Since this Court is of the opinion the matter needs to be remanded so as to the decide the entitlement of maintenance of the wife under Section20 of the D.V.Act, the petitioner-husband is directed to deposit an amount of Rs.25% of the amount of the maintenance in terms of the directions of Judge family Court, by calculating the said amount from the date of the order i.e. 23.01.2017. The said amount is directed to be deposited before the Family Court within a period four weeks from date of this order. The Family Court would then reconsider the matter, on such deposit being made by the petitioner-husband and would also consider the application preferred by the wife for withdrawal of such amount.
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can invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family. The Court has refused to consider the said aspect of the matter.15. The impugned order takes into consideration the potential of the husband to earn the amount as claimed by the wife and concludes that he is fetching a salary of Rs.15 lakhs and perks of Rs.5 lakhs per month. Though the Court expressed doubt with the wifes earning and has recorded that the wife has filed her Income Tax return showing her income from 2014 to 2017 and the Court has recorded, that the explanation given the wife that per yearher income is zero, is unacceptable. The Family Court has also perused the bank statement of the wife and has recorded that the there are various deposits to her account and the Court has found the explanation offered by the wife that her mother is carrying out the business of stock broking from her account to be evasive. The Court has also noted that though the contention of the wife is that she is not doing any business but the documents reflected that she had huge investments and she has income from shares. However, considering the moral responsibility of the husband to maintain the wife and children, the Court has arrived at conclusion that the petitioner must pay maintenance to the wife.16. The approach of the Family Court is grossly erroneous. The amount of maintenance has to be fixed by striking a balance between the earning capacity of the husband and need of the wife and the children. No doubt a husband is under obligation to maintain his spouse and children, however, as regards the quantum of maintenance, the Court will have to award the said amount, based on the material placed before it and though some guess work is permissible, the Court cannot completely act on the basis of its own assumption and surmises.LearnedCounsel Mrs.Sarnaik has placed before this Court an order of the Delhi High Court in a company petition reflecting that the Shiv Vani Oil and Gas Exploration Services Limited of which the petitioner is owner has gone into liquidation and he has resigned from the said company by tendering his resignation on 01.06.2013.The aspect is important factor which is to be considered in order to have an estimation of the earning capacity of the husband, since the specific contention of the wife is that he is also the owner of other subsidiary companies. That may be true, however, there should be some material placed before the Court to demonstrate that he is also stake holder in some other companies. The petitioner is catering to the education of the children and he expresses no difficultly to continue to do so. He finances the daughter, who is taking education in USA and he is also catering to the need of the other child. It is no doubt true that wife is entitled for dignified amount so as to maintain herself according to the standards which she is accustomed to. The parties appear to be belonging to affluent background and she is entitled for same standard of living as the husband. What is the present capacity and status of the husband at the time of passing of the order granting award of maintenance must be looked into. The application was filed in the year 2013 whereas the impugned order is passed in 2017 and several events occurred in between two dates, which must be necessarily weighed by the Court while deciding the said application. This is however not done by the Family Court, Pune and it has awarded an amount of Rs.2 lakhs per month to thewithout even bothering to take into consideration whether the wife is an aggrieved person. In the application the wife has prayed for an amount of Rs.5 lakhs for herself and reimbursement of school fee of her son. The husband has undertaken that he would continue to pay the fees of the son. However, as far as the maintenance of the wife is concerned the Family Court has grossly erred in granting the said amount without consideration of the relevant aspects of the matter as highlighted above. The said order thus cannot be sustained and the matter needs to be remanded back to the Family Court for due consideration in light of the observations made above. Both the parties are permitted to tender appropriate material before the Family Court so as to justify the claim of the maintenance by wife and the capability of the husband to pay such maintenance.However, it is noted though the order is passed on 23.01.2017 directing the husband to pay the maintenance amount from the date of application, the husband has not been paid any amount till date. In the execution proceedings filed before the Family Court, the Family Court has already issued a direction of deposit 25% of decretal amount in the Court and or before 20.03.2018 otherwise the husband is directed to be sent to jail. This order was passed on 17.02.2018. The husband has failed to deposit any amount in terms of the order passed by Family Court by the impugned order.Since this Court is of the opinion the matter needs to be remanded so as to the decide the entitlement of maintenance of the wife underSection20 of thend is directed to deposit an amount of Rs.25% of the amount of the maintenance in terms of the directions of Judge family Court, by calculating the said amount from the date of the order i.e. 23.01.2017. The said amount is directed to be deposited before the Family Court within a period four weeks from date of this order. The Family Court would then reconsider the matter, on such deposit being made by theand would also consider the application preferred by the wife for withdrawal of such amount.
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M/S. Compack Pvt. Ltd Vs. Commnr. Of Cent. Ex. & Customs, Vadodara | of a kind mentioned therein. Item No.4802.20 is as under : "4802.20 - Paper or paperboard, in the manufacture of which,-(a) the principal process of lifting the pulp is done by hand; and(b) if power driven sheet forming equipment is used, the Cylinder Mould Vat does not exceed 40 inches." Composite paper and paperboard (made by sticking flat layers of paper or paper board together with an adhesive), not surface-coated or impregnated, whether or not internally reinforced, in rolls or sheets has been shown in Item No.48.07. 21. The proviso appended to the notification contains an exception thereto stating that if MODVAT credit is availed of, no such exemption shall be available to the manufacturer. The Explanation, however, raises a legal fiction that if a base paper or a paperboard, if purchased from the market, would be deemed to be duty paid. The eligibility clause contained in the notification, thus, is confined to use of base paper or paperboard used in the manufacture of printed cartons, boxes, containers and cases. A container may consist of inputs other than base paper or paperboard. It has not been shown before us that to avail the exemption, the containers are required to be manufactured only or purely from the base paper or base paperboard. Had the same been the intention of the legislation making authority, they could have said so explicitly. Once the eligibility criteria is satisfied by the assessee, as noticed hereinbefore, the conditions are required to be construed liberally. [See Commissioner of Central Excise vs. M.P.V. & Engg. Industries (2003) 5 SCC 333 ]. 22. Bhalla Enterprises (supra) laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders (supra) is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the Respondents, would amount of addition of the words "only out of" or "purely out of" the base paper cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well-settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to. 23. In Coromondal Fertilizers Ltd. vs. Collector of Customs, Madras (1986) 3 SCC 531 ], the notification in question was as under : "GSR 547 (E). - 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 Ammonium Phosphate falling within Chapter 31 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for use as manure, from the whole of the duty of customs leviable thereon which is specified in the said First Schedule : Provided that in respect of any consignment of ammonium phosphate imported under cover of a claim for exemption from duty in pursuance of the provisions hereof, the importer shall execute a bond in such form as may be prescribed by the Assistant Collector of Customs, binding himself, in sum equal to the amount of duty ordinarily leviable on such articles, to pay on demand the duty leviable on such quantity thereof as is not proved to the satisfaction of the Assistant Collector of Customs to have been used as manure." 24. The issue raised was as to whether Mono-Ammonium Phosphate which was used as manure in the manufacture of complex fertilizers was entitled to the benefit of the said exemption notification. A further contention was raised that Mono-Ammonium Phosphate was not the only input used in the manufacture of complex fertilizers and it was also not used directly for use as manure in the manufacture of complex fertilizers. Repelling the said contentions, it was opined :. "We are afraid, we are not to ascertain the intention of the Government by a comparison of the expressions used in the two different notifications. Notification No. 178/76-Cus has been couched in clear and unambiguous language. The question is not whether for getting the benefit of exemption under the notification the appellant has used it for the production of complex fertilisers or not, but the question is whether the appellant has imported Mono-Ammonium Phosphate for use as manure. It is the case of the appellant that it has used the chemical as manure, though not directly, yet along with the mixture of Urea and muriate of Potash. It is submitted on behalf of the appellant that the mixture, is undoubtedly a fertiliser and Mono-Ammonium Phosphate being one of the components of the mixture it must be held that the same was imported into India and also used as a manure or fertiliser. In our opinion, if Mono-Ammonium Phosphate retains its physical and chemical properties in the mixture, it will be difficult to say that it was not used by the appellant as a manure within the meaning of the Notification No. 178/76-Cus." 25. The only requirement for availing the benefit of the said notification was payment of excise duty on base paper or base paperboard, wherefor also a legal fiction has been raised in the explanation appended thereto.26. The Tribunal denied the benefit of the said notification to the Appellant herein without considering the import thereof that it refers to the MODVAT credit directly that too only on base paper. Similarly, the finding of the Tribunal that the container must be manufactured only from base paper may render the exemption notification inapplicable in a large number of cases. | 1[ds]18. Keeping in view the principles laid down in the aforementioned decisions, we have to construe the exemption notification in question.19. The said notification was issued in terms of sub-rule (1) of Rule 8 of the Central Excise Rules, 1944. By reason thereof , printed carton, boxes, containers and cases whether in assembled or unassembled condition falling under Chapter 48 of the schedule appended to the Central Excise Tariff Act, would receive the benefit of exemption subject to the condition that the appropriate duty of excise or additional duty leviable under Section 3 of the Customs Tariff Act has already been paid in respect of the base paper used in their manufacturing.15. In Commissioner of Central Excise, Chandigarh vs. Bhalla Enterprises [2004 (173) ELT 225 (SC)], it was heldbasic rule in interpretation of any statutory provision is that the plain words of the statute must be given effectIn Commissioner of Central Excise, Trichy vs. Rukmani Pakkwell Traders [(2004) 11 SCC 801] , it was heldis settled law that exemption notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other notification are of no benefit in construing a particularThe said decision was followed in Commissioner of Central Excise, Chandigarh-I vs. Mahaan Dairies (2004) 11 SCC 798 ].Keeping in view the principles laid down in the aforementioned decisions, we have to construe the exemption notification in question.19. The said notification was issued in terms of sub-rule (1) of Rule 8 of the Central Excise Rules, 1944. By reason thereof , printed carton, boxes, containers and cases whether in assembled or unassembled condition falling under Chapter 48 of the schedule appended to the Central Excise Tariff Act, would receive the benefit of exemption subject to the condition that the appropriate duty of excise or additional duty leviable under Section 3 of the Customs Tariff Act has already been paid in respect of the base paper used in their manufacturing.The proviso appended to the notification contains an exception thereto stating that if MODVAT credit is availed of, no such exemption shall be available to the manufacturer. The Explanation, however, raises a legal fiction that if a base paper or a paperboard, if purchased from the market, would be deemed to be duty paid. The eligibility clause contained in the notification, thus, is confined to use of base paper or paperboard used in the manufacture of printed cartons, boxes, containers and cases. A container may consist of inputs other than base paper or paperboard. It has not been shown before us that to avail the exemption, the containers are required to be manufactured only or purely from the base paper or base paperboard. Had the same been the intention of the legislation making authority, they could have said so explicitly. Once the eligibility criteria is satisfied by the assessee, as noticed hereinbefore, the conditions are required to be construed liberally. [See Commissioner of Central Excise vs. M.P.V. & Engg. Industries (2003) 5 SCC 333 ].The only requirement for availing the benefit of the said notification was payment of excise duty on base paper or base paperboard, wherefor also a legal fiction has been raised in the explanation appended thereto.26. The Tribunal denied the benefit of the said notification to the Appellant herein without considering the import thereof that it refers to the MODVAT credit directly that too only on base paper. Similarly, the finding of the Tribunal that the container must be manufactured only from base paper may render the exemption notification inapplicable in a large number of cases. | 1 | 2,701 | 666 | ### 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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of a kind mentioned therein. Item No.4802.20 is as under : "4802.20 - Paper or paperboard, in the manufacture of which,-(a) the principal process of lifting the pulp is done by hand; and(b) if power driven sheet forming equipment is used, the Cylinder Mould Vat does not exceed 40 inches." Composite paper and paperboard (made by sticking flat layers of paper or paper board together with an adhesive), not surface-coated or impregnated, whether or not internally reinforced, in rolls or sheets has been shown in Item No.48.07. 21. The proviso appended to the notification contains an exception thereto stating that if MODVAT credit is availed of, no such exemption shall be available to the manufacturer. The Explanation, however, raises a legal fiction that if a base paper or a paperboard, if purchased from the market, would be deemed to be duty paid. The eligibility clause contained in the notification, thus, is confined to use of base paper or paperboard used in the manufacture of printed cartons, boxes, containers and cases. A container may consist of inputs other than base paper or paperboard. It has not been shown before us that to avail the exemption, the containers are required to be manufactured only or purely from the base paper or base paperboard. Had the same been the intention of the legislation making authority, they could have said so explicitly. Once the eligibility criteria is satisfied by the assessee, as noticed hereinbefore, the conditions are required to be construed liberally. [See Commissioner of Central Excise vs. M.P.V. & Engg. Industries (2003) 5 SCC 333 ]. 22. Bhalla Enterprises (supra) laid down a proposition that notification has to be construed on the basis of the language used. Rukmani Pakkwell Traders (supra) is an authority for the same proposition as also that the wordings of some other notification are of no benefit in construing a particular notification. The notification does not state that exemption cannot be granted in a case where all the inputs for manufacture of containers would be base paper or paperboard. In manufacture of the containers some other inputs are likely to be used for which MODVAT credit facility has been availed of. Such a construction, as has been suggested by the learned counsel for the Respondents, would amount of addition of the words "only out of" or "purely out of" the base paper cannot be countenanced. The notification has to be construed in terms of the language used therein. It is well-settled that unless literal meaning given to a document leads to anomaly or absurdity, the golden rule of literal interpretation shall be adhered to. 23. In Coromondal Fertilizers Ltd. vs. Collector of Customs, Madras (1986) 3 SCC 531 ], the notification in question was as under : "GSR 547 (E). - 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 Ammonium Phosphate falling within Chapter 31 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for use as manure, from the whole of the duty of customs leviable thereon which is specified in the said First Schedule : Provided that in respect of any consignment of ammonium phosphate imported under cover of a claim for exemption from duty in pursuance of the provisions hereof, the importer shall execute a bond in such form as may be prescribed by the Assistant Collector of Customs, binding himself, in sum equal to the amount of duty ordinarily leviable on such articles, to pay on demand the duty leviable on such quantity thereof as is not proved to the satisfaction of the Assistant Collector of Customs to have been used as manure." 24. The issue raised was as to whether Mono-Ammonium Phosphate which was used as manure in the manufacture of complex fertilizers was entitled to the benefit of the said exemption notification. A further contention was raised that Mono-Ammonium Phosphate was not the only input used in the manufacture of complex fertilizers and it was also not used directly for use as manure in the manufacture of complex fertilizers. Repelling the said contentions, it was opined :. "We are afraid, we are not to ascertain the intention of the Government by a comparison of the expressions used in the two different notifications. Notification No. 178/76-Cus has been couched in clear and unambiguous language. The question is not whether for getting the benefit of exemption under the notification the appellant has used it for the production of complex fertilisers or not, but the question is whether the appellant has imported Mono-Ammonium Phosphate for use as manure. It is the case of the appellant that it has used the chemical as manure, though not directly, yet along with the mixture of Urea and muriate of Potash. It is submitted on behalf of the appellant that the mixture, is undoubtedly a fertiliser and Mono-Ammonium Phosphate being one of the components of the mixture it must be held that the same was imported into India and also used as a manure or fertiliser. In our opinion, if Mono-Ammonium Phosphate retains its physical and chemical properties in the mixture, it will be difficult to say that it was not used by the appellant as a manure within the meaning of the Notification No. 178/76-Cus." 25. The only requirement for availing the benefit of the said notification was payment of excise duty on base paper or base paperboard, wherefor also a legal fiction has been raised in the explanation appended thereto.26. The Tribunal denied the benefit of the said notification to the Appellant herein without considering the import thereof that it refers to the MODVAT credit directly that too only on base paper. Similarly, the finding of the Tribunal that the container must be manufactured only from base paper may render the exemption notification inapplicable in a large number of cases.
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18. Keeping in view the principles laid down in the aforementioned decisions, we have to construe the exemption notification in question.19. The said notification was issued in terms of sub-rule (1) of Rule 8 of the Central Excise Rules, 1944. By reason thereof , printed carton, boxes, containers and cases whether in assembled or unassembled condition falling under Chapter 48 of the schedule appended to the Central Excise Tariff Act, would receive the benefit of exemption subject to the condition that the appropriate duty of excise or additional duty leviable under Section 3 of the Customs Tariff Act has already been paid in respect of the base paper used in their manufacturing.15. In Commissioner of Central Excise, Chandigarh vs. Bhalla Enterprises [2004 (173) ELT 225 (SC)], it was heldbasic rule in interpretation of any statutory provision is that the plain words of the statute must be given effectIn Commissioner of Central Excise, Trichy vs. Rukmani Pakkwell Traders [(2004) 11 SCC 801] , it was heldis settled law that exemption notifications have to be strictly construed. They must be interpreted on their own wording. Wordings of some other notification are of no benefit in construing a particularThe said decision was followed in Commissioner of Central Excise, Chandigarh-I vs. Mahaan Dairies (2004) 11 SCC 798 ].Keeping in view the principles laid down in the aforementioned decisions, we have to construe the exemption notification in question.19. The said notification was issued in terms of sub-rule (1) of Rule 8 of the Central Excise Rules, 1944. By reason thereof , printed carton, boxes, containers and cases whether in assembled or unassembled condition falling under Chapter 48 of the schedule appended to the Central Excise Tariff Act, would receive the benefit of exemption subject to the condition that the appropriate duty of excise or additional duty leviable under Section 3 of the Customs Tariff Act has already been paid in respect of the base paper used in their manufacturing.The proviso appended to the notification contains an exception thereto stating that if MODVAT credit is availed of, no such exemption shall be available to the manufacturer. The Explanation, however, raises a legal fiction that if a base paper or a paperboard, if purchased from the market, would be deemed to be duty paid. The eligibility clause contained in the notification, thus, is confined to use of base paper or paperboard used in the manufacture of printed cartons, boxes, containers and cases. A container may consist of inputs other than base paper or paperboard. It has not been shown before us that to avail the exemption, the containers are required to be manufactured only or purely from the base paper or base paperboard. Had the same been the intention of the legislation making authority, they could have said so explicitly. Once the eligibility criteria is satisfied by the assessee, as noticed hereinbefore, the conditions are required to be construed liberally. [See Commissioner of Central Excise vs. M.P.V. & Engg. Industries (2003) 5 SCC 333 ].The only requirement for availing the benefit of the said notification was payment of excise duty on base paper or base paperboard, wherefor also a legal fiction has been raised in the explanation appended thereto.26. The Tribunal denied the benefit of the said notification to the Appellant herein without considering the import thereof that it refers to the MODVAT credit directly that too only on base paper. Similarly, the finding of the Tribunal that the container must be manufactured only from base paper may render the exemption notification inapplicable in a large number of cases.
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Dr. G.H. Grant Vs. State Of Bihar | possession of the land after an award of compensation is made. This is also supported by the scheme of the Act. Interest is made payable under S. 28 on the additional amount of compensation awarded by the Court from the date on which the Collector had taken possession. Similarly under S. 34 interest is made payable on the compensation from the date on which the possession is taken, if the same be not paid or deposited on or before taking possession of the land. 17. The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under S. 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted. In Promotha Nath Mitra v. Rakhal Das Addy, 11 Cal LJ 420, it was held that a reference made by the Collector under S. 30 of the Land Acquisition Act at the instance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction. If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award. 18. The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act: it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled to receive compensation, and there is nothing in S. 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved. 19. It was strongly pressed that under S. 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and, therefore, the only persons who can raise a dispute under S. 30 are those whose names are set out in the award. This contention stands refuted by the plain terms of S. 30.The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Payment of compensation, therefore, under S. 31 to the person declared by the award to be entitled thereto discharges the State or its liability to pay compensation (Subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under S. 30 or by a separate suit. 20. The dispute between the State of Bihar and Dr. Grant has been expressly referred by the Collector to the Court for decision. Under the Bihar Land Reforms Act, the title of Dr. Grant to the land notified for acquisition became vested in the State, and, therefore, the right to compensation for the land acquired devolved upon the State. A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under S. 30 of the Land Acquisition Act to the Court and was in fact referred to the Court. We are unable to agree with counsel for Dr. Grant that the reference made by the Collector under S. 30 was incompetent, because the State was not interested in the compensation money on the date when the award was made. The right of the State of Bihar has undoubtedly arisen after the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the State was a person interested in the compensation money before the date of the award, but because of the right which has arisen since the award was made. 21. We, therefore, dismiss the appeals with costs. There will be one hearing fee. ORDER | 0[ds]14. We are unable to agree with the view expressed by the Mysore High Court in Boregowda v. Subbaramiah, AIR 1959 Mys 265, that if the Collector has made apportionment of the compensation money by his award his power to refer a dispute under S. 30 cannot be exercised. Clause (iii) of S. 11 enjoins the Collector to apportion the compensation money among persons known or believed to be interested in the land: he has no discretion in the matter. Exercise of the power under S. 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary: the Collector may, but is not bound to exercise that power. It is however not predicated of the exercise of that power that the collector has not apportioned the compensation money by his award. We are also unable to agree with the Mysore High Court that the power under S. 30 of the Land Acquisition Act has to be exercised on a motion within the period prescribed by S. 18(2) of the Land Acquisition Act.In our judgment the powers exercisable by the Collector under S. 18(1) and under S. 30 are distinct and may be invoked in contingencies which do not overlap15. By virtue of the notification issued under the Bihar Land Reforms Act the right of Dr. Grant vested in the State of Bihar. On March 25, 1952 when the Collector made an award under S. 11, the only persons interested in the award were Dr. Grant and the members of the village community, but the title of Dr. Grant in the land notified for acquisition stood, by operation of the Bihar Land Reforms Act, transferred as from May 22, 1952 to the State of Bihar. A dispute then arose between the State Government and Dr. Grant "as to the persons to whom" compensation was payable. The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector, and no application for reference could be made by the State, as a person interested within the meaning of S. 18 (1). The title of the State to receive compensation arose only when in consequence of the notification under S. 3 of the Bihar Land Reforms Act, the title of Dr. Grant to the Estate was divested16. An award by the Collector is strictly speaking an offer made to the person interested in the land notified for acquisition: the latter may accept the offer, but is not bound to accept it. He may ask for a reference to the Court for adjudication of his claim for adequate compensation. The person interested may even accept the compensation under protest as to the sufficiency of the amount and ask for a reference. It is also open to the Government, even after the award is made, but before possession is taken, to withdraw from acquisition of any land in exercise of the powers conferred by S. 48 of the Land Acquisition Act. It is, therefore, not the award of the Collector which is the source of the right to compensation; the award quantifies the offer of the appropriate Government, which is made because the Government has taken over, or intends to take the land of the owner under the authority conferred by the Land Acquisition Act17. The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under S. 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecutedThis contention stands refuted by the plain terms of S. 30.The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Payment of compensation, therefore, under S. 31 to the person declared by the award to be entitled thereto discharges the State or its liability to pay compensation (Subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under S. 30 or by a separate suit20. The dispute between the State of Bihar and Dr. Grant has been expressly referred by the Collector to the Court for decision. Under the Bihar Land Reforms Act, the title of Dr. Grant to the land notified for acquisition became vested in the State, and, therefore, the right to compensation for the land acquired devolved upon the State. A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under S. 30 of the Land Acquisition Act to the Court and was in fact referred to the Court. We are unable to agree with counsel for Dr. Grant that the reference made by the Collector under S. 30 was incompetent, because the State was not interested in the compensation money on the date when the award was made. The right of the State of Bihar has undoubtedly arisen after the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the State was a person interested in the compensation money before the date of the award, but because of the right which has arisen since the award was made. | 0 | 5,150 | 1,241 | ### Instruction:
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possession of the land after an award of compensation is made. This is also supported by the scheme of the Act. Interest is made payable under S. 28 on the additional amount of compensation awarded by the Court from the date on which the Collector had taken possession. Similarly under S. 34 interest is made payable on the compensation from the date on which the possession is taken, if the same be not paid or deposited on or before taking possession of the land. 17. The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under S. 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted. In Promotha Nath Mitra v. Rakhal Das Addy, 11 Cal LJ 420, it was held that a reference made by the Collector under S. 30 of the Land Acquisition Act at the instance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction. If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award. 18. The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act: it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled to receive compensation, and there is nothing in S. 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved. 19. It was strongly pressed that under S. 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and, therefore, the only persons who can raise a dispute under S. 30 are those whose names are set out in the award. This contention stands refuted by the plain terms of S. 30.The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Payment of compensation, therefore, under S. 31 to the person declared by the award to be entitled thereto discharges the State or its liability to pay compensation (Subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under S. 30 or by a separate suit. 20. The dispute between the State of Bihar and Dr. Grant has been expressly referred by the Collector to the Court for decision. Under the Bihar Land Reforms Act, the title of Dr. Grant to the land notified for acquisition became vested in the State, and, therefore, the right to compensation for the land acquired devolved upon the State. A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under S. 30 of the Land Acquisition Act to the Court and was in fact referred to the Court. We are unable to agree with counsel for Dr. Grant that the reference made by the Collector under S. 30 was incompetent, because the State was not interested in the compensation money on the date when the award was made. The right of the State of Bihar has undoubtedly arisen after the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the State was a person interested in the compensation money before the date of the award, but because of the right which has arisen since the award was made. 21. We, therefore, dismiss the appeals with costs. There will be one hearing fee. ORDER
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money by his award. We are also unable to agree with the Mysore High Court that the power under S. 30 of the Land Acquisition Act has to be exercised on a motion within the period prescribed by S. 18(2) of the Land Acquisition Act.In our judgment the powers exercisable by the Collector under S. 18(1) and under S. 30 are distinct and may be invoked in contingencies which do not overlap15. By virtue of the notification issued under the Bihar Land Reforms Act the right of Dr. Grant vested in the State of Bihar. On March 25, 1952 when the Collector made an award under S. 11, the only persons interested in the award were Dr. Grant and the members of the village community, but the title of Dr. Grant in the land notified for acquisition stood, by operation of the Bihar Land Reforms Act, transferred as from May 22, 1952 to the State of Bihar. A dispute then arose between the State Government and Dr. Grant "as to the persons to whom" compensation was payable. The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector, and no application for reference could be made by the State, as a person interested within the meaning of S. 18 (1). The title of the State to receive compensation arose only when in consequence of the notification under S. 3 of the Bihar Land Reforms Act, the title of Dr. Grant to the Estate was divested16. An award by the Collector is strictly speaking an offer made to the person interested in the land notified for acquisition: the latter may accept the offer, but is not bound to accept it. He may ask for a reference to the Court for adjudication of his claim for adequate compensation. The person interested may even accept the compensation under protest as to the sufficiency of the amount and ask for a reference. It is also open to the Government, even after the award is made, but before possession is taken, to withdraw from acquisition of any land in exercise of the powers conferred by S. 48 of the Land Acquisition Act. It is, therefore, not the award of the Collector which is the source of the right to compensation; the award quantifies the offer of the appropriate Government, which is made because the Government has taken over, or intends to take the land of the owner under the authority conferred by the Land Acquisition Act17. The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under S. 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecutedThis contention stands refuted by the plain terms of S. 30.The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Payment of compensation, therefore, under S. 31 to the person declared by the award to be entitled thereto discharges the State or its liability to pay compensation (Subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under S. 30 or by a separate suit20. The dispute between the State of Bihar and Dr. Grant has been expressly referred by the Collector to the Court for decision. Under the Bihar Land Reforms Act, the title of Dr. Grant to the land notified for acquisition became vested in the State, and, therefore, the right to compensation for the land acquired devolved upon the State. A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under S. 30 of the Land Acquisition Act to the Court and was in fact referred to the Court. We are unable to agree with counsel for Dr. Grant that the reference made by the Collector under S. 30 was incompetent, because the State was not interested in the compensation money on the date when the award was made. The right of the State of Bihar has undoubtedly arisen after the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the State was a person interested in the compensation money before the date of the award, but because of the right which has arisen since the award was made.
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RADHEY SHYAM KHEMKA AND ANOTHER Vs. THE STATE OF BIHAR | form a bogus company and foist it off on the public to the latters detriment and for their own wrongful gain. In this process the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share-holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companies. But, if the promotors or those in charge of managing affairs of the company are found to have committed offences like cheating, criminal breach of trust, criminal misappropriation or alike, then whether the only remedy to which the investor is entitled is to pursue under and in accordance with the provisions of the Companies Act? The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offences under the Penal Code, if it is established that primary object of the incorporation and existence of the company is to defraud public. 5. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the share-holders which constitute one offence or other under the Penal Code, court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the court. If the screening on this question is not done properly at the stage of initiation of the criminal proceeding, in many cases some disgruntled share-holders may launch prosecutions against the promotors, directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offences under the Penal Code the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions which constitute the different ingredients of the offences under the Penal Code. It cannot be over looked that there is a basic difference between the offences under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such per sons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed. 6. In the facts of the present case itself, the prosecution has to prove that the appellants as promotors or directors, had dishonest intention since very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. The ingredients of the different offences under the Penal Code need not be proved only by direct evidence; they can be shown from the circumstances of a particular case that the intention of the promotors or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors. All the circumstances and the materials to prove such a charge have to be collected during investigation and enquiry and ultimately have to be produced before the court at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution. 7. The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. this Court has repeatedly pointed out that the High Court should not while exercising power u/s 482 of the Code usurp the jurisdiction of the trial court. The power u/s 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed. | 0[ds]3. It is true that the Companies Act contains provisions regarding the issuance of prospectus, applications for shares and allotment thereof and provides different check, over the misuse of the fund collected from the public for issuance of shares or debentures.4. Originally the concept of a company implied association of persons for some common object having a juristic entity separate from those of its members. In due course the gap between the investors in such companies and those in charge of management was widened. A situation has reached today that in bulk of the companies in which many individuals have property rights as share-holders and to the capital of which they have directly or indirectly contributed, have no idea how their contributions are being utilised. It can be said that modern share-holder in many companies has simply become supplier of capital, the savings and earnings of individuals are being utilised by persons behind such corporate bodies, but there is no direct contact between them. The promotors of such companies are not even known to many investors in shares of such companies. It is a matter of common experience that in some cases later it transpires to the investors that the promotors had the sole object to form a bogus company and foist it off on the public to the latters detriment and for their own wrongful gain. In this process the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share-holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companies. But, if the promotors or those in charge of managing affairs of the company are found to have committed offences like cheating, criminal breach of trust, criminal misappropriation or alike, then whether the only remedy to which the investor is entitled is to pursue under and in accordance with the provisions of the Companies Act? The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offences under the Penal Code, if it is established that primary object of the incorporation and existence of the company is to defraud public.5. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the share-holders which constitute one offence or other under the Penal Code, court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the court. If the screening on this question is not done properly at the stage of initiation of the criminal proceeding, in many cases some disgruntled share-holders may launch prosecutions against the promotors, directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offences under the Penal Code the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions which constitute the different ingredients of the offences under the Penal Code. It cannot be over looked that there is a basic difference between the offences under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such per sons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed.6. In the facts of the present case itself, the prosecution has to prove that the appellants as promotors or directors, had dishonest intention since very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. The ingredients of the different offences under the Penal Code need not be proved only by direct evidence; they can be shown from the circumstances of a particular case that the intention of the promotors or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors. All the circumstances and the materials to prove such a charge have to be collected during investigation and enquiry and ultimately have to be produced before the court at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution.7. The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. this Court has repeatedly pointed out that the High Court should not while exercising power u/s 482 of the Code usurp the jurisdiction of the trial court. The power u/s 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed. | 0 | 2,053 | 1,281 | ### 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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form a bogus company and foist it off on the public to the latters detriment and for their own wrongful gain. In this process the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share-holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companies. But, if the promotors or those in charge of managing affairs of the company are found to have committed offences like cheating, criminal breach of trust, criminal misappropriation or alike, then whether the only remedy to which the investor is entitled is to pursue under and in accordance with the provisions of the Companies Act? The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offences under the Penal Code, if it is established that primary object of the incorporation and existence of the company is to defraud public. 5. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the share-holders which constitute one offence or other under the Penal Code, court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the court. If the screening on this question is not done properly at the stage of initiation of the criminal proceeding, in many cases some disgruntled share-holders may launch prosecutions against the promotors, directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offences under the Penal Code the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions which constitute the different ingredients of the offences under the Penal Code. It cannot be over looked that there is a basic difference between the offences under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such per sons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed. 6. In the facts of the present case itself, the prosecution has to prove that the appellants as promotors or directors, had dishonest intention since very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. The ingredients of the different offences under the Penal Code need not be proved only by direct evidence; they can be shown from the circumstances of a particular case that the intention of the promotors or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors. All the circumstances and the materials to prove such a charge have to be collected during investigation and enquiry and ultimately have to be produced before the court at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution. 7. The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. this Court has repeatedly pointed out that the High Court should not while exercising power u/s 482 of the Code usurp the jurisdiction of the trial court. The power u/s 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed.
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sole object to form a bogus company and foist it off on the public to the latters detriment and for their own wrongful gain. In this process the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share-holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companies. But, if the promotors or those in charge of managing affairs of the company are found to have committed offences like cheating, criminal breach of trust, criminal misappropriation or alike, then whether the only remedy to which the investor is entitled is to pursue under and in accordance with the provisions of the Companies Act? The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offences under the Penal Code, if it is established that primary object of the incorporation and existence of the company is to defraud public.5. But, at the same time, while taking cognizance of alleged offences in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the share-holders which constitute one offence or other under the Penal Code, court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the court. If the screening on this question is not done properly at the stage of initiation of the criminal proceeding, in many cases some disgruntled share-holders may launch prosecutions against the promotors, directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offences under the Penal Code the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions which constitute the different ingredients of the offences under the Penal Code. It cannot be over looked that there is a basic difference between the offences under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such per sons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed.6. In the facts of the present case itself, the prosecution has to prove that the appellants as promotors or directors, had dishonest intention since very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. The ingredients of the different offences under the Penal Code need not be proved only by direct evidence; they can be shown from the circumstances of a particular case that the intention of the promotors or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors. All the circumstances and the materials to prove such a charge have to be collected during investigation and enquiry and ultimately have to be produced before the court at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution.7. The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. this Court has repeatedly pointed out that the High Court should not while exercising power u/s 482 of the Code usurp the jurisdiction of the trial court. The power u/s 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed.
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The Project Director, Project Implementation Unit Vs. P.V. Krishnamoorthy & Ors | Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof. 73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific. OTHER CONTENTIONS 74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case. 75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. CONCLUSION | 1[ds]Notably, no declaration was sought by the writ petitioners in reference to the provisions of the 1956 Act, the 1988 Act and in particular, Section 2 of the 1956 Act, to be ultra vires as such.Indisputably, law made by the Parliament in the present case is the 1956 Act and the 1988 Act in reference to Entry 23 of List I of the Seventh Schedule. If the stated law made by the Parliament is ascribable to Entry 23 of List I of the Seventh Schedule, the Parliament has the exclusive power to make law on that subject and for matters connected therewith. The fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject roads, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning national highways. It is well-established position that if the law made by the Parliament is in respect of subject falling under Union List, then the incidental encroachment by the law under the State list, per se, would not render it invalid. The doctrine of pith and substance is well-established in India. The doctrine is invoked upon ascertaining the true character of the legislation. It may be useful to advert to Article 248 of the Constitution, bestowing legislative powers on the Parliament to make a law with respect to any matter not enumerated in the Concurrent List or the State List. Concededly, the expression highways as such, is not mentioned either in the State List or the Concurrent list. While making law on the subject falling under the Union List in terms of Entry 97 thereof, it is open to the Parliament to make law on any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.28. Indisputably, the entries in the legislative lists are not sources of legislative powers, but are merely topics or fields in respect of which concerned legislative body is free to make a law. The entries must receive a liberal and expansive construction, reckoning the wide spirit thereof and not in a narrow pedantic sense. Entry 23 in List I refers generally to highways declared or to be declared by the Parliament as national highways and all matters connected therewith. This empowers the Parliament to declare any stretch/section across any State as a highway for being designated as a national highway. There is no indication in the Constitution to limit the exercise of that power of the Parliament only in respect of an existing highway. Further, whenever and wherever the question of legislative competence is raised, the test is whether the law enacted, examined as a whole, is substantially with respect to the particular topic of legislation falling under the concerned list. If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be. Reliance has been justly placed on the dictum of the Constitution Bench of this Court in K.T. Plantation Pvt. Ltd. (supra), that the test is identicalness or diversity between dominant intention of the two legislations. Moreover, power of law-making itself would be rendered otiose if it does not provide for suitable coverage of matters that are incidental as well as intrinsically connected to the expressly granted power. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between the Union and the States makes it amply clear that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which applied in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 257 expounds about the control of the Union over States in certain cases.29. Suffice it to observe that there is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard. For the same reason, the complete executive power also vests within the Union.In the present case, we have to consider the sweep of the 1956 Act in light of the amended provisions, which came into force with effect from 24.1.1997. The 1956 Act extends to the whole of India and has come into force on 15.4.1957. Section 2(1) thereof is in the nature of declaration by the Parliament that each of the highways specified in the schedule appended to the 1956 Act to be a national highway. The Schedule appended in the end gives the description of such highways. Sub-Section (2) of Section 2, however, empowers the Central Government to declare any other highway to be a national highway by publishing a notification in the Official Gazette in that behalf and upon such publication, the highway shall be deemed to be specified in the stated Schedule. This provision contains a legal fiction.35. It is not necessary to dilate on the other provisions of the 1956 Act for the time being. As aforesaid, Sections 3A to 3J have been inserted by way of amendment of 1997. On close examination, the 1956 Act, as amended and applicable to the present case, is an Act to authorise Central Government to declare the notified stretches/sections in the State concerned as a highway to be a national highway; and for matters connected therewith including acquisition of any land for building or construction of a new highway (which need not be an existing road/highway). The substance of this Act is ascribable to Entry 23 of the Union List and matters connected therewith.36. Having said thus, we have no hesitation in concluding that the challenge to the notifications issued under Section 2(2) of the 1956 Act on the argument of lack of legislative competence, is devoid of merits. The High Court justly negatived the same and we uphold that conclusion.37. A fortiori, even the challenge to the stated notifications on the ground of being ultra vires the Constitution derived executive powers of the Union, must fail. That challenge is founded on the purport of Article 257, which has been reproduced above. It is urged that Article 257 pointedly refers to the sphere of executive powers of the Union. Article 257 of the Constitution, as aforesaid, deals with administrative relations between the States and the Union. In the first place, having said that the Parliament has exclusive legislative competence to make a law in respect of national highways and all matters connected therewith, which includes declaring any stretch/section within the State (not being existing roads/highways) as a national highway, it must follow that the Central Government alone has the executive powers to construct/build a new national highway in any State and to issue directions to the Government of any State for carrying out the purposes of the 1956 Act. It is incomprehensible as to how the argument of lack of executive power of the Central Government despite such a law, can be countenanced. Concededly, the validity of Section 2 of the 1956 Act, which empowers the Central Government to notify any other highway (other than the scheduled national highways) as a national highway, has not been put in issue. No declaration is sought that the said provision is ultra vires the Constitution or the law. Therefore, the argument essentially requires us to examine the question as to whether Section 2(2) of the 1956 Act enables the Central Government to declare a national highway in respect of a non- existing road(s)/highway(s) and on open green-fields land within the State. Suffice it to observe that the challenge to notifications issued by the Central Government under Section 2(2) of the 1956 Act on the ground of being ultra vires the Constitution derived executive powers, is also devoid of merits.Somewhat similar question was dealt with by the same High Court (Madras High Court) in reference to the provisions of the Tamil Nadu Highways Act, 2001 in Jayaraman (supra). However, we are called upon to examine the question under consideration in reference to the 1956 Act and the 1988 Act.We have briefly adverted to the scope of sub-Section (1), which is in the nature of declaration by the Parliament that each of the highways specified in the Schedule appended to the 1956 Act shall be a national highway. For building a new highway, as in the present case, between stretch/section C-K-S (NC) NH-179A and NH-179B respectively, the Central Government can do so in exercise of power conferred upon it under Section 2(2) of the 1956 Act. That empowers the Central Government to notify any other highway (not forming part of the Schedule appended to the Act) as a national highway and upon such publication of notification in the official gazette, the said highway is deemed to be specified in the Schedule as a national highway. This power is not constricted or circumscribed by any other inhibition, such as to declare only an existing road or highway within the State as a national highway. The requirement of a national highway within the country as a whole and State-wise, in particular, is to alleviate evolving socio-economic dynamics, for which such a wide power has been bestowed upon the Central Government. The Central Government is obliged to do so to facilitate it to discharge its obligations under Part IV of the Constitution. There is nothing in the Constitution of India or for that matter, the 1956 Act to limit that power of the Central Government only in respect of existing roads/highways within the State. To say so would be counter-productive and would entail in a piquant situation that the Central Government cannot effectively discharge its obligations under Part IV of the Constitution unto the remote inaccessible parts of the country until the concerned State Government constructs a road/highway within the State. On the other hand, if the concerned State, due to reasons beyond its control or otherwise, is unable/flounder to provision a road/highway in a given segment of the State; despite being imperative to do so to assuage the perennial difficulties faced by the locals in that belt due to lack of access, the Central Government may come forward and step in to construct a national highway and connect the area with the other parts of the country. By its very nomenclature, a national highway is to link the entire country and provide access to all in every remote corner of the country for interaction and to promote commerce and trade, employment and education including health related services. This approach would enhance and further the federal structure. This is because, the existence of a national highway in the neighbourhood paves way for the fulfilment of aspirations of the locals and their empowerment. It not only brings with it opportunity to travel across, but also propels the economy of that region and the country as a whole. It gives impetus to myriads of social, commerce and more importantly, access to other activities/facilities essential for the health, education and general well-being of the locals, in particular.41. The Central Government, whilst exercising power under Section 2(2) of the 1956 Act creates a right in the locals of the concerned area to pass and repass along a highway from one marked town or inhabited place to another inhabited place for the purpose of legitimate travel. Such highway is dedicated for the ordinary and reasonable user of the road as a national highway from one designated town (Chennai) upto another town (Salem), which will be common to all the subjects. As expounded hitherto, the Central Government is fully competent to notify any land (not necessarily an existing road/highway) for acquisition, to construct a highway to be a national highway.The original Project (Bharatmala Pariyojna - Phase I) included section – C-M (EC), as approved by the CCEA in October, 2017. It is true that the Project (Bharamala Pariyojna Phase I) was conceived after a scientific study as a comprehensive project at the macro (national) level for 24,800 kms. in Phase I, spanning over a period of 5 years (2017-18 to 2021-22) at an estimated outlay of INR 5,35,000 crores with an objective to improve the efficiency of freight and passenger movement across the country by bridging critical infrastructure gaps through effective interventions like development of Economic Corridors, Inter Corridors and Feeder Routes (ICFR), National Corridor Efficiency Improvement, Border and International connectivity roads, Coastal and Port connectivity roads and Green-field expressways. This Project, being a macro level project, does not reckon the nuanced imperatives of a particular region or area, which may only be a miniature of the whole Project traversing across around 24,800 kms. in Phase I. For that reason, the approved Project itself bestows discretion upon the MoRTH to substitute/replace up to 15% length of 24800 kms., of the Project (Phase I), by other suitable projects.43. Be that as it may, one of the reasons recorded in the minutes is that instead of opting for expansion of the existing stretch/section [C-M (EC)], a crow-flight green-field alignment be preferred and developed between Chennai and Salem via Harur under National Corridor Efficiency Improvement, so as to reduce the distance between Chennai and Salem/Coimbatore by 40 kms. and also diversify the traffic from the congested Chennai- Krishnagiri section of Golden Quadrilateral and Chennai- Ulundurpet section of the C-M (EC). At the outset, it had been noted that the traffic from Chennai bound to Salem/Coimbatore and Pallakad (Kerala) currently uses the Chennai-Krishnagiri section of the Golden Quadrilateral (Chennai-Bengaluru) and the Krishnagiri-Salem section of the North-South corridor or the Chennai-Tindivanam-Ulundurpet section of the C-M (EC) and the Ulunderpet-Salem Inter-corridor route, thereby congesting Chennai-Krishnagiri section of Golden Quadrilateral and Chennai-Tindivanam (72,000 PCU) – Ulundurpet (47,000 PCU) section of the C-M (EC). It is well settled that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by the Courts – as observed in paragraphs 59 to 62 of Akhil Bharat Goseva Sangh (supra) - (also see – K. Vasudevan Nair & Ors. vs. Union of India & Ors. 1991 Supp (2) SCC 134 (paragraphs 19 and 20) and Systopic Laboratories (Pvt.) Ltd. vs. Dr. Prem Gupta & Ors.1994 Supp (1) SCC 160). Again, in Kushala Shetty (supra), this Court analysed the provisions of the 1956 Act (Sections 3A to 3D) and opined that it is not open to the Court to castigate the reasons weighed with the competent authority. As we are dealing with this decision, we may note with approval dictum about the functions of the NHAI, as adverted to in paragraph 28 of the reported judgment. The same reads thus: -28. Here, it will be apposite to mention that NHAI is a pro- fessionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and main- tenance of national highways after thorough study by ex-perts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the par- ticular alignment would subserve the larger public inter- est. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been estab- lished nor has the charge of malice in fact been proved. Therefore, the order under challenge cannot be sustained.44. Thus understood, there is no substance in the argument that the change of stretch/section to C-K-S (National Corridor) was not based on any tangible material to sustain the stated decision of the Committee. Indeed, the necessity to enhance the existing section of Economic Corridor between Chennai-Madurai was taken note of in the principal Pariyojna. However, the Committee, as per the discretion bestowed in it in terms of the approved Pariyojna, whilst reckoning the imperatives of the region under consideration for micro level implementation, took a conscious decision to opt for C-K-S (National Corridor) being relatively more beneficial and to strengthen the National Corridor; and at the same time increase efficiency of the existing economic corridor. Such decision, obviously, partakes the colour of a policy decision of the Central Government, which is also backed by the guidelines issued on 26.2.2018 by the competent authority of the same Ministry of the Government of India, MoRTH (Planning Zone). This communication refers to the approval of the Project (Bharatmal Pariyojna Phase I) by the CCEA in October, 2017 recording obstructions/difficulties faced during upgradation of the existing road arteries.45. There is no challenge to these guidelines. Indeed, these guidelines have been issued after the decision was already taken on 19.1.2018 in respect of section - C-K-S (NC) in lieu of C-M (EC) section. However, it needs to be understood that the decision was taken by the broad-based Committee of experts, of which the Secretary of the same Ministry (MoRTH) which had issued the guidelines on 26.2.2018, was the Chairperson alongwith the other officials including the officials of NHAI. The decision regarding change is a policy decision. Moreso, keeping in mind that the change in alignment and the purpose of such a change is stated to be for strengthening the national corridor in preference to the economic corridor in the region, it is not open to disregard this opinion of the Central Government based on the recommendation of the Committee constituted by it for that singular purpose.46. This Court in Sooraram Pratap Reddy (supra) had held that it is the primary duty of the competent authority to decide whether there exists public purpose or not. The Courts may not ordinarily interfere with that unless the power is being exercised malafide or for collateral purposes or the decision is dehors the Act, irrational or otherwise unreasonable or so-called purpose is no public purpose at all and fraud of statute is manifest. Further, it is not for the Courts to sit over such decision as a Court(s) of appeal and to disregard it merely because another option would have been more beneficial. We may usefully advert to the dictum of the Constitution Bench of this Court in Somawanti (supra). In paragraph 36 (of SCCOnline), the Court observed thus: -36. Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legisla- tive competence of the State the declaration of the Govern- ment will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exer- cised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the Government will be final.In the present case, it is seen that the basis for taking such informed decision by the Committee is ascribable to tangible aspects referred to in the minutes of the meeting held on 19.1.2018 (as is manifest from the factual aspects recorded therein). The decision of this Court in Dwarkadas Marfatia & Sons (supra) will be of no avail, because we find that the decision of the Committee was well-informed and backed by reasons guided by public interest. We must remind ourselves of the word of caution noted by this Court in Col. A.S. Sangwan (supra) that the Courts should be loath in dealing with policy and administrative reasons. The Court observed thus: -4. …. A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the impera- tives of national considerations. We cannot, as court, give directives as to how the Defence Ministry should function except to state that the obligation not to act ar- bitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitu- tion and not over it. … So, whatever policy is made should be done fairly and made known to those concerned. So, we make it clear that while the Central Government is beyond the forbiddance of the court from making or changing its pol- icy in regard to the Directorate of Military Farms or in the choice or promotion of Brigadiers, it has to act fairly as every administrative act must be done.47. Be it noted that the notifications under Section 2(2) to declare the C-K-S (NC) section as NH-179A and NH-179B, as the case may be, were issued only after due deliberation by the broad-based committee of experts, which decision we find is also in conformity with the guidelines contemporaneously issued by the concerned department on the same subject matter. Such a decision cannot be labelled as manifestly arbitrary, irrational or taken in undue haste as such. As a result, it was not open to the High Court to interfere with the change so articulated in the meeting held on 19.1.2018 or the notifications issued under Section 2(2) of the 1956 Act declaring C-K-S (NC) as a national highway (i.e. NH-179A and NH-179B). The declaration of a highway being a national highway is within the exclusive domain of the Central Government in terms of Section 2(2) of the 1956 Act. The argument of the land owners that prior approvals ought to have been obtained from the CCEA and regarding budgetary arrangement, is premised on the manuals which govern the functioning of the executing agency (NHAI). As the decision regarding change of stretch/section has been taken by the concerned department of the Central Government itself and the approved Project (Bharatmala Pariyojna - Phase I) also recognises that such change in the form of substitution/replacement of the stretch/section can be done by the Ministry upto 15% length of 24,800 kms., so long as it does not entail in incurring of additional costs, it becomes integral part of the originally approved project (for Phase I) for all purposes. In the present case, the costs for construction of C-K-S (NC) were bound to be less than the originally conceived C-M (EC), as the length of the road is reduced significantly. In other words, it would operate as minor change to the original plan with deemed approval thereof and get interpolated therein. Further, the minutes recorded on 19.1.2018 do indicate that the decision was to be placed before the CCEA in the ensuing biannual meeting, where it would be duly ratified. Suffice it to observe that the decision taken by the Committee which culminated with the issuance of notification under Section 2(2) of the 1956 Act is in complete conformity with the governing provisions and guidelines and founded on tangible and objective facts noted in the minutes dated 19.1.2018. The Central Government had full authority to adopt such a change of stretch/section, by way of substitution/replacement whilst ensuring that there is no need for higher budgetary allocation than envisaged in the already approved programme for Phase I. Thus, there is no legal basis to doubt the validity of the notification under Section 2(2) and ex consequenti Section 3A of the 1956 Act as well.48. The High Court has completely glossed over these crucial aspects and entered into the domain of sufficiency and adequacy of material including the appropriateness of the route approved by the competent authority. Such enquiry, in exercise of judicial review is forbidden. Furthermore, the High Court, despite noting that judicial interference in acquisition matters is limited, went on to interfere in the guise of extra-ordinary circumstances obtaining in this case. On a thorough perusal, the impugned judgment does not reveal any just circumstance for invoking the judicial review jurisdiction. In light of the above discussion, we hold that challenge to the decision of the Committee and ex consequenti of the Central Government, regarding change of section – C-M (EC) to C-K-S (NC) at the micro level for the implementation of the original Project as approved, ought not to have been doubted by the High Court. Notably, in the final conclusion and declaration issued by the High Court, it has justly not struck down the notifications under Section 2(2) of the 1956 Act. In other words, so long as Section 2(2) of the 1956 Act was to remain in force and the decision regarding change of stretch/section to C-K-S (NC) being the foundation for issue of notification under Section 3A, would continue to bind all concerned and in particular, the officials of NHAI being the executing agency.This argument is based on the dictum of this Court in Karnataka Industrial Areas Development Board (supra). In paragraph 100 of the said decision, a general direction came to be issued that in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment. Paragraphs 100 and 101 of the reported decision are extracted hereunder: -100. The importance and awareness of environment and ecology is becoming so vital and important that we, in our judgment, want the appellant to insist on the conditions em- anating from the principle of Sustainable Development:(1) We direct that, in future, before acquisi- tion of lands for development, the conse- quence and adverse impact of development on environment must be properly compre- hended and the lands be acquired for devel- opment that they do not gravely impair the ecology and environment.(2) We also direct the appellant to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for develop- ment. The said directory condition of allotment of lands be converted into a mandatory condi- tion for all the projects to be sanctioned in fu- ture.101. This has been an interesting judicial pilgrimage for the last four decades. In our opinion, this is a significant contri- bution of the judiciary in making serious endeavour to pre- serve and protect ecology and environment, in consonance with the provisions of the Constitution.Support is also drawn from the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively. Our attention is also invited to exposition in M. Velu (supra), following the aforementioned decision of this Court.50. The question as to whether the competent authority under the 1956 Act is obliged to take prior permission before issuing notification under Section 3A of the Act, must be answered primarily on the basis of the scheme of the enactments under consideration. As regards power to acquire land for the purpose of building, maintenance, management and operation of a national highway or part thereof, the same has been bestowed on the Central Government in terms of Section 3A of the 1956 Act. There is nothing in the 1956 Act, which impels the Central Government to obtain prior environment clearance before exercise of that power and in issuing notification under Section 2(2), much less Section 3A expressing its intention to acquire the designated land.51. The Central Government has framed rules in exercise of power under Section 9 of the 1956 Act, titled as the National Highways Rules, 1957(For short the 1957 Rules). These rules are required to be followed by the executing agency. There is nothing, even in these Rules, to remotely suggest that the Central Government is obliged to obtain prior permission(s) under environmental/forest laws before issuing notification under Section 3A. The executing agency is none else, but established under the 1988 Act, namely, the NHAI. Before NHAI commences the execution of any original work, it has to abide by the norms specified in the 1957 Rules regarding preparation of estimate of work etc. The Schedule of the 1957 Rules stipulates conditions for the issue of technical approval and financial sanction to plan and estimate for execution of any original work on a national highway costing an amount not exceeding Rs.50 lakhs by the executing agency concerned. Neither the 1956 Act, the Rules framed thereunder i.e. the 1957 Rules nor the 1988 Act and the Rules made thereunder have any bearing on the question under consideration. None of these enactments/rules specify any express condition requiring Central Government to obtain prior environmental/forest clearance before issuing notification under Section 2(2) declaring the stretch/section to be a national highway or Section 3A of the 1956 Act to express intention to acquire land for the purpose of building, maintenance, management or operation of a national highway, as the case may be.52. Reverting to the notification issued by the MoEF dated 14.9.2006, even this notification does not constrict the power of Central Government to issue notification under Section 2(2) or Section 3A of the 1956 Act. There is nothing to suggest that before expressing intention to acquire any land for the purpose of the 1956 Act, prior environmental/forest clearance is required. The environmental/forest clearance, however, is, required to be obtained by the executing agency in terms of this notification before commencing the actual work or executing the proposed work/project. That would happen only after the land is vested in the NHAI or the NHAI was to be entrusted with the development work of concerned national highway by the Central Government in exercise of powers under Section 5 of the 1956 Act read with Section 11 of the 1988 Act. The land would vest in the Central Government under the 1956 Act only after publication of declaration of acquisition under Section 3D. And until then, the question of Central Government vesting it in favour of NHAI under Section 11 of the 1988 Act would not arise. However, until the vesting of the land, the Central Government and its authorised officer can undertake surveys of the notified lands by entering upon it in terms of Section 3B of the Act. Pertinently, the activities predicated in Section 3B are of exploration for verifying the feasibility and viability of land for construction of a national highway. These are one-time activities and not in the nature of exploitation of the land for continuous commercial/industrial activities as such. There is remote possibility of irretrievable wide spread environmental impact due to carrying out activities referred to in Section 3B for assessing the worthiness of the land for using it as a national highway. Thus, the question of applying notification of 2006 at this stage does not arise, much less obligate the Central Government to follow directives thereunder.54. It is indisputable that NHAI is an authority appointed by the Central Government under the 1988 Act. This authority is a functional body constituted under Section 3 of the 1988 Act. Chapter III of the 1988 Act provides for the manner of dealing with the contracts to be entered into by NHAI. Sections 11 to 13 deal with the power of the Central Government to vest in or entrust to the Authority (NHAI), transfer of assets and liabilities of the Central Government to the Authority (NHAI) and the compulsory acquisition of land for the Authority.55. On plain and harmonious construction of the provisions of the two enactments (i.e. the 1956 Act and the 1988 Act), it is amply clear that at the stage of issuing notifications under Section 2(2) or for that matter, Section 3A of the Act, there is no need to seek prior permission (by the Central Government) under environmental laws or the forest laws, as the case may be. Further, the purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the 1986 Act or forest laws, on the other) is qualitatively different and contextual to matters relevant under the concerned enactment. The competent authority in the former, may be satisfied that the acquisition of land in question is for public purpose, but if the competent authority under the latter legislations is of the view that the execution of the project in question (construction of a national highway) or any portion thereof may cause irretrievable comprehensive impact on the environment or the forests, as the case may be, would be competent to deny permission to such a project as a whole or part thereof. That decision must then prevail, being in public interests. This is not to say that one competent authority is superior to the other, but such balancing becomes essential to effectuate the public purposes under the stated enactments. It is quite possible that the executing agency (NHAI) may be able to convince the competent authority under the latter enactments that certain remedial steps can minimise or mitigate the environmental impact or to the forest, as the case may be, and commend it to accord conditional approval/permission to execute the project so as to conform to the tenets of sustainable development. If that suggestion commends to the competent authority under the environmental/forest laws, such clearance/permission can be granted after the public hearing.56. As regards the decision in Raghbir Singh Sehrawat (supra), the same may have relevance at the time of considering the objections to be dealt with by the competent authority under the 1956 Act during the public hearing under Section 3C. The dictum in this decision cannot be the basis to doubt the well- considered decision dated 19.1.2018 nor the notification issued by the Central Government under Section 2(2) of the 1956 Act declaring the stretch between C-K-S (NC) as a national highway.57. Even in the case of R.S. Nanji (supra), the Constitution Bench highlighted the sweep of expression public purpose in the context of challenge to the order of the competent authority to requisition the premises. As noted earlier, the satisfaction regarding public interests or necessity to acquire the land in question for public purpose for construction of a new national highway, is a matter which needs to be considered by the competent authority during the public hearing under Section 3C of the 1956 Act. The challenge before the High Court in the present case was before that stage had reached, for which reason we do not wish to dilate on this reported decision any further.58. Suffice it to observe that the subject notification of 2006 and Office Memorandum dated 7.10.2014 ordain that such permission is required to be obtained (only) before commencement of the work of the new project or activities or on the expansion or improvisation of the project or activities based on their potential environment impact.59. The view that we have taken is reinforced from the opening part of this notification. It expounds that no project involving potential environmental impact shall be undertaken or commenced in any part of India without obtaining prior environmental clearance in the manner provided for. Same position obtains from the recitals of this notification, namely, prior environmental clearance is required before any construction work or preparation of land by the project management, except for securing the land, is started on the project or the activity. A priori, the decision in Delhi Development Authority (supra), does not take the matter any further in the present case. Therefore, no interference is warranted with the decision of the Committee regarding the change of stretch/section to be implemented during Phase I between C-K-S (NC); including the impugned notifications under Sections 2(2) and 3A of the 1956 Act.60. Be it noted that the notification of 2006 is in the nature of guidelines/directives issued by the Central Government in exercise of its statutory powers. These directions need to be adhered by the executing agency (NHAI) whilst undertaking the work in furtherance of the approved project. To put it differently, it is incomprehensible that the stated 2006 notification obliges the Central Government to take prior permission even before the stage of planning and finalisation of the project(s) such as in terms of the minutes dated 19.1.2018 followed by notifications under Sections 2(2) and 3A of the 1956 Act, as the case may be.We reject this plea. In our view, the activities required to be undertaken in furtherance of notification under Section 3A of the 1956 Act, referred to in Section 3B of the same Act are only to explore the feasibility and viability of the stretch/section to be used as a national highway and no further. These activities are outside the purview of notification of 2006.62. The High Court had adverted to decisions of other jurisdictions, namely, of American Courts, to buttress the view that prior permission ought to be taken even before issuing notification under Section 3A of the 1956 Act. Considering the legislative scheme and upon giving proper meaning and perspective to the directives issued by the Central Government in the form of 2006 notification, we are of the considered opinion that the dictum in those decisions will be of no avail. For, we are of the view that it is not necessary for the Central Government or for that matter, NHAI, to apply for prior environmental/forest clearances or permissions, as the case may be, at the stage of planning or taking an in-principle decision to formalize the Project of constructing a new national highway manifested in notification under Section 2(2), including until the stage of issuing notification under Section 3A of the 1956 Act.63. If we accept the argument of the writ petitioners that the Central Government must follow comprehensive procedure under the environmental laws and forest laws articulating its final decision and to issue notification under Section 2(2) of the 1956 Act to declare any stretch/land not being a highway as a national highway, such approach would be counter-productive and the functioning of the departments responsible for timely execution of such projects would be completely paralysed and depend solely on the outcome of the processes under the environmental laws or forest laws, as the case may be. It cannot be overlooked that the role of the competent authority under the environmental law or forest law is limited to scrutiny of the formalized project brought before it prior to its implementation by the executing agency, to ascertain whether it may have any environmental impact and if so, to impose such conditions by way of remedial steps to minimise and mitigate the impact while keeping in mind the need to fulfil the States obligation of sustainable development.64. Be that as it may, one cannot be oblivious of the qualitative difference between a project necessitating acquisition of a large chunk of land at one place for continual commercial/industrial activities to be carried out thereon as opposed to acquisition of a small strip of land in the area for construction of a road/highway. The purpose of road/highway is merely to facilitate free passage through the same. It would have a floating population unlike in the case of a big project at one place occupying several square metres of land and engaging in continual commercial/industrial activities thereon. The environmental impact would be and ought to be measured in relative terms and at the local level and site specific. Whereas, the requirement for road/national highway would essentially be in larger national interest.65. For the purpose of considering the question posed before us, suffice it to observe that the prior environmental clearance in terms of 2006 notification issued under Section 3 of the Environment (Protection) Act, 1986 Act read with Rule 5 of the Environment (Protection) Rules, 1986, is required to be taken before commencement of the actual construction or building work of the national highway by the executing agency (NHAI). That will happen only after the acquisition proceedings are taken to its logical end until the land finally vests in the NHAI or is entrusted to it by the Central Government for building/management of the national highway.Applying the tenet underlying this notification, it is amply clear that before the process of acquisition of land is ripe for declaration under Section 3D of the 1956 Act, it would be open to the executing agency (NHAI) to make an application to the competent authority for environmental clearance. That process can be commenced parallelly or alongside the acquisition process after a preliminary notification under Section 3A of the 1956 Act, for acquisition is issued.66. As in this case, after notification under Section 3A of the 1956 Act came to be issued, NHAI must have, and in fact has, moved into action by making application to the competent authorities under the environmental laws, as well as, forest laws to accord necessary permissions.67. Considering the provisions of the 1956 Act and the 1988 Act, NHAI can take over the work of development and maintenance of the concerned national highway only if the notified land is vested in it or when the same is entrusted to it by the Central Government. From the scheme of the enactments in question, as soon as notification under Section 3A is issued, it is open to the Central Government to issue direction/notification in exercise of power under Section 5 of the 1956 Act read with Section 11 of the 1988 Act so as to entrust the development of the proposed national highway to NHAI. Upon such entrustment, NHAI assumes the role of an executing agency and only thenceforth can move into action to apply for requisite permissions/clearances under the environmental/forest laws including as provided in terms of notification/Office Memorandum dated 14.9.2006 and 7.10.2014 respectively.68. It is not in dispute that environmental/forest clearance is always site specific and, therefore, until the site is identified for construction of national highways manifested vide Section 3A notification, the question of making any application for permission under the environmental/forest laws would not arise, as predicated in Office Memorandum dated 7.10.2014. The site is identified only in reference to the notification under Section 3A of the 1956 Act, giving description of the land which is proposed to be acquired for public purpose of building, maintenance, management or operation of the national highway or part thereof.69. Considering the interplay of provisions empowering the Central Government coupled with the purport of the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively, it will be paradoxical to countenance the argument that the Central Government is obliged to seek prior approval/permission of the competent authorities under the environment/forest laws, as the case may be, even before issuing notification under Section 2(2) or for that matter, Section 3A of the 1956 Act.70. Reverting to the dictum of this Court in Karnataka Industrial Areas Development Board (supra), it must be understood to mean that the declaration under Section 3D regarding acquisition of notified land, be made only after environmental/forest clearance qua the specific land is granted. To put it differently, the necessity of prior environmental/forest clearance would arise only if finally, the land in question (site specific) is to be notified under Section 3D, as being acquired for the purposes of building, maintenance, management or operation of the national highway or part thereof. Such interpretation would further the cause and objective of environment and forest laws, as also not impede the timeline specified for building, maintenance, management or operation of the national highway or part thereof, which undeniably is a public purpose and of national importance. This would also assuage the concerns of the land owners that even if eventually no environment permission or forest clearance is accorded, the land cannot be reverted to the original owner as it had de jure vested in the Central Government upon issue of notification under Section 3D of the 1956 Act and no power is bestowed on the Central Government under this Act to withdraw from acquisition.71. We are conscious of the fact, as has been rightly argued by the appellants-authorities, that it is essential to issue a declaration under Section 3D of the 1956 Act within a period of one year from the date of publication of the notification under Section 3A in respect of the notified land, failing which notification under Section 3A ceases to have any effect. It is possible that whilst pursuing the proposal for environmental/forest clearance after notification under Section 3A, some time may be lost, even though the process under the 1956 Act for acquisition of the land had become ripe for issue of declaration of acquisition under Section 3D. It is also true that time spent for obtaining environmental clearance or permission under the forest laws has not been explicitly excluded from the period of one year to be reckoned under Section 3D(3) of the Act. The extension of time or so to say suspension of time is only in respect of period during which the action of the proceedings to be taken in pursuance of notification under Section 3A(1) is stayed by an order of Court. In other words, there is no express provision in the 1956 Act, which excludes the time spent by the Central Government or the executing agency in obtaining prior environmental clearance or permission under forest laws, as the case may be. To get over this predicament, by an interpretative process and also by invoking plenary powers of this Court under Article 142 of the Constitution, we hold that the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board (supra), shall operate as a stay by an order of the Court for the purposes of Section 3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of Section 3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws. Only this approach would further the cause of environment and forest laws, as also, the need to adhere to the timeline specified under Section 3D(3) for speedy execution of the work of construction of national highway, which is also for a public purpose and of national importance. In other words, balancing of competing public interests/public purposes need to be kept in mind as being the only way forward for accomplishing the goal of sustainable development.72. The argument of the writ petitioners that the expression shall occurring in Section 3D(1) be interpreted as may, though attractive on the first blush, deserves to be rejected. If that interpretation is accepted, it would render the efficacy of Section 3D(3) of lapsing of the acquisition process otiose. It is a mandatory provision. Instead, we have acceded to the alternative argument to give expansive meaning to the proviso in Section 3D(3) of the 1956 Act by interpretative process, including by invoking plenary powers of this Court under Article 142 of the Constitution to hold that the dictum of this Court in Karnataka Industrial Areas Development Board (supra) be regarded as stay granted by the Court to all notifications issued under Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof.73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific.74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case.75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. | 1 | 35,003 | 10,036 | ### 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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Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof. 73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific. OTHER CONTENTIONS 74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case. 75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. CONCLUSION
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Court to all notifications issued under Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof.73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific.74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committees meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant cannot be the basis to quash and set aside a well- considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case.75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature.
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Vasantlal Maganbhai Sanjanwala Vs. State of Bombay & Others | has not laid down any policy or any standard to enable the Provincial Government to reduce the maximum rent fixed under S. 6(1). What is the limit of the lower rate the Government is empowered to fix? What is the extent of the area with reference to which that rate can be fixed? What are the conditions prevailing in a particular area which require the reduction of the maximum rent? Even if there are conditions justifiable for reduction of the maximum rent, what is the basis for that reduction? The disjunctive "or between "particular area and "may fix and the word "other qualifying "suitable basis indicate that the situation of the land in a particular area may also be a basis for fixing a lower rent. The situation of a land in a particular area cannot in itself afford a basis for fixing a specified rate of maximum rent. The words "suitable basis in the alternative clause are so vague that in effect and substance they confer absolute and arbitrary discretion on the Provincial Government. What is the standard of suitability? The standard of suitability is only what the Government thinks suitable. In this section the legislature in clearest terms abdicated its essential functions in favouur of the executive authority without laying down any standard for its guidance. In effect it permitted the Government to amend S. 6(1) of the Act. To illustratey the legislature fixes the maximum rent payable by a tenant to his landlord at X; the Mamlatdar after enquiry fixes Y as reasonable rent which is less than X; the Government in exercise of the power conferred under S. 6(2) can arbitrarily fix Z which is far less than the reasonable rent; with the result that the entire scheme promulgated by the legislature breaks. The Government also may select any small area containing a few landlords and reduce the maximum rent to the lowest level with the result the Act can be worked out as an expropriatory measure which is contrary to the intention of the legislature. Learned counsel for the respondents realising that arbitrariness is writ large on the fact of S. 6(2) attempted to evolve the legislative formula from the preamble to S. 6(1) and S. 12(3) of the Act. I cannot find any indication of the legislative policy in the manner of fixation of the lower rate of maximum rent in the preamble. Nor can I discover any such in S. 6(1).Section 6(1) contains a clear legislative policy in fixing the maximum rent on certain identifiable basis. The legislature says in effect in S. 6(2), "I have fixed the maximum rent in respect of irrigated lands and other lands on the basis of a definite share of the crops of such lands, but you can reduce that maximum rent on any basis you like. While S. 6(1) overrides other provisions of the Act, S. 6(2) derogates from S. 6(1) itself. Section 6(2) is capable of being exercised in such a way that the object of S. 6(1) is itself frustrated. Section 6(1) in effect is made subject to S. (6)(2).28. Now coming to S. 12 (3), it is contended that the factors mentioned in S. 12(3) afford a standard for the Government for fixing the maximum rent. To put it differently the suitable basis is one or other of the factors in S. 12 (3). The Act does not say so, either expressly or by necessary implication. The criteria for fixing rent in S. 13 are to afford a guide to Mamlatdar for fixing reasonable rent. Indeed the sub-clause is subject to S. 6 indicating thereby that the maximum rent fixed by the Government is not the same as the reasonable rent. Indeed if the reasonable rent determined on the basis of all or some of the factors in S. 12(3) is more than the maximum rent fixed by the Government on a suitable basis, the latter prevails over the former. As the maximum rent supersedes reasonable rent, the factors governing reasonable rent need not necessarily govern the fixation of maximum rent. To attempt to read the factors in S. 12(3) into S. 6(2) Is, in my view, not permissible. On a fair reading of the provisions of the Act, I find it not possible to discover any standard laid down by the legislature to enable the Provincial Government to fix a lower rate of the maximum rent. The section conferring such arbitrary power on the Provincial Government without laying down any legislative standard is in excess of the permissible limits of delegation.29. The learned Additional Solicitor General broadly contended that the policy of the legislature is to prevent rack renting and to fix a reasonable rent and, therefore, any exercise of the power under S. 6(2) is guided by that policy. This is an extreme contention and, if accepted, will enable Parliament and legislatures to confer absolute and unguided powers on the executive. If a legislature can legally be permitted to lay down a broad policy in general terms and confer arbitrary powers on the executive for carrying it out, there will be an end of the doctrine of the rule of law. If the contention be correct, the legislature in the present case could have stated in the preamble that they were making the law for fixing the maximum rent and could have conferred an absolute power on the Government to fix suitable rents having regard to the circumstances of each case. Such a law cannot obviously be valid. When the decisions say that the legislature shall lay down the legislative policy and its formulation as a rule of conduct, they do not mean vague and general declaration of policy, but a definite policy controlling and regulating the powers conferred on the executive for carrying into effect that policy.30. I must, therefore, hold that S. 6(2) of the Act is void inasmuch as it exceeded the permissible limits of legislative delegation.31. In the result the appeals are allowed with costs.32. Order: I | 0[ds]4. It is now well established by the decision of this Court that the power of delegation is a constituent element of the legislative power as a whole, and that in modern times when the Legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts. The extent to which such delegation is permissible is also now well settled. The Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in thatdealing with the challenge to the vires of any statute on the ground of excessive delegation it is, therefore, necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power and whether the Legislature has enunciated its policy and principle and given guidance to the delegate or not. As the decision in Baglas case, 1955-1 SCR 380 : (AIR 1954 SC 465 ), shows, in applying this test this Court has taken into account the statements in the preamble to the Act, and if the said statements afford a satisfactory basis for holding that the legislative policy and principle has been enunciated with sufficient accuracy and clarity the preamble itself has been held to satisfy the requirements of the relevant tests. In every case it would be necessary to consider the relevant provisions of the Act in relation to the delegation made and the question as to whether the delegation is intra vires or not will have to be decided by the application of the relevant tests.Broadly stated S. 6(2) seeks to provide for the fixation of a lower rate of maximum rent areawise. We have already seen that individual tenants are given the right to apply for the fixation of reasonable rent by S. 12, and specific factors have been specified which the Mamlatdar must consider in fixing a reasonable rent. The Legislature realised that a large number of tenants in the State were poor, ignorant and in many cases helpless, and it was thought that many of them may not be able to make individual applications for the fixation of a reasonable rent under S.That is why it was thought necessary to confer upon the Provincial Government the power to fix a lower rate of the maximum rent payable by tenants in respect of particular areas. In a sense what could be done by the Mamlatdar in individual cases can be achieved by the Provincial Government in respect of a large number of cases covered in a particular area. If that be so, the legislative policy having been clearly expressed in the relevant provisions and the factors for determining reasonable rent also having been specified in S. 12(3), it is difficult to accept the argument that the Provincial Government has been given uncanalised or unfettered powers by S. 6(2) to do what it likes without any guidance. The relevant factors having been specified by S. 12 (3) when the Provincial Government considers the question of fixing a lower rate of the maximum rent payable in any particular area it is expected to adopt a basis which is suitable to that particular area. The relevant conditions of agriculture would not be uniform in different areas and the problem of fixing a reduced maximum rent payable in the respective areas would have to be tackled in the light of the special features and conditions of that area; that is why a certain amount of latitude had to be left to the Government in fixing the lower rate of the maximum rent in the respective areas, and that is intended to be achieved by giving it liberty to adopt a basis which it thinks is suitable for the area in question. The word "suitable in the context must mean suitable to the area having regard to the other provisions of the Act such as S. 6(1) and S.It is true that the power to fix a reasonable rent conferred on the Mamlatdar under S. 12 is subject to the power of the Provincial Government under S. 6(2). Even so we think it would be difficult to hold that the factors prescribe for the guidance of the Mamlatdar would have no relevance at all when the Provincial Government acts under S.our opinion, therefore, having regard to the legislative policy laid down by the Act in its preamble and in the other relevant sections to which we have referred, and having regard to the guidance which has been provided for fixing a reasonable rent under S. 12(3), it would not be possible to hold that the power delegated to the Provincial Government by S. 6(2) suffers from the infirmity of excessive delegation. The fact that no minimum has been prescribed would not materially affect thisis no substance in this argument. If S. 6(2) is valid then the exercise of the power validly conferred on the Provincial Government cannot be treated as fresh legislation which offends against Art.If the Act is saved by Art. 31B, S. 6(2) is also saved, and the power must be held to be validly conferred on the Provincial Government, and a notification issued by virtue of the said powers cannot be challenged on the ground that it violates Art.argument proceeds on the assumption that the power conferred on the Government by S. 6(2) can be exercised only once, and it seeks to derive support from the fact that the words "from time to time which were used in the corresponding section of the earlier tenancy legislation in the State have not been used in S. 6(2). Reliance is also placed on the fact that the said words have been used in S. 8(1) of the Act. The omission of the said words from S. 6(2) as contrasted with their inclusion in S. 8(1), says Mr. Limaye, indicates that the power delegated under S. 6(2) was intended to be used only once. This argument is fallacious. Why the Legislature did not use the words "from time to time in S. 6(2) when it used them in S. 8(1) it is difficult to understand; but in construing S. 6(2) it is obviously necessary to apply the provisions of S. 14 of the Bombay General Clauses Act, 1904 (I of 1904).Section 14 provides that where by any Bombay Act made after the commencement of this Act any power is conferred on any Government then that power may be exercised from time to time as occasion requires. Quite clearly if S. 6(2) is read in the light of S. 14 of the Bombay General Clauses Act it must follow that the power to issue a notification can be exercised from time to time as occasion requires. It is true that S. 14 of the Central General Clauses Act, 1897 (X of 1897) provides that where any power is conferred by any Central Act or Regulation then, unless a different intention appears, that power may be exercised from time to time as occasion requires. Since there is a specific provision of the Bombay General Clauses Act relevant on the point it is unnecessary to take recourse to S. 14 of the Central General Clauses Act; but even if we were to assume that the power in question can be exercised from time to time unless a different intention appears we would feel no difficulty in holding that no such different intention can be attributed to the Legislature when it enacted S. 6(2). It is obvious that having prescribed for a maximum by S. 6(1) the Legislature has deliberately provided for a modification of the said maximum rent and that itself shows that the fixation of any maximum rent was not treated as immutable. If it was necessary to issue one notification under S. 6(2) it would follow by force of the same logic that circumstances may require the issue of a further notification. The fixation of agricultural rent depends upon so many uncertain factors which may vary from time to time and from place to place that it would be idle to contend that the Legislature wanted to fix the maximum only once, or, as Mr. Limaye concedes, twice. Therefore the argument that the power to issue a notification has been exhausted cannot be sustained. | 0 | 7,573 | 1,561 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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has not laid down any policy or any standard to enable the Provincial Government to reduce the maximum rent fixed under S. 6(1). What is the limit of the lower rate the Government is empowered to fix? What is the extent of the area with reference to which that rate can be fixed? What are the conditions prevailing in a particular area which require the reduction of the maximum rent? Even if there are conditions justifiable for reduction of the maximum rent, what is the basis for that reduction? The disjunctive "or between "particular area and "may fix and the word "other qualifying "suitable basis indicate that the situation of the land in a particular area may also be a basis for fixing a lower rent. The situation of a land in a particular area cannot in itself afford a basis for fixing a specified rate of maximum rent. The words "suitable basis in the alternative clause are so vague that in effect and substance they confer absolute and arbitrary discretion on the Provincial Government. What is the standard of suitability? The standard of suitability is only what the Government thinks suitable. In this section the legislature in clearest terms abdicated its essential functions in favouur of the executive authority without laying down any standard for its guidance. In effect it permitted the Government to amend S. 6(1) of the Act. To illustratey the legislature fixes the maximum rent payable by a tenant to his landlord at X; the Mamlatdar after enquiry fixes Y as reasonable rent which is less than X; the Government in exercise of the power conferred under S. 6(2) can arbitrarily fix Z which is far less than the reasonable rent; with the result that the entire scheme promulgated by the legislature breaks. The Government also may select any small area containing a few landlords and reduce the maximum rent to the lowest level with the result the Act can be worked out as an expropriatory measure which is contrary to the intention of the legislature. Learned counsel for the respondents realising that arbitrariness is writ large on the fact of S. 6(2) attempted to evolve the legislative formula from the preamble to S. 6(1) and S. 12(3) of the Act. I cannot find any indication of the legislative policy in the manner of fixation of the lower rate of maximum rent in the preamble. Nor can I discover any such in S. 6(1).Section 6(1) contains a clear legislative policy in fixing the maximum rent on certain identifiable basis. The legislature says in effect in S. 6(2), "I have fixed the maximum rent in respect of irrigated lands and other lands on the basis of a definite share of the crops of such lands, but you can reduce that maximum rent on any basis you like. While S. 6(1) overrides other provisions of the Act, S. 6(2) derogates from S. 6(1) itself. Section 6(2) is capable of being exercised in such a way that the object of S. 6(1) is itself frustrated. Section 6(1) in effect is made subject to S. (6)(2).28. Now coming to S. 12 (3), it is contended that the factors mentioned in S. 12(3) afford a standard for the Government for fixing the maximum rent. To put it differently the suitable basis is one or other of the factors in S. 12 (3). The Act does not say so, either expressly or by necessary implication. The criteria for fixing rent in S. 13 are to afford a guide to Mamlatdar for fixing reasonable rent. Indeed the sub-clause is subject to S. 6 indicating thereby that the maximum rent fixed by the Government is not the same as the reasonable rent. Indeed if the reasonable rent determined on the basis of all or some of the factors in S. 12(3) is more than the maximum rent fixed by the Government on a suitable basis, the latter prevails over the former. As the maximum rent supersedes reasonable rent, the factors governing reasonable rent need not necessarily govern the fixation of maximum rent. To attempt to read the factors in S. 12(3) into S. 6(2) Is, in my view, not permissible. On a fair reading of the provisions of the Act, I find it not possible to discover any standard laid down by the legislature to enable the Provincial Government to fix a lower rate of the maximum rent. The section conferring such arbitrary power on the Provincial Government without laying down any legislative standard is in excess of the permissible limits of delegation.29. The learned Additional Solicitor General broadly contended that the policy of the legislature is to prevent rack renting and to fix a reasonable rent and, therefore, any exercise of the power under S. 6(2) is guided by that policy. This is an extreme contention and, if accepted, will enable Parliament and legislatures to confer absolute and unguided powers on the executive. If a legislature can legally be permitted to lay down a broad policy in general terms and confer arbitrary powers on the executive for carrying it out, there will be an end of the doctrine of the rule of law. If the contention be correct, the legislature in the present case could have stated in the preamble that they were making the law for fixing the maximum rent and could have conferred an absolute power on the Government to fix suitable rents having regard to the circumstances of each case. Such a law cannot obviously be valid. When the decisions say that the legislature shall lay down the legislative policy and its formulation as a rule of conduct, they do not mean vague and general declaration of policy, but a definite policy controlling and regulating the powers conferred on the executive for carrying into effect that policy.30. I must, therefore, hold that S. 6(2) of the Act is void inasmuch as it exceeded the permissible limits of legislative delegation.31. In the result the appeals are allowed with costs.32. Order: I
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to fix a lower rate of the maximum rent payable by tenants in respect of particular areas. In a sense what could be done by the Mamlatdar in individual cases can be achieved by the Provincial Government in respect of a large number of cases covered in a particular area. If that be so, the legislative policy having been clearly expressed in the relevant provisions and the factors for determining reasonable rent also having been specified in S. 12(3), it is difficult to accept the argument that the Provincial Government has been given uncanalised or unfettered powers by S. 6(2) to do what it likes without any guidance. The relevant factors having been specified by S. 12 (3) when the Provincial Government considers the question of fixing a lower rate of the maximum rent payable in any particular area it is expected to adopt a basis which is suitable to that particular area. The relevant conditions of agriculture would not be uniform in different areas and the problem of fixing a reduced maximum rent payable in the respective areas would have to be tackled in the light of the special features and conditions of that area; that is why a certain amount of latitude had to be left to the Government in fixing the lower rate of the maximum rent in the respective areas, and that is intended to be achieved by giving it liberty to adopt a basis which it thinks is suitable for the area in question. The word "suitable in the context must mean suitable to the area having regard to the other provisions of the Act such as S. 6(1) and S.It is true that the power to fix a reasonable rent conferred on the Mamlatdar under S. 12 is subject to the power of the Provincial Government under S. 6(2). Even so we think it would be difficult to hold that the factors prescribe for the guidance of the Mamlatdar would have no relevance at all when the Provincial Government acts under S.our opinion, therefore, having regard to the legislative policy laid down by the Act in its preamble and in the other relevant sections to which we have referred, and having regard to the guidance which has been provided for fixing a reasonable rent under S. 12(3), it would not be possible to hold that the power delegated to the Provincial Government by S. 6(2) suffers from the infirmity of excessive delegation. The fact that no minimum has been prescribed would not materially affect thisis no substance in this argument. If S. 6(2) is valid then the exercise of the power validly conferred on the Provincial Government cannot be treated as fresh legislation which offends against Art.If the Act is saved by Art. 31B, S. 6(2) is also saved, and the power must be held to be validly conferred on the Provincial Government, and a notification issued by virtue of the said powers cannot be challenged on the ground that it violates Art.argument proceeds on the assumption that the power conferred on the Government by S. 6(2) can be exercised only once, and it seeks to derive support from the fact that the words "from time to time which were used in the corresponding section of the earlier tenancy legislation in the State have not been used in S. 6(2). Reliance is also placed on the fact that the said words have been used in S. 8(1) of the Act. The omission of the said words from S. 6(2) as contrasted with their inclusion in S. 8(1), says Mr. Limaye, indicates that the power delegated under S. 6(2) was intended to be used only once. This argument is fallacious. Why the Legislature did not use the words "from time to time in S. 6(2) when it used them in S. 8(1) it is difficult to understand; but in construing S. 6(2) it is obviously necessary to apply the provisions of S. 14 of the Bombay General Clauses Act, 1904 (I of 1904).Section 14 provides that where by any Bombay Act made after the commencement of this Act any power is conferred on any Government then that power may be exercised from time to time as occasion requires. Quite clearly if S. 6(2) is read in the light of S. 14 of the Bombay General Clauses Act it must follow that the power to issue a notification can be exercised from time to time as occasion requires. It is true that S. 14 of the Central General Clauses Act, 1897 (X of 1897) provides that where any power is conferred by any Central Act or Regulation then, unless a different intention appears, that power may be exercised from time to time as occasion requires. Since there is a specific provision of the Bombay General Clauses Act relevant on the point it is unnecessary to take recourse to S. 14 of the Central General Clauses Act; but even if we were to assume that the power in question can be exercised from time to time unless a different intention appears we would feel no difficulty in holding that no such different intention can be attributed to the Legislature when it enacted S. 6(2). It is obvious that having prescribed for a maximum by S. 6(1) the Legislature has deliberately provided for a modification of the said maximum rent and that itself shows that the fixation of any maximum rent was not treated as immutable. If it was necessary to issue one notification under S. 6(2) it would follow by force of the same logic that circumstances may require the issue of a further notification. The fixation of agricultural rent depends upon so many uncertain factors which may vary from time to time and from place to place that it would be idle to contend that the Legislature wanted to fix the maximum only once, or, as Mr. Limaye concedes, twice. Therefore the argument that the power to issue a notification has been exhausted cannot be sustained.
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The Printers (Mysore) Private Ltd Vs. Pothan Joseph | monies were payable to the respondent under clause 1 (d). It would thus be seen that Mr. Venkataswamys immediate response to the respondents request for arbitration was that the respondent could not invoke the arbitration clause (D. 3). It is true that on April 23, 1956, Mr. Venkataswamy attempted to explain this statement by saying that all that he intended to suggest was that no occasion for invoking the arbitration agreement had arisen. That, however, appears to be an unsatisfactory explanation (D. 10). Even so, Mr. Venkataswamy agreed to meet Mr. Behram Doctor and so on March 9, 1956, the respondent gave to Mr. Venkataswamy the address of Mr. Behram Doctor and asked him to see him (D. 5). He informed Mr. Behram Doctor accordingly (D. 6). It appears that sub-sequently Mr. Behram Doctor met both the respondent and Mr. Venkataswamy on May 9, 1956. The proceedings of this meeting which have been kept by Mr. Behram Doctor and copies of which have been supplied by him to both the parties indicate that Mr. Behram Doctor attempted to mediate between the parties and presumably the parties were agreeable to secure the mediation of Mr. Behram Doctor to resolve the dispute. We ought to add that the copy of the said proceedings produced by the appellant contains a statement that Mr. Venkataswamy at the outset told Mr. Behram Doctor that he had come on an unofficial visit and was speaking without the consent of the other Directors. This statements is, however, not to be found in the copy supplied by Mr. Behram Doctor to the respondent. Prima facie it is not easy to understand why Mr. Behram Doctor should have omitted this material statement in the copy supplied by him to the respondent. That, however, is a matter which we do not propose to pursue in the present appeal. It is thus clear that though Mr. Behram Doctor was not appointed an arbitrator and no reference in writing was made to him an attempt was made by the parties to settle the dispute with the assistance of Mr. Behram Doctor, and that attempt failed. Having regard to the facts which have come on the record it may not be unreasonable to infer that the appellant was not too keen to pursue the matter on the lines originally accepted by both the parties before Mr. Behram Doctor.15. It also appears that for some years the accounts of the Deccan Herald had not been separately kept as they should have been according to the respondents case. The respondent alleges that they have not been kept separately throughout the ten years; but that is a matter which is yet to be investigated. If the accounts are not separately kept the question of allocating expenditure would inevitably arise and that can be decided after adopting some ad hoc principle in that behalf. A plea of limitation has also been indicated by the appellant and it has been suggested that the first contract having merged in the second it is only under the latter contract that the respondent may have a cause of action. Thus the effect of the two contracts considered together may have to be adjudged in dealing with the question of limitation. It has also been suggested that the respondent knew how the accounts were kept from year to year and in substance he may be deemed to have agreed with the method adopted in keeping the accounts. If this point is raised by the appellant it may involved the decision of the question about the effect of the respondents conduct on his present claim. The appellant has also suggested that the respondent has adopted an attitude of blackmailing the appellant and the respondent treats that as an aspersion on his character. The relations between the parties have been very much embittered and the respondent apprehends that the appellant, being a powerful company, may delay and seek to defeat the respondents claim by protracting the proceedings before the arbitrators. It now looks impossible that the parties would agree to appoint one arbitrator, and so if the matter goes before the domestic tribunal the two arbitrators appointed by the two parties respectively may have to nominate a third one to complete the constitution of the domestic tribunal, and that it is said may easily lead to a deadlock. In the trial court attempts were made to settle this unfortunate dispute but they failed and the respondents grievance is that the appellant adopted an unhelpful and non-co-operative attitude. It appears fairly clear that when the parties entered into the present contract and agreed that differences between them in regard to the interpretation and application of the contract should be referred to arbitration they did not anticipate the complications which have subsequently arisen. That is why an arbitration agreement may have been introduced in the contract in question. All these facts have been considered by both the courts, and thought it is true that in their approach and final decisions in respect of these facts the two courts have differed in material particulars, they have in the result agreed with the conclusion that the discretion vested in them should be exercised in not granting stay as claimed by the appellant. Under these circumstances we do not think we would be justified in substituting our discretion for that of the courts below.It may be that if we were trying the appellants application under S. 34 we might have come to a different conclusion; and also that we may have hesitated to confirm the order of the trial court if we had been dealing with the matter as a court of first, appeal; but, the matter has now come to us under art. 136, and so we can justly interfere with the concurrent exercise of the discretion, by the courts below only if we fell that the said exercise of discretion is patently and manifestly unreasonable, capricious or perverse and that it may defeat the ends of justice. | 0[ds]6. When the matter went in appeal the High Court held that the dispute between the parties did not fall within the arbitration agreement. The High Court also considered the other points decided by the trial Court; it held that Mr. Behram Doctor had not been appointed as an arbitrator between the parties and that the proceedings before him merely showed that the parties were exploring the possibility of having an arbitration. It observed that the appellant company was a big concern and referred to the respondents apprehension that it was in a position to dodge the respondents claim. However, the High Court was not impressed by the apprehensions, and it was not inclined to find fault with the conduct of the appellant in the trial Court. It was also not satisfied that the question of limitation which would arise in the suit as well as the question of interpreting the contracts could not be properly tried by arbitration. It recognised that there had been a complete change of front on the part of the appellant in regard to the pleas raised by the appellant under the arbitration agreement when the matter was discussed before Mr. Behram Doctor, and when it reached the court in the form of the present suit. The High Court then considered other facts which it thought were relevant. It stated that there was great deal of bad blood between the parties and there was no meeting ground between them. The appellants plea that recourse of arbitration may help an early disposal of the dispute did not appeal to the High Court as sound, and so, on the whole, the High Court thought that the order passed by the trial Court refusing to stay the proceedings in suit should be confirmed. The appellant contends that the reasons given by the High Court in refusing to stay the suit are not convincing and that the discretion vesting in the High Court in that behalf has not been properly or judiciously exercised.The first point which calls for a decision relates to the construction of the contracts between the parties. As we have already stated two contracts were executed between them but their terms are substantially the same and so we may deal with the subsequent contract which was executed on February 20, 1953 (P. 2). Under this contract the respondent was engaged as the Editor of the Deccan Herald and his salary was fixed at Rs. 1,500/- per mensem under paragraph 1 (a). Paragraph 1 (b) and (c) deal with the other amenities to which the respondent was entitled. Clause (d) of paragraph 1 provides that when the newspaper shows a profit in the annual accounts the Editor shall be entitled to 1/10th share of it; it is on this clause that the respondents claim in the present proceedings is based. The terms on which the respondent had to remain in service of the appellant are specified in paragraph 2(a) and (b). Paragraph 3 provides for the renewal of the contract for a further period of five years if it is found that such renewal is for the mutual advantage of the parties. This paragraph also provides that during the continuance of his employment the respondent shall not directly or indirectly be interested in any other newspaper business than that of the appellant or any other journalistic activities in competition with that of the appellant. It also stipulates that if the contract is determined the respondent shall not for a period of three years thereafter be directly or indirectly in any newspaper business of the same kind as is carried on by the appellant within the Mysore State. It would thus be seen that this paragraph shows the liability imposed on the respondent as a consideration for the benefit conferred on him by paragraph 1 in general and cl. (d) of the said paragraph in particular. Paragraph 4 contains an arbitration agreement. It provides that if in the interpretation or application of the contract any difference of opinion arises between the parties the same shall be referred to arbitration. The arbitrator can be named by both the parties but if they failed to choose the same person each side will choose an arbitrator and the two will elect another person to complete the panel. Their award shall be final and binding on both the parties.12. The High Court has held that the present suit is outside the arbitration agreement because neither party disputes the applicability of the terms of the contract in the decision of the dispute. The High Court thought that in the context the words application of the contract meant a dispute as to the applicability of the contract, and since the applicability of the contract was not in question and no dispute as to the interpretation of the contract arose, the High Court held that paragraph 4 was inapplicable to the present suit. Mr. Purshottam, for the appellant, contends that the construction placed by the High Court on the word "application" is erroneous. According to him, any difference of opinion in regard to the application of the contract must in the context mean the working out of the contract or giving effect to its terms. In our opinion, this contention is well founded. The words interpretation or application of the contract are frequently used in arbitration agreements and they generally cover disputes between the parties in regard to the construction of the relevant terms of the contract as well as their effect, and unless the context compels a contrary construction, a dispute in regard to the working of the contract would generally fall within the clause in question. It is not easy to appreciate what kind of dispute according to the High Court would have attracted paragraph 4 when it refers to a difference of opinion in the application of the contract. Since both the parties have signed the contract the question about its applicability in that form can hardly arise. Differences may, however, arise and in fact have arisen as to the manner in which the contract has to worked out and given effect to, and it is precisely such differences that are covered by the arbitration agreement. We would accordingly hold that the High Court was in error in coming to the conclusion that the present dispute between the parties was outside the scope of paragraph 4 of theis clear that the present dispute is not the result of an ordinary commercial transaction containing an arbitration clause. The contract in question is between a journalist and his employer by which the remuneration of the journalist has been fixed in a somewhat unusual manner by giving him a specified percentage in the profit which the Deccan Herald would make from year to year. According to the respondent he was surprised when the General Manager of the paper informed him that 75 per cent of the overall expenditure incurred in the several activities of the appellant was being charged to the Deccan Herald, and that the capital liabilities were charged in the same proportion; he thought that this system of accounting adopted by the appellant was repugnant to the material provisions in his contract. Indeed his case is that after he came to know about this system he protested to the Director Mr. Venkataswamy who has been taking active part in the affairs of the appellant, and Mr. Venkataswamy assured him that as from the beginning of 1955 the accounts were being separately maintained. It would appear that the information received by the respondent from the General Manager disillusioned him and that appears to be the beginning of the present dispute, according to the respondents letter of May 24, 1955, (D. 1). On February 18, 1956, the respondent invoked the arbitration agreement and told Mr. Venkataswamy that Mr. Behram Doctor had agreed to work as arbitrator and give his award (D. 2). Mr. Venkataswamy who was addressed by the respondent as the Managing Director told him by his reply of March 5, 1956, that he was not the Managing Director and added that in his view it was not open to the respondent to invoke clause 4 of the contract because he was aware that no monies were payable to the respondent under clause 1 (d).The proceedings of this meeting which have been kept by Mr. Behram Doctor and copies of which have been supplied by him to both the parties indicate that Mr. Behram Doctor attempted to mediate between the parties and presumably the parties were agreeable to secure the mediation of Mr. Behram Doctor to resolve the dispute. We ought to add that the copy of the said proceedings produced by the appellant contains a statement that Mr. Venkataswamy at the outset told Mr. Behram Doctor that he had come on an unofficial visit and was speaking without the consent of the other Directors. This statements is, however, not to be found in the copy supplied by Mr. Behram Doctor to the respondent. Prima facie it is not easy to understand why Mr. Behram Doctor should have omitted this material statement in the copy supplied by him to the respondent. That, however, is a matter which we do not propose to pursue in the present appeal. It is thus clear that though Mr. Behram Doctor was not appointed an arbitrator and no reference in writing was made to him an attempt was made by the parties to settle the dispute with the assistance of Mr. Behram Doctor, and that attempt failed. Having regard to the facts which have come on the record it may not be unreasonable to infer that the appellant was not too keen to pursue the matter on the lines originally accepted by both the parties before Mr. Behram Doctor.15. It also appears that for some years the accounts of the Deccan Herald had not been separately kept as they should have been according to the respondents case. The respondent alleges that they have not been kept separately throughout the ten years; but that is a matter which is yet to be investigated. If the accounts are not separately kept the question of allocating expenditure would inevitably arise and that can be decided after adopting some ad hoc principle in that behalf. A plea of limitation has also been indicated by the appellant and it has been suggested that the first contract having merged in the second it is only under the latter contract that the respondent may have a cause of action. Thus the effect of the two contracts considered together may have to be adjudged in dealing with the question of limitation. It has also been suggested that the respondent knew how the accounts were kept from year to year and in substance he may be deemed to have agreed with the method adopted in keeping the accounts. If this point is raised by the appellant it may involved the decision of the question about the effect of the respondents conduct on his present claim. The appellant has also suggested that the respondent has adopted an attitude of blackmailing the appellant and the respondent treats that as an aspersion on his character. The relations between the parties have been very much embittered and the respondent apprehends that the appellant, being a powerful company, may delay and seek to defeat the respondents claim by protracting the proceedings before the arbitrators. It now looks impossible that the parties would agree to appoint one arbitrator, and so if the matter goes before the domestic tribunal the two arbitrators appointed by the two parties respectively may have to nominate a third one to complete the constitution of the domestic tribunal, and that it is said may easily lead to a deadlock. In the trial court attempts were made to settle this unfortunate dispute but they failed and the respondents grievance is that the appellant adopted an unhelpful and non-co-operative attitude. It appears fairly clear that when the parties entered into the present contract and agreed that differences between them in regard to the interpretation and application of the contract should be referred to arbitration they did not anticipate the complications which have subsequently arisen. That is why an arbitration agreement may have been introduced in the contract in question. All these facts have been considered by both the courts, and thought it is true that in their approach and final decisions in respect of these facts the two courts have differed in material particulars, they have in the result agreed with the conclusion that the discretion vested in them should be exercised in not granting stay as claimed by the appellant. Under these circumstances we do not think we would be justified in substituting our discretion for that of the courts below.It may be that if we were trying the appellants application under S. 34 we might have come to a different conclusion; and also that we may have hesitated to confirm the order of the trial court if we had been dealing with the matter as a court of first, appeal; but, the matter has now come to us under art. 136, and so we can justly interfere with the concurrent exercise of the discretion, by the courts below only if we fell that the said exercise of discretion is patently and manifestly unreasonable, capricious or perverse and that it may defeat the ends of justice | 0 | 5,128 | 2,377 | ### Instruction:
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monies were payable to the respondent under clause 1 (d). It would thus be seen that Mr. Venkataswamys immediate response to the respondents request for arbitration was that the respondent could not invoke the arbitration clause (D. 3). It is true that on April 23, 1956, Mr. Venkataswamy attempted to explain this statement by saying that all that he intended to suggest was that no occasion for invoking the arbitration agreement had arisen. That, however, appears to be an unsatisfactory explanation (D. 10). Even so, Mr. Venkataswamy agreed to meet Mr. Behram Doctor and so on March 9, 1956, the respondent gave to Mr. Venkataswamy the address of Mr. Behram Doctor and asked him to see him (D. 5). He informed Mr. Behram Doctor accordingly (D. 6). It appears that sub-sequently Mr. Behram Doctor met both the respondent and Mr. Venkataswamy on May 9, 1956. The proceedings of this meeting which have been kept by Mr. Behram Doctor and copies of which have been supplied by him to both the parties indicate that Mr. Behram Doctor attempted to mediate between the parties and presumably the parties were agreeable to secure the mediation of Mr. Behram Doctor to resolve the dispute. We ought to add that the copy of the said proceedings produced by the appellant contains a statement that Mr. Venkataswamy at the outset told Mr. Behram Doctor that he had come on an unofficial visit and was speaking without the consent of the other Directors. This statements is, however, not to be found in the copy supplied by Mr. Behram Doctor to the respondent. Prima facie it is not easy to understand why Mr. Behram Doctor should have omitted this material statement in the copy supplied by him to the respondent. That, however, is a matter which we do not propose to pursue in the present appeal. It is thus clear that though Mr. Behram Doctor was not appointed an arbitrator and no reference in writing was made to him an attempt was made by the parties to settle the dispute with the assistance of Mr. Behram Doctor, and that attempt failed. Having regard to the facts which have come on the record it may not be unreasonable to infer that the appellant was not too keen to pursue the matter on the lines originally accepted by both the parties before Mr. Behram Doctor.15. It also appears that for some years the accounts of the Deccan Herald had not been separately kept as they should have been according to the respondents case. The respondent alleges that they have not been kept separately throughout the ten years; but that is a matter which is yet to be investigated. If the accounts are not separately kept the question of allocating expenditure would inevitably arise and that can be decided after adopting some ad hoc principle in that behalf. A plea of limitation has also been indicated by the appellant and it has been suggested that the first contract having merged in the second it is only under the latter contract that the respondent may have a cause of action. Thus the effect of the two contracts considered together may have to be adjudged in dealing with the question of limitation. It has also been suggested that the respondent knew how the accounts were kept from year to year and in substance he may be deemed to have agreed with the method adopted in keeping the accounts. If this point is raised by the appellant it may involved the decision of the question about the effect of the respondents conduct on his present claim. The appellant has also suggested that the respondent has adopted an attitude of blackmailing the appellant and the respondent treats that as an aspersion on his character. The relations between the parties have been very much embittered and the respondent apprehends that the appellant, being a powerful company, may delay and seek to defeat the respondents claim by protracting the proceedings before the arbitrators. It now looks impossible that the parties would agree to appoint one arbitrator, and so if the matter goes before the domestic tribunal the two arbitrators appointed by the two parties respectively may have to nominate a third one to complete the constitution of the domestic tribunal, and that it is said may easily lead to a deadlock. In the trial court attempts were made to settle this unfortunate dispute but they failed and the respondents grievance is that the appellant adopted an unhelpful and non-co-operative attitude. It appears fairly clear that when the parties entered into the present contract and agreed that differences between them in regard to the interpretation and application of the contract should be referred to arbitration they did not anticipate the complications which have subsequently arisen. That is why an arbitration agreement may have been introduced in the contract in question. All these facts have been considered by both the courts, and thought it is true that in their approach and final decisions in respect of these facts the two courts have differed in material particulars, they have in the result agreed with the conclusion that the discretion vested in them should be exercised in not granting stay as claimed by the appellant. Under these circumstances we do not think we would be justified in substituting our discretion for that of the courts below.It may be that if we were trying the appellants application under S. 34 we might have come to a different conclusion; and also that we may have hesitated to confirm the order of the trial court if we had been dealing with the matter as a court of first, appeal; but, the matter has now come to us under art. 136, and so we can justly interfere with the concurrent exercise of the discretion, by the courts below only if we fell that the said exercise of discretion is patently and manifestly unreasonable, capricious or perverse and that it may defeat the ends of justice.
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him that as from the beginning of 1955 the accounts were being separately maintained. It would appear that the information received by the respondent from the General Manager disillusioned him and that appears to be the beginning of the present dispute, according to the respondents letter of May 24, 1955, (D. 1). On February 18, 1956, the respondent invoked the arbitration agreement and told Mr. Venkataswamy that Mr. Behram Doctor had agreed to work as arbitrator and give his award (D. 2). Mr. Venkataswamy who was addressed by the respondent as the Managing Director told him by his reply of March 5, 1956, that he was not the Managing Director and added that in his view it was not open to the respondent to invoke clause 4 of the contract because he was aware that no monies were payable to the respondent under clause 1 (d).The proceedings of this meeting which have been kept by Mr. Behram Doctor and copies of which have been supplied by him to both the parties indicate that Mr. Behram Doctor attempted to mediate between the parties and presumably the parties were agreeable to secure the mediation of Mr. Behram Doctor to resolve the dispute. We ought to add that the copy of the said proceedings produced by the appellant contains a statement that Mr. Venkataswamy at the outset told Mr. Behram Doctor that he had come on an unofficial visit and was speaking without the consent of the other Directors. This statements is, however, not to be found in the copy supplied by Mr. Behram Doctor to the respondent. Prima facie it is not easy to understand why Mr. Behram Doctor should have omitted this material statement in the copy supplied by him to the respondent. That, however, is a matter which we do not propose to pursue in the present appeal. It is thus clear that though Mr. Behram Doctor was not appointed an arbitrator and no reference in writing was made to him an attempt was made by the parties to settle the dispute with the assistance of Mr. Behram Doctor, and that attempt failed. Having regard to the facts which have come on the record it may not be unreasonable to infer that the appellant was not too keen to pursue the matter on the lines originally accepted by both the parties before Mr. Behram Doctor.15. It also appears that for some years the accounts of the Deccan Herald had not been separately kept as they should have been according to the respondents case. The respondent alleges that they have not been kept separately throughout the ten years; but that is a matter which is yet to be investigated. If the accounts are not separately kept the question of allocating expenditure would inevitably arise and that can be decided after adopting some ad hoc principle in that behalf. A plea of limitation has also been indicated by the appellant and it has been suggested that the first contract having merged in the second it is only under the latter contract that the respondent may have a cause of action. Thus the effect of the two contracts considered together may have to be adjudged in dealing with the question of limitation. It has also been suggested that the respondent knew how the accounts were kept from year to year and in substance he may be deemed to have agreed with the method adopted in keeping the accounts. If this point is raised by the appellant it may involved the decision of the question about the effect of the respondents conduct on his present claim. The appellant has also suggested that the respondent has adopted an attitude of blackmailing the appellant and the respondent treats that as an aspersion on his character. The relations between the parties have been very much embittered and the respondent apprehends that the appellant, being a powerful company, may delay and seek to defeat the respondents claim by protracting the proceedings before the arbitrators. It now looks impossible that the parties would agree to appoint one arbitrator, and so if the matter goes before the domestic tribunal the two arbitrators appointed by the two parties respectively may have to nominate a third one to complete the constitution of the domestic tribunal, and that it is said may easily lead to a deadlock. In the trial court attempts were made to settle this unfortunate dispute but they failed and the respondents grievance is that the appellant adopted an unhelpful and non-co-operative attitude. It appears fairly clear that when the parties entered into the present contract and agreed that differences between them in regard to the interpretation and application of the contract should be referred to arbitration they did not anticipate the complications which have subsequently arisen. That is why an arbitration agreement may have been introduced in the contract in question. All these facts have been considered by both the courts, and thought it is true that in their approach and final decisions in respect of these facts the two courts have differed in material particulars, they have in the result agreed with the conclusion that the discretion vested in them should be exercised in not granting stay as claimed by the appellant. Under these circumstances we do not think we would be justified in substituting our discretion for that of the courts below.It may be that if we were trying the appellants application under S. 34 we might have come to a different conclusion; and also that we may have hesitated to confirm the order of the trial court if we had been dealing with the matter as a court of first, appeal; but, the matter has now come to us under art. 136, and so we can justly interfere with the concurrent exercise of the discretion, by the courts below only if we fell that the said exercise of discretion is patently and manifestly unreasonable, capricious or perverse and that it may defeat the ends of justice
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N.K. Mohammad Sulaiman Vs. N. C. Mohammad Ismail And Others | Code of Civil Procedure. But the Judicial Committee did not express the view that the estate was represented because the heirs were brought on record after the death of Nabibaksh in a pending suit, but apparently on the principle on which the Madras High Court in Chaturbujadoss Kushaldoss and Sons case, ILR 54 Mad 212 : (AIR 1930 Mad 930 ), proceeded. This view was also expressed by the High Court of Orissa in Sarat Chandra Deb v. Bichitrananda Sahu, ILR (1950) Cut 413: (AIR 1951 Orissa 212), where Jagannadha Das J., observed that where proceedings taken bona fide by the creditor against the person actually in possession by virtue of the assertion of a claim to succeed to or represent the estate of the deceased debtor are binding against the real legal heir, whether such proceedings were commenced or continued against the wrong person and irrespective of any express or implied decision by the Court that the person so impleaded was the proper legal representative. The Court in that case recognised that though the title of a person to property cannot normally be affected by any proceedings to which he is not a party, his interest in the property may still be bound if he may, having regard to the circumstances, be said to have been sufficiently represented in the proceeding. The learned Judge observed at p. 445 (of ILR Cut); (at p. 229 of AIR).I have, therefore, no hesitation in coming to the conclusion that where a mortgagee institutes a suit bona fide against the person in possession of the estate of the deceased mortgagor, who is in such possession in assertion of a claim to succeed to that estate, and where a person purchases the mortgaged property bona fide in execution of that decree, such purchaser gets the full title to the mortgaged property by virtue of such sale and the real heir is bound thereby and that his only remedy, if at all, in a proper case is to get the sale set aside by appropriate proceedings in time.17. In a recent judgment of the Madras High Court in Shunmugham Chettiar v. Govindasami Chettiar, AIR 1961 Mad 428 , it was held that where after the death of the mortgagor, in a suit on the mortgage, the mortgagee bona fide and after due care and caution impleads a person who is believed by him to be the legal representative of the mortgagor and who is in possession of the mortgaged property and a decree is obtained on that footing without the legal representative so impleaded disclaiming any liability, the decree thus obtained by the mortgagee will bind other legal representatives who may be in existence.18. It is true that the cases of the Madras and Orissa High Courts did not relate to the estate of a muslim debtor. But the rule, as already stated, is one of procedure and not of personal law, and applies to a muslim debtors estate as well as to a Hindu debtors estate. It is true that in the case of a debtor who is sued for recovery of the debt, and if he dies after the institution of the suit, there is some order of the Court-express or implied-recognising that the person sought to be brought on record are the heirs and legal representatives of the deceased debtor. The Court records a conclusion if not expressly by implication, that they represent the estate.19. It was held by this Court, as already stated earlier, in a recent judgment in Daya Rams case, AIR 1965 SC 1049 , that failure to bring the other heirs on record, if there is a bona fide enquiry as to the existence of the heirs, does not affect the validity of the decree and the proceedings taken thereunder. In a suit instituted against the heirs of a deceased debtor, it is the creditor who takes upon himself the responsibility to bring certain persons as heirs and legal representatives of the deceased on the record. If he has proceeded bona fide and after due enquiry and under a belief that the persons who are brought on the record are the only legal representatives, it would make no difference in principle that in the former case the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit and in the other at the instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded, and the decree will be binding upon the entire estate. This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding.20. The appellant and his brother Mohammad Ismail were both minors when the action for enforcement of the mortgage in favour of Narsimha Reddy was instituted. The mortgaged property was in the possession of the three widows and a daughter of Khader Miran, and the other mortgagors. It is also found that Narsimha Reddy had made bona fide enquiry and has not come to learn about the existence of any other heirs. It is also not the case of the appellant that he had any special defence to the suit which if he was impleaded as a party to the suit he could have set up, nor is there any ground for holding that there was no fair or real trial of the action.21. | 0[ds]5. It is necessary in the first instance to set out certain principles which are accepted as well settled. The estate of a muslim dying intestate devolves under the Islamic law upon his heirs at the moment of his death, i.e., the estate vests immediately in each heir in proportion to the shares ordained by the personal law and the interest of each heir is separate and distinct. Each heir is under the personal law liable to satisfy the debts of the deceased only to the extent of the share of the debt proportionate to his share in the estate. A creditor of a muslim dying intestate may sue all the heirs of the deceased and where the estate of the deceased has not been distributed between the heirs he may execute the decree against the property as a whole without regard to the extent of the liability of the heirs inter se. The creditor is, however, not bound to sue all the heirs: the creditor may sue some only of the heirs and obtain a decree against those heirs, and liability for satisfaction of the decree may be enforced against individual heirs in the property held by them proportionate to their share in the estate. It is also settled that where the defendant in an action dies after institution of the suit, the creditor after diligent and bona fide enquiry impleads some but not all the heirs as legal representatives, the heirs so impleaded represent the estate of the deceased and a decree obtained against them binds not only those heirs who are impleaded in the action but the entire estate including the interest of those not brought on the record: Daya Ram v. Shyam Sundari. AIR 1955 SCCourt has, therefore, recognised the principle of representation of the estate by some heirs where the defendant dies during the pendency of a suit to enforce a claim against him, and not all the heirs are brought on the record. If after bona fide enquiry some but not all the heirs of a deceased defendant are brought on the record, the heirs so brought on the record; the heirs so brought on the record represent the entire estate of the deceased, and the decision of the Court in the absence of fraud or collusion binds those who are not brought on the record as well as those who are impleaded eo nomine. Daya Rams case. AIR 1965 SC 1049 , it is true did not relate to the estate of a deceased muslim, but the rule enunciated is of the domain of procedural law and applies to all communities irrespective of the religious persuasion on personal law. Counsel for the plaintiff says that this rule applies only to cases where the defendant dies after institution of the suit, and does not apply where a suit is instituted against the heirs of a deceased debtor. The reason suggested is that by the combined operation of O. 22, Rr. 4 and 5, Code of Civil Procedure there is a decision of the Court that persons impleaded are the heirs of the deceased and are allowed to be brought on the record as his heirs and legal representatives. Reliance is also placed upon the definition of legal representative in S. 2 (11) of the Code of Civil Procedure. It is submitted that where persons are either expressly or by implication directed or permitted by an order of the Court to represent the estate, in the absence of fraud or collusion the heirs brought on the record will represent the entire estate, and the decree passed against them and proceedings taken pursuant thereto will be binding upon the heirs not so impleaded. But where the plaintiff institutes a suit against certain persons as legal representatives of the deceased debtor there is no representation to the estate by some only of the heirs of the deceased where the deceased was a muslim. On this point there has been, as already stated, conflict of opinion and in some High Courts from time to time different views have been expressed. To seek elucidation of principle from an analysis of the numerous decisions of the cases may turn out a futile pursuit. That is not because we do not hold the opinions expressed by eminent Judges on this question in great respect, but because in our view it would conduce to greater clarity if the ground on which the decisions have proceeded are examined in the light of the true principles applicable.6. In seeking its solution the problem whether a decree obtained by a creditor in a suit instituted against some of the heirs of a deceased muslim for payment of debts due by him is binding on the other heirs has been approached from different angles: (i) by the analogy of Hindu law where on devolution of property on death of a Hindu upon members of a joint Hindu family or a widow the estate of the deceased is represented by the manager or the widow, and the creditor in a suit properly instituted against the manger or the widow may obtain a decree which binds all the persons having interest in the estate; (ii) the rule of Mahomedan law as set out in Hamiltons Hedaya, 2nd Edn. P. 349. Bk. XX, Ch. 4 (relating to the duties of the Kazee): for any one of the heirs of a deceased persons stands as litigant on behalf of all the others, with respect to anything due to or by the deceased, whether it be debt or substance, since the decree of the Kazi in such case is in reality either in favour of or against the deceased; and any of the heirs may stand as his representative with respect to such decree. * * * * To this it is objected. If one heir be litigant on behalf of the others, it would follow that each creditor is entitled to have recourse to him for payment of his demand, whereas, according to law, each is only obliged to pay his own share. Reply: The creditors are entitled to have recourse to one of several heirs only in a case where all the effects are in the hands of that heir. This is what is stated in the Jama Kabeer: and the reason of it is that although any one of the heirs may act as plaintiff in a cause on behalf of the others, yet he cannot act as defendant on their behalf, unless the whole of the effects be in his possession.; (iii) that a creditor of the deceased may sue one of the heirs who is in possession of the whole or any part of the estate, without joining other heirs as defendants, for administration of the estate and for recovery of the entire debt, and get a decree against the entire estate; and (iv) on the strict rules of Islamic law that devolution of inheritance takes place immediately upon the death of the ancestor, and jus representation is being foreign to the Islamic law of inheritance, only those heirs who are sued by the creditor of the deceased ancestor are liable to satisfy the debt proportionate to their interest in the estate.7. The first view was enunciated by the Calcutta High Court in Mt. Nuzeerun v. Moulvie Ameerooddin, (1875) 24 Suth WR 3, and was adopted by the Bombay High Court in Khurshetbibi v. Keso Vinayek, (1888), ILR 12 Bom 101; Davalava v. Bhimaji, (1896) ILR 20 Bom 338: and Virchand v. Kondu, ILR 39 Bom 729: (AIR 1915 Bom 272 ).8. The second view though pressed for acceptance before the Courts has not met with approval. The rules of procedure enunciated by the Muhammadan lawyers have no application under the Indian system of jurisprudence to the trial of actions in our Courts and as observed by Mahmood, J., in Jafri Begam v. Amir Muhammad Khan, (1885) ILR 7 All. 822 (FB), at p.It must be recalled that whether a decree obtained by a creditor against the heirs of a deceased muslim is binding upon the entire estate or only of those who were impleaded eo nomine is not a question to be determined on the personal law either of the deceased or of the defendant in the suit. It is a part of the law of procedure which regulates all matters going to the remedy, and when the matter passes into the domain of procedure, it must be regulated by the law governing the action of the Court.on may undoubtedly lie at the instance of a creditior for and on behalf of the all the creditors for an order that the Court do enter upon administration of the estate and do pay to the creditors claiming the amount either the whole or such amount as may be rateably payable to each creditor out of the estate after satisfying the primary liabilities of the estate. A suit by a creditor may if appropriate cases, where the procedure prescribed in that behalf is followed, be treated as anbut every action instituted by a creditor of a deceased debtor to recover a debt due out of his estate in the hands of some or all the heirs is not anA person in possession of the whole or a part of the estate which originally belonged to a debtor dying intestate does not clothe himself with a right to represent other persons who are interested in the estate. Such a person may by intermeddling with the estate be regarded as executor deand may render himself liable accordingly, but thereby he cannot represent those whose estate he has intermeddled with. An administrator appointed by the Court would represent the estate, and a creditor may sue him for recovery of the debts due out of the estate. In anproperly instituted, the Court may take upon itself the duty to administer the estate out of which the debts may be satisfied. But a simple action for recovery of a debt from the estate of a deceased debtor will not be regarded as an action for administration.14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents him interests in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undobtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of the fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion.15. A few illustrative cases which support this principle may be noticed. In Chaturbujadoss Kushaldoss and Sons v. Rajamanicka Mudali, ILR 54 Mad 212 : (AIR 1930 Mad 930 ), a debtor died leaving a will bequeathing his estate to his nephew subject to certain dispositions. In ignorance of the will, and bona fide believing that the widow was the proper legal representative, a creditor of the deceased brought a suit against her alone and obtained a decree ex parte for satisfaction of the debt out of the husbands estate and satisfied his claim by sale of certain items of the estate in her hands. A nephew of the deceased who was a devisee under the will sued to set aside the decree and sale in execution thereof. It was held by the High Court of Madras that as the creditor bona fide believed the widow was the proper legal representative and as she was then interested in defending the estate and sufficiently represented the estate and as the creditor got his decree without any fraud or collusion with her, it was binding on the nephew who was the residuary legatee under the will. In dealing with this question, Madhavan Nair, J., observed at p. 218 (of ILR Mad): (at p. 934 of AIR).The appellant and his brother Mohammad Ismail were both minors when the action for enforcement of the mortgage in favour of Narsimha Reddy was instituted. The mortgaged property was in the possession of the three widows and a daughter of Khader Miran, and the other mortgagors. It is also found that Narsimha Reddy had made bona fide enquiry and has not come to learn about the existence of any other heirs. It is also not the case of the appellant that he had any special defence to the suit which if he was impleaded as a party to the suit he could have set up, nor is there any ground for holding that there was no fair or real trial of the action. | 0 | 5,329 | 2,476 | ### Instruction:
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Code of Civil Procedure. But the Judicial Committee did not express the view that the estate was represented because the heirs were brought on record after the death of Nabibaksh in a pending suit, but apparently on the principle on which the Madras High Court in Chaturbujadoss Kushaldoss and Sons case, ILR 54 Mad 212 : (AIR 1930 Mad 930 ), proceeded. This view was also expressed by the High Court of Orissa in Sarat Chandra Deb v. Bichitrananda Sahu, ILR (1950) Cut 413: (AIR 1951 Orissa 212), where Jagannadha Das J., observed that where proceedings taken bona fide by the creditor against the person actually in possession by virtue of the assertion of a claim to succeed to or represent the estate of the deceased debtor are binding against the real legal heir, whether such proceedings were commenced or continued against the wrong person and irrespective of any express or implied decision by the Court that the person so impleaded was the proper legal representative. The Court in that case recognised that though the title of a person to property cannot normally be affected by any proceedings to which he is not a party, his interest in the property may still be bound if he may, having regard to the circumstances, be said to have been sufficiently represented in the proceeding. The learned Judge observed at p. 445 (of ILR Cut); (at p. 229 of AIR).I have, therefore, no hesitation in coming to the conclusion that where a mortgagee institutes a suit bona fide against the person in possession of the estate of the deceased mortgagor, who is in such possession in assertion of a claim to succeed to that estate, and where a person purchases the mortgaged property bona fide in execution of that decree, such purchaser gets the full title to the mortgaged property by virtue of such sale and the real heir is bound thereby and that his only remedy, if at all, in a proper case is to get the sale set aside by appropriate proceedings in time.17. In a recent judgment of the Madras High Court in Shunmugham Chettiar v. Govindasami Chettiar, AIR 1961 Mad 428 , it was held that where after the death of the mortgagor, in a suit on the mortgage, the mortgagee bona fide and after due care and caution impleads a person who is believed by him to be the legal representative of the mortgagor and who is in possession of the mortgaged property and a decree is obtained on that footing without the legal representative so impleaded disclaiming any liability, the decree thus obtained by the mortgagee will bind other legal representatives who may be in existence.18. It is true that the cases of the Madras and Orissa High Courts did not relate to the estate of a muslim debtor. But the rule, as already stated, is one of procedure and not of personal law, and applies to a muslim debtors estate as well as to a Hindu debtors estate. It is true that in the case of a debtor who is sued for recovery of the debt, and if he dies after the institution of the suit, there is some order of the Court-express or implied-recognising that the person sought to be brought on record are the heirs and legal representatives of the deceased debtor. The Court records a conclusion if not expressly by implication, that they represent the estate.19. It was held by this Court, as already stated earlier, in a recent judgment in Daya Rams case, AIR 1965 SC 1049 , that failure to bring the other heirs on record, if there is a bona fide enquiry as to the existence of the heirs, does not affect the validity of the decree and the proceedings taken thereunder. In a suit instituted against the heirs of a deceased debtor, it is the creditor who takes upon himself the responsibility to bring certain persons as heirs and legal representatives of the deceased on the record. If he has proceeded bona fide and after due enquiry and under a belief that the persons who are brought on the record are the only legal representatives, it would make no difference in principle that in the former case the heirs have been brought on the record during the pendency of the suit, the creditor having died since the institution of the suit and in the other at the instance of the plaintiff certain persons are impleaded as legal representatives of the deceased person. In either case, where after due enquiry certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by those persons who are brought on the record or impleaded, and the decree will be binding upon the entire estate. This rule will of course not apply to cases where there has been fraud or collusion between the creditor and the heir impleaded or where there are other circumstances which indicate that there has not been a fair or real trial, or that the absent heir had a special defence which was not and could not be tried in the earlier proceeding.20. The appellant and his brother Mohammad Ismail were both minors when the action for enforcement of the mortgage in favour of Narsimha Reddy was instituted. The mortgaged property was in the possession of the three widows and a daughter of Khader Miran, and the other mortgagors. It is also found that Narsimha Reddy had made bona fide enquiry and has not come to learn about the existence of any other heirs. It is also not the case of the appellant that he had any special defence to the suit which if he was impleaded as a party to the suit he could have set up, nor is there any ground for holding that there was no fair or real trial of the action.21.
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application under the Indian system of jurisprudence to the trial of actions in our Courts and as observed by Mahmood, J., in Jafri Begam v. Amir Muhammad Khan, (1885) ILR 7 All. 822 (FB), at p.It must be recalled that whether a decree obtained by a creditor against the heirs of a deceased muslim is binding upon the entire estate or only of those who were impleaded eo nomine is not a question to be determined on the personal law either of the deceased or of the defendant in the suit. It is a part of the law of procedure which regulates all matters going to the remedy, and when the matter passes into the domain of procedure, it must be regulated by the law governing the action of the Court.on may undoubtedly lie at the instance of a creditior for and on behalf of the all the creditors for an order that the Court do enter upon administration of the estate and do pay to the creditors claiming the amount either the whole or such amount as may be rateably payable to each creditor out of the estate after satisfying the primary liabilities of the estate. A suit by a creditor may if appropriate cases, where the procedure prescribed in that behalf is followed, be treated as anbut every action instituted by a creditor of a deceased debtor to recover a debt due out of his estate in the hands of some or all the heirs is not anA person in possession of the whole or a part of the estate which originally belonged to a debtor dying intestate does not clothe himself with a right to represent other persons who are interested in the estate. Such a person may by intermeddling with the estate be regarded as executor deand may render himself liable accordingly, but thereby he cannot represent those whose estate he has intermeddled with. An administrator appointed by the Court would represent the estate, and a creditor may sue him for recovery of the debts due out of the estate. In anproperly instituted, the Court may take upon itself the duty to administer the estate out of which the debts may be satisfied. But a simple action for recovery of a debt from the estate of a deceased debtor will not be regarded as an action for administration.14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents him interests in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undobtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of the fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion.15. A few illustrative cases which support this principle may be noticed. In Chaturbujadoss Kushaldoss and Sons v. Rajamanicka Mudali, ILR 54 Mad 212 : (AIR 1930 Mad 930 ), a debtor died leaving a will bequeathing his estate to his nephew subject to certain dispositions. In ignorance of the will, and bona fide believing that the widow was the proper legal representative, a creditor of the deceased brought a suit against her alone and obtained a decree ex parte for satisfaction of the debt out of the husbands estate and satisfied his claim by sale of certain items of the estate in her hands. A nephew of the deceased who was a devisee under the will sued to set aside the decree and sale in execution thereof. It was held by the High Court of Madras that as the creditor bona fide believed the widow was the proper legal representative and as she was then interested in defending the estate and sufficiently represented the estate and as the creditor got his decree without any fraud or collusion with her, it was binding on the nephew who was the residuary legatee under the will. In dealing with this question, Madhavan Nair, J., observed at p. 218 (of ILR Mad): (at p. 934 of AIR).The appellant and his brother Mohammad Ismail were both minors when the action for enforcement of the mortgage in favour of Narsimha Reddy was instituted. The mortgaged property was in the possession of the three widows and a daughter of Khader Miran, and the other mortgagors. It is also found that Narsimha Reddy had made bona fide enquiry and has not come to learn about the existence of any other heirs. It is also not the case of the appellant that he had any special defence to the suit which if he was impleaded as a party to the suit he could have set up, nor is there any ground for holding that there was no fair or real trial of the action.
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A.K. Jha and Another Vs. Vice-Chancellor, Jawaharlal Nehru University, New Delhi and Another | 1. These Writ Petitions Nos. 5310 and 5311 are by two students Ajit Kumar Jha and Neeraj Sinha of the Jawaharlal Nehru University. Ajit Kumar Jha is stated to be a student of M.A. Fourth Semester and Neeraj Sinha is stated to be a terminal M.A. student studying for seminar papers. In the writ petitions the notification dated May 11, 1983 and circular dated May 12, 1983 asking the students to vacate the hostel rooms within 48 hours of May 14, 1983 are challenged. The notification and the circular were challenged in the High Court of Delhi and the High Court passed an interim order directing the students to submit their representations to the authorities for consideration to stay in the hostel and directed the University authorities to consider those applications. The two petitioners in these writ petitions also made representations. Ajit Kumar Jha has stated in his representation that his admission process for M.Phil. in the Oxford University is going on and he has given his hostel address for the purpose and has to undergo medical examination in the British High Commission and therefore his stay in the hostel room is necessary. Neeraj Sinha has stated in his application that he is a terminal M.A. student studying for seminar papers and is also engaged in preliminary studies for M.Phil. He has further stated that he has to appear for the UPSC examination in Delhi in June 1983 and has no local guardian at Delhi or means to hire any room at Delhi and he should, therefore, be permitted to continue to reside in his hostel room. On Ajit Kumars application the University authority has stated in its order that the grounds are not compelling enough for the University to provide accommodation in the University during since die closure. On Neeraj Sinhas application the University authority has stated in its order that the grounds dare hardly convincing. For these reasons the applications of these two writ petitioners to continue to stay in the hostel room attached to the University have been rejected.2. Writ petitions challenging the closure of the hostels consequent on the closure sine die of the University had been dismissed by the High Court of Delhi and special leave petitions filed against those orders have already been dismissed by me. The High Court had held that the powers of the Vice-Chancellor to administer the affairs of the University include the power to close the University sine die. In the order dismissing the special leave petitions mentioned above I agreed with the reasons given by the High Court regarding the power of the Vice-Chancellor to close the University sine die. The hostels of the University are adjuncts to the University and the right of the students of the University to stay in the rooms of the hostel is in the nature of a privilege, which in my opinion, could not be claimed as a matter of right after the closure of the University sine die. Therefore, it is not open to the petitioners as students of the University to claim the privilege of remaining in the rooms of the hostel even after the closure of the University sine die.3. Coming now to the applications made to the Provost of the University for permitting the writ petitioners to continue to stay in the rooms of the hostel, the learned counsel for the petitioners submitted that the reasons given for rejecting the applications are not convincing as it is stated that they were not explanatory for examination by this Court. Having regard to the closure of the University sine die Ajit Kumar Jha and Neeraj Sinha who were students of the M.A. Fourth Semester and terminal M.A. studying for seminar papers, cannot claim the privilege in that capacity in view of the closure of the University sine die. The fact that Ajit Kumar Jha has given his hostel address for his admission to the Oxford University and he has to undergo medical examination in the British High Commission is extraneous to his being a student of the M.A. Fourth Semester in the University. The fact that Neeraj Sinha has to appear for the UPSC examination at Delhi in June 1983 is similarly extraneous to his being a student of the University. Therefore, it is not possible to accept the contention of the learned counsel for the petitioners that the reasons given by the University authorities for rejecting the applications for permission to continue to reside in the rooms of the hostel were not sufficient. In the case of Ajit Kumar Jha the University authorities have stated that the reasons are not compelling enough and in the case of Neeraj Sinha the reason given by the University is that grounds are hardly convening for permitting to continue to reside in the rooms of the hostel. In the circumstances of the case, I am of the opinion that the reasons given by the authorities are sufficient to dispose of the applications for permission to continue to reside in the rooms of the hostel. | 0[ds]In the order dismissing the special leave petitions mentioned above I agreed with the reasons given by the High Court regarding the power of theto close the University sine die. The hostels of the University are adjuncts to the University and the right of the students of the University to stay in the rooms of the hostel is in the nature of a privilege, which in my opinion, could not be claimed as a matter of right after the closure of the University sine die. Therefore, it is not open to the petitioners as students of the University to claim the privilege of remaining in the rooms of the hostel even after the closure of the University sineregard to the closure of the University sine die Ajit Kumar Jha and Neeraj Sinha who were students of the M.A. Fourth Semester and terminal M.A. studying for seminar papers, cannot claim the privilege in that capacity in view of the closure of the University sine die. The fact that Ajit Kumar Jha has given his hostel address for his admission to the Oxford University and he has to undergo medical examination in the British High Commission is extraneous to his being a student of the M.A. Fourth Semester in the University. The fact that Neeraj Sinha has to appear for the UPSC examination at Delhi in June 1983 is similarly extraneous to his being a student of the University. Therefore, it is not possible to accept the contention of the learned counsel for the petitioners that the reasons given by the University authorities for rejecting the applications for permission to continue to reside in the rooms of the hostel were not sufficient. In the case of Ajit Kumar Jha the University authorities have stated that the reasons are not compelling enough and in the case of Neeraj Sinha the reason given by the University is that grounds are hardly convening for permitting to continue to reside in the rooms of the hostel. In the circumstances of the case, I am of the opinion that the reasons given by the authorities are sufficient to dispose of the applications for permission to continue to reside in the rooms of the hostel. | 0 | 885 | 389 | ### 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. These Writ Petitions Nos. 5310 and 5311 are by two students Ajit Kumar Jha and Neeraj Sinha of the Jawaharlal Nehru University. Ajit Kumar Jha is stated to be a student of M.A. Fourth Semester and Neeraj Sinha is stated to be a terminal M.A. student studying for seminar papers. In the writ petitions the notification dated May 11, 1983 and circular dated May 12, 1983 asking the students to vacate the hostel rooms within 48 hours of May 14, 1983 are challenged. The notification and the circular were challenged in the High Court of Delhi and the High Court passed an interim order directing the students to submit their representations to the authorities for consideration to stay in the hostel and directed the University authorities to consider those applications. The two petitioners in these writ petitions also made representations. Ajit Kumar Jha has stated in his representation that his admission process for M.Phil. in the Oxford University is going on and he has given his hostel address for the purpose and has to undergo medical examination in the British High Commission and therefore his stay in the hostel room is necessary. Neeraj Sinha has stated in his application that he is a terminal M.A. student studying for seminar papers and is also engaged in preliminary studies for M.Phil. He has further stated that he has to appear for the UPSC examination in Delhi in June 1983 and has no local guardian at Delhi or means to hire any room at Delhi and he should, therefore, be permitted to continue to reside in his hostel room. On Ajit Kumars application the University authority has stated in its order that the grounds are not compelling enough for the University to provide accommodation in the University during since die closure. On Neeraj Sinhas application the University authority has stated in its order that the grounds dare hardly convincing. For these reasons the applications of these two writ petitioners to continue to stay in the hostel room attached to the University have been rejected.2. Writ petitions challenging the closure of the hostels consequent on the closure sine die of the University had been dismissed by the High Court of Delhi and special leave petitions filed against those orders have already been dismissed by me. The High Court had held that the powers of the Vice-Chancellor to administer the affairs of the University include the power to close the University sine die. In the order dismissing the special leave petitions mentioned above I agreed with the reasons given by the High Court regarding the power of the Vice-Chancellor to close the University sine die. The hostels of the University are adjuncts to the University and the right of the students of the University to stay in the rooms of the hostel is in the nature of a privilege, which in my opinion, could not be claimed as a matter of right after the closure of the University sine die. Therefore, it is not open to the petitioners as students of the University to claim the privilege of remaining in the rooms of the hostel even after the closure of the University sine die.3. Coming now to the applications made to the Provost of the University for permitting the writ petitioners to continue to stay in the rooms of the hostel, the learned counsel for the petitioners submitted that the reasons given for rejecting the applications are not convincing as it is stated that they were not explanatory for examination by this Court. Having regard to the closure of the University sine die Ajit Kumar Jha and Neeraj Sinha who were students of the M.A. Fourth Semester and terminal M.A. studying for seminar papers, cannot claim the privilege in that capacity in view of the closure of the University sine die. The fact that Ajit Kumar Jha has given his hostel address for his admission to the Oxford University and he has to undergo medical examination in the British High Commission is extraneous to his being a student of the M.A. Fourth Semester in the University. The fact that Neeraj Sinha has to appear for the UPSC examination at Delhi in June 1983 is similarly extraneous to his being a student of the University. Therefore, it is not possible to accept the contention of the learned counsel for the petitioners that the reasons given by the University authorities for rejecting the applications for permission to continue to reside in the rooms of the hostel were not sufficient. In the case of Ajit Kumar Jha the University authorities have stated that the reasons are not compelling enough and in the case of Neeraj Sinha the reason given by the University is that grounds are hardly convening for permitting to continue to reside in the rooms of the hostel. In the circumstances of the case, I am of the opinion that the reasons given by the authorities are sufficient to dispose of the applications for permission to continue to reside in the rooms of the hostel.
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### Explanation:
In the order dismissing the special leave petitions mentioned above I agreed with the reasons given by the High Court regarding the power of theto close the University sine die. The hostels of the University are adjuncts to the University and the right of the students of the University to stay in the rooms of the hostel is in the nature of a privilege, which in my opinion, could not be claimed as a matter of right after the closure of the University sine die. Therefore, it is not open to the petitioners as students of the University to claim the privilege of remaining in the rooms of the hostel even after the closure of the University sineregard to the closure of the University sine die Ajit Kumar Jha and Neeraj Sinha who were students of the M.A. Fourth Semester and terminal M.A. studying for seminar papers, cannot claim the privilege in that capacity in view of the closure of the University sine die. The fact that Ajit Kumar Jha has given his hostel address for his admission to the Oxford University and he has to undergo medical examination in the British High Commission is extraneous to his being a student of the M.A. Fourth Semester in the University. The fact that Neeraj Sinha has to appear for the UPSC examination at Delhi in June 1983 is similarly extraneous to his being a student of the University. Therefore, it is not possible to accept the contention of the learned counsel for the petitioners that the reasons given by the University authorities for rejecting the applications for permission to continue to reside in the rooms of the hostel were not sufficient. In the case of Ajit Kumar Jha the University authorities have stated that the reasons are not compelling enough and in the case of Neeraj Sinha the reason given by the University is that grounds are hardly convening for permitting to continue to reside in the rooms of the hostel. In the circumstances of the case, I am of the opinion that the reasons given by the authorities are sufficient to dispose of the applications for permission to continue to reside in the rooms of the hostel.
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BIRLA INSTITUTE OF TECHNOLOGY Vs. THE STATE OF JHARKHAND | to the meaning of words associated with it . [See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., Syn. 8, at p. 379.] 23. The wordunskilled is opposite of the wordskilled and the wordsemi- skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The wordunskilled cannot, therefore, be understood dissociated from the wordskilled and semi-skilled to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided. 24. The contention advanced that teachers should be treated as included in the expression unskilled or skilled cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a skilled employee. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words semi-skilled andunskilled are not understood in educational establishments as describing nature of jobof untrained teachers. We donot attach much importance to the arguments advanced on the question as to whetherskilled,semi-skilled and unskilled qualify the wordsmanual, supervisory,technical orclerical or the above words qualify the word work. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are notskilled, semi-skilled, unskilled, manual, supervisory,technical orclerical employees. They are also not employed in managerial or administrative capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in managerial or administrative capacity.The teachers are clearly not intended to be covered by the definition ofemployee. 25. The legislature was alive to various kinds of definitions of the word employee contained in various previouslabour enactmentswhen the Act was passed in 1972. If it intended to cover in the definition ofemployee all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees Provident Funds Act, 1952 which definesemployee to meanany person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …. Non-use of such wide language in the definition of employee in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition. 26. Our conclusion should not be misunderstoodthatteachersalthough engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide. (emphasis supplied) 16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act. 17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case. 18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofemployee.The High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions. 19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act. 20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside. 21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra). 22.In case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law. | 1[ds]16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act.17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case.18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofThe High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions.19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act.20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside.21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra).case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law. | 1 | 2,363 | 443 | ### 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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to the meaning of words associated with it . [See Principles of Statutory Interpretation by Justice G.P. Singh, 8th Edn., Syn. 8, at p. 379.] 23. The wordunskilled is opposite of the wordskilled and the wordsemi- skilled seems to describe a person who falls between the two categories i.e. he is not fully skilled and also is not completely unskilled but has some amount of skill for the work for which he is employed. The wordunskilled cannot, therefore, be understood dissociated from the wordskilled and semi-skilled to read and construe it to include in it all categories of employees irrespective of the nature of employment. If the legislature intended to cover all categories of employees for extending benefit of gratuity under the Act, specific mention of categories of employment in the definition clause was not necessary at all. Any construction of definition clause which renders it superfluous or otiose has to be avoided. 24. The contention advanced that teachers should be treated as included in the expression unskilled or skilled cannot, therefore, be accepted. The teachers might have been imparted training for teaching or there may be cases where teachers who are employed in primary schools are untrained. A trained teacher is not described in the industrial field or service jurisprudence as a skilled employee. Such adjective generally is used for an employee doing manual or technical work. Similarly, the words semi-skilled andunskilled are not understood in educational establishments as describing nature of jobof untrained teachers. We donot attach much importance to the arguments advanced on the question as to whetherskilled,semi-skilled and unskilled qualify the wordsmanual, supervisory,technical orclerical or the above words qualify the word work. Even if all the words are read disjunctively or in any other manner, trained or untrained teachers do not plainly answer any of the descriptions of the nature of various employments given in the definition clause. Trained or untrained teachers are notskilled, semi-skilled, unskilled, manual, supervisory,technical orclerical employees. They are also not employed in managerial or administrative capacity. Occasionally, even if they do some administrative work as part of their duty with teaching, since their main job is imparting education, they cannot be held employed in managerial or administrative capacity.The teachers are clearly not intended to be covered by the definition ofemployee. 25. The legislature was alive to various kinds of definitions of the word employee contained in various previouslabour enactmentswhen the Act was passed in 1972. If it intended to cover in the definition ofemployee all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees Provident Funds Act, 1952 which definesemployee to meanany person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment …. Non-use of such wide language in the definition of employee in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition. 26. Our conclusion should not be misunderstoodthatteachersalthough engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide. (emphasis supplied) 16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act. 17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case. 18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofemployee.The High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions. 19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act. 20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside. 21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra). 22.In case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law.
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16. Reading the aforementioned principle of law laid down by this Court, we have no hesitation in holding that respondent No.4, who was also a teacher and worked with the appellant as such, was not eligible to claim gratuity amount from the appellant (BIT) under the Act.17. In our opinion, the High Court though took note of the decision rendered in the case ofAhmadabad Pvt. Primary Teachers Association (supra) but erred in distinguishing it on the ground that it is applicable only to the primary teachers working in primary schools and since the case at hand is not a case of a primary teacher, it has no application to this case.18. In our view, the High Court failed to read last line of Para 24 quoted above wherein this Court has held in clear terms thatteachers are clearly not intended to be covered by the definition ofThe High Court was, therefore, not justified in making a distinction between the teachers working in the primary schools and theteachers working in other educational institutions.19. In other words, the High Court failed to see that this Court had examined the expressionteacher qua the expressionemployee defined in Section 2(e) of the Act and then held thatteacher is not an employee within the meaning of Section 2(e) of the Act. While laying down the law, this Court did not make any distinction between the teachers inter se and nor made any distinction as to in which type of educational institute the teacher is working for determining his entitlement to claim the gratuity under the Act.20. We cannot, therefore, concur with the view taken by the High Court, which in our view, is not in conformity with the law laid down by this Court in the case ofAhmadabad Pvt. Primary Teachers Association (supra). It is based on incorrect reading of this Courts decision and, therefore, it deserves to be set aside.21. We, however, make it clear that we have examined the case at hand only in the light of the provisions of the Act, which were akin to the facts of the case inAhmadabad Pvt. Primary Teachers Association (supra).case there is any other State Act or Scheme in force, which extends any benefit to the employees of the Institute only then respondent No.4 would be at liberty to take benefit of such Act/Scheme in accordance with law.
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Leelabai Gajanan Pansare Vs. Oriental Insurance Co.Ltd | the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. ...". (emphasis supplied) 47. Moreover, if we are to hold that PSUs do not include Government companies, as held by the High Court, we would be disturbing the package offered by the Legislature of allowing increase of rent annually at 5%, allowing the landlords to accept premium and exclusion of certain entities from the protection of the Rent Act under Section 3(1)(b). On the other hand, acceptance of the arguments advanced on behalf of the respondents on the interpretation of Section 3(1)(b) would make the Act vulnerable to challenge as violative of Article 14 of the Constitution. Therefore, we are of the view that on a plain meaning of the words `PSUs as understood by the Legislature, it is clear that, Indias PSUs are in the form of statutory corporations, public sector companies, Government companies and companies in which the public are substantially interested (see: Income tax Act, 1961). When the word PSU is mentioned in Section 3(1)(b), the State Legislature is presumed to know the recommendations of the various Parliamentary Committees on PSUs. These entities are basically cash-rich entities. They have positive net asset value. They have positive net worths. They can afford to pay rents at the market rate. Thirdly, we are of the view that, in this case, the principle of noscittur a sociisis clearly applicable. According to this principle, when two or more words which are susceptible to analogous meaning are coupled together, the words can take their colour from each other. Applying this test, we hold that Section 3(1)(b) clearly applies to different categories of tenants all of whom are capable of paying rent at the market rates. Multinational companies, international agencies, statutory corporations, Government companies, public sector companies can certainly afford to pay rent at the market rates. This thought is further highlighted by the last category in Section 3(1)(b). Private limited companies and public limited companies having paid up share capital of more than Rs. 1,00,00,000 are excluded from the protection of the Rent Act. This further supports the view which we have taken that each and every entities mentioned in Section 3(1)(b) can afford to pay rent at the market rates. We may note that to meet the challenge of discrimination under Article 14 it is not sufficient to state that there is an intelligible differentia but it is further essential requirement to show that the differentia has a rational nexus to the object sought to be achieved by the Statute in question. (see: State of Rajasthan v. Mukanchand and ors. (1964) 6 SCR 903.) As stated above, Section 3(1)(b) strikes a balance between the interest of the landlords and the tenants; it is neither pro-landlords nor anti-tenants. It is pro-public interest. In this connection, one must keep in mind the fact that the said Rent Act, 1999 involves a structural change vis-à-vis the Bombay Rent Act, 1947. As stated above, with the passage of time, the 1947 Act became vulnerable to challenge as violative of Article 14. As stated above, the legislature has strike to balance the twin objectives of Rent Act protection and rent restriction for those who cannot afford to pay rents at the market rates. To accept the interpretation advanced on behalf of the respondents for excluding Government companies from the meaning of the words "PSUs" in Section 3(1)(b) would amount to disturbing the neat balance struck by the Legislature. OIC and UIC are Government companies. They have paid up capital of more than Rs. 100 crores. They can easily afford to pay rents at the market rates. The legislature in its wisdom has kept PSUs, including Government companies, outside the Rent Act. We have to proceed on the basis that the State Legislature was aware of the meaning of the words PSUs as understood by the various Parliamentary Committees. If Government companies are to be excluded from Section 3(1)(b) then the test of intelligible differentia having rational nexus to the objects sought to be achieved by the said Rent Act would stand defeated. We cannot exclude such PSUs from Section 3(1)(b) as is sought to be contended on behalf of the respondents. PSUs including Government Companies are independent companies/corporations. They cannot be equated to the "Government" in Section 3(1)(a). We have to read Section 3(1)(b) in its entirety. We have to read the said section keeping in mind the reasons for its enactment. Lastly, we are of the view that the High Court judgment is erroneous when it adds words to Section 3(1)(b), namely, "which is not a Government company". In other words, the High Court states that OIC/UIC and BPCL are public undertakings, however, they are Government companies incorporated under Section 617 of the 1956 Act and, therefore, stand excluded from Section 3 (1)(b). In this connection it may be stated that High Court has relied upon the definition of Government Company under Section 617 of the Companies Act. In the case of Union of India and others v. R.C. Jain and others - 1981 (2) SCC 308 this Court has enunciated the principle that "the definition of an expression in one Act must not be imported into another. It would be a new terror in the construction of Acts if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone." Lastly, the interpretation placed by the High Court on the word "PSUs" in Section 3(1)(b) amounts to judicial legislation and further it defeats the very object of Section 3(1)(b). 48. Before concluding, we may note that we have interpreted the words ‘PSUs in Section 3(1)(b) purely in the context of the provisions of the Maharashtra Rent Control Act, 1999. Our judgment is, therefore, confined strictly to the said provisions of the Rent Act. | 1[ds]34. Our object of the above discussion regarding provisions of the Bombay Rent Act, 1947 is two-fold. Firstly, to point out that there has been a structural change made by the Legislature in the present Rent Act vis-à-vis the 1947 Act. Secondly, we have analysed the relevant provisions of the 1947 Act to indicate the change in the economic conditions between 1947 and 31.3.2000 when the present Rent Act came into force.The important point to be noted is that in the above judgment it has been held that with the passage of time the 1947 Act which was justified when enacted had become arbitrary and unreasonable with the change in economic circumstances. It has been further observed in the said judgment that the 1947 Act relating to determination and fixation of standard rent can no longer be considered to be reasonable. However, this Court felt that though the provisions mentioned above were liable to struck down as unreasonable and arbitrary keeping in mind the consequences that the tenants may lose protection of the Rent Act, this Court gave an opportunity to the Government to consider enactment of a Model Law. This judgment was delivered by the apex Court on 19.12.1997.38. Therefore, the legislature was required to keep in mind the vulnerability of fixing standard rent as on 1.9.1940. At the same time, the legislature had to keep in mind two aspects, namely, tenancy protection and rent restriction. The problem arose on account of economic factors. However, the legislature found the solution by evolving an economic criterion. The legislature evolved a package under which the prohibition on receiving premium under Section 18 of the 1947 Act stood deleted. In other words, landlords were given the liberty to charge premium. The second package was to exclude cash-rich body corporates and statutory corporations from the protection of the Rent Act. This part of the economic package helps the landlords to enhance the rent and charge rent to the entities mentioned in Section 3(1)(b) who can afford to pay rent at the market rate. This was the second item in the economic package offered to the landlords under the present Rent Act. The third item of the Rent Act was to give the benefit of annual increase of rent @ 5% under the present Rent Act. All three items constituted one composite package for the landlords. The underlying object behind the said economic package is to balance and maintain the two-fold objects of the Rent Act, namely, tenancy protection and rent protection. The idea behind excluding cash-rich entities from the protection of the Rent Act is also to continue to give protection to tenants who cannot afford to pay rent at market rate.39. The above discussion is relevant because we must understand the reason why Section 3(1)(b) came to be enacted. As stated above, in our view, with the offer of an economic package to the landlords, the legislature has tried to maintain a balance. The provisions of the earlier Rent Act, as stated above, have become vulnerable, unreasonable and arbitrary with the passage of time as held by this Court in the above judgment. The legislature was aware of the said judgment. It is reflected in the report of the Joint Committee. In our view, the changes made in the present Rent Act by which landlords are permitted to charge premium, the provisions by which cash-rich entities are excluded from the protection of the Rent Act and the provision providing for annual increase at a nominal rate of 5% are structural changes brought about by the present Rent Act, 1999 vis-à-vis the 1947 Act. The Rent Act of 1999 is the sequel to the judgment of this Court in the case of Malpe Vishwanath Acharya (supra).40. The entire discussion hereinabove is, therefore, not only to go behind Section 3(1)(b) and ascertain the reasons for enactment of the said sub-section but also to enable this Court to give purposive interpretation to the saiddo not find merit in this submission. Firstly, it may be noted that several entities have been enumerated in Section 3(1)(b), namely, banks, PSUs or statutory corporations, foreign missions, international agencies, multinational companies and private limited and public limited companies having a paid up share capital of Rs. 1,00,00,000 or more. As stated above, the said Rent Act, 1999 has brought about structural changes in the legislation. In this case, it was open to the legislature to opt for any of the tests, namely, test of origin, test of public character of the functions performed by each of these entities, test of public character of each of the undertakings, test of agency or instrumentality, test of monopolistic status, test of mobilization of resources etc. In the present case, we find that the legislature has opted for an economic criteria, namely, entities which are in a position to pay rent at market rates are to stand excluded from Rent Act protection. This is the test of Financial Capability. This is the golden thread which runs through Section 3(1)(a). Be it banks, PSUs. Statutory corporations, multinational companies, foreign missions, international agencies and public and private limited companies having a paid up share capital of Rs. 1,00,00,000 or more stand excluded from the Rent Act protection. This criteria has been selected by the legislature knowing fully well that each of these entities including PSUs can afford to pay rent at the market rates. Secondly, we have given in-depth consideration to the contention advanced on behalf of the respondents on the interpretation of Section 3(1)(b). We are of the view that to accept the contention of the respondents, namely, that only PSUs which are established by or under the Central or State Acts will not get protection whereas PSUs which are Government companies incorporated under the 1956 Act would continue to get protection would make the Section 3(1)(b) vulnerable to challenge as violative of Article 14 of the Constitution. In this regard, it may be noted that in the insurance industry, we have LIC, banks, private sector companies and Government companies. To say that LIC being a statutory corporation stands excluded from the provisions of the Rent Act whereas Government companies incorporated under the Companies Act, 1956 would continue to get protection would lead to arbitrary discrimination under Article 14 to the Constitution.Today, vide civil appeal arising out of SLP(C) No. 5855/07 we have set aside the Division Bench judgment of the Bombay High Court dated 20.12.2006 in the case of Smt. Leela Gajanan Pansare v. Oriental Insurance Co. Ltd.. | 1 | 19,356 | 1,241 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. ...". (emphasis supplied) 47. Moreover, if we are to hold that PSUs do not include Government companies, as held by the High Court, we would be disturbing the package offered by the Legislature of allowing increase of rent annually at 5%, allowing the landlords to accept premium and exclusion of certain entities from the protection of the Rent Act under Section 3(1)(b). On the other hand, acceptance of the arguments advanced on behalf of the respondents on the interpretation of Section 3(1)(b) would make the Act vulnerable to challenge as violative of Article 14 of the Constitution. Therefore, we are of the view that on a plain meaning of the words `PSUs as understood by the Legislature, it is clear that, Indias PSUs are in the form of statutory corporations, public sector companies, Government companies and companies in which the public are substantially interested (see: Income tax Act, 1961). When the word PSU is mentioned in Section 3(1)(b), the State Legislature is presumed to know the recommendations of the various Parliamentary Committees on PSUs. These entities are basically cash-rich entities. They have positive net asset value. They have positive net worths. They can afford to pay rents at the market rate. Thirdly, we are of the view that, in this case, the principle of noscittur a sociisis clearly applicable. According to this principle, when two or more words which are susceptible to analogous meaning are coupled together, the words can take their colour from each other. Applying this test, we hold that Section 3(1)(b) clearly applies to different categories of tenants all of whom are capable of paying rent at the market rates. Multinational companies, international agencies, statutory corporations, Government companies, public sector companies can certainly afford to pay rent at the market rates. This thought is further highlighted by the last category in Section 3(1)(b). Private limited companies and public limited companies having paid up share capital of more than Rs. 1,00,00,000 are excluded from the protection of the Rent Act. This further supports the view which we have taken that each and every entities mentioned in Section 3(1)(b) can afford to pay rent at the market rates. We may note that to meet the challenge of discrimination under Article 14 it is not sufficient to state that there is an intelligible differentia but it is further essential requirement to show that the differentia has a rational nexus to the object sought to be achieved by the Statute in question. (see: State of Rajasthan v. Mukanchand and ors. (1964) 6 SCR 903.) As stated above, Section 3(1)(b) strikes a balance between the interest of the landlords and the tenants; it is neither pro-landlords nor anti-tenants. It is pro-public interest. In this connection, one must keep in mind the fact that the said Rent Act, 1999 involves a structural change vis-à-vis the Bombay Rent Act, 1947. As stated above, with the passage of time, the 1947 Act became vulnerable to challenge as violative of Article 14. As stated above, the legislature has strike to balance the twin objectives of Rent Act protection and rent restriction for those who cannot afford to pay rents at the market rates. To accept the interpretation advanced on behalf of the respondents for excluding Government companies from the meaning of the words "PSUs" in Section 3(1)(b) would amount to disturbing the neat balance struck by the Legislature. OIC and UIC are Government companies. They have paid up capital of more than Rs. 100 crores. They can easily afford to pay rents at the market rates. The legislature in its wisdom has kept PSUs, including Government companies, outside the Rent Act. We have to proceed on the basis that the State Legislature was aware of the meaning of the words PSUs as understood by the various Parliamentary Committees. If Government companies are to be excluded from Section 3(1)(b) then the test of intelligible differentia having rational nexus to the objects sought to be achieved by the said Rent Act would stand defeated. We cannot exclude such PSUs from Section 3(1)(b) as is sought to be contended on behalf of the respondents. PSUs including Government Companies are independent companies/corporations. They cannot be equated to the "Government" in Section 3(1)(a). We have to read Section 3(1)(b) in its entirety. We have to read the said section keeping in mind the reasons for its enactment. Lastly, we are of the view that the High Court judgment is erroneous when it adds words to Section 3(1)(b), namely, "which is not a Government company". In other words, the High Court states that OIC/UIC and BPCL are public undertakings, however, they are Government companies incorporated under Section 617 of the 1956 Act and, therefore, stand excluded from Section 3 (1)(b). In this connection it may be stated that High Court has relied upon the definition of Government Company under Section 617 of the Companies Act. In the case of Union of India and others v. R.C. Jain and others - 1981 (2) SCC 308 this Court has enunciated the principle that "the definition of an expression in one Act must not be imported into another. It would be a new terror in the construction of Acts if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone." Lastly, the interpretation placed by the High Court on the word "PSUs" in Section 3(1)(b) amounts to judicial legislation and further it defeats the very object of Section 3(1)(b). 48. Before concluding, we may note that we have interpreted the words ‘PSUs in Section 3(1)(b) purely in the context of the provisions of the Maharashtra Rent Control Act, 1999. Our judgment is, therefore, confined strictly to the said provisions of the Rent Act.
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has been held that with the passage of time the 1947 Act which was justified when enacted had become arbitrary and unreasonable with the change in economic circumstances. It has been further observed in the said judgment that the 1947 Act relating to determination and fixation of standard rent can no longer be considered to be reasonable. However, this Court felt that though the provisions mentioned above were liable to struck down as unreasonable and arbitrary keeping in mind the consequences that the tenants may lose protection of the Rent Act, this Court gave an opportunity to the Government to consider enactment of a Model Law. This judgment was delivered by the apex Court on 19.12.1997.38. Therefore, the legislature was required to keep in mind the vulnerability of fixing standard rent as on 1.9.1940. At the same time, the legislature had to keep in mind two aspects, namely, tenancy protection and rent restriction. The problem arose on account of economic factors. However, the legislature found the solution by evolving an economic criterion. The legislature evolved a package under which the prohibition on receiving premium under Section 18 of the 1947 Act stood deleted. In other words, landlords were given the liberty to charge premium. The second package was to exclude cash-rich body corporates and statutory corporations from the protection of the Rent Act. This part of the economic package helps the landlords to enhance the rent and charge rent to the entities mentioned in Section 3(1)(b) who can afford to pay rent at the market rate. This was the second item in the economic package offered to the landlords under the present Rent Act. The third item of the Rent Act was to give the benefit of annual increase of rent @ 5% under the present Rent Act. All three items constituted one composite package for the landlords. The underlying object behind the said economic package is to balance and maintain the two-fold objects of the Rent Act, namely, tenancy protection and rent protection. The idea behind excluding cash-rich entities from the protection of the Rent Act is also to continue to give protection to tenants who cannot afford to pay rent at market rate.39. The above discussion is relevant because we must understand the reason why Section 3(1)(b) came to be enacted. As stated above, in our view, with the offer of an economic package to the landlords, the legislature has tried to maintain a balance. The provisions of the earlier Rent Act, as stated above, have become vulnerable, unreasonable and arbitrary with the passage of time as held by this Court in the above judgment. The legislature was aware of the said judgment. It is reflected in the report of the Joint Committee. In our view, the changes made in the present Rent Act by which landlords are permitted to charge premium, the provisions by which cash-rich entities are excluded from the protection of the Rent Act and the provision providing for annual increase at a nominal rate of 5% are structural changes brought about by the present Rent Act, 1999 vis-à-vis the 1947 Act. The Rent Act of 1999 is the sequel to the judgment of this Court in the case of Malpe Vishwanath Acharya (supra).40. The entire discussion hereinabove is, therefore, not only to go behind Section 3(1)(b) and ascertain the reasons for enactment of the said sub-section but also to enable this Court to give purposive interpretation to the saiddo not find merit in this submission. Firstly, it may be noted that several entities have been enumerated in Section 3(1)(b), namely, banks, PSUs or statutory corporations, foreign missions, international agencies, multinational companies and private limited and public limited companies having a paid up share capital of Rs. 1,00,00,000 or more. As stated above, the said Rent Act, 1999 has brought about structural changes in the legislation. In this case, it was open to the legislature to opt for any of the tests, namely, test of origin, test of public character of the functions performed by each of these entities, test of public character of each of the undertakings, test of agency or instrumentality, test of monopolistic status, test of mobilization of resources etc. In the present case, we find that the legislature has opted for an economic criteria, namely, entities which are in a position to pay rent at market rates are to stand excluded from Rent Act protection. This is the test of Financial Capability. This is the golden thread which runs through Section 3(1)(a). Be it banks, PSUs. Statutory corporations, multinational companies, foreign missions, international agencies and public and private limited companies having a paid up share capital of Rs. 1,00,00,000 or more stand excluded from the Rent Act protection. This criteria has been selected by the legislature knowing fully well that each of these entities including PSUs can afford to pay rent at the market rates. Secondly, we have given in-depth consideration to the contention advanced on behalf of the respondents on the interpretation of Section 3(1)(b). We are of the view that to accept the contention of the respondents, namely, that only PSUs which are established by or under the Central or State Acts will not get protection whereas PSUs which are Government companies incorporated under the 1956 Act would continue to get protection would make the Section 3(1)(b) vulnerable to challenge as violative of Article 14 of the Constitution. In this regard, it may be noted that in the insurance industry, we have LIC, banks, private sector companies and Government companies. To say that LIC being a statutory corporation stands excluded from the provisions of the Rent Act whereas Government companies incorporated under the Companies Act, 1956 would continue to get protection would lead to arbitrary discrimination under Article 14 to the Constitution.Today, vide civil appeal arising out of SLP(C) No. 5855/07 we have set aside the Division Bench judgment of the Bombay High Court dated 20.12.2006 in the case of Smt. Leela Gajanan Pansare v. Oriental Insurance Co. Ltd..
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State of Gujarat (Commissioner of Sales Tax, Ahmedabad) Vs. Variety Body Builders | S. T. C. 13). Indeed Kailash Engineerings case (supra) was relied upon by the respondent before u s. It was held in that case that as the terms of the contract indicate that the respondent was not to he the owner of the ready railway coaches and that the property in those bodies vested in the Railway even during the process of construction, the transaction was clearly a works contract and did not involve any sale.Mr. Desai strenuously contends that clause (29) of the contract in Kailash Engineerings case (supra) distinguishes that case from the case at hand Clause 29 w as a specific provision for certain contingencies in case of loss theft or destruction of the materials or plant. This special provision was to the effect that the liability of the contractor was not to be diminished in any way notwithstanding the fact that the materials and plant became the property of the Railway as soon as they were brought to the Railway premises. We however do not see much point in this submission In that case since the plant and materials were brought on the site when the contract were to be constructed the ownership is said to have vested in the Railway. In the present case also substantially the same result follows. The agreement here shows that when the contractor dies his legal representatives or assignees have no interest in the contract which terminates and they will be only paid for the value of the work done. This would mean the property constructed upto that point was impliedly agreed upon to be vested in t he Railway as and when materials were worked into the chassis. This is the implication of the agreement and not merely on the theory of accretion. At any rate the passing of property in this case is ancillary to the primary contract for execution of the work. 17. In the Slate of Madras v. Richardson &Cruddas Ltd ((1968) 21 S. T. C. 215.) this Court was dealing with a contract for fabrication and installation of steel structure for sugar factory in the State of Mysore. In the course of the judgment this Court observed as follows:- It had therefore to be established that the consideration was received under a contract to sell specific goods for a price and property in the goods contracted to be sold passed to the society when the goods were delivered in a pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or execution of the contract as accessory to `work and labour the contract must be regarded as a works contract and not a contract for sale even in the property in the goods ultimately passes as a result of the contract .The Court further observed at page 252 as follows . The contract being one for supplying for an inclusive price a specially designed fabricated unit to be assembled and installed by specially trained technicians ill the premises of the customer it was not a contract for sale of a unit or different parts of the unit is specials good but a works contract . 18. In the Government of Andhra Pradesh. v. Guntur Tabaccos Ltd.((1965) 16 S. T. C. 240.) this Court dealing with an identical issue observed as follows at page 255: The fact that in the execution of a contract for work some materials are used and property in the goods so used passes to the other party the contractor undertaking to do the work will not necessarily be deemed on that account to sell the materials . Again at page 258: Whether a contract for service or for execution of work invokes a taxable sale of goods must be decided on the facts and circumstances of the case. The burden in such a case lies upon the taxing authorities to show that there was a taxable sale and that burden is not discharged by merely showing that property in goods which belonged to the party per forming service or executing the contract stands transferred to the other party. This Court in Commissioner of Sales Tax, M.P. v. Purshottam Premji((1970) 26 S. T. C. 38.) dealt with the difference between a contract of work or service and a contract for sale of goods in the following passage: 19. The primary difference between a contract for work or service and a contract for sale of goods in that in the former there is in the person performing work or rendering service no property in the thing produced as a whole notwithstanding that a part or even the whole of ` the material used by him may have been his property. In the case of a contract for sale the thing produced as a whole has individuals existence as the sole property of the party who produced it at some time before delivery and the property therein passes only under the contract relating there to the other party for price. Mere transfer of property in goods used in, the performance of a contract is not sufficient; to constitute a sale there must b e an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in the very goods contract the to be sold. Ultimately the true effect of an accertion made pursuance to a contract has to be judged not by an artificial rule that the accretion may he presumed to have become by virtue of affixing to a chattel part of that chattel but from the intention of the parties to the contract. We are fortified by all the above decisions of this Court in our conclusion in favour of the assessee. 20. We are therefore clearly of opinion that the contract in the present case is one of works contract and the High Court is not in answering the question in favour of the assessee. | 0[ds]It is well-settled that when there is a written contract it will be necessary for the Court to find out therefrom the intention of the parties executing the particular contract. That intention has to be primarily gathered from the terms and conditions which are agreed Upon by the parties. We will, therefore, immediately turn our attention to the agreement in questionIt had therefore to be established that the consideration was received under a contract to sell specific goods for a price and property in the goods contracted to be sold passed to the society when the goods were delivered in a pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or execution of the contract as accessory to `work and labour the contract must be regarded as a works contract and not a contract for sale even in the property in the goods ultimately passes as a result of the contract .The Court further observed at page 252 as followsThe contract being one for supplying for an inclusive price a specially designed fabricated unit to be assembled and installed by specially trained technicians ill the premises of the customer it was not a contract for sale of a unit or different parts of the unit is specials good but a works contractThe primary difference between a contract for work or service and a contract for sale of goods in that in the former there is in the person performing work or rendering service no property in the thing produced as a whole notwithstanding that a part or even the whole of ` the material used by him may have been his property. In the case of a contract for sale the thing produced as a whole has individuals existence as the sole property of the party who produced it at some time before delivery and the property therein passes only under the contract relating there to the other party for price. Mere transfer of property in goods used in, the performance of a contract is not sufficient; to constitute a sale there must b e an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in the very goods contract the to be sold. Ultimately the true effect of an accertion made pursuance to a contract has to be judged not by an artificial rule that the accretion may he presumed to have become by virtue of affixing to a chattel part of that chattel but from the intention of the parties to the contract. We are fortified by all the above decisions of this Court in our conclusion in favour of the assesseeWe are therefore clearly of opinion that the contract in the present case is one of works contract and the High Court is not in answering the question in favour of the assessee. | 0 | 5,766 | 511 | ### Instruction:
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S. T. C. 13). Indeed Kailash Engineerings case (supra) was relied upon by the respondent before u s. It was held in that case that as the terms of the contract indicate that the respondent was not to he the owner of the ready railway coaches and that the property in those bodies vested in the Railway even during the process of construction, the transaction was clearly a works contract and did not involve any sale.Mr. Desai strenuously contends that clause (29) of the contract in Kailash Engineerings case (supra) distinguishes that case from the case at hand Clause 29 w as a specific provision for certain contingencies in case of loss theft or destruction of the materials or plant. This special provision was to the effect that the liability of the contractor was not to be diminished in any way notwithstanding the fact that the materials and plant became the property of the Railway as soon as they were brought to the Railway premises. We however do not see much point in this submission In that case since the plant and materials were brought on the site when the contract were to be constructed the ownership is said to have vested in the Railway. In the present case also substantially the same result follows. The agreement here shows that when the contractor dies his legal representatives or assignees have no interest in the contract which terminates and they will be only paid for the value of the work done. This would mean the property constructed upto that point was impliedly agreed upon to be vested in t he Railway as and when materials were worked into the chassis. This is the implication of the agreement and not merely on the theory of accretion. At any rate the passing of property in this case is ancillary to the primary contract for execution of the work. 17. In the Slate of Madras v. Richardson &Cruddas Ltd ((1968) 21 S. T. C. 215.) this Court was dealing with a contract for fabrication and installation of steel structure for sugar factory in the State of Mysore. In the course of the judgment this Court observed as follows:- It had therefore to be established that the consideration was received under a contract to sell specific goods for a price and property in the goods contracted to be sold passed to the society when the goods were delivered in a pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or execution of the contract as accessory to `work and labour the contract must be regarded as a works contract and not a contract for sale even in the property in the goods ultimately passes as a result of the contract .The Court further observed at page 252 as follows . The contract being one for supplying for an inclusive price a specially designed fabricated unit to be assembled and installed by specially trained technicians ill the premises of the customer it was not a contract for sale of a unit or different parts of the unit is specials good but a works contract . 18. In the Government of Andhra Pradesh. v. Guntur Tabaccos Ltd.((1965) 16 S. T. C. 240.) this Court dealing with an identical issue observed as follows at page 255: The fact that in the execution of a contract for work some materials are used and property in the goods so used passes to the other party the contractor undertaking to do the work will not necessarily be deemed on that account to sell the materials . Again at page 258: Whether a contract for service or for execution of work invokes a taxable sale of goods must be decided on the facts and circumstances of the case. The burden in such a case lies upon the taxing authorities to show that there was a taxable sale and that burden is not discharged by merely showing that property in goods which belonged to the party per forming service or executing the contract stands transferred to the other party. This Court in Commissioner of Sales Tax, M.P. v. Purshottam Premji((1970) 26 S. T. C. 38.) dealt with the difference between a contract of work or service and a contract for sale of goods in the following passage: 19. The primary difference between a contract for work or service and a contract for sale of goods in that in the former there is in the person performing work or rendering service no property in the thing produced as a whole notwithstanding that a part or even the whole of ` the material used by him may have been his property. In the case of a contract for sale the thing produced as a whole has individuals existence as the sole property of the party who produced it at some time before delivery and the property therein passes only under the contract relating there to the other party for price. Mere transfer of property in goods used in, the performance of a contract is not sufficient; to constitute a sale there must b e an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in the very goods contract the to be sold. Ultimately the true effect of an accertion made pursuance to a contract has to be judged not by an artificial rule that the accretion may he presumed to have become by virtue of affixing to a chattel part of that chattel but from the intention of the parties to the contract. We are fortified by all the above decisions of this Court in our conclusion in favour of the assessee. 20. We are therefore clearly of opinion that the contract in the present case is one of works contract and the High Court is not in answering the question in favour of the assessee.
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It is well-settled that when there is a written contract it will be necessary for the Court to find out therefrom the intention of the parties executing the particular contract. That intention has to be primarily gathered from the terms and conditions which are agreed Upon by the parties. We will, therefore, immediately turn our attention to the agreement in questionIt had therefore to be established that the consideration was received under a contract to sell specific goods for a price and property in the goods contracted to be sold passed to the society when the goods were delivered in a pursuance of the contract. If the contract was for completing the stipulated work and for that purpose to use materials belonging to the respondents in the performance or execution of the contract as accessory to `work and labour the contract must be regarded as a works contract and not a contract for sale even in the property in the goods ultimately passes as a result of the contract .The Court further observed at page 252 as followsThe contract being one for supplying for an inclusive price a specially designed fabricated unit to be assembled and installed by specially trained technicians ill the premises of the customer it was not a contract for sale of a unit or different parts of the unit is specials good but a works contractThe primary difference between a contract for work or service and a contract for sale of goods in that in the former there is in the person performing work or rendering service no property in the thing produced as a whole notwithstanding that a part or even the whole of ` the material used by him may have been his property. In the case of a contract for sale the thing produced as a whole has individuals existence as the sole property of the party who produced it at some time before delivery and the property therein passes only under the contract relating there to the other party for price. Mere transfer of property in goods used in, the performance of a contract is not sufficient; to constitute a sale there must b e an agreement express or implied relating to the sale of goods and completion of the agreement by passing of title in the very goods contract the to be sold. Ultimately the true effect of an accertion made pursuance to a contract has to be judged not by an artificial rule that the accretion may he presumed to have become by virtue of affixing to a chattel part of that chattel but from the intention of the parties to the contract. We are fortified by all the above decisions of this Court in our conclusion in favour of the assesseeWe are therefore clearly of opinion that the contract in the present case is one of works contract and the High Court is not in answering the question in favour of the assessee.
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The Commissioner Of Income Tax(Cntl), Ludhiana Vs. M/S Hero Cycles Pvt. Ltd. Ludhiana | S. SAGHIR AHMAD J. 1. Civil Appeal No. 7665 of 1996 The following question of law was referred by the Tribunal to the High Court " Whether, on the facts and in the circumstances of the case on a proper interpretation of section 35B of the Income-tax Act, 1961, the Appellate Tribunal was right in law in allowing the assessees claim for weighted deduction in respect of export sales commission E. C. G. C. charges and foreign dealers visiting expenses ? " * 2. The High Court declined to call for a reference under section 256(2) of the Income-tax Act, 1961. It appears that the claim for deduction under section 35B was not originally allowed at all. Thereafter, on the assessees application an order was passed by the Commissioner of Income-tax (Appeals), Jalandhar, in which he directed certain allowances to be given on proportionate basis after verification of the assessees claim under section 35B 3. The Income-tax Officer thereafter entertained the assessees prayer for rectification of the order and allowed the assessees claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, E. C. G. C., foreign dealers visiting expenses. Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as a mistake apparent on the record. The dispute raised a mixed question of fact and law 4. The Tribunal was in error in upholding the assessees claim for weighted deductions 5. There is no point in sending the matter to the High Court to deal with the question raised at this stage. | 1[ds]It appears that the claim for deduction under section 35B was not originally allowed at all. Thereafter, on the assessees application an order was passed by the Commissioner of Income-tax (Appeals), Jalandhar, in which he directed certain allowances to be given on proportionate basis after verification of the assessees claim under section 35BThe Income-tax Officer thereafter entertained the assessees prayer for rectification of the order and allowed the assessees claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, E. C. G. C., foreign dealers visiting expenses. Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as a mistake apparent on the record. The dispute raised a mixed question of fact and lawThe Tribunal was in error in upholding the assessees claim for weighted deductionsThere is no point in sending the matter to the High Court to deal with the question raised at this stageThe Commissioner of Income-tax (Appeals) as well as the Tribunal allowed this claim of the assessee without examining the facts of this case. The deduction is permissible if the expenditure is laid out wholly and exclusively for the purposes mentioned in clause (b) of section 35B(1). It is for the assessee to prove that the entire expenditure involved was exclusively for the purposes mentioned in clause (b) of section 35B(1). The Tribunal has also to give a finding as to the entitlement of the assessee with reference to the particulars of clause (b) of section 35B(1). The facts have to be found out and the law has to be applied to those facts. It appears that generally a certain percentage of the claim has been allowed under section 35B without adverting to any of the sub-clauses of clause (b) of section 35B(1)We have passed similar orders in a large number of cases but in this case on behalf of the assessee it has been contended that there is a circular issued by the Central Board of Direct Taxes, New Delhi, which should conclude the matter. A copy of the so-called circular dated April 9, 1981/April 13, 1981, has been handed over in court. It does not appear that the document handed over in court is a copy of the circular at all. It is a letter written to one Shri DSouza with a reference to a letter written by his predecessorMoreover, it is well-settled that circulars can bind the Income-tax Officer but will not bind the appellate authority or the Tribunal or the court or even the assessee. There is nothing in the alleged circular which supports the contention of the assessee. It merely says that each case has to be examined and the issue would be basically a finding of fact. The assessee had not made his claim before the Income-tax Officer by relying on this circularSo far as section 40(c) is concerned, the appeal will have to be dismissed. So far as section 35B is concerned, the weighted deduction must be examined by the Tribunal on the basis of the facts proved by the assessee and having reference to the various sub-clauses of clause (b) of section 35B(1). If the assessees case comes specifically within any of these sub-clauses it has to be allowed, otherwise notIf the assessees case come specifically within any of these sub-clauses it has to be allowed, otherwise notWe are unable to accept this contention for two reasons. First, when the Act speaks of section 28 to section 43B, then each one of the sections from section 28 to section 43B will be included. The newly inserted section 35B was not specifically mentioned because it was not necessary to do so, just as it was not necessary to specifically mention section 35B in section 29, which lays down that computation of profits and gains of business or profession shall be computed in accordance with the provisions contained in sections 30 to 43CMoreover, when the Act specifically says that profits and gains of insurance business shall be computed in accordance with the rules contained in the First Schedule then such computation has to be made according to that rule and not any other rule. We are unable to accept the contention of Mrs. Ramachandran that the benefit of section 35B should also be given to any insurance companyWe are of the opinion that the Tribunal cannot allow any weighted deduction without linking the expenditure to one or more of the activities referred to in various sub-clauses of section 35B(1)(b). Therefore, in our opinion, the question must be answered in the negative and in favour of the Revenue. The Tribunal will now decide the case afresh after examining the nature of the expenditure and the purposes for which it was spent having regard to the various sub-clauses of section 35B(1)(b)The contribution may be for the promotion of export generally but this sort of contribution to a general body or Chamber of Commerce cannot qualify for weighted deductionThese will have to be disallowed. The order of the Tribunal to this extent is erroneous. So far as commission payable to STC, HHEC and ECGC is concerned, this will have to be examined by the Tribunal afresh. The onus is on the assessee to prove the facts which will enable him to claim weighted deduction. | 1 | 333 | 1,026 | ### Instruction:
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S. SAGHIR AHMAD J. 1. Civil Appeal No. 7665 of 1996 The following question of law was referred by the Tribunal to the High Court " Whether, on the facts and in the circumstances of the case on a proper interpretation of section 35B of the Income-tax Act, 1961, the Appellate Tribunal was right in law in allowing the assessees claim for weighted deduction in respect of export sales commission E. C. G. C. charges and foreign dealers visiting expenses ? " * 2. The High Court declined to call for a reference under section 256(2) of the Income-tax Act, 1961. It appears that the claim for deduction under section 35B was not originally allowed at all. Thereafter, on the assessees application an order was passed by the Commissioner of Income-tax (Appeals), Jalandhar, in which he directed certain allowances to be given on proportionate basis after verification of the assessees claim under section 35B 3. The Income-tax Officer thereafter entertained the assessees prayer for rectification of the order and allowed the assessees claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, E. C. G. C., foreign dealers visiting expenses. Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as a mistake apparent on the record. The dispute raised a mixed question of fact and law 4. The Tribunal was in error in upholding the assessees claim for weighted deductions 5. There is no point in sending the matter to the High Court to deal with the question raised at this stage.
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It appears that the claim for deduction under section 35B was not originally allowed at all. Thereafter, on the assessees application an order was passed by the Commissioner of Income-tax (Appeals), Jalandhar, in which he directed certain allowances to be given on proportionate basis after verification of the assessees claim under section 35BThe Income-tax Officer thereafter entertained the assessees prayer for rectification of the order and allowed the assessees claim in respect of matters like coloured albums, export staff travelling expenses, export sales commission, E. C. G. C., foreign dealers visiting expenses. Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as a mistake apparent on the record. The dispute raised a mixed question of fact and lawThe Tribunal was in error in upholding the assessees claim for weighted deductionsThere is no point in sending the matter to the High Court to deal with the question raised at this stageThe Commissioner of Income-tax (Appeals) as well as the Tribunal allowed this claim of the assessee without examining the facts of this case. The deduction is permissible if the expenditure is laid out wholly and exclusively for the purposes mentioned in clause (b) of section 35B(1). It is for the assessee to prove that the entire expenditure involved was exclusively for the purposes mentioned in clause (b) of section 35B(1). The Tribunal has also to give a finding as to the entitlement of the assessee with reference to the particulars of clause (b) of section 35B(1). The facts have to be found out and the law has to be applied to those facts. It appears that generally a certain percentage of the claim has been allowed under section 35B without adverting to any of the sub-clauses of clause (b) of section 35B(1)We have passed similar orders in a large number of cases but in this case on behalf of the assessee it has been contended that there is a circular issued by the Central Board of Direct Taxes, New Delhi, which should conclude the matter. A copy of the so-called circular dated April 9, 1981/April 13, 1981, has been handed over in court. It does not appear that the document handed over in court is a copy of the circular at all. It is a letter written to one Shri DSouza with a reference to a letter written by his predecessorMoreover, it is well-settled that circulars can bind the Income-tax Officer but will not bind the appellate authority or the Tribunal or the court or even the assessee. There is nothing in the alleged circular which supports the contention of the assessee. It merely says that each case has to be examined and the issue would be basically a finding of fact. The assessee had not made his claim before the Income-tax Officer by relying on this circularSo far as section 40(c) is concerned, the appeal will have to be dismissed. So far as section 35B is concerned, the weighted deduction must be examined by the Tribunal on the basis of the facts proved by the assessee and having reference to the various sub-clauses of clause (b) of section 35B(1). If the assessees case comes specifically within any of these sub-clauses it has to be allowed, otherwise notIf the assessees case come specifically within any of these sub-clauses it has to be allowed, otherwise notWe are unable to accept this contention for two reasons. First, when the Act speaks of section 28 to section 43B, then each one of the sections from section 28 to section 43B will be included. The newly inserted section 35B was not specifically mentioned because it was not necessary to do so, just as it was not necessary to specifically mention section 35B in section 29, which lays down that computation of profits and gains of business or profession shall be computed in accordance with the provisions contained in sections 30 to 43CMoreover, when the Act specifically says that profits and gains of insurance business shall be computed in accordance with the rules contained in the First Schedule then such computation has to be made according to that rule and not any other rule. We are unable to accept the contention of Mrs. Ramachandran that the benefit of section 35B should also be given to any insurance companyWe are of the opinion that the Tribunal cannot allow any weighted deduction without linking the expenditure to one or more of the activities referred to in various sub-clauses of section 35B(1)(b). Therefore, in our opinion, the question must be answered in the negative and in favour of the Revenue. The Tribunal will now decide the case afresh after examining the nature of the expenditure and the purposes for which it was spent having regard to the various sub-clauses of section 35B(1)(b)The contribution may be for the promotion of export generally but this sort of contribution to a general body or Chamber of Commerce cannot qualify for weighted deductionThese will have to be disallowed. The order of the Tribunal to this extent is erroneous. So far as commission payable to STC, HHEC and ECGC is concerned, this will have to be examined by the Tribunal afresh. The onus is on the assessee to prove the facts which will enable him to claim weighted deduction.
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M/s. Shobikaa Impex Pvt. Ltd. & Another Vs. Central Medical Services Society & Others | compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."22. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd and another, (2005) 6 SCC 138 , it has been held that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point.23. In Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517 , it has been ruled that when the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.24. In Union of India and another v. International Trading Co. and another, (2003) 5 SCC 437 , it has been held that the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. It has been further opined that the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case.25. In Jespar I. Slong v. State of Meghalaya and others, (2004) 11 SCC 485 , this Court stated that fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable.26. Keeping in view the aforesaid authorities, we have to consider whether the High Court has fallen into error by not interfering with the grant of contract in favour of the fourth respondent. As the factual analysis would reveal, the appellant No.1 had not filed an application for grant of registration. It was appellant No.2 who had filed it. Be that as it may, the decision dated 31.03.2015 was taken by the Registration Committee of CIB to approve the registration subject to the condition DAC granting permission for commercialization. That apart, the decision taken by the concerned authority, even if it is put on the website, despite the astute submission of Mr. Singh, would not tantamount to grant of registration certificate. The amendment was made, as we perceive, to clarify the position. We have already stated, even if the amendment was not brought in, the first respondent would have been in a position, by applying objective standards, to treat the appellants bid as non-responsive and non-compliant. The use of the word "must" adds a great degree of certainty to the same; it is a requisite parameter as thought of by the respondent No.1. The tender was floated for purchase which is needed for the nation. The first respondent along with respondent Nos.2 and 3 were taking immense precaution. In such a circumstance, needless to emphasize, public interest is involved. It cannot succumb to private interest. The action on the part of the respondent Nos.1 to 3 cannot be regarded as arbitrary or unreasonable. By no stretch of imagination it can be construed to be an act which is not bonafide or to have been done to favour the fourth respondent. Nothing has been pleaded that the fourth respondent is not eligible or qualified. In our considered opinion, the essential condition of tender being not met with, the tenderer, the appellants herein, were ineligible and the tender was non-responsive. That apart, the amendment was applicable to all. Additionally, the High Court in the first round of litigation had not held that the registration certificate granted on 31.03.2015 would enure to the benefit of the writ petitioners from the date of the decision of the registration authority, and it had rightly not said so. Judged from any angle, we do not perceive any substance in the grounds raised in this appeal. | 0[ds]22. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd and another, (2005) 6 SCC 138 , it has been held that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in theprocess, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point.23. In Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517 , it has been ruled that when the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.24. In Union of India and another v. International Trading Co. and another, (2003) 5 SCC 437 , it has been held that the basic requirement of Article 14 is fairness in action by the State, andin essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. It has been further opined that the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case.25. In Jespar I. Slong v. State of Meghalaya and others, (2004) 11 SCC 485 , this Court stated that fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable.26. Keeping in view the aforesaid authorities, we have to consider whetherthe High Court has fallen into error by not interfering with the grant of contract in favour of the fourthrespondent. As the factual analysis would reveal, the appellant No.1 had not filed an application for grant of registration. It was appellant No.2 who had filed it. Be that as it may, the decision dated 31.03.2015 was taken by the Registration Committee of CIB to approve the registration subject to the condition DAC granting permission for commercialization. That apart, the decision taken by the concerned authority, even if it is put on the website, despite the astute submission of Mr. Singh, would not tantamount to grant of registration certificate. The amendment was made, as we perceive, to clarify the position. We have already stated, even if the amendment was not brought in, the first respondent would have been in a position, by applying objective standards, to treat the appellants bid ast. The use of the word "must" adds a great degree of certainty to the same; it is a requisite parameter as thought of by the respondent No.1. The tender was floated for purchase which is needed for the nation. The first respondent along with respondent Nos.2 and 3 were taking immense precaution. In such a circumstance, needless to emphasize, public interest is involved. It cannot succumb to private interest. The action on the part of the respondent Nos.1 to 3 cannot be regarded as arbitrary or unreasonable. By no stretch of imagination it can be construed to be an act which is not bonafide or to have been done to favour the fourth respondent. Nothing has been pleaded that the fourth respondent is not eligible or qualified. In our considered opinion, the essential condition of tender being not met with, the tenderer, the appellants herein, were ineligible and the tender wasThat apart, the amendment was applicable to all. Additionally, the High Court in the first round of litigation had not held that the registration certificate granted on 31.03.2015 would enure to the benefit of the writ petitioners from the date of the decision of the registration authority, and it had rightly not said so. Judged from any angle, we do not perceive any substance in the grounds raised in this appeal. | 0 | 5,384 | 919 | ### 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:
compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."22. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd and another, (2005) 6 SCC 138 , it has been held that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point.23. In Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517 , it has been ruled that when the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.24. In Union of India and another v. International Trading Co. and another, (2003) 5 SCC 437 , it has been held that the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. It has been further opined that the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case.25. In Jespar I. Slong v. State of Meghalaya and others, (2004) 11 SCC 485 , this Court stated that fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable.26. Keeping in view the aforesaid authorities, we have to consider whether the High Court has fallen into error by not interfering with the grant of contract in favour of the fourth respondent. As the factual analysis would reveal, the appellant No.1 had not filed an application for grant of registration. It was appellant No.2 who had filed it. Be that as it may, the decision dated 31.03.2015 was taken by the Registration Committee of CIB to approve the registration subject to the condition DAC granting permission for commercialization. That apart, the decision taken by the concerned authority, even if it is put on the website, despite the astute submission of Mr. Singh, would not tantamount to grant of registration certificate. The amendment was made, as we perceive, to clarify the position. We have already stated, even if the amendment was not brought in, the first respondent would have been in a position, by applying objective standards, to treat the appellants bid as non-responsive and non-compliant. The use of the word "must" adds a great degree of certainty to the same; it is a requisite parameter as thought of by the respondent No.1. The tender was floated for purchase which is needed for the nation. The first respondent along with respondent Nos.2 and 3 were taking immense precaution. In such a circumstance, needless to emphasize, public interest is involved. It cannot succumb to private interest. The action on the part of the respondent Nos.1 to 3 cannot be regarded as arbitrary or unreasonable. By no stretch of imagination it can be construed to be an act which is not bonafide or to have been done to favour the fourth respondent. Nothing has been pleaded that the fourth respondent is not eligible or qualified. In our considered opinion, the essential condition of tender being not met with, the tenderer, the appellants herein, were ineligible and the tender was non-responsive. That apart, the amendment was applicable to all. Additionally, the High Court in the first round of litigation had not held that the registration certificate granted on 31.03.2015 would enure to the benefit of the writ petitioners from the date of the decision of the registration authority, and it had rightly not said so. Judged from any angle, we do not perceive any substance in the grounds raised in this appeal.
### Response:
0
### Explanation:
22. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd and another, (2005) 6 SCC 138 , it has been held that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in theprocess, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point.23. In Jagdish Mandal v. State of Orissa and others, (2007) 14 SCC 517 , it has been ruled that when the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.24. In Union of India and another v. International Trading Co. and another, (2003) 5 SCC 437 , it has been held that the basic requirement of Article 14 is fairness in action by the State, andin essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. It has been further opined that the meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case.25. In Jespar I. Slong v. State of Meghalaya and others, (2004) 11 SCC 485 , this Court stated that fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable.26. Keeping in view the aforesaid authorities, we have to consider whetherthe High Court has fallen into error by not interfering with the grant of contract in favour of the fourthrespondent. As the factual analysis would reveal, the appellant No.1 had not filed an application for grant of registration. It was appellant No.2 who had filed it. Be that as it may, the decision dated 31.03.2015 was taken by the Registration Committee of CIB to approve the registration subject to the condition DAC granting permission for commercialization. That apart, the decision taken by the concerned authority, even if it is put on the website, despite the astute submission of Mr. Singh, would not tantamount to grant of registration certificate. The amendment was made, as we perceive, to clarify the position. We have already stated, even if the amendment was not brought in, the first respondent would have been in a position, by applying objective standards, to treat the appellants bid ast. The use of the word "must" adds a great degree of certainty to the same; it is a requisite parameter as thought of by the respondent No.1. The tender was floated for purchase which is needed for the nation. The first respondent along with respondent Nos.2 and 3 were taking immense precaution. In such a circumstance, needless to emphasize, public interest is involved. It cannot succumb to private interest. The action on the part of the respondent Nos.1 to 3 cannot be regarded as arbitrary or unreasonable. By no stretch of imagination it can be construed to be an act which is not bonafide or to have been done to favour the fourth respondent. Nothing has been pleaded that the fourth respondent is not eligible or qualified. In our considered opinion, the essential condition of tender being not met with, the tenderer, the appellants herein, were ineligible and the tender wasThat apart, the amendment was applicable to all. Additionally, the High Court in the first round of litigation had not held that the registration certificate granted on 31.03.2015 would enure to the benefit of the writ petitioners from the date of the decision of the registration authority, and it had rightly not said so. Judged from any angle, we do not perceive any substance in the grounds raised in this appeal.
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Commissioner of Central Excise, Pune Vs. Poona Bottling Co. Ltd | hire charges were concerned, it was said that there was an increase in the rate of crate hire and this has not been satisfactorily explained by the appellant. It was found that the reason given by the appellant for the increase in the crate hire charges was misleading and incorrect. It was noted that there was at the same time a corresponding increase in the cost of production by reason of the increase in the quantum of the aerated water and the size of the bottles which were being manufactured. According to the Commissioner, this additional cost of production had been "adjusted" with the increase in the crate hire charges.3. The Tribunal, however, was of the view that crate hire charges were not includible. The chartered accountant of the assessee had certified that the cost of production had not been passed on under the head of increased crate hire charges. The Tribunal acted on the chartered accountants certificate in view of the fact that the departmental authorities had not questioned the same. It was therefore of the view that the increase of the crate hire charges could at best be termed to be a profit on freight and that this was not includible in the assessable value.4. It is not in dispute that the crate hire charges are not normally included in the assessable value. It may be that there was no explicit challenge that the chartered accountants certificate was unacceptable, however, the tenor of the orders of the departmental authorities would show that the chartered accountants certificate was questioned. In that view of the matter, we are of the view that this issue needs to be reconsidered in the light of facts actually prevailing for the period in question on the basis of such evidence as may be adduced by the parties.5. The Commissioner also held that the loading and unloading charges were includible in the assessable value. The loading and unloading charges which were sought to be included were in respect of the costs incurred by M/s Gaurav Investments Pvt. Ltd., a distributor of the assessee. The Commissioner sought to include the charges of M/s Gaurav Investments Pvt. Ltd. on the ground that it was really a dummy company of the assessee. The learned counsel appearing on behalf of the appellant, however, does not seek to press this ground. The Tribunal held that only those charges incurred for loading the finished goods within the factory of the assessee are includible. We find no reason to differ from this view. The appeal insofar as it pertains to this finding is, therefore, dismissed.6. The final item which was sought to be included in the assessable value of the goods, related to the sales, promotion and publicity charges. As we have said earlier, the Commissioner had included this in the assessable value but the Tribunal did not. According to the Tribunal the factual situation was covered by the decision of this Court in Philips India Ltd. v. CCE (1997 (6) SCC 31 ). 7. In the decision in Philips India Ltd. (1997 (6) SCC 31 ) this Court had held that where there is an agreement between the manufacturer and dealer which is a genuine agreement entered into at arms length as between principal and principal which provides that the dealer shall carry out at their own expenses advertisement campaign to promote sales of the company product, the entire amount could not be included in the assessable value. The reasoning of the Court was that the advertisements which the dealer was required to make at his own cost benefited in equal degree the manufacturer and the dealer and that for this reason the cost of advertisement was borne half and half by the manufacturer and the dealer. The expenses attributable to the dealers interest therefore, were not includible in the assessable value. This decision clarified the principle enunciated in Union of India v. Bombay Tyre International Ltd. (1984 (1) SCC 467 : 1984 SCC (Tax) 17) which held that expenses incurred by the manufacturer, including marketing and selling organisation expenses, which contribute to the value of the goods up to the date of sale at the factory gate are includible in the assessable value of the goods. Philips India Ltd. (1997 (6) SCC 31 ) was subsequently considered by a three Judge Bench in CCE v. Surat Textiles Mills Ltd. (2004 (5) SCC 201 ) In that case the question was whether the costs incurred in advertisement of aerated waters was includible in the costs of the manufacture of the concentrate required for the manufacture of the aerated water by treating the cost of advertisement of aerated waters as the cost of advertisement of the concentrate. In dealing with this question, the Court held that the advertisement expenditure incurred by a manufacturers customer could be added to the sale price for determining the assessable value only if the manufacturer had an enforceable legal right against the customer. The decision has left untouched the principle enunciated in Philips India Ltd. (1997 (6) SCC 31 ) that ultimately the question will have to be resolved with reference to the benefit secured as well as the principle laid down in Bombay Tyre (1984 (1) SCC 467 : 1984 SCC (Tax) 17) that the question will have to be determined with reference to the sale ex factory. The principle laid down in Surat Textiles Mills Ltd. case (2004 (5) SCC 201 ) has been followed by a Bench of this Court in CCE v. Eicher Tractors Ltd. (2004 (9) SCC 22 ) 8. We are of the view that the factual foundation on which either the Commissioner or the Tribunal came to the conclusion has not been clearly set out. We are of the view that unless the factual foundation is clear there can be no question of applying any of the aforesaid principles as enunciated in the earlier decisions. Therefore, we remand this aspect of the matter back to the Assistant Commissioner as well. | 1[ds]The chartered accountant of the assessee had certified that the cost of production had not been passed on under the head of increased crate hire charges. The Tribunal acted on the chartered accountants certificate in view of the fact that the departmental authorities had not questioned the same. It was therefore of the view that the increase of the crate hire charges could at best be termed to be a profit on freight and that this was not includible in the assessable value.4. It is not in dispute that the crate hire charges are not normally included in the assessable value. It may be that there was no explicit challenge that the chartered accountants certificate was unacceptable, however, the tenor of the orders of the departmental authorities would show that the chartered accountants certificate was questioned. In that view of the matter, we are of the view that this issue needs to be reconsidered in the light of facts actually prevailing for the period in question on the basis of such evidence as may be adduced by the parties.5. The Commissioner also held that the loading and unloading charges were includible in the assessable value. The loading and unloading charges which were sought to be included were in respect of the costs incurred by M/s Gaurav Investments Pvt. Ltd., a distributor of the assessee. The Commissioner sought to include the charges of M/s Gaurav Investments Pvt. Ltd. on the ground that it was really a dummy company of the assessee. The learned counsel appearing on behalf of the appellant, however, does not seek to press this ground. The Tribunal held that only those charges incurred for loading the finished goods within the factory of the assessee are includible. We find no reason to differ from this view. The appeal insofar as it pertains to this finding is, therefore, dismissed.6. The final item which was sought to be included in the assessable value of the goods, related to the sales, promotion and publicity charges. As we have said earlier, the Commissioner had included this in the assessable value but the Tribunal did | 1 | 1,182 | 382 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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hire charges were concerned, it was said that there was an increase in the rate of crate hire and this has not been satisfactorily explained by the appellant. It was found that the reason given by the appellant for the increase in the crate hire charges was misleading and incorrect. It was noted that there was at the same time a corresponding increase in the cost of production by reason of the increase in the quantum of the aerated water and the size of the bottles which were being manufactured. According to the Commissioner, this additional cost of production had been "adjusted" with the increase in the crate hire charges.3. The Tribunal, however, was of the view that crate hire charges were not includible. The chartered accountant of the assessee had certified that the cost of production had not been passed on under the head of increased crate hire charges. The Tribunal acted on the chartered accountants certificate in view of the fact that the departmental authorities had not questioned the same. It was therefore of the view that the increase of the crate hire charges could at best be termed to be a profit on freight and that this was not includible in the assessable value.4. It is not in dispute that the crate hire charges are not normally included in the assessable value. It may be that there was no explicit challenge that the chartered accountants certificate was unacceptable, however, the tenor of the orders of the departmental authorities would show that the chartered accountants certificate was questioned. In that view of the matter, we are of the view that this issue needs to be reconsidered in the light of facts actually prevailing for the period in question on the basis of such evidence as may be adduced by the parties.5. The Commissioner also held that the loading and unloading charges were includible in the assessable value. The loading and unloading charges which were sought to be included were in respect of the costs incurred by M/s Gaurav Investments Pvt. Ltd., a distributor of the assessee. The Commissioner sought to include the charges of M/s Gaurav Investments Pvt. Ltd. on the ground that it was really a dummy company of the assessee. The learned counsel appearing on behalf of the appellant, however, does not seek to press this ground. The Tribunal held that only those charges incurred for loading the finished goods within the factory of the assessee are includible. We find no reason to differ from this view. The appeal insofar as it pertains to this finding is, therefore, dismissed.6. The final item which was sought to be included in the assessable value of the goods, related to the sales, promotion and publicity charges. As we have said earlier, the Commissioner had included this in the assessable value but the Tribunal did not. According to the Tribunal the factual situation was covered by the decision of this Court in Philips India Ltd. v. CCE (1997 (6) SCC 31 ). 7. In the decision in Philips India Ltd. (1997 (6) SCC 31 ) this Court had held that where there is an agreement between the manufacturer and dealer which is a genuine agreement entered into at arms length as between principal and principal which provides that the dealer shall carry out at their own expenses advertisement campaign to promote sales of the company product, the entire amount could not be included in the assessable value. The reasoning of the Court was that the advertisements which the dealer was required to make at his own cost benefited in equal degree the manufacturer and the dealer and that for this reason the cost of advertisement was borne half and half by the manufacturer and the dealer. The expenses attributable to the dealers interest therefore, were not includible in the assessable value. This decision clarified the principle enunciated in Union of India v. Bombay Tyre International Ltd. (1984 (1) SCC 467 : 1984 SCC (Tax) 17) which held that expenses incurred by the manufacturer, including marketing and selling organisation expenses, which contribute to the value of the goods up to the date of sale at the factory gate are includible in the assessable value of the goods. Philips India Ltd. (1997 (6) SCC 31 ) was subsequently considered by a three Judge Bench in CCE v. Surat Textiles Mills Ltd. (2004 (5) SCC 201 ) In that case the question was whether the costs incurred in advertisement of aerated waters was includible in the costs of the manufacture of the concentrate required for the manufacture of the aerated water by treating the cost of advertisement of aerated waters as the cost of advertisement of the concentrate. In dealing with this question, the Court held that the advertisement expenditure incurred by a manufacturers customer could be added to the sale price for determining the assessable value only if the manufacturer had an enforceable legal right against the customer. The decision has left untouched the principle enunciated in Philips India Ltd. (1997 (6) SCC 31 ) that ultimately the question will have to be resolved with reference to the benefit secured as well as the principle laid down in Bombay Tyre (1984 (1) SCC 467 : 1984 SCC (Tax) 17) that the question will have to be determined with reference to the sale ex factory. The principle laid down in Surat Textiles Mills Ltd. case (2004 (5) SCC 201 ) has been followed by a Bench of this Court in CCE v. Eicher Tractors Ltd. (2004 (9) SCC 22 ) 8. We are of the view that the factual foundation on which either the Commissioner or the Tribunal came to the conclusion has not been clearly set out. We are of the view that unless the factual foundation is clear there can be no question of applying any of the aforesaid principles as enunciated in the earlier decisions. Therefore, we remand this aspect of the matter back to the Assistant Commissioner as well.
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The chartered accountant of the assessee had certified that the cost of production had not been passed on under the head of increased crate hire charges. The Tribunal acted on the chartered accountants certificate in view of the fact that the departmental authorities had not questioned the same. It was therefore of the view that the increase of the crate hire charges could at best be termed to be a profit on freight and that this was not includible in the assessable value.4. It is not in dispute that the crate hire charges are not normally included in the assessable value. It may be that there was no explicit challenge that the chartered accountants certificate was unacceptable, however, the tenor of the orders of the departmental authorities would show that the chartered accountants certificate was questioned. In that view of the matter, we are of the view that this issue needs to be reconsidered in the light of facts actually prevailing for the period in question on the basis of such evidence as may be adduced by the parties.5. The Commissioner also held that the loading and unloading charges were includible in the assessable value. The loading and unloading charges which were sought to be included were in respect of the costs incurred by M/s Gaurav Investments Pvt. Ltd., a distributor of the assessee. The Commissioner sought to include the charges of M/s Gaurav Investments Pvt. Ltd. on the ground that it was really a dummy company of the assessee. The learned counsel appearing on behalf of the appellant, however, does not seek to press this ground. The Tribunal held that only those charges incurred for loading the finished goods within the factory of the assessee are includible. We find no reason to differ from this view. The appeal insofar as it pertains to this finding is, therefore, dismissed.6. The final item which was sought to be included in the assessable value of the goods, related to the sales, promotion and publicity charges. As we have said earlier, the Commissioner had included this in the assessable value but the Tribunal did
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Union Of India & Another Vs. Kartick Chandra Mondal & Another | for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arms length--since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. .................................................... ........................ ..................................................... ..................... ................................ It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution." 15. Subsequent to the aforesaid decision, the issue again arose for consideration before the 3-Judges Bench of this Court in the Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1 wherein this Court in paragraphs 68 and 116 observed as follows: - "68. The abovenoted judgments and orders encouraged the political set-up and bureaucracy to violate the soul of Articles 14 and 16 as also the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 with impunity and the spoils system which prevailed in the United States of America in the sixteenth and seventeenth centuries got a firm foothold in this country. Thousands of persons were employed/engaged throughout the length and breadth of the country by backdoor methods. Those who could pull strings in the power corridors at the higher and lower levels managed to get the cake of public employment by trampling over the rights of other eligible and more meritorious persons registered with the employment exchanges. A huge illegal employment market developed in different parts of the country and rampant corruption afflicted the whole system." "116. In our opinion, any direction by the Court for absorption of all company - paid staff would be detrimental to public interest in more than one ways. Firstly, it will compel the Government to abandon the policy decision of reducing the direct recruitment to various services. Secondly, this will be virtual abrogation of the statutory rules which envisage appointment to different cadres by direct recruitment." 16. In our considered opinion, the ratio of both the aforesaid decisions are clearly applicable to the facts and circumstances of the present case. In our considered opinion, there is misplaced sympathy shown in the case of the respondents who have worked with the appellants only for two years, i.e., from 1981 to 1983. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & Others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow: - "67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order" [A reference in this regard may also be made to the earlier decisions of this Court. See also: 1) Faridabad CT. Scan Centre v. D.G. Health Services and Others [(1997) 7 SCC 752] ; 2) South Eastern Coalfields Ltd. v. State of M.P. and Others [(2003) 8 SCC 648] and 3) Maharaj Krishan Bhatt and Another v. State of J&K and Others [(2008) 9 SCC 24] ]. If at this distant date an order is passed for reappointment or absorption of the respondents, the same would be in violation of the settled law of the land reiterated in the decisions relied upon in this judgment. 17. Counsels for the parties also fairly agree that the respondents have not been working with the respondents at any point of time after 1983. There was also a continuing ban on recruitment due to which there was no recruitment or appointment in the Group `D posts of the Ordnance Factory Board. | 1[ds]16. In our considered opinion, the ratio of both the aforesaid decisions are clearly applicable to the facts and circumstances of the present case. In our considered opinion, there is misplaced sympathy shown in the case of the respondents who have worked with the appellants only for two years, i.e., from 1981 to 1983. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & Others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow: -"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order"12. As has been noted earlier, the said office memorandum stated that the same would apply only to those persons who might have been continuing as casual workers for a number of years and who were not eligible for regular appointment and whose services might be terminated at any time. Therefore, it envisaged and could be made applicable to only those persons who were in service on the date when the aforesaid office memorandum was issued. Unless and until there is a clear intention expressed in the notification that it would also apply retrospectively, the same cannot be given a retrospective effect and would always operate prospectively. | 1 | 4,761 | 408 | ### 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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for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arms length--since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. .................................................... ........................ ..................................................... ..................... ................................ It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution." 15. Subsequent to the aforesaid decision, the issue again arose for consideration before the 3-Judges Bench of this Court in the Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1 wherein this Court in paragraphs 68 and 116 observed as follows: - "68. The abovenoted judgments and orders encouraged the political set-up and bureaucracy to violate the soul of Articles 14 and 16 as also the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 with impunity and the spoils system which prevailed in the United States of America in the sixteenth and seventeenth centuries got a firm foothold in this country. Thousands of persons were employed/engaged throughout the length and breadth of the country by backdoor methods. Those who could pull strings in the power corridors at the higher and lower levels managed to get the cake of public employment by trampling over the rights of other eligible and more meritorious persons registered with the employment exchanges. A huge illegal employment market developed in different parts of the country and rampant corruption afflicted the whole system." "116. In our opinion, any direction by the Court for absorption of all company - paid staff would be detrimental to public interest in more than one ways. Firstly, it will compel the Government to abandon the policy decision of reducing the direct recruitment to various services. Secondly, this will be virtual abrogation of the statutory rules which envisage appointment to different cadres by direct recruitment." 16. In our considered opinion, the ratio of both the aforesaid decisions are clearly applicable to the facts and circumstances of the present case. In our considered opinion, there is misplaced sympathy shown in the case of the respondents who have worked with the appellants only for two years, i.e., from 1981 to 1983. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & Others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow: - "67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order" [A reference in this regard may also be made to the earlier decisions of this Court. See also: 1) Faridabad CT. Scan Centre v. D.G. Health Services and Others [(1997) 7 SCC 752] ; 2) South Eastern Coalfields Ltd. v. State of M.P. and Others [(2003) 8 SCC 648] and 3) Maharaj Krishan Bhatt and Another v. State of J&K and Others [(2008) 9 SCC 24] ]. If at this distant date an order is passed for reappointment or absorption of the respondents, the same would be in violation of the settled law of the land reiterated in the decisions relied upon in this judgment. 17. Counsels for the parties also fairly agree that the respondents have not been working with the respondents at any point of time after 1983. There was also a continuing ban on recruitment due to which there was no recruitment or appointment in the Group `D posts of the Ordnance Factory Board.
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16. In our considered opinion, the ratio of both the aforesaid decisions are clearly applicable to the facts and circumstances of the present case. In our considered opinion, there is misplaced sympathy shown in the case of the respondents who have worked with the appellants only for two years, i.e., from 1981 to 1983. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & Others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow: -"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order"12. As has been noted earlier, the said office memorandum stated that the same would apply only to those persons who might have been continuing as casual workers for a number of years and who were not eligible for regular appointment and whose services might be terminated at any time. Therefore, it envisaged and could be made applicable to only those persons who were in service on the date when the aforesaid office memorandum was issued. Unless and until there is a clear intention expressed in the notification that it would also apply retrospectively, the same cannot be given a retrospective effect and would always operate prospectively.
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Punjab Distilling Industries Ltd Vs. Commissioner Of Income-Tax, Punjab | declaration of a normal dividend may be made out of accumulated profits, and need not necessarily be made out of the profits of any particular year. Section 2(6A)(d) does not contain any definition of a normal dividend. In the case of a normal dividend, the question of ascertaining the accumulated profits to the extent of which the distribution amounts to dividend does not arise. This problem would have arisen, had S. 2(6A) defined normal dividend as any distribution by a company on the declaration of dividend to the extent to which the company possesses accumulated profits. On such a definition, the only possible interpretation would have been that the accumulated profits are ascertained and the distribution takes place on the date of the declaration of the dividend. 29. The argument based upon the decided cases under S.16(2) is misconceived. Section l6(2) dealt with the question when the dividend shall be deemed to be the income of the shareholders. By S. 16(2) the dividend was deemed to be the income of the shareholders when it was paid, credited or distributed. An artificial dividend under S.2(6A)(d) is either distributed or paid, whereas the normal dividend is either paid or credited, and, in the case of 1964-53 ITR (SC) 83 at p. 90 : (AIR 1964 SC 1866 at pp.1869-70, and Civil Appeals Nos. 704- 715 of 1963 dated 22-9-1964 : (AIR 1965 SC 1263 ) it was held that the normal dividend is neither paid nor credited by reason of the fact that the dividend is declared. In this case, we are not concerned with the problem of construction of S.16(2) or the interpretation of the word paid or credited. The word distributed is not synonymous with the word paid or credited. The three words are used in the Act in different senses. Moreover, the policy of the legislature on the question of the taxability of the dividend in the hands of the shareholders has varied from time to time. Sub-section (2) of S.16 was repealed and in its place, sub-section (1A) of S. 12 was introduced by the Finance Act, 1959 with effect from April 1, 1960, and the corresponding provision is to be found in S. 8 of the Income-tax Act, 1961. Under S. 12(lA) of the Income-tax Act, 1922 and S. 8 of the Income-tax Act, 1961 the declaration of dividend is crucial even for the purpose of assessment of the shareholders. The legislature thus recognises now that the distribution of the normal dividend takes place on the declaration of the dividend. 30. In the instant case, the resolution for the reduction of the capital of the company and the consequential refund of the surplus capital to its shareholders took effect on November 4, 1954. Consequently, the distribution of the dividend as defined by S. 2(6A)(d) took place on November 4, 1954, i.e. during the previous year corresponding to the assessment year 1955-56. It is true that during the accounting year ending November 30, 1954, the company did not pay any dividends, nor make any book entries with regard to reduction of capital or with regard to refund or payment of surplus capital. But the company incurred on November 4, 1954 the legal liability to, make the refunds and the distribution must be deemed have taken place on November 4, 1954, though no book entries were made and no payments were made on that date. In view of the fact that the distribution took effect on November, 4, 1954, the company was bound to make necessary entries in their books on November 4, 1954 showing the reduction of capital, and was also bound to show the reduction in its balance sheet for the year ending November 30, 1954. Irrespective of its method of book-keeping, the company incurred on November 4, 1954, the legal liability to make the refunds. The method of book-keeping is not relevant, but, were it so, it is pertinent to remember that the accounts of the company were kept on the mercantile basis. That system of accounting brings into debit as expenditure the amount for which a legal liability has been incurred before it is actually disbursed. See Keshao Mills Ltd. v. Commissioner of Income-tax, Bombay, 1953 SCR 950 at p. 958 : (AIR 1953 SC 187 at p. 190). 31. In conclusion, we must point out that the revenue authorities should have, but in fact have not fixed the amount of the dividend by reference to the accumulated profits on November 4, 1954, when the resolution for reduction of capital became effective, or by reference to the accumulated profits brought forward on December 1, 1953 at the commencement of the accounting year during which the reduction of capital took effect. Instead, the revenue authorities took into account the accumulated profits on December 1, 1954, that is to say, the date of the commencement of the subsequent accounting year during which the dividends were paid. The amount of the accumulated profit as on December l, 1954 was fixed by the Income-tax Officer at Rs. 8,42,337/-, and was subsequently reduced by the Tribunal to Rs. 1,69,244-13-0. The revenue authorities rightly assumed that the distribution and the ascertainment of the accumulated profit to the extent of which the distribution is deemed to be dividend under S. 2(6A)(d) took place during the same accounting year, but they erred in holding that the accounting year commencing on December 1, 1954 is the relevant year. 32. In our opinion, the High Court was in error in holding that dividends under S. 2(6A)(d) were distributed during the previous year corresponding to the assessment year, 1956-57. We think that the dividends, if any, under S. 2(6A)(d) were distributed in the previous year corresponding to the assessment year 1955-56, and the fourth question should be answered accordingly. The appeal is allowed in part to this extent. In view of the divided success, we direct that the parties will pay and bear their own costs in this court and in the Court below. ORDER 33. | 0[ds]argument mixes up two aspects-the legal and fiscal. Under Company Law the question of reducing capital is a domestic one for the decision of the majority of shareholders. The Court comes into the picture only to see that the reduction is fair and equitable and that the interests of the minority and the creditors do not suffer. It may not also be concerned with the motive of the general body in resolving to reduce the capital; but the Income-tax law is concerned with tax evasion. Tax can be evaded by breaking the law, or avoided in terms of the law. When there is a factual avoidance of tax in terms of law, the Legislature steps is to amend the Income-tax law so that it can catch such an income within the net of taxation. There is, therefore, no inconsistency between a receipt being a capital one under the Company law, and by fiction being treted as taxable income under the Income-tax ActThe only difference between the expression paid and the expression distribution is that the latter necessarily involves the idea of division between several persons which is the same as payment to several personsDistribution is a culmination of a process. Firstly, there will be a resolution by the General Body of a company for reduction of capital by distribution of the accumulated profits amongst the shareholders; secondly, the company will file an application in the Court for an order confirming the reduction of capital; thirdly, after it is confirmed, it will be registered by the Registrar of Joint Stock Companies; fourthly, after the registration the company issues notices to the shareholders inviting applications for refund of the share capital, and fifthly, on receiving the applications the company will distribute the said profits either by crediting the proportionate share capital to each of the shareholders in their respective accounts or by paying the said amounts in cash. Out of the said 5 steps, the first 4 are only necessary preliminary steps which entitle the company to distribute the accumulated profits. Credits or payments are related to the said declaration; that is to say, distribution is from and out of the accumulated profits resolved to be distributed by the company. In this view, the accumulated profits to be distributed are fixed by the resolution and the figure does not change with the date of payment or credit. Indeed, a similar process is to be followed in the case of declaration of ordinary dividends; firstly, there will be a resolution by the General Body of the company declaring the dividends; secondly, thereafter the amounts payable to each of the shareholders are distributed by appropriate credits or payments. Dividends may be paid or credited to different shareholders during different accounting years; and the shareholders may be assessed in respect , of the said payments in different years. Even so the payments are referable only to the declaration of the dividends out of the profits of a particular year. This Court, as we have noticed earlier, in the decisions cited supra held that the year of credit or payment to a shareholder was crucial for the purpose of assessment and not the date of declarationIf as we have held, the distribution was made during the year ending November 30, 1955, i.e., the accounting year when the amounts were paid, the Revenue would be entitled to reduce the rebate by the amount computed at the prescribed rates on the amount of dividends. Some complication may arise only if we accept the argument that the date of payment fixes the date for ascertaining the quantum of accumulated profits. But we have rejected that contention. In this view, the claim of reduction of rebate on super-tax provided by the first schedule to the Finance Act, 1956, can be worked out without any confusion or complication. We, therefore, hold that the dividend must be deemed to have been paid or distributed in the year when it was, actually, whether physically or constructively, paid to the different shareholders, that is to say when the amount was credited to the separate accounts of the shareholders or paid to themThe High Court, on August 6, 1954, sanctioned the reduction of the capital from Rs. 25 lakhs to Rs. 15 lakhs. On November 4, 1954, the Registrar of Companies issued the certificate under S. 61(4) of the Companies Act. On November 5, 1954, the Company issued notices to the shareholders inviting applications for refunds. In the notice sent to the shareholders they were informed that the share transfer register of the Company would remain closed from November 16 to November 30, 1954 (both days inclusive) and refund would be made to those shareholders, whose names stood on November 15, 1954, in the books of the Company. After the applications were received, the amounts payable to the shareholders were debited in the accounts and refunds were actualy granted during the accounting year 1954 i.e., between December 1, 1954, and November 30, 1955. It is clear from the said facts, that the amounts were distributed only during the accounting year, when the amounts were both debited and paid. We, therefore, agree with the High Court that the dividends were distributed to the shareholders during the accounting year, i.e. 1951-55.7. Mr. N. C. Chatterjee, learned counsel for the assessee, did not contest the correctness of the answer given by the High Court in regard to the third question and, therefore, nothing further need be said about it.10. It is well settled rule of construction that entries in the legislative lists cannot be read in a narrow or restricted sense : they should be construed most liberally and in their widest amplitude.While an entry delineating a legislative field must be widely and liberally construed, there must be a reasonable nexus between the item taxed and the field so delineated. The said clause deals with the distribution by a company on the reduction of its capital to the extent to which the company possesses accumulated profits. Accumulated profits of a company may be utilised in the following 3 ways : (1) for increasing the capital stock; (2) for distributing the same among the shareholders by way of dividends; and (3) for reducing the capital. Ordinarily a company reduces the capital when there is loss or depreciation of assets; in that event there is no question of distribution of profits to the shareholders but the shares are only devaluated. But a company may, on the pretext of reducing its capital, utilise its accumulated profits to pay back to the shareholders the whole or part of the paid up amounts on the shares. A shareholder though in form gets back the whole or a part of the capital contributed by him, in effect he gets a share of the accumulated profits which, if a straightforward course was followed, he should have received as dividend. This is a division of profits under the guise of division of capital; a distribution of profits under the colour of reduction of capital. If this was permitted, there . would be evasion of super-tax, the extent of the evasion depending upon the prevalence of the evil. The Legislature, presumably in the interest of the exchequer, enlarged the definition of dividend to catch the said payments within the net of taxation. By doing so, it is really taxing the profits in the hands of the shareholders, though they are receiving the said profits under the cloak of capital.This Court again reaffirmed the said principle in Mrs. P. R. Saraiya v. Commissioner of Income-tax, Bombay City, 1, Bombay, Civil Appeals Nos. 704-715 of 1963 dated 22-9-1964: (AIR 1965 SC 1263 ) and held that where dividend was not credited to any separate account of the assessee so that he could, if he wished, draw it, it was not credited or paid within the meaning of S, 16(2) of the Act. The same meaning must be given to the word distribution.The only difference between the expression paid and the expression distribution is that the latter necessarily involves the idea of division between several persons which is the same as payment to several15. At this stage the anomaly that is alleged to flow from our view may conveniently be noticed. It is said that there will be different points of time for ascertaining the extent of the accumulated profits, with the result S. 2(6A)(d) of the Act becomes unworkable in practice or at any rate leads to unnecessary complications. We do not see any justification for this comment.Distribution is a culmination of a process. Firstly, there will be a resolution by the General Body of a company for reduction of capital by distribution of the accumulated profits amongst the shareholders; secondly, the company will file an application in the Court for an order confirming the reduction of capital; thirdly, after it is confirmed, it will be registered by the Registrar of Joint Stock Companies; fourthly, after the registration the company issues notices to the shareholders inviting applications for refund of the share capital, and fifthly, on receiving the applications the company will distribute the said profits either by crediting the proportionate share capital to each of the shareholders in their respective accounts or by paying the said amounts in cash. Out of the said 5 steps, the first 4 are only necessary preliminary steps which entitle the company to distribute the accumulated profits. Credits or payments are related to the said declaration; that is to say, distribution is from and out of the accumulated profits resolved to be distributed by the company. In this view, the accumulated profits to be distributed are fixed by the resolution and the figure does not change with the date of payment or credit. Indeed, a similar process is to be followed in the case of declaration of ordinary dividends; firstly, there will be a resolution by the General Body of the company declaring the dividends; secondly, thereafter the amounts payable to each of the shareholders are distributed by appropriate credits or payments. Dividends may be paid or credited to different shareholders during different accounting years; and the shareholders may be assessed in respect , of the said payments in different years. Even so the payments are referable only to the declaration of the dividends out of the profits of a particular year. This Court, as we have noticed earlier, in the decisions cited supra held that the year of credit or payment to a shareholder was crucial for the purpose of assessment and not the date ofIf as we have held, the distribution was made during the year ending November 30, 1955, i.e., the accounting year when the amounts were paid, the Revenue would be entitled to reduce the rebate by the amount computed at the prescribed rates on the amount of dividends. Some complication may arise only if we accept the argument that the date of payment fixes the date for ascertaining the quantum of accumulated profits. But we have rejected that contention. In this view, the claim of reduction of rebate on super-tax provided by the first schedule to the Finance Act, 1956, can be worked out without any confusion or complication. We, therefore, hold that the dividend must be deemed to have been paid or distributed in the year when it was, actually, whether physically or constructively, paid to the different shareholders, that is to say when the amount was credited to the separate accounts of the shareholders or paid to | 0 | 7,749 | 2,121 | ### 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:
declaration of a normal dividend may be made out of accumulated profits, and need not necessarily be made out of the profits of any particular year. Section 2(6A)(d) does not contain any definition of a normal dividend. In the case of a normal dividend, the question of ascertaining the accumulated profits to the extent of which the distribution amounts to dividend does not arise. This problem would have arisen, had S. 2(6A) defined normal dividend as any distribution by a company on the declaration of dividend to the extent to which the company possesses accumulated profits. On such a definition, the only possible interpretation would have been that the accumulated profits are ascertained and the distribution takes place on the date of the declaration of the dividend. 29. The argument based upon the decided cases under S.16(2) is misconceived. Section l6(2) dealt with the question when the dividend shall be deemed to be the income of the shareholders. By S. 16(2) the dividend was deemed to be the income of the shareholders when it was paid, credited or distributed. An artificial dividend under S.2(6A)(d) is either distributed or paid, whereas the normal dividend is either paid or credited, and, in the case of 1964-53 ITR (SC) 83 at p. 90 : (AIR 1964 SC 1866 at pp.1869-70, and Civil Appeals Nos. 704- 715 of 1963 dated 22-9-1964 : (AIR 1965 SC 1263 ) it was held that the normal dividend is neither paid nor credited by reason of the fact that the dividend is declared. In this case, we are not concerned with the problem of construction of S.16(2) or the interpretation of the word paid or credited. The word distributed is not synonymous with the word paid or credited. The three words are used in the Act in different senses. Moreover, the policy of the legislature on the question of the taxability of the dividend in the hands of the shareholders has varied from time to time. Sub-section (2) of S.16 was repealed and in its place, sub-section (1A) of S. 12 was introduced by the Finance Act, 1959 with effect from April 1, 1960, and the corresponding provision is to be found in S. 8 of the Income-tax Act, 1961. Under S. 12(lA) of the Income-tax Act, 1922 and S. 8 of the Income-tax Act, 1961 the declaration of dividend is crucial even for the purpose of assessment of the shareholders. The legislature thus recognises now that the distribution of the normal dividend takes place on the declaration of the dividend. 30. In the instant case, the resolution for the reduction of the capital of the company and the consequential refund of the surplus capital to its shareholders took effect on November 4, 1954. Consequently, the distribution of the dividend as defined by S. 2(6A)(d) took place on November 4, 1954, i.e. during the previous year corresponding to the assessment year 1955-56. It is true that during the accounting year ending November 30, 1954, the company did not pay any dividends, nor make any book entries with regard to reduction of capital or with regard to refund or payment of surplus capital. But the company incurred on November 4, 1954 the legal liability to, make the refunds and the distribution must be deemed have taken place on November 4, 1954, though no book entries were made and no payments were made on that date. In view of the fact that the distribution took effect on November, 4, 1954, the company was bound to make necessary entries in their books on November 4, 1954 showing the reduction of capital, and was also bound to show the reduction in its balance sheet for the year ending November 30, 1954. Irrespective of its method of book-keeping, the company incurred on November 4, 1954, the legal liability to make the refunds. The method of book-keeping is not relevant, but, were it so, it is pertinent to remember that the accounts of the company were kept on the mercantile basis. That system of accounting brings into debit as expenditure the amount for which a legal liability has been incurred before it is actually disbursed. See Keshao Mills Ltd. v. Commissioner of Income-tax, Bombay, 1953 SCR 950 at p. 958 : (AIR 1953 SC 187 at p. 190). 31. In conclusion, we must point out that the revenue authorities should have, but in fact have not fixed the amount of the dividend by reference to the accumulated profits on November 4, 1954, when the resolution for reduction of capital became effective, or by reference to the accumulated profits brought forward on December 1, 1953 at the commencement of the accounting year during which the reduction of capital took effect. Instead, the revenue authorities took into account the accumulated profits on December 1, 1954, that is to say, the date of the commencement of the subsequent accounting year during which the dividends were paid. The amount of the accumulated profit as on December l, 1954 was fixed by the Income-tax Officer at Rs. 8,42,337/-, and was subsequently reduced by the Tribunal to Rs. 1,69,244-13-0. The revenue authorities rightly assumed that the distribution and the ascertainment of the accumulated profit to the extent of which the distribution is deemed to be dividend under S. 2(6A)(d) took place during the same accounting year, but they erred in holding that the accounting year commencing on December 1, 1954 is the relevant year. 32. In our opinion, the High Court was in error in holding that dividends under S. 2(6A)(d) were distributed during the previous year corresponding to the assessment year, 1956-57. We think that the dividends, if any, under S. 2(6A)(d) were distributed in the previous year corresponding to the assessment year 1955-56, and the fourth question should be answered accordingly. The appeal is allowed in part to this extent. In view of the divided success, we direct that the parties will pay and bear their own costs in this court and in the Court below. ORDER 33.
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0
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is well settled rule of construction that entries in the legislative lists cannot be read in a narrow or restricted sense : they should be construed most liberally and in their widest amplitude.While an entry delineating a legislative field must be widely and liberally construed, there must be a reasonable nexus between the item taxed and the field so delineated. The said clause deals with the distribution by a company on the reduction of its capital to the extent to which the company possesses accumulated profits. Accumulated profits of a company may be utilised in the following 3 ways : (1) for increasing the capital stock; (2) for distributing the same among the shareholders by way of dividends; and (3) for reducing the capital. Ordinarily a company reduces the capital when there is loss or depreciation of assets; in that event there is no question of distribution of profits to the shareholders but the shares are only devaluated. But a company may, on the pretext of reducing its capital, utilise its accumulated profits to pay back to the shareholders the whole or part of the paid up amounts on the shares. A shareholder though in form gets back the whole or a part of the capital contributed by him, in effect he gets a share of the accumulated profits which, if a straightforward course was followed, he should have received as dividend. This is a division of profits under the guise of division of capital; a distribution of profits under the colour of reduction of capital. If this was permitted, there . would be evasion of super-tax, the extent of the evasion depending upon the prevalence of the evil. The Legislature, presumably in the interest of the exchequer, enlarged the definition of dividend to catch the said payments within the net of taxation. By doing so, it is really taxing the profits in the hands of the shareholders, though they are receiving the said profits under the cloak of capital.This Court again reaffirmed the said principle in Mrs. P. R. Saraiya v. Commissioner of Income-tax, Bombay City, 1, Bombay, Civil Appeals Nos. 704-715 of 1963 dated 22-9-1964: (AIR 1965 SC 1263 ) and held that where dividend was not credited to any separate account of the assessee so that he could, if he wished, draw it, it was not credited or paid within the meaning of S, 16(2) of the Act. The same meaning must be given to the word distribution.The only difference between the expression paid and the expression distribution is that the latter necessarily involves the idea of division between several persons which is the same as payment to several15. At this stage the anomaly that is alleged to flow from our view may conveniently be noticed. It is said that there will be different points of time for ascertaining the extent of the accumulated profits, with the result S. 2(6A)(d) of the Act becomes unworkable in practice or at any rate leads to unnecessary complications. We do not see any justification for this comment.Distribution is a culmination of a process. Firstly, there will be a resolution by the General Body of a company for reduction of capital by distribution of the accumulated profits amongst the shareholders; secondly, the company will file an application in the Court for an order confirming the reduction of capital; thirdly, after it is confirmed, it will be registered by the Registrar of Joint Stock Companies; fourthly, after the registration the company issues notices to the shareholders inviting applications for refund of the share capital, and fifthly, on receiving the applications the company will distribute the said profits either by crediting the proportionate share capital to each of the shareholders in their respective accounts or by paying the said amounts in cash. Out of the said 5 steps, the first 4 are only necessary preliminary steps which entitle the company to distribute the accumulated profits. Credits or payments are related to the said declaration; that is to say, distribution is from and out of the accumulated profits resolved to be distributed by the company. In this view, the accumulated profits to be distributed are fixed by the resolution and the figure does not change with the date of payment or credit. Indeed, a similar process is to be followed in the case of declaration of ordinary dividends; firstly, there will be a resolution by the General Body of the company declaring the dividends; secondly, thereafter the amounts payable to each of the shareholders are distributed by appropriate credits or payments. Dividends may be paid or credited to different shareholders during different accounting years; and the shareholders may be assessed in respect , of the said payments in different years. Even so the payments are referable only to the declaration of the dividends out of the profits of a particular year. This Court, as we have noticed earlier, in the decisions cited supra held that the year of credit or payment to a shareholder was crucial for the purpose of assessment and not the date ofIf as we have held, the distribution was made during the year ending November 30, 1955, i.e., the accounting year when the amounts were paid, the Revenue would be entitled to reduce the rebate by the amount computed at the prescribed rates on the amount of dividends. Some complication may arise only if we accept the argument that the date of payment fixes the date for ascertaining the quantum of accumulated profits. But we have rejected that contention. In this view, the claim of reduction of rebate on super-tax provided by the first schedule to the Finance Act, 1956, can be worked out without any confusion or complication. We, therefore, hold that the dividend must be deemed to have been paid or distributed in the year when it was, actually, whether physically or constructively, paid to the different shareholders, that is to say when the amount was credited to the separate accounts of the shareholders or paid to
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W. O. Holdsworth And Others Vs. The State Of Uttar Pradesh | possession of land, is so on behalf of his cestui que trust, and his making a mistake as to the persons who are really his cestui que trust cannot affect the question."What the court was considering there was the question of limitation and adverse possession and these observations were made in that context. It is significant however to note the further observations of the Master of the Rolls in that very context at p. 583:"Suppose that they had imagined bona fide that they themselves were personally entitled to the property, and that they were not trustees of it for anyone, it would, nevertheless, have been certain that they would have been trustees for the cestuis que trust, and no time would run while they were in such possession. The legal estate was vested in them, no other person could have maintained an ejectment against them; they are bound to know the law, they ought to have taken possession as soon as they saw who were the real beneficiary devisees, and being in possession, they ought to have applied the proper proportion of the rents for the benefit of such residuary devisees."21. The passage quoted above makes it abundantly clear that the legal estate is vested in the trustees and they hold it for the benefit of the beneficiaries.22. Whatever be the position in English Law, the Indian Trusts Act, 1882 (II of 1882) is clear and categoric on this point. Section 3 of that Act defines a Trust as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or of another and the owner : the person who accepts the confidence is called the trustee : the person for whose benefit the confidence is accepted is called the beneficiary : the beneficial Interest or interest of the beneficiary is his right against the trustee as owner of the trust property; the subject-matter of the trust is called "trust Property" or "trust money".23. These definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus, the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions "for the benefit of" and "on behalf of" are not synonymous with each other. They convey different meanings. The former connotes a benefit which is enjoyed by another thus bringing in a relationship as between a trustee and a beneficiary or cestue que trust, the latter connotes an agency which brings about a relationship as between principal and agent between the parties one of whom is acting on behalf another. Section 11(1) therefore only come into operation where the land from which agricultural in come is derived is held by such common manager, receiver, administrator or the like on behalf of, in other word as agent or representative of persons jointly interested in such land or in the agricultural income derived therefrom. Even though such persons were the beneficiaries cestui que trust under a deed of trust, they would not be comprised within the category of persons on whose behalf such land is held by the trustees and the trustees would not be included in the description of common manager, receiver, administrator or the like so as to attract the operation of S. 11(1). Trustees do not hold the land from which agricultural income is derived on behalf of the beneficiaries but they hold it in their own right though for the benefit of the beneficiaries.24. The beneficiaries are also not necessarily persons who are jointly interested in such land or in the agricultural income derived therefrom. The term "jointly interested" is well-known in law and predicates an undivided interest in the land or in the agricultural income derived therefrom as distinguished from a separate or an individual interest therein. If on a true reading of the provisions of the deed of trust the interest which is created in beneficiaries is a separate or individual interest of each of the beneficiaries in the land or in the agricultural income derived therefrom, merely because they have a common interest therein, that cannot make that interest a joint interest in the land or in the agricultural income derived therefrom. The words "jointly interested" have got to be understood in their legal sense and having been used in a statute are not capable of being understood in a popular sense as meaning a common interest or an interest enjoyed by one person in common with another or others.25. If regard be had to the above construction put upon the terms of S. 11(1) of the Act, it follows that the appellants who were trustees of the deed of trust in the present case did not hold the land from which agricultural income is derived as common manager, receiver, administrator or the like on behalf of the annuitants and the annuitants were not jointly interested in the land or in the agricultural income derived therefrom with the result that S. 11(1) of the Act did not come into operation at all. The appellants were the legal owners of the trust estate and did not hold the land from which agricultural income was derived "on behalf of" the annuitants. Each of the annuitants, moreover, was separately or individually interested in the agricultural income derived from the land comprised in the trust estate to the extent of the annuity payable to him under the deed of trust and the interest of one annuitant was not affected by whatever happened to the interest of the other. There was thus no fulfillment of either of the two conditions prerequisite before S. 11(1) of the Act could come into operation at all. | 1[ds]23. These definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus, the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions "for the benefit of" and "on behalf of" are not synonymous with each other. They convey different meanings. The former connotes a benefit which is enjoyed by another thus bringing in a relationship as between a trustee and a beneficiary or cestue que trust, the latter connotes an agency which brings about a relationship as between principal and agent between the parties one of whom is acting on behalf another. Section 11(1) therefore only come into operation where the land from which agricultural in come is derived is held by such common manager, receiver, administrator or the like on behalf of, in other word as agent or representative of persons jointly interested in such land or in the agricultural income derived therefrom. Even though such persons were the beneficiaries cestui que trust under a deed of trust, they would not be comprised within the category of persons on whose behalf such land is held by the trustees and the trustees would not be included in the description of common manager, receiver, administrator or the like so as to attract the operation of S. 11(1). Trustees do not hold the land from which agricultural income is derived on behalf of the beneficiaries but they hold it in their own right though for the benefit of the beneficiaries.24. The beneficiaries are also not necessarily persons who are jointly interested in such land or in the agricultural income derived therefrom. The term "jointly interested" isin law and predicates an undivided interest in the land or in the agricultural income derived therefrom as distinguished from a separate or an individual interest therein. If on a true reading of the provisions of the deed of trust the interest which is created in beneficiaries is a separate or individual interest of each of the beneficiaries in the land or in the agricultural income derived therefrom, merely because they have a common interest therein, that cannot make that interest a joint interest in the land or in the agricultural income derived therefrom. The words "jointly interested" have got to be understood in their legal sense and having been used in a statute are not capable of being understood in a popular sense as meaning a common interest or an interest enjoyed by one person in common with another or others.25. If regard be had to the above construction put upon the terms of S. 11(1) of the Act, it follows that the appellants who were trustees of the deed of trust in the present case did not hold the land from which agricultural income is derived as common manager, receiver, administrator or the like on behalf of the annuitants and the annuitants were not jointly interested in the land or in the agricultural income derived therefrom with the result that S. 11(1) of the Act did not come into operation at all. The appellants were the legal owners of the trust estate and did not hold the land from which agricultural income was derived "on behalf of" the annuitants. Each of the annuitants, moreover, was separately or individually interested in the agricultural income derived from the land comprised in the trust estate to the extent of the annuity payable to him under the deed of trust and the interest of one annuitant was not affected by whatever happened to the interest of the other. There was thus no fulfillment of either of the two conditions prerequisite before S. 11(1) of the Act could come into operation at all. | 1 | 4,140 | 717 | ### 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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possession of land, is so on behalf of his cestui que trust, and his making a mistake as to the persons who are really his cestui que trust cannot affect the question."What the court was considering there was the question of limitation and adverse possession and these observations were made in that context. It is significant however to note the further observations of the Master of the Rolls in that very context at p. 583:"Suppose that they had imagined bona fide that they themselves were personally entitled to the property, and that they were not trustees of it for anyone, it would, nevertheless, have been certain that they would have been trustees for the cestuis que trust, and no time would run while they were in such possession. The legal estate was vested in them, no other person could have maintained an ejectment against them; they are bound to know the law, they ought to have taken possession as soon as they saw who were the real beneficiary devisees, and being in possession, they ought to have applied the proper proportion of the rents for the benefit of such residuary devisees."21. The passage quoted above makes it abundantly clear that the legal estate is vested in the trustees and they hold it for the benefit of the beneficiaries.22. Whatever be the position in English Law, the Indian Trusts Act, 1882 (II of 1882) is clear and categoric on this point. Section 3 of that Act defines a Trust as an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or of another and the owner : the person who accepts the confidence is called the trustee : the person for whose benefit the confidence is accepted is called the beneficiary : the beneficial Interest or interest of the beneficiary is his right against the trustee as owner of the trust property; the subject-matter of the trust is called "trust Property" or "trust money".23. These definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus, the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions "for the benefit of" and "on behalf of" are not synonymous with each other. They convey different meanings. The former connotes a benefit which is enjoyed by another thus bringing in a relationship as between a trustee and a beneficiary or cestue que trust, the latter connotes an agency which brings about a relationship as between principal and agent between the parties one of whom is acting on behalf another. Section 11(1) therefore only come into operation where the land from which agricultural in come is derived is held by such common manager, receiver, administrator or the like on behalf of, in other word as agent or representative of persons jointly interested in such land or in the agricultural income derived therefrom. Even though such persons were the beneficiaries cestui que trust under a deed of trust, they would not be comprised within the category of persons on whose behalf such land is held by the trustees and the trustees would not be included in the description of common manager, receiver, administrator or the like so as to attract the operation of S. 11(1). Trustees do not hold the land from which agricultural income is derived on behalf of the beneficiaries but they hold it in their own right though for the benefit of the beneficiaries.24. The beneficiaries are also not necessarily persons who are jointly interested in such land or in the agricultural income derived therefrom. The term "jointly interested" is well-known in law and predicates an undivided interest in the land or in the agricultural income derived therefrom as distinguished from a separate or an individual interest therein. If on a true reading of the provisions of the deed of trust the interest which is created in beneficiaries is a separate or individual interest of each of the beneficiaries in the land or in the agricultural income derived therefrom, merely because they have a common interest therein, that cannot make that interest a joint interest in the land or in the agricultural income derived therefrom. The words "jointly interested" have got to be understood in their legal sense and having been used in a statute are not capable of being understood in a popular sense as meaning a common interest or an interest enjoyed by one person in common with another or others.25. If regard be had to the above construction put upon the terms of S. 11(1) of the Act, it follows that the appellants who were trustees of the deed of trust in the present case did not hold the land from which agricultural income is derived as common manager, receiver, administrator or the like on behalf of the annuitants and the annuitants were not jointly interested in the land or in the agricultural income derived therefrom with the result that S. 11(1) of the Act did not come into operation at all. The appellants were the legal owners of the trust estate and did not hold the land from which agricultural income was derived "on behalf of" the annuitants. Each of the annuitants, moreover, was separately or individually interested in the agricultural income derived from the land comprised in the trust estate to the extent of the annuity payable to him under the deed of trust and the interest of one annuitant was not affected by whatever happened to the interest of the other. There was thus no fulfillment of either of the two conditions prerequisite before S. 11(1) of the Act could come into operation at all.
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1
### Explanation:
23. These definitions emphasize that the trustee is the owner of the trust property and the beneficiary only has a right against the trustee as owner of the trust property. The trustee is thus, the legal owner of the trust property and the property vests in him as such. He no doubt holds the trust property for the benefit of the beneficiaries but he does not hold it on their behalf. The expressions "for the benefit of" and "on behalf of" are not synonymous with each other. They convey different meanings. The former connotes a benefit which is enjoyed by another thus bringing in a relationship as between a trustee and a beneficiary or cestue que trust, the latter connotes an agency which brings about a relationship as between principal and agent between the parties one of whom is acting on behalf another. Section 11(1) therefore only come into operation where the land from which agricultural in come is derived is held by such common manager, receiver, administrator or the like on behalf of, in other word as agent or representative of persons jointly interested in such land or in the agricultural income derived therefrom. Even though such persons were the beneficiaries cestui que trust under a deed of trust, they would not be comprised within the category of persons on whose behalf such land is held by the trustees and the trustees would not be included in the description of common manager, receiver, administrator or the like so as to attract the operation of S. 11(1). Trustees do not hold the land from which agricultural income is derived on behalf of the beneficiaries but they hold it in their own right though for the benefit of the beneficiaries.24. The beneficiaries are also not necessarily persons who are jointly interested in such land or in the agricultural income derived therefrom. The term "jointly interested" isin law and predicates an undivided interest in the land or in the agricultural income derived therefrom as distinguished from a separate or an individual interest therein. If on a true reading of the provisions of the deed of trust the interest which is created in beneficiaries is a separate or individual interest of each of the beneficiaries in the land or in the agricultural income derived therefrom, merely because they have a common interest therein, that cannot make that interest a joint interest in the land or in the agricultural income derived therefrom. The words "jointly interested" have got to be understood in their legal sense and having been used in a statute are not capable of being understood in a popular sense as meaning a common interest or an interest enjoyed by one person in common with another or others.25. If regard be had to the above construction put upon the terms of S. 11(1) of the Act, it follows that the appellants who were trustees of the deed of trust in the present case did not hold the land from which agricultural income is derived as common manager, receiver, administrator or the like on behalf of the annuitants and the annuitants were not jointly interested in the land or in the agricultural income derived therefrom with the result that S. 11(1) of the Act did not come into operation at all. The appellants were the legal owners of the trust estate and did not hold the land from which agricultural income was derived "on behalf of" the annuitants. Each of the annuitants, moreover, was separately or individually interested in the agricultural income derived from the land comprised in the trust estate to the extent of the annuity payable to him under the deed of trust and the interest of one annuitant was not affected by whatever happened to the interest of the other. There was thus no fulfillment of either of the two conditions prerequisite before S. 11(1) of the Act could come into operation at all.
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M/s. Delhi Stationers & Printers Vs. Rajendra Kumar | found that Mahendra Singh is employed by the appellant and is residing in the room marked ‘J’, as a tenant under the respondent. It has been found that he has been using the latrine and kitchen which form part of the premises let out to the appellant Mahendra Singh being the brother-in-law of the appellants and in the service of the appellant could not be taken to be a sub-tenant merely by the use of the kitchen and latrine and that for sub tenancy it is essential that the possession of Mahendra Singh upon the premises must be exclusive. It was also found that the exclusive possession was not proved by the evidence of the respondent and much less any proof of rent paid to the appellant. The High Court, in second appeal has reversed the said findings of the Additional District Judge relying upon the evidence of Mahendra Singh (DW2) who has admitted that the premises marked K-1 to K-4 are utilised by him and Vishnu Dev (DW-3) who has stated in cross-examination that the appellant is not in occupation of the premises and portion marked K-1 to K-4 has been in occupation of Mahendra Singh. The High Court has held that the appellant has sub-let or otherwise parted with the premises without the permission of the landlord and that being so, the appellant is liable for eviction. 4. Mr. Sachar, learned counsel for the appellant, has assailed the said finding recorded by the’ High Court that the appellant has sub-let or parted with the possession of the premises, and has submitted that mere user of kitchen and latrine by Mahendra Singh, who is the brother-in-law as well as an employee of the appellant, cannot mean that the appellant has sub-let or parted with the possession of the premises. In support of the submission Scchar has placed reliance on the decision of this Court in Jagan Nath v. Chander Bhan (1988 (3) SCC 57 ), and Gopal Saran v. Satya Narayana (1989) 3 SCC 56. Mr. Chitale, learned counsel for the respondent, on the other hand, has supported the decision of the High Court and has urged that in the facts and circumstances of the case the High Court was right in holding that the appellant has sub-let or parted with the possession of the premises and he has placed reliance on the decision of this Court in Roop Chand v. Gopi Chand Thelia (1989) 2 SCC 383. 5. Under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950. (hereinafter referred to as ‘the Act’), the tenant is liable to be evicted, if he has assigned sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour, of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub tenancy or parting with possession (see: Gopal Saran v. Satya Narayana (supra). 6. If the instant case is considered in the light of the aforesaid principles laid down by this Court it cannot be said that the appellant has either sub-let or parted with the possession of a part of the premises in favour of Mahendra Singh who is brother-in-law of the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room marked ‘J’ in the site plan (Ex. A-1). The mere ‘user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him by the respondent cannot mean that the appellant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendra Singh 7. In Roip Chand v. Gopi Chand Thelia (supra), on which reliance has been placed by Mr. Chitale, the tenant had allowed the premises to be used by a social club, which was registered as a limited company under the Indian Companies Act, 1956, and for the purpose of the Companies Act, the registered office of the club was situated in the leased premises. This Court found that there was no evidence to show that the tenant had at any time exercised the right to exclusive possession and kept the premises looked and denied the members of the club entry to the premises. This Court also observed that in view of the fact that the registered office of the club is situated in the leased premises, the tenant could not prevent the club from performing its statutory duties so long as the club had its registered office in the leased premises. Taking into consideration the aforesaid circumstances this Court held that the tenant had parted with the possession of the premises as envisaged in Section 13(1)(e) of the Act. This decision, in our opinion, does not lend any assistance to the respondent and that in the facts and circumstances of the present case, as mentioned above, it cannot be said that the appellant had parted with the possession of a part of the leased premises. 8. Mr. Chitale has sought to support the decree of eviction on the ground that the premises are required reasonable and bona fide by the respondent for his personal use. We find that after considering the evidence the first appellate Court has decided this issue against the respondent and the second appeal of the respondent was admitted only on the ground of subletting and no question of law was framed with regard to eviction on the ground of reasonable and bona fide personal necessity. We cannot, therefore, examine the finding recorded by the first appellate Court on the question of need of the landlord. | 1[ds]6. If the instant case is considered in the light of the aforesaid principles laid down by this Court it cannot be said that the appellant has eitheror parted with the possession of a part of the premises in favour of Mahendra Singh who isof the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room markedin the site plan (Ex.The mere ‘user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him by the respondent cannot mean that the appellant hasthe exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendrainto consideration the aforesaid circumstances this Court held that the tenant had parted with the possession of the premises as envisaged in Section 13(1)(e) of the Act. This decision, in our opinion, does not lend any assistance to the respondent and that in the facts and circumstances of the present case, as mentioned above, it cannot be said that the appellant had parted with the possession of a part of the leasedfind that after considering the evidence the first appellate Court has decided this issue against the respondent and the second appeal of the respondent was admitted only on the ground ofand no question of law was framed with regard to eviction on the ground of reasonable and bona fide personal necessity. We cannot, therefore, examine the finding recorded by the first appellate Court on the question of need of the landlord. | 1 | 1,329 | 293 | ### 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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found that Mahendra Singh is employed by the appellant and is residing in the room marked ‘J’, as a tenant under the respondent. It has been found that he has been using the latrine and kitchen which form part of the premises let out to the appellant Mahendra Singh being the brother-in-law of the appellants and in the service of the appellant could not be taken to be a sub-tenant merely by the use of the kitchen and latrine and that for sub tenancy it is essential that the possession of Mahendra Singh upon the premises must be exclusive. It was also found that the exclusive possession was not proved by the evidence of the respondent and much less any proof of rent paid to the appellant. The High Court, in second appeal has reversed the said findings of the Additional District Judge relying upon the evidence of Mahendra Singh (DW2) who has admitted that the premises marked K-1 to K-4 are utilised by him and Vishnu Dev (DW-3) who has stated in cross-examination that the appellant is not in occupation of the premises and portion marked K-1 to K-4 has been in occupation of Mahendra Singh. The High Court has held that the appellant has sub-let or otherwise parted with the premises without the permission of the landlord and that being so, the appellant is liable for eviction. 4. Mr. Sachar, learned counsel for the appellant, has assailed the said finding recorded by the’ High Court that the appellant has sub-let or parted with the possession of the premises, and has submitted that mere user of kitchen and latrine by Mahendra Singh, who is the brother-in-law as well as an employee of the appellant, cannot mean that the appellant has sub-let or parted with the possession of the premises. In support of the submission Scchar has placed reliance on the decision of this Court in Jagan Nath v. Chander Bhan (1988 (3) SCC 57 ), and Gopal Saran v. Satya Narayana (1989) 3 SCC 56. Mr. Chitale, learned counsel for the respondent, on the other hand, has supported the decision of the High Court and has urged that in the facts and circumstances of the case the High Court was right in holding that the appellant has sub-let or parted with the possession of the premises and he has placed reliance on the decision of this Court in Roop Chand v. Gopi Chand Thelia (1989) 2 SCC 383. 5. Under Section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950. (hereinafter referred to as ‘the Act’), the tenant is liable to be evicted, if he has assigned sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour, of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub tenancy or parting with possession (see: Gopal Saran v. Satya Narayana (supra). 6. If the instant case is considered in the light of the aforesaid principles laid down by this Court it cannot be said that the appellant has either sub-let or parted with the possession of a part of the premises in favour of Mahendra Singh who is brother-in-law of the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room marked ‘J’ in the site plan (Ex. A-1). The mere ‘user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him by the respondent cannot mean that the appellant has transferred the exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendra Singh 7. In Roip Chand v. Gopi Chand Thelia (supra), on which reliance has been placed by Mr. Chitale, the tenant had allowed the premises to be used by a social club, which was registered as a limited company under the Indian Companies Act, 1956, and for the purpose of the Companies Act, the registered office of the club was situated in the leased premises. This Court found that there was no evidence to show that the tenant had at any time exercised the right to exclusive possession and kept the premises looked and denied the members of the club entry to the premises. This Court also observed that in view of the fact that the registered office of the club is situated in the leased premises, the tenant could not prevent the club from performing its statutory duties so long as the club had its registered office in the leased premises. Taking into consideration the aforesaid circumstances this Court held that the tenant had parted with the possession of the premises as envisaged in Section 13(1)(e) of the Act. This decision, in our opinion, does not lend any assistance to the respondent and that in the facts and circumstances of the present case, as mentioned above, it cannot be said that the appellant had parted with the possession of a part of the leased premises. 8. Mr. Chitale has sought to support the decree of eviction on the ground that the premises are required reasonable and bona fide by the respondent for his personal use. We find that after considering the evidence the first appellate Court has decided this issue against the respondent and the second appeal of the respondent was admitted only on the ground of subletting and no question of law was framed with regard to eviction on the ground of reasonable and bona fide personal necessity. We cannot, therefore, examine the finding recorded by the first appellate Court on the question of need of the landlord.
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6. If the instant case is considered in the light of the aforesaid principles laid down by this Court it cannot be said that the appellant has eitheror parted with the possession of a part of the premises in favour of Mahendra Singh who isof the appellant and is also employed with the appellant. Mahendra Singh is a tenant under the respondent in respect of room markedin the site plan (Ex.The mere ‘user of the kitchen and latrine by Mahendra Singh while residing in the portion let out to him by the respondent cannot mean that the appellant hasthe exclusive right to enjoy the kitchen and latrine and has parted with the legal possession of the said part of the premises in favour of Mahendrainto consideration the aforesaid circumstances this Court held that the tenant had parted with the possession of the premises as envisaged in Section 13(1)(e) of the Act. This decision, in our opinion, does not lend any assistance to the respondent and that in the facts and circumstances of the present case, as mentioned above, it cannot be said that the appellant had parted with the possession of a part of the leasedfind that after considering the evidence the first appellate Court has decided this issue against the respondent and the second appeal of the respondent was admitted only on the ground ofand no question of law was framed with regard to eviction on the ground of reasonable and bona fide personal necessity. We cannot, therefore, examine the finding recorded by the first appellate Court on the question of need of the landlord.
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Ram Janki Mandir Vs. Nuruddin Bharmal | Kurian Joseph, J. 1. Leave granted. 2. The appellant/landlord filed a petition for eviction of the respondent/tenant on three grounds, i.e. (i) arrears of rent, (ii) nuisance; and (iii) need for reconstruction. The Trial Court allowed the eviction on the grounds of arrears of rent and need for reconstruction. The same was affirmed by the First Appellate Court. The respondent/tenant moved the High Court. On the ground of need for reconstruction, the High Court took the view that the Trial Court should have ascertained whether the respondent/tenant was willing to reoccupy the premises after reconstruction and having not done that, the matter was remitted to the Trial Court. 3. No doubt, there is a statutory requirement of ascertainment of willingness of the tenant as to whether he would be prepared to reoccupy the premises after reconstruction. But on the facts of the case, there is a concurrent finding of arrears of rent and that aspect is not seriously disputed also. Therefore, in any case, the eviction on the ground of arrears of rent should have been sustained. Once that is sustained, there is no question of ascertainment of the willingness of the tenant after reconstruction. | 1[ds]3. No doubt, there is a statutory requirement of ascertainment of willingness of the tenant as to whether he would be prepared to reoccupy the premises after reconstruction. But on the facts of the case, there is a concurrent finding of arrears of rent and that aspect is not seriously disputed also. Therefore, in any case, the eviction on the ground of arrears of rent should have been sustained. Once that is sustained, there is no question of ascertainment of the willingness of the tenant after reconstruction. | 1 | 227 | 101 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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Kurian Joseph, J. 1. Leave granted. 2. The appellant/landlord filed a petition for eviction of the respondent/tenant on three grounds, i.e. (i) arrears of rent, (ii) nuisance; and (iii) need for reconstruction. The Trial Court allowed the eviction on the grounds of arrears of rent and need for reconstruction. The same was affirmed by the First Appellate Court. The respondent/tenant moved the High Court. On the ground of need for reconstruction, the High Court took the view that the Trial Court should have ascertained whether the respondent/tenant was willing to reoccupy the premises after reconstruction and having not done that, the matter was remitted to the Trial Court. 3. No doubt, there is a statutory requirement of ascertainment of willingness of the tenant as to whether he would be prepared to reoccupy the premises after reconstruction. But on the facts of the case, there is a concurrent finding of arrears of rent and that aspect is not seriously disputed also. Therefore, in any case, the eviction on the ground of arrears of rent should have been sustained. Once that is sustained, there is no question of ascertainment of the willingness of the tenant after reconstruction.
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3. No doubt, there is a statutory requirement of ascertainment of willingness of the tenant as to whether he would be prepared to reoccupy the premises after reconstruction. But on the facts of the case, there is a concurrent finding of arrears of rent and that aspect is not seriously disputed also. Therefore, in any case, the eviction on the ground of arrears of rent should have been sustained. Once that is sustained, there is no question of ascertainment of the willingness of the tenant after reconstruction.
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GOVERNMENT OF INDIA Vs. VEDANTA LIMITED (Formerly Cairn India Ltd.),RAVVA OIL (SINGAPORE) PTE. LTD.,VIDEOCON INDUSTRIES LIMITED | principles of justice… It was understood that the term public policy, which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects. Thus, instances such as corruption, bribery or fraud and similar serious cases would constitute a ground for setting aside. (emphasis supplied) This judgment has been recently affirmed by the Singapore High Court in Dongwoo Mann + Hummel Co. Ltd. v Mann + Hummel GmbH. [2008] SGHC 67. (c) The gravamen of the challenge of the Appellants is that the tribunal has given an erroneous interpretation of the terms of the PSC read with the Ravva Development Plan, which would amount to re-writing the contract. The view taken by the tribunal is based on an interpretation of Article 15.5 (c) read with the exceptions contained in Article 15.5 (e)(iii)(dd). The tribunal held that the exception came into play on account of the range of physical reservoir characteristics being materially different, from what was contemplated in the Ravva Development Plan. The tribunal relied upon the evidence of the Expert Witness produced by the Claimants who deposed that the enlarged reservoir known as Block A/D showed a range of physical characteristics, which were materially different from those of the Fault Blocks defined in Article 11.1 of the PSC, on which the Ravva Development Plan was based. Since there was a material change in the physical reservoir characteristics of the existing reserves, Article 15.5 (e)(iii)(dd) would get triggered, which would enable the Claimants to request for an increase in the capped figure of Base Development Costs under Article 15.5(e)(iii)(dd). The tribunal noted that the PSC was entered into for a period of 25 years and the parties envisaged the possibility that the Respondents may incur Development Costs greater than those anticipated when the Ravva Development Plan and the PSC were executed. Article 15.5(d) and (e) were events where the capped figure under Article 15.5 (c) could be increased by the Management Committee. The tribunal held that the cap on Base Development Costs under Article 15.5(c) was to be read with reference to the object of the Plan to achieve the production profile of 35,000 BOPD. The production profile of 35,000 BOPD was achieved on the drilling of 14 wells by about 31 st March 1999. The reference to 21 wells under Article 15.5(c)(xi) was interpreted as being an estimate of the number of wells contemplated by the parties in 1993, which would be required to achieve the object of achieving the production profile of 35,000 BOPD. It could not be construed to be an undertaking by the Claimants to drill 21 wells, even though the targeted production profile of 35,000 BOPD had been achieved by the drilling of 14 wells. The remaining 7 wells were drilled subsequently, not for the purposes of the Ravva Development Plan, but to take into account the changed physical characteristics of the existing reserves which were encountered. The costs of US $ 278 million was incurred by the Respondents as a result of events which fell within Article 15.5(e)(iii)(dd). In 1998-1999 when the complete extent of the reserves in the Ravva Field was known, the Management Committee, approved an increase in the production profile from 35,000 BOPD to 50,000 BOPD on 25 March 1998. The Respondents proceeded to develop the Ravva Field to enable a production rate of 50,000 BOPD, and drilled 7 wells. The Respondents incurred costs of $ 278,871,668 million towards the drilling of the 7 wells. (d) The Appellants herein filed a counter claim, seeking sums equivalent to the amount which the Respondents had claimed as Cost Petroleum, in excess of the agreed figure of US $ 198 million limit. On the interpretation of Article 15.5(c) of the PSC, and the circumstances in which the PSC and the Ravva Development Plan, were executed, the tribunal held that the Respondents were entitled to costs of US $ 278 million, in excess of the US $ 198 million. The counter claim of the Appellants to the extent of US $ 22 million was allowed by the tribunal. (e) The Appellants are aggrieved by the interpretation taken by the tribunal with respect to Article 15.5 (c) of the PSC and its other sub-clauses. The interpretation of the terms of the PSC lies within the domain of the tribunal. It is not open for the Appellants to impeach the award on merits before the enforcement court. The enforcement court cannot re-assess or re-appreciate the evidence led in the arbitration. Section 48 does not provide a de facto appeal on the merits of the award. The enforcement court exercising jurisdiction under Section 48, cannot refuse enforcement by taking a different interpretation of the terms of the contract. (f) We feel that the interpretation taken by the tribunal is a plausible view, and the challenge on this ground cannot be sustained, to refuse enforcement of the Award. (g) With respect to the submission made on behalf of the Appellants that the Production Sharing Contracts are special contracts pertaining to the exploration of natural resources, which concerns the public policy of India, we are of the view that the disputes raised by the Claimants emanate from the rights and obligations of the parties under the PSC. The Award is not contrary to the fundamental policy of Indian law, or in conflict with the notions of justice, as discussed hereinabove. The term of the PSC was for a period of 25 years from 28.10.1994, which ended on 27.10.2019. We have been informed that the term of the PSC has since been extended for a further period of 10 years, through the mutual agreement between the parties. This itself would reflect that the performance of the obligations under the PSC were not contrary to the interests of India. (xx) We conclude that the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice. | 0[ds]The issue of limitation for enforcement of foreign awards being procedural in nature, is subject to the lex fori i.e. the law of the forum (State) where the foreign award is sought to be enforced.(iii) It would be instructive to refer to the Report of the General Assembly of the United Nations Commission on International Trade Law in its 41 st Session dated 16 th June – 3rd July, 2008 with respect to the legislative implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (UN Doc A/CN.9/656/Add.1), wherein it was noted that the Convention does not prescribe a time limit for making an application for recognition and enforcement of foreign awards. Article III of the Convention states that recognition and enforcement of arbitral awards should be done in accordance with the rules of procedure of the State where the award was to be enforced. The time limit may be specifically provided in the national legislation for recognition or enforcement of Convention awards, or it may be a general rule applicable to court proceedings.(iv) The limitation period for filing the enforcement / execution petition for enforcement of a foreign award in India, would be governed by Indian law. The Indian Arbitration Act, 1996 does not specify any period of limitation for filing an application for enforcement / execution of a foreign award. Section 43 however provides that the Limitation Act, 1963 shall apply to arbitrations, as it applies to proceedings in court.(v) The Limitation Act, 1963 does not contain any specific provision for enforcement of a foreign award. Articles 136 and 137 fall in the Third Division of the Schedule to the Limitation Act. Article 136 provides that the period of limitation for the execution of any decree or order of a civil court is twelve years from the date when the decree or order becomes enforceable.(vi) Article 137 is the residuary provision in the Limitation Act which provides that the period of limitation for any application where no period of limitation is provided in the Act, would be three years from when the right to apply accrues.(vii) Section 36 of the Arbitration Act, 1996 creates a statutory fiction for the limited purpose of enforcement of a domestic award as a decree of the court, even though it is otherwise an award in an arbitral proceeding Umesh Goyal v Himachal Pradesh Co-op Group Housing Society Ltd. (2016) 11 SCC 313. . By this deeming fiction, a domestic award is deemed to be a decree of the court Sundaram Finance Ltd. v Abdul Saman and Anr. (2018) 3 SCC 622. , even though it is as such not a decree passed by a civil court. The arbitral tribunal cannot be considered to be a court, and the arbitral proceedings are not civil proceedings. The deeming fiction is restricted to treat the award as a decree of the court for the purposes of execution, even though it is, as a matter of fact, only an award in an arbitral proceeding.(ix) In Bank of Baroda v Kotak Mahindra Bank, (2020) SCC OnLine 324. this Court took the view that Article 136 of the Limitation Act deals only with decrees passed by Indian courts. The Limitation Act was framed keeping in view the suits, appeals and applications to be filed in Indian courts. Wherever the need was felt to deal with an application / petition filed outside India, the Limitation Act specifically provided a time period for that situation. The legislature has omitted reference to foreign decrees under Article 136 of the Limitation Act. The intention of the legislature was to confine Article 136 to the decrees of a civil court in India. The application for execution of a foreign decree would be an application not covered under any other Article of the Limitation Act, and would be covered by Article 137 of the Limitation Act.(x) Foreign awards are not decrees of an Indian civil court. By a legal fiction, Section 49 provides that a foreign award, after it is granted recognition and enforcement under Section 48, would be deemed to be a decree of that Court for the limited purpose of enforcement. The phrase that Court refers to the Court which has adjudicated upon the petition filed under Sections 47 and 49 for enforcement of the foreign award.In our view, Article 136 of the Limitation Act would not be applicable for the enforcement / execution of a foreign award, since it is not a decree of a civil court in India.(xi) The enforcement of a foreign award as a deemed decree of the concerned High Court [as per the amended Explanation to Section 47 by Act 3 of 2016 confers exclusive jurisdiction on the High Court for execution of foreign awards] would be covered by the residuary provision i.e. Article 137 of the Limitation Act.In this background, the present Limitation Act, 1963 excludes any application filed under Order XXI from the purview of Section 5 of the Act, with the object that execution of decrees should be proceeded with as expeditiously as possible. The period of limitation for execution of the decree of a civil court is now uniformly fixed at the maximum period of 12 years for decrees of civil courts.(xiv) In view of the aforesaid discussion, we hold that the period of limitation for filing a petition for enforcement of a foreign award under Sections 47 and 49, would be governed by Article 137 of the Limitation Act, 1963 which prescribes a period of three years from when the right to apply accrues.(xv) The application under Sections 47 and 49 for enforcement of the foreign award, is a substantive petition filed under the Arbitration Act, 1996. It is a well- settled position that the Arbitration Act is a self-contained code. The application under Section 47 is not an application filed under any of the provisions of Order XXI of the CPC, 1908. The application is filed before the appropriate High Court for enforcement, which would take recourse to the provisions of Order XXI of the CPC only for the purposes of execution of the foreign award as a deemed decree. The bar contained in Section 5, which excludes an application filed under any of the provisions of Order XXI of the CPC, would not be applicable to a substantive petition filed under the Arbitration Act, 1996. Consequently, a party may file an application under Section 5 for condonation of delay, if required in the facts and circumstances of the case.(xvi) In the facts of the present case, the Respondents submitted that after the Award dated 18.01.2011 was passed, the cost account statements were revised, and an amount of US $ 22 million was paid to the Government of India.On 10.07.2014, a show cause notice was issued to the respondents, raising a demand of US $ 77 million, being the Governments share of Profit Petroleum under the PSC. It was contended that the cause of action for filing the enforcement petition under Sections 47 and 49 arose on 10.07.2014. The enforcement petition was filed on 14.10.2014 i.e. within 3 months from the date when the right to apply accrued.We hold that the petition for enforcement of the foreign award was filed within the period of limitation prescribed by Article 137 of the Limitation Act, 1963.In any event, there are sufficient grounds to condone the delay, if any, in filing the enforcement / execution petition under Sections 47 and 49, on account of lack of clarity with respect to the period of limitation for enforcement of a foreign award.(i) In paragraph 20.5 of the judgment, the High Court has taken the view that a foreign award which passes the gateway of Section 47, is at that stage, treated as being equivalent to a foreign decree whose enforcement can be refused at the request of the party against whom it is invoked, if it falls within the provisions of Section 48 of the 1996 Act.In paragraphs 20.7 and 20.8 of the impugned judgment, it has been held that:20.7 A plain reading of Section 49 would show that does not contain anything which would relate it to Section 48 of the 1996 Act. Pertinently, Section 48 of the 1996 Act opens with the express Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that20.8 The provision, to my mind, pre-supposes that a foreign award is a decree whose execution can only be impeded by a party against whom it is sought to be executed if it is able to discharge its burden that its objections can be sustained under one or more clauses of sub-section (1)sub- section (2) of Section 48 of the 1996 Act.In paragraph 21, it has been held that a foreign award is enforceable on its own strength, and is not necessarily dependent on whether or not it goes through the process of Section 48 proceedings.(ii) The aforesaid findings are contrary to the scheme of the Act, since a foreign award does not become a foreign decree at any stage of the proceedings. The foreign award is enforced as a deemed decree of the Indian Court which has adjudicated upon the petition filed under Section 47, and the objections raised under Section 48 by the party which is resisting enforcement of the award.A foreign award is not a decree by itself, which is executable as such under Section 49 of the Act. The enforcement of the foreign award takes place only after the court is satisfied that the foreign award is enforceable under Chapter 1 in Part II of the 1996 Act. After the stages of Sections 47 and 48 are completed, the award becomes enforceable as a deemed decree, as provided by Section 49. The phrase that court refers to the Indian court which has adjudicated on the petition filed under Section 47, and the application under Section 48.In contrast, the procedure for enforcement of a foreign decree is not covered by the 1996 Act, but is governed by the provisions of Section 44A read with Section 13 of the CPC.Under the 1996 Act, there is no requirement for the foreign award to be filed before the seat court, and obtain a decree thereon, after which it becomes enforceable as a foreign decree. This was referred to as the double exequatur, which was a requirement under the Geneva Convention, 1927 and was done away with by the New York Convention, which superseded it. .There is a paradigm shift under the 1996 Act. Under the 1996 Act, a party may apply for recognition and enforcement of a foreign award, after it is passed by the arbitral tribunal. The applicant is not required to obtain leave from the court of the seat in which, or under the laws of which, the award was made.(f) The award holder is entitled to apply for recognition and enforcement of the foreign award by way of a common petition.In a recent judgment rendered in LMJ International Ltd. v. Sleepwell Industries (2019) 5 SCC 302. , this Court held that given the legislative intent of expeditious disposal of arbitration proceedings, and limited interference of the courts, the maintainability of the enforcement petition, and the adjudication of the objections filed, are required to be decided in a common proceeding.(g) The enforcement / execution petition is required to be filed before the concerned High Court, as per the amendment to Section 47 by Act 3 of 2016 (which came into force on 23.10.2015).(h) Section 48 replicates Article V of the New York Convention, and sets out the limited conditions on which the enforcement of a foreign award may be refused.Sub-sections (1) and (2) of Sections 48 contain seven grounds for refusal to enforce a foreign award. Sub-section (1) contains five grounds which may be raised by the losing party for refusal of enforcement of the foreign award, while sub-section (2) contains two grounds which the court may ex officio invoke to refuse enforcement of the award, (Malhotras Commentary on the Law of Arbitration, 4th Edition, Vol. 2, Pg. 1163-1164, Wolters Kluwer.) i.e. non-arbitrability of the subject-matter of the dispute under the laws of India; and second, the award is in conflict with the public policy of India.(i) The enforcement Court cannot set aside a foreign award, even if the conditions under Section 48 are made out. The power to set aside a foreign award vests only with the court at the seat of arbitration, since the supervisory or primary jurisdiction is exercised by the curial courts at the seat of arbitration.The enforcement court may refuse enforcement of a foreign award, if the conditions contained in Section 48 are made out. This would be evident from the language of the Section itself, which provides that enforcement of a foreign award may be refused only if the applicant furnishes proof of any of the conditions contained in Section 48 of the Act.(j) The opening words of Section 48 use permissive, rather than mandatory language, that enforcement may be refused. (Refer to Vijay Karia & Ors. v Prysmian Cavi E Sistemi SRL & Ors., 2020 SCC OnLine 177.) The use of the words may be indicate that even if the party against whom the award is passed, proves the existence of one or more grounds for refusal of enforcement, the court would retain a residual discretion to overrule the objections, if it finds that overall justice has been done between the parties, and may direct the enforcement of the award.This is generally done where the ground for refusal concerns a minor violation of the procedural rules applicable to the arbitration, or if the ground for refusal was not raised in the arbitration. A court may also take the view that the violation is not such as to prevent enforcement of the award in international relations.(Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation, 1981, Kluwer Law and Taxation Publishers at page 265.).(k) The grounds for refusing enforcement of foreign awards contained in Section 48 are exhaustive, which is evident from the language of the Section, which provides that enforcement may be refused only if the applicant furnishes proof of any of the conditions contained in that provision. (Cruz City I Mauritius Holdings v. Unitech Ltd. (2017) 239 DLT 649.).(l) The enforcement court is not to correct the errors in the award under Section 48, or undertake a review on the merits of the award, but is conferred with the limited power to refuse enforcement, if the grounds are made out.(m) If the Court is satisfied that the application under Section 48 is without merit, and the foreign award is found to be enforceable, then under Section 49, the award shall be deemed to be a decree of that Court. The limited purpose of the legal fiction is for the purpose of the enforcement of the foreign award. The concerned High Court would then enforce the award by taking recourse to the provisions of Order XXI of the CPC.(i) In the present case, the law governing the agreement to arbitrate was the English law as per Article 34.12 of the PSC, which provides that the arbitration agreement shall be governed by the laws of England. Even though there seems to have been some confusion in the application of the law governing the agreement to arbitrate by the seat courts, as pointed out by the learned Amicus, we will not dwell on this issue, since the enforcement court does not sit in appeal over the findings of the seat court. Furthermore, in view of the principles of comity of nations, this Court would not comment on the judgments passed by Courts in other jurisdictions.The enforcement of the award is a subsequent and distinct proceeding from the setting aside proceedings at the seat. The enforcement court would independently determine the issue of recognition and enforceability of the foreign award in India, in accordance with the provisions of Chapter 1 Part II of the Indian Arbitration Act, 1996.(ii) The courts having jurisdiction to annul or suspend a New York Convention award are the courts of the State where the award was made, or is determined to have been made i.e. at the seat of arbitration. The seat of the arbitration is a legal concept i.e. the juridical home of the arbitration. The legal seat must not be confused with a geographically convenient venue chosen to conduct some of the hearings in the arbitration. The courts at the seat of arbitration are referred to as the courts which exercise supervisory or primary jurisdiction over the award. The laws under which the award was made used in Article V (1)(e) of the New York Convention, is mirrored in Section 48(1)(e) of the Indian Arbitration Act, which refers to the country of the seat of the arbitration, and not the State whose laws govern the substantive contract.(iii) The courts before which the foreign award is brought for recognition and enforcement would exercise secondary or enforcement jurisdiction over the award, to determine the recognition and enforceability of the award in that jurisdiction.(iv) We will now briefly touch upon the four types of laws which are applicable in an international commercial arbitration, and court proceedings arising therefrom. These are :a) The governing law determines the substantive rights and obligations of the parties in the underlying commercial contract. The parties normally make a choice of the governing law of the substantive contract; in the absence of a choice of the governing law, it would be determined by the tribunal in accordance with the conflict of law rules, which are considered to be applicable.b) The law governing the arbitration agreement must be determined separately from the law applicable to the substantive contract. (Collins, in Lew (ed.), Contemporary Problems in International Arbitration (1986) p.126 at 127-131) The arbitration agreement constitutes a separate and autonomous agreement, which would determine the validity and extent of the arbitration agreement; limits of party autonomy, the jurisdiction of the tribunal, etc.c) The curial law of the arbitration is determined by the seat of arbitration. In an international commercial arbitration, it is necessary that the conduct of the arbitral proceedings are connected with the law of the seat of arbitration, which would regulate the various aspects of the arbitral proceedings. The parties have the autonomy to determine the choice of law, which would govern the arbitral procedure, which is referred to as the lex arbitri, and is expressed in the choice of the seat of arbitration. The Conflict of Laws, Dicey, Morris and Collins, (15th ed.) Volume 1, Chapter 16, paragraph 16-035, p. 843.The curial law governs the procedure of the arbitration, the commencement of the arbitration, appointment of arbitrator/s in exercise of the default power by the court, grant of provisional measures, collection of evidence, hearings, and challenge to the award.The courts at the seat of arbitration exercise supervisory or primary jurisdiction over the arbitral proceedings, except if the parties have made an express and effective choice of a different lex arbitri, in which event, the role of the courts at the seat will be limited to those matters which are specified to be internationally mandatory and of a non- derogable nature. (Russel on Arbitration, Sweet & Maxwell (24th Edition, 2015).)d) The lex fori governs the proceedings for recognition and enforcement of the award in other jurisdictions. Article III of the New York Convention provides that the national courts apply their respective lex fori regarding limitation periods applicable for recognition and enforcement proceedings; the date from which the limitation period would commence, whether there is power to extend the period of limitation. The lex fori determines the court which is competent and has the jurisdiction to decide the issue of recognition and enforcement of the foreign award, and the legal remedies available to the parties for enforcement of the foreign award.(v) In view of the above-mentioned position, the Malaysian Courts being the seat courts were justified in applying the Malaysian Act to the public policy challenge raised by the Government of India.The enforcement court would, however, examine the challenge to the award in accordance with the grounds available under Section 48 of the Act, without being constrained by the findings of the Malaysian Courts. Merely because the Malaysian Courts have upheld the award, it would not be an impediment for the Indian courts to examine whether the award was opposed to the public policy of India under Section 48 of the Indian Arbitration Act, 1996. If the award is found to be violative of the public policy of India, it would not be enforced by the Indian courts. The enforcement court would however not second-guess or review the correctness of the judgment of the Seat Courts, while deciding the challenge to the award.(vi) In our view, the observation made in paragraph 76.4 of the Reliance ((2014) 7 SCC 603 ) judgment does not have any precedential value, since it is an observation made in the facts of that case, which arose out of a challenge to a final partial award on the issue of arbitrability of certain disputes. The last sentence in paragraph 76.4 is not the ratio of that judgment, which is contained in paragraphs76.1 to 76.3.(vii) In the present case, the Appellants have challenged the Award inter alia on the ground of excess of jurisdiction, and as being contrary to the public policy of India. The observations made in paragraph 76.4 in the Reliance judgment, would not be applicable to the present case, since the issue of arbitrability has not been raised, and cannot be relied upon by the Appellants in the present case.(i) This issue is required to be determined in accordance with the conditions laid down in Section 48 of the 1996 Act,(iii) In Renusagar Power Co. v General Electric Co. 1994 Supp (1) SCC 644. ( Renusagar), this Court held that public policy comprised of (1) the fundamental policy of Indian law; (2) interests of India; and (3) justice or morality. It was held that :37. In our opinion, therefore, in proceedings for enforcement of a foreign award under the Foreign Awards Act, 1961, the scope of enquiry before the court in which award is sought to be enforced is limited to grounds mentioned in Section 7 of the Act and does not enable a party to the said proceedings to impeach the award on merit.x x x66. Article V(2)(b) of the New York Convention of 1958 and Section 7(1)(b)(ii) of the Foreign Awards Act do not postulate refusal of recognition and enforcement of a foreign award on the ground that it is contrary to the law of the country of enforcement and the ground of challenge is confined to the recognition and enforcement being contrary to the public policy of the country in which the award is set to be enforced. There is nothing to indicate that the expression public policy in Article V(2)(b) of the New York Convention and Section 7(1)(b)(ii) of the Foreign Awards Act is not used in the same sense in which it was used in Article 1(c) of the Geneva Convention of 1927 and Section 7(1) of the Protocol and Convention Act of 1937. This would mean that public policy in Section 7(1)(b)(ii) has been used in a narrower sense and in order to attract to bar of public policy the enforcement of the award must invoke something more than the violation of the law of India. Since the Foreign Awards Act is concerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression public policy in Section 7(1)(b)(ii) of the Foreign Awards Act must necessarily be construed in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality.(emphasis supplied)The enforceability of the foreign award will be decided in accordance with the parameters laid down in Renusagar i.e. whether the award is contrary to the (i) fundamental policy of Indian law, or (ii) interests of India, or (iii) justice or morality.(vii) Section 48 was amended by Act 3 of 2016. By this amendment, the public policy ground was given a narrow and specific construction by statute, by the insertion of two Explanations. The amended Section 48 reads as :48. Conditions for enforcement of foreign awards. –(1) …(2) Enforcement of an arbitral award may also be refused if the Court finds that—(a) the subject-matter of the difference is not capable of settlement by arbitration under the law of India; or(b) the enforcement of the award would be contrary to the public policy of India.Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,—(i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or(ii) it is in contravention with the fundamental policy of Indian law; or(iii) it is in conflict with the most basic notions of morality or justice.Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.(emphasis supplied)(viii) The highlighted portions show the amendments made to Section 48 by the 2016 Amendment Act. We find that these are substantive amendments, which have been incorporated to make the definition of public policy narrow by statute. It is relevant to note that the 2016 Amendment has dropped the clause interests of India, which was expounded by the Renusagar judgment.The newly inserted Explanation 2 provides that the examination of whether the enforcement of the award is in conflict with the fundamental policy of Indian law, shall not entail a review on the merits of the dispute.(ix) The two Explanations in Section 48 begin with the words For the avoidance of any doubt. It cannot, however, be presumed to be clarificatory and retrospective, since the substituted Explanation 1 has introduced new sub-clauses, which have brought about a material and substantive change in the section. A new Explanation 2 has been inserted which states that the test as to whether there is a contravention with the fundamental policy of Indian law, shall not entail a review on the merits of the dispute. Since the amendments have introduced specific criteria for the first time, it must be considered to be prospective, irrespective of the usage of the phrase for the removal of doubts. Reliance is placed on the judgment of this Court in Sedco Forex International Drill v Commissioner of Income Tax, Dehradun (2005) 12 SCC 717. wherein it was held that an Explanation if it changes the law, it cannot be presumed to be retrospective, irrespective of the fact that the phrases used are it is declared or for the removal of doubts. In Ssangyong Engineering & Construction Co. Ltd. v NHAI, (2019) 15 SCC 131. this Court was considering the amendments made to Section 34, wherein two Explanations to Section 34 had been inserted, which are identically worded with the two Explanations to Section 48. In that case, a similar ground of retrospectivity had been urged. This Court held that since the Explanations had been introduced for the first time, it is the substance of the amendment which has to be looked at, rather than the form. Even in cases where for avoidance of doubt, something is clarified by way of an amendment, such clarification cannot have retrospective effect, if the earlier law has been changed substantially.(xi) Section 26 of the Amendment Act came up for consideration before this Court in BCCI v. Kochi Cricket Pvt Ltd. 2018 6 SCC 287 . ( BCCI). This Court held that the Amendment Act would apply prospectively to:(a) arbitral proceedings initiated on or after 23.10.2015 i.e. the date on which the 2015 Amendment Act came into force;(b) court proceedings commenced on or after 23.10.2015, irrespective of whether such court proceedings arise out of, or relate to arbitration proceedings which were commenced prior to, or after the commencement of the Amendment Act.(xii) The 2019 Amendment Act (to the Arbitration Act of 1996) inserted Section 87 as a clarificatory amendment, to provide that arbitral proceedings and court proceedings arising out of, or in relation to such proceedings shall constitute a single set of proceedings, for the applicability of the 2016 Amendment Act. Section 87 was inserted with retrospective effect from 23.10.2015 i.e. the date of coming into force of the 2016 Amendment Act. Section 15 of the 2019 Amendment Act provided that Section 26 of the 2015 Amendment Act stood deleted.(xiii) In Hindustan Construction Co. Ltd v. Union of India & Ors., 2019 (6) Arb LR 171 (SC). the Supreme Court struck down Section 87 of the 2019 Amendment Act, and restored Section 26 of the 2016 Amendment Act to the statute book. It was held in paragraph 54 that :54. The result is that the BCCI judgment will, therefore, continue to apply so as to make applicable salutary amendments made by the 2015 Amendment Act to all court proceedings initiated after 23.10.2015.(emphasis supplied)(xiv) In view of the aforesaid discussion, we hold that the amended Section 48 would not be applicable to the present case, since the court proceedings for enforcement were filed by the Respondents-Claimants on 14.10.2014 i.e. prior to the 2016 Amendment having come into force on 23.10.2015.Applying the unamended Section 48 to the present case, this Court in the Renusagar judgment had placed reliance on the enunciation of the law on international public policy in the judgment of the U.S. Court of Appeals for the 2 nd Circuit in Parsons & Whittemore Overseas Co. Inc. v. Societe Generale De Lindustrie du Papier (RAKTA), 508 F. 2d 969 (2nd Cir 1974). wherein it was held that :7. Article V(2)(b) of the Convention allows the court in which enforcement of a foreign arbitral award is sought to refuse enforcement, on the defendants motion or sua sponte, if enforcement of the award would be contrary to the public policy of (the forum) country. The legislative history of the provision offers no certain guidelines to its construction. Its precursors in the Geneva Convention and the 1958 Conventions ad hoc committee draft extended the public policy exception to, respectively, awards contrary to principles of the law and awards violative of fundamental principles of the law. In one commentators view, the Conventions failure to include similar language signifies a narrowing of the defense [Contini, International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Am J Comp L at p. 304]. On the other hand, another noted authority in the field has seized upon this omission as indicative of an intention to broaden the defense [Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1070-71 (1961)].8. Perhaps more probative, however, are the inferences to be drawn from the history of the Convention as a whole. The general pro-enforcement bias informing the Convention and explaining its supersession of the Geneva Convention points toward a narrow reading of the public policy defense. An expansive construction of this defense would vitiate the Conventions basic effort to remove preexisting obstacles to enforcement. [See Straus, Arbitration of Disputes between Multinational Corporations, in New Strategies for Peaceful Resolution of International Business Disputes 114-15 (1971); Digest of Proceedings of International Business Disputes Conference, April 14, 1971, at 191 (remarks of Professor W. Reese)]. Additionally, considerations of reciprocity – considerations given express recognition in the Convention itself – counsel courts to invoke the public policy defense with caution lest foreign courts frequently accept it as a defense to enforcement of arbitral awards rendered in the United States.9. We conclude, therefore, that the Conventions public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum states most basic notions of morality and justice.x x x…To read the public policy defence as a parochial device protective of national political interests would seriously undermine the Conventions utility. This provision is not meant to enshrine the vagaries of international politics under the rubric of public policy. Rather, a circumscribe public policy doctrine was contemplated by the Conventions framers and every indication is that the United States, in acceding to the Convention, meant to subscribe to this supranational emphasis. Cf. Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct.2449. 41L.Ed. 2d 270, 42 U.S.L.W., 4911, 4915-16 n. 15(1974)(emphasis supplied)The judgment in Parsons has been followed in various other jurisdictions.(xvii) It would be useful to refer to the recommendations of the International Law Association in the 70 th Conference of the ILA held in New Delhi on 2-6 April 2002, known as the ILA Recommendations, 2002 on Public Policy, which have been regarded as reflective of best international practices.Clause 1 (a) of the General recommendations of the ILA provides that the finality of awards in international commercial arbitration should be respected, save in exceptional circumstances, and that such exceptional circumstances are found if recognition or enforcement of the international arbitral award would be contrary to international public policy.Clause 1(d) of the Recommendations state that the expression international public policy is used to designate the body of principles and rules, which are : (i) fundamental principles, pertaining to justice or morality, that the State wishes to protect even when it is not directly concerned, (ii) rules designed to serve the essential political, social or economic interests of the State, these being known as lois de police or public policy rules and (iii) the duty of the State to respect its obligations towards other States or international organisations. Clause 3(a) states that the violation of a mere mandatory rule (i.e. a rule that is mandatory, but does not form part of the States international public policy), should not bar its recognition and enforcement, even when said rule forms part of the law of the forum, the law governing the contract, the law of the place of performance of the contract, or the law of the seat of the arbitration.(xviii) The International Council for Commercial Arbitration (ICCA) Guide to the Interpretation of the 1958 New York Convention : A Handbook for Judges (2011), states that while considering the grounds for refusal of a foreign award, the Court must be guided by the following principles (i) no review on merits; (ii) narrow interpretation of the grounds for refusal; and (iii) limited discretionary power.The merits of the arbitral award are not open to review by the enforcement court, which lies within the domain of the seat courts. Accordingly, errors of judgment, are not a sufficient ground for refusing enforcement of a foreign award. | 0 | 28,217 | 6,714 | ### Instruction:
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principles of justice… It was understood that the term public policy, which was used in the 1958 New York Convention and many other treaties, covered fundamental principles of law and justice in substantive as well as procedural respects. Thus, instances such as corruption, bribery or fraud and similar serious cases would constitute a ground for setting aside. (emphasis supplied) This judgment has been recently affirmed by the Singapore High Court in Dongwoo Mann + Hummel Co. Ltd. v Mann + Hummel GmbH. [2008] SGHC 67. (c) The gravamen of the challenge of the Appellants is that the tribunal has given an erroneous interpretation of the terms of the PSC read with the Ravva Development Plan, which would amount to re-writing the contract. The view taken by the tribunal is based on an interpretation of Article 15.5 (c) read with the exceptions contained in Article 15.5 (e)(iii)(dd). The tribunal held that the exception came into play on account of the range of physical reservoir characteristics being materially different, from what was contemplated in the Ravva Development Plan. The tribunal relied upon the evidence of the Expert Witness produced by the Claimants who deposed that the enlarged reservoir known as Block A/D showed a range of physical characteristics, which were materially different from those of the Fault Blocks defined in Article 11.1 of the PSC, on which the Ravva Development Plan was based. Since there was a material change in the physical reservoir characteristics of the existing reserves, Article 15.5 (e)(iii)(dd) would get triggered, which would enable the Claimants to request for an increase in the capped figure of Base Development Costs under Article 15.5(e)(iii)(dd). The tribunal noted that the PSC was entered into for a period of 25 years and the parties envisaged the possibility that the Respondents may incur Development Costs greater than those anticipated when the Ravva Development Plan and the PSC were executed. Article 15.5(d) and (e) were events where the capped figure under Article 15.5 (c) could be increased by the Management Committee. The tribunal held that the cap on Base Development Costs under Article 15.5(c) was to be read with reference to the object of the Plan to achieve the production profile of 35,000 BOPD. The production profile of 35,000 BOPD was achieved on the drilling of 14 wells by about 31 st March 1999. The reference to 21 wells under Article 15.5(c)(xi) was interpreted as being an estimate of the number of wells contemplated by the parties in 1993, which would be required to achieve the object of achieving the production profile of 35,000 BOPD. It could not be construed to be an undertaking by the Claimants to drill 21 wells, even though the targeted production profile of 35,000 BOPD had been achieved by the drilling of 14 wells. The remaining 7 wells were drilled subsequently, not for the purposes of the Ravva Development Plan, but to take into account the changed physical characteristics of the existing reserves which were encountered. The costs of US $ 278 million was incurred by the Respondents as a result of events which fell within Article 15.5(e)(iii)(dd). In 1998-1999 when the complete extent of the reserves in the Ravva Field was known, the Management Committee, approved an increase in the production profile from 35,000 BOPD to 50,000 BOPD on 25 March 1998. The Respondents proceeded to develop the Ravva Field to enable a production rate of 50,000 BOPD, and drilled 7 wells. The Respondents incurred costs of $ 278,871,668 million towards the drilling of the 7 wells. (d) The Appellants herein filed a counter claim, seeking sums equivalent to the amount which the Respondents had claimed as Cost Petroleum, in excess of the agreed figure of US $ 198 million limit. On the interpretation of Article 15.5(c) of the PSC, and the circumstances in which the PSC and the Ravva Development Plan, were executed, the tribunal held that the Respondents were entitled to costs of US $ 278 million, in excess of the US $ 198 million. The counter claim of the Appellants to the extent of US $ 22 million was allowed by the tribunal. (e) The Appellants are aggrieved by the interpretation taken by the tribunal with respect to Article 15.5 (c) of the PSC and its other sub-clauses. The interpretation of the terms of the PSC lies within the domain of the tribunal. It is not open for the Appellants to impeach the award on merits before the enforcement court. The enforcement court cannot re-assess or re-appreciate the evidence led in the arbitration. Section 48 does not provide a de facto appeal on the merits of the award. The enforcement court exercising jurisdiction under Section 48, cannot refuse enforcement by taking a different interpretation of the terms of the contract. (f) We feel that the interpretation taken by the tribunal is a plausible view, and the challenge on this ground cannot be sustained, to refuse enforcement of the Award. (g) With respect to the submission made on behalf of the Appellants that the Production Sharing Contracts are special contracts pertaining to the exploration of natural resources, which concerns the public policy of India, we are of the view that the disputes raised by the Claimants emanate from the rights and obligations of the parties under the PSC. The Award is not contrary to the fundamental policy of Indian law, or in conflict with the notions of justice, as discussed hereinabove. The term of the PSC was for a period of 25 years from 28.10.1994, which ended on 27.10.2019. We have been informed that the term of the PSC has since been extended for a further period of 10 years, through the mutual agreement between the parties. This itself would reflect that the performance of the obligations under the PSC were not contrary to the interests of India. (xx) We conclude that the enforcement of the foreign award does not contravene the public policy of India, or that it is contrary to the basic notions of justice.
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the 2019 Amendment Act, and restored Section 26 of the 2016 Amendment Act to the statute book. It was held in paragraph 54 that :54. The result is that the BCCI judgment will, therefore, continue to apply so as to make applicable salutary amendments made by the 2015 Amendment Act to all court proceedings initiated after 23.10.2015.(emphasis supplied)(xiv) In view of the aforesaid discussion, we hold that the amended Section 48 would not be applicable to the present case, since the court proceedings for enforcement were filed by the Respondents-Claimants on 14.10.2014 i.e. prior to the 2016 Amendment having come into force on 23.10.2015.Applying the unamended Section 48 to the present case, this Court in the Renusagar judgment had placed reliance on the enunciation of the law on international public policy in the judgment of the U.S. Court of Appeals for the 2 nd Circuit in Parsons & Whittemore Overseas Co. Inc. v. Societe Generale De Lindustrie du Papier (RAKTA), 508 F. 2d 969 (2nd Cir 1974). wherein it was held that :7. Article V(2)(b) of the Convention allows the court in which enforcement of a foreign arbitral award is sought to refuse enforcement, on the defendants motion or sua sponte, if enforcement of the award would be contrary to the public policy of (the forum) country. The legislative history of the provision offers no certain guidelines to its construction. Its precursors in the Geneva Convention and the 1958 Conventions ad hoc committee draft extended the public policy exception to, respectively, awards contrary to principles of the law and awards violative of fundamental principles of the law. In one commentators view, the Conventions failure to include similar language signifies a narrowing of the defense [Contini, International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Am J Comp L at p. 304]. On the other hand, another noted authority in the field has seized upon this omission as indicative of an intention to broaden the defense [Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1070-71 (1961)].8. Perhaps more probative, however, are the inferences to be drawn from the history of the Convention as a whole. The general pro-enforcement bias informing the Convention and explaining its supersession of the Geneva Convention points toward a narrow reading of the public policy defense. An expansive construction of this defense would vitiate the Conventions basic effort to remove preexisting obstacles to enforcement. [See Straus, Arbitration of Disputes between Multinational Corporations, in New Strategies for Peaceful Resolution of International Business Disputes 114-15 (1971); Digest of Proceedings of International Business Disputes Conference, April 14, 1971, at 191 (remarks of Professor W. Reese)]. Additionally, considerations of reciprocity – considerations given express recognition in the Convention itself – counsel courts to invoke the public policy defense with caution lest foreign courts frequently accept it as a defense to enforcement of arbitral awards rendered in the United States.9. We conclude, therefore, that the Conventions public policy defense should be construed narrowly. Enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the forum states most basic notions of morality and justice.x x x…To read the public policy defence as a parochial device protective of national political interests would seriously undermine the Conventions utility. This provision is not meant to enshrine the vagaries of international politics under the rubric of public policy. Rather, a circumscribe public policy doctrine was contemplated by the Conventions framers and every indication is that the United States, in acceding to the Convention, meant to subscribe to this supranational emphasis. Cf. Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct.2449. 41L.Ed. 2d 270, 42 U.S.L.W., 4911, 4915-16 n. 15(1974)(emphasis supplied)The judgment in Parsons has been followed in various other jurisdictions.(xvii) It would be useful to refer to the recommendations of the International Law Association in the 70 th Conference of the ILA held in New Delhi on 2-6 April 2002, known as the ILA Recommendations, 2002 on Public Policy, which have been regarded as reflective of best international practices.Clause 1 (a) of the General recommendations of the ILA provides that the finality of awards in international commercial arbitration should be respected, save in exceptional circumstances, and that such exceptional circumstances are found if recognition or enforcement of the international arbitral award would be contrary to international public policy.Clause 1(d) of the Recommendations state that the expression international public policy is used to designate the body of principles and rules, which are : (i) fundamental principles, pertaining to justice or morality, that the State wishes to protect even when it is not directly concerned, (ii) rules designed to serve the essential political, social or economic interests of the State, these being known as lois de police or public policy rules and (iii) the duty of the State to respect its obligations towards other States or international organisations. Clause 3(a) states that the violation of a mere mandatory rule (i.e. a rule that is mandatory, but does not form part of the States international public policy), should not bar its recognition and enforcement, even when said rule forms part of the law of the forum, the law governing the contract, the law of the place of performance of the contract, or the law of the seat of the arbitration.(xviii) The International Council for Commercial Arbitration (ICCA) Guide to the Interpretation of the 1958 New York Convention : A Handbook for Judges (2011), states that while considering the grounds for refusal of a foreign award, the Court must be guided by the following principles (i) no review on merits; (ii) narrow interpretation of the grounds for refusal; and (iii) limited discretionary power.The merits of the arbitral award are not open to review by the enforcement court, which lies within the domain of the seat courts. Accordingly, errors of judgment, are not a sufficient ground for refusing enforcement of a foreign award.
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M/S Imagic Creative (P) Ltd Vs. Commnr.Of Commercial Taxes | Constitution, were not entitled to bifurcate or split up the contract for the purpose of levying sales tax on the element of moveable goods involved in the contract. Apart from the decision in Rainbow Colour Lab case 11 which does not appear to be correct, the other decisions cited related to the pre-Forty-sixth Amendment period. Furthermore, the provisions of the Customs Act and the Tariff Act are clear and unambiguous. Any moveable articles, irrespective of what they may be or may contain, would be goods as defined in Section 2(22) of the Customs Act.” 21. Evidently, therefore, the decision of Associated Cement Company Supra) whereupon strong reliance has been placed by the Tribunal as also by the High Court seeks to make a distinction between cases arising out of works contract wherefor sales tax is liable to be paid and the cases under the Customs Act. 22. Our attention has furthermore been drawn to the decision of this Court in Bharat Sanchar Nigam Ltd. (supra) wherein referring to Tata Consultancy (supra) it was observed that the approach of this Court in the said decision as to what would be ‘goods’ for the purpose of sales tax is correct. 23. What, however, did not fall for consideration in any of the aforementioned decisions is the concept of works contract involving both service as also supply of goods constituting a sale. Both, in Tata Consultancy (supra) as also in Associated Cement Company (supra), what was in issue was the value of the goods and only for the said purpose, this Court went by the definition thereof both under the Customs Act as also the Sales Tax Act to hold that the same must have the attributes of its utility, capability of being bought and sold and capability of being transmitted, transferred, delivered, stored and possessed. As a software was found to be having the said attributes, they were held to be goods. 24. We have, however, a different problem at hand. Appellant admittedly is a service provider. When it provides for service, it is assessable to a tax known as service tax. Such tax is leviable by reason of a Parliamentary statute. In the matter of interpretation of a taxing statute, as also other statutes where the applicability of Article 246 of the Constitution of India, read with Seventh Schedule thereof is in question, the Court may have to take recourse to various theories including ‘aspect theory’, as was noticed by this Court in Federation of Hotel & Restaurant Association of India, etc. v. Union of India& Ors. [(1989) 3 SCC 634] . 25. If the submission of Mr. Hegde is accepted in its entirety, whereas on the one hand, the Central Government would be deprived of obtaining any tax whatsoever under the Finance Act, 1994, it is possible to arrive at a conclusion that no tax at all would be payable as the tax has been held to be an indivisible one. A distinction must be borne in mind between an indivisible contract and a composite contract. If in a contract, an element to provide service is contained, the purport and object for which the Constitution had to be amended and clause 29A had to be inserted in Article 366, must be kept in mind. 26. We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly or absurdity. 27. The Court, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and a Legislative Act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable.28. Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct. 29. We may notice that the concept of aspects theory which had found echoes in State of U.P. Another v. Union of India & Anr. [(2003) 3 SCC 239] has expressly been overruled by a Three Judge Bench in Bharat Sanchar Nigam Ltd. (supra) stating : “78. But if there are no deliverable goods in existence as in this case, there is no transfer of user at all. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road or bridge into the possession of the toll payer by lifting a toll gate. Of course the toll payer will use the road or bridge in one sense. But the distinction with a sale of goods is that the user would be of the thing or goods delivered. The delivery may not be simultaneous with the transfer of the right to use. But the goods must be in existence and deliverable when the right is sought to be transferred.79. Therefore whether goods are incorporeal or corporeal, tangible or intangible, they must be deliverable. To the extent that the decision in State of U.P. v. Union of India held otherwise, it was, in our humble opinion erroneous.” 30. For the reasons aforementioned, the | 1[ds]We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly orCourt, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and a Legislative Act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable.28. Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to bemay notice that the concept of aspects theory which had found echoes in State of U.P. Another v. Union of India & Anr. [(2003) 3 SCC 239] has expressly been overruled by a Three Judge Bench in Bharat Sanchar Nigam Ltd. (supra) stating :But if there are no deliverable goods in existence as in this case, there is no transfer of user at all. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road or bridge into the possession of the toll payer by lifting a toll gate. Of course the toll payer will use the road or bridge in one sense. But the distinction with a sale of goods is that the user would be of the thing or goods delivered. The delivery may not be simultaneous with the transfer of the right to use. But the goods must be in existence and deliverable when the right is sought to bewhether goods are incorporeal or corporeal, tangible or intangible, they must be deliverable. To the extent that the decision in State of U.P. v. Union of India held otherwise, it was, in our humble opinion | 1 | 5,277 | 482 | ### Instruction:
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Constitution, were not entitled to bifurcate or split up the contract for the purpose of levying sales tax on the element of moveable goods involved in the contract. Apart from the decision in Rainbow Colour Lab case 11 which does not appear to be correct, the other decisions cited related to the pre-Forty-sixth Amendment period. Furthermore, the provisions of the Customs Act and the Tariff Act are clear and unambiguous. Any moveable articles, irrespective of what they may be or may contain, would be goods as defined in Section 2(22) of the Customs Act.” 21. Evidently, therefore, the decision of Associated Cement Company Supra) whereupon strong reliance has been placed by the Tribunal as also by the High Court seeks to make a distinction between cases arising out of works contract wherefor sales tax is liable to be paid and the cases under the Customs Act. 22. Our attention has furthermore been drawn to the decision of this Court in Bharat Sanchar Nigam Ltd. (supra) wherein referring to Tata Consultancy (supra) it was observed that the approach of this Court in the said decision as to what would be ‘goods’ for the purpose of sales tax is correct. 23. What, however, did not fall for consideration in any of the aforementioned decisions is the concept of works contract involving both service as also supply of goods constituting a sale. Both, in Tata Consultancy (supra) as also in Associated Cement Company (supra), what was in issue was the value of the goods and only for the said purpose, this Court went by the definition thereof both under the Customs Act as also the Sales Tax Act to hold that the same must have the attributes of its utility, capability of being bought and sold and capability of being transmitted, transferred, delivered, stored and possessed. As a software was found to be having the said attributes, they were held to be goods. 24. We have, however, a different problem at hand. Appellant admittedly is a service provider. When it provides for service, it is assessable to a tax known as service tax. Such tax is leviable by reason of a Parliamentary statute. In the matter of interpretation of a taxing statute, as also other statutes where the applicability of Article 246 of the Constitution of India, read with Seventh Schedule thereof is in question, the Court may have to take recourse to various theories including ‘aspect theory’, as was noticed by this Court in Federation of Hotel & Restaurant Association of India, etc. v. Union of India& Ors. [(1989) 3 SCC 634] . 25. If the submission of Mr. Hegde is accepted in its entirety, whereas on the one hand, the Central Government would be deprived of obtaining any tax whatsoever under the Finance Act, 1994, it is possible to arrive at a conclusion that no tax at all would be payable as the tax has been held to be an indivisible one. A distinction must be borne in mind between an indivisible contract and a composite contract. If in a contract, an element to provide service is contained, the purport and object for which the Constitution had to be amended and clause 29A had to be inserted in Article 366, must be kept in mind. 26. We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly or absurdity. 27. The Court, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and a Legislative Act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable.28. Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to be correct. 29. We may notice that the concept of aspects theory which had found echoes in State of U.P. Another v. Union of India & Anr. [(2003) 3 SCC 239] has expressly been overruled by a Three Judge Bench in Bharat Sanchar Nigam Ltd. (supra) stating : “78. But if there are no deliverable goods in existence as in this case, there is no transfer of user at all. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road or bridge into the possession of the toll payer by lifting a toll gate. Of course the toll payer will use the road or bridge in one sense. But the distinction with a sale of goods is that the user would be of the thing or goods delivered. The delivery may not be simultaneous with the transfer of the right to use. But the goods must be in existence and deliverable when the right is sought to be transferred.79. Therefore whether goods are incorporeal or corporeal, tangible or intangible, they must be deliverable. To the extent that the decision in State of U.P. v. Union of India held otherwise, it was, in our humble opinion erroneous.” 30. For the reasons aforementioned, the
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We have noticed hereinbefore that a legal fiction is created by reason of the said provision. Such a legal fiction, as is well known, should be applied only to the extent for which it was enacted. It, although must be given its full effect but the same would not mean that it should be applied beyond a point which was not contemplated by the legislature or which would lead to an anomaly orCourt, while interpreting a statute, must bear in mind that the legislature was supposed to know law and the legislation enacted is a reasonable one. The Court must also bear in mind that where the application of a Parliamentary and a Legislative Act comes up for consideration; endeavours shall be made to see that provisions of both the acts are made applicable.28. Payments of service tax as also the VAT are mutually exclusive. Therefore, they should be held to be applicable having regard to the respective parameters of service tax and the sales tax as envisaged in a composite contract as contradistinguished from an indivisible contract. It may consist of different elements providing for attracting different nature of levy. It is, therefore, difficult to hold that in a case of this nature, sales tax would be payable on the value of the entire contract; irrespective of the element of service provided. The approach of the assessing authority, to us, thus, appears to bemay notice that the concept of aspects theory which had found echoes in State of U.P. Another v. Union of India & Anr. [(2003) 3 SCC 239] has expressly been overruled by a Three Judge Bench in Bharat Sanchar Nigam Ltd. (supra) stating :But if there are no deliverable goods in existence as in this case, there is no transfer of user at all. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road or bridge into the possession of the toll payer by lifting a toll gate. Of course the toll payer will use the road or bridge in one sense. But the distinction with a sale of goods is that the user would be of the thing or goods delivered. The delivery may not be simultaneous with the transfer of the right to use. But the goods must be in existence and deliverable when the right is sought to bewhether goods are incorporeal or corporeal, tangible or intangible, they must be deliverable. To the extent that the decision in State of U.P. v. Union of India held otherwise, it was, in our humble opinion
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KIRAN DEVI Vs. THE BIHAR STATE SUNNI WAKF BOARD & ORS | and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A mans intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. … (Emphasis Supplied) 34. This Court in a judgment reported as P.S. Sairam & Anr. v. P.S. Rama Rao Pissey & Ors. (2004) 11 SCC 320 following the above said judgment held that so far as immovable property is concerned, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to a business. It was held as under: 7. Crucial question in the present appeal is as to whether business which was conducted by defendant No. 1 was his separate business or it belonged to joint family, consisting of himself and his sons. It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business…………… 35. Thus, mere payment of rent by great grandfather or by the grand- father of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis. 36. Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the ten- anted premises, the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mulla (para 240) inter alia to the following effect: Alienation by manager of coparcenary property for legal necessity. – (1) The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir, as defined by the Judicial Committee. (2) The manager of a joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. A manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minors father (or grandfather) when there is no other reasonable course open to him (Dharmaraj Singh v. Chandrasekhar Rao, (1942) Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained. In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p. 101, the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity, but without the express consent of the adult coparceners, the alienation is binding on them. However, in later decisions of the same tribunal, the view taken is that if legal necessity is established, the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation by manager for joint family business. Where any such transaction has been entered into for legal necessity by a manager, it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram, AIR 1967 SC 574 ). 37. The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore, the liability to pay monthly rent contin- ued to accrue upon karta - Devendra Prasad Sinha. The question is as to whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of ten- ancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or ten- able. The executor of the surrender letter has admitted such sur- render letter in the written statement and while appearing as a witness as DW-5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW-10. Merely for the reason that signa- tures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the transla- tion can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transac- tion. It is one thing to say that the document is unreliable and an- other to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family. | 1[ds]13. We have heard learned counsel for the parties and find that it is not open to the appellant at this stage to dispute the question that the suit filed before the learned Munsif could not have been transferred to the Wakf Tribunal. The plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board and the appellant who then filed an application for transfer of the suit to the Wakf Tribunal. Though, in terms of Ramesh Gobindram, the Wakf Tribunal could not grant declaration as claimed by the plaintiff, but such objection cannot be permitted to be raised either by the Wakf Board or by the appellant as the order was passed by the Civil Court at their instance and was also upheld by the High Court. Such order has thus attained finality inter- parties. The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where plaintiff has invoked the jurisdiction of the Wakf Tribunal.14. The argument raised by the learned counsel for the appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence, it was submitted that the decision of the Tribunal was without jurisdiction.It is to be noted that the plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the appellant as well as by the Waqf Board. Thus, it is not conferment of jurisdiction by the plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties. The suit was accordingly decided by the Waqf Tribunal. We do not find that it is open to the appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the present case. Therefore, we do not find any merit in the first argument raised by the learned counsel for the appellant.16. The judgments referred to by the appellant in Sadhana Lodh and of Patna High Court in Md. Wasiur Rahman are not applicable to the facts of the present appeal. Sadhana Lodh is a judgment wherein an award of the Motor Accident Claim Tribunal was challenged by way of a Writ Petition. This Court held that the Writ Petition was not maintainable when an alternative remedy is provided under a statute. Therefore, the said judgment deals with availability of the writ jurisdiction in view of the remedy of appeal provided. In the present case, the statute provides for a remedy under proviso of sub-section (9) of Section 83 of the Act against an order passed by the Wakf Tribunal. Such remedy is before the High Court alone.17. The judgment in Md. Wasiur Rahman arises out of the fact where the order of the Waqf Tribunal was challenged by way of a Writ Petition. An objection was raised before the writ court that there was an alternative statutory remedy available, therefore, the Writ Petition was not maintainable. The learned Single Judge held that a petition under Article 226/227 of the Constitution of India was not maintainable but liberty was given to the petitioners to invoke the jurisdiction in terms of proviso to sub-section (9) of Section 83 of the Act. The said judgment does not show that any argument was raised that a petition under Article 226/227 of the Constitution of India could be treated as a petition in terms of proviso to sub-section (9) of Section 83 of the Act. Therefore, such judgment is also not relevant for the question arising for consideration in the present appeal.18. A perusal of the proviso to sub-section (9) of Section 83 of the Act shows that it confers power on the High Court to call for and ex- amine the records relating to any dispute, question or other mat- ter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination. In fact, the statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261. The rel- evant extract reads thus:90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. …. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.91. …We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain case [(1993) 4 SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Courts writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.20. Therefore, when a petition is filed against an order of the Wakf Tri- bunal before the High Court, the High Court exercises the jurisdic- tion under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revi- sion petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub-section (9) of Section 83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction con- ferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court.21. We find merit in the argument raised by Mr. Sanyal that the nomenclature of the title of the petition filed before the High Court is immaterial. In Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal (1983) 2 SCC 422 , this Court held that wrong reference to the power under which an action was taken by the Government would not per se vitiate the action, if the same could be justified under some other power whereby the Government could lawfully do that act. The Court held as under:5. ….It is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned. See in this connection the observations in Pitamber Vajirshet v. Dhondu Navlapa [ILR (1888) 12 Bom 486 , 489] . See in this connection also the observations of this Court in the case of L. Hazari Mal Kuthiala v. ITO, Special Circle, Ambala Cantt. [AIR 1961 SC 200 : (1961) 1 SCR 892 : (1961) 41 ITR 12 , 16 : (1961) 1 SCJ 617 ] This point has again been reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of M.P. [AIR 1964 SC 1329 : (1964) 6 SCR 857 : (1964) 52 ITR 583 : (1964) 1 SCJ 561 ] where it was observed that it was well settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal Biswas v. Municipality of Howrah [AIR 1958 SC 141 : 1958 SCR 774 , 779 : 1958 SCJ 297 : 1958 Cri LJ 271].22. Later, in Pepsi Foods Ltd., this Court held that nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses. If the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code. This Court held as under:26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.23. Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or un- der Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of deter- mination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequen- tial and immaterial.24. The judgment referred to by Mr. Sanyal in Sir Hukamchand Mannalal & Co. that a member of an HUF is competent to enter into a contract with stranger does not support the argument raised. It has been held that if a member of the HUF enters into contract with a stranger, he does so in his individual capacity. It was held as under:5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. …….27. The plaintiff has pleaded that when father of the plaintiff joined service, the shop was being run through the servants and that the plaintiff began to run the hotel since 1988. Thereafter, the dis- putes cropped up over the management and accounting of the in- come and the hotel was closed for many years. The plaintiff has pleaded as under:4. That when the grandfather of the plaintiff fell ill the shop was being looked after and began to run by his eldest son Surendra Kumar and Surendra Kumar began to pay rent to Waqf Board under receipt granted to him in the name of Devendra Prasad Sinha, which are all with Surendra Kumar, later when Surendra Kumar joined the Service the shop is bring run through the servant but later on the Hotel began to run by the plaintiff since 1988 and thereafter dispute cropped up over the management and accounting of income and as such the Hotel became closed and remained closed for several years.28. The High Court held that the existence of joint family is estab- lished from the Ration Card issued on 2.4.1949 and from the pay- ment of rent for the period 1947–1955 that the premises were let out to joint family. The High Court also rejected the surrender of tenancy on the ground that it was without the consent of other co- parceners. It was held as under:37. …After death of Ram Sharan Ram, Ram Sewak Ram became the Karta of the joint Hindu family of which defendant No. 1, his three sons Surendra Kumar, father of the plaintiff, Dilip Kumar, Defendant No. 2, Suresh Kumar, plaintiff and his three brothers were the members. Existence of the joint family of which Ram Sewak Ram was the Karta is established from perusal of the Ration Card issued under the order of the Government by the Secretary to the Government, Exhibit-9/A dated 2.12.1949. After death of Ram Sharan Ram, Ram Sewak Ram having become Karta of the joint family managed the affairs of the joint family including the hotel business in the suit premises let out to the joint family by the Mutawalli of the Wakf Estate which owned the suit premises as is evident from perusal of 46 rent receipts (Exhibits-8 to 8/45) granted by the Bihar State Sunni Wakf Board through Mutawalli Md. Suleman for the period 1947-1955 indicating payment of rent for the suit premises by the tenant Ram Sewak Ram.43. Rent receipts, Water Board receipt and electricity bill receipt aforesaid obtained by Defendant No. 1 are subsequent to the death of the original tenant i.e. Karta of the joint family Ram Sewak Ram from whom Defendant No. 1 succeeded to the tenancy along with the other coparceners of the joint family. On the basis of the subsequent receipts it cannot be said that the tenancy is created only in favour of Defendant No. 1 ignoring the other descendants/successors of Ram Sewak Ram. Reference in this connection is also required to be made to the statement of Defendant No. 4 who examined himself as D.W. 2 paragraph 24 wherein he has categorically stated that in the Wakf Board there is no Kirayanama executed in favour of Devendra Babu, Defendant No. 1.44. The case set out by the defendants regarding surrender letter dated 31.5.96 is also fit to be rejected as after the death of Ram Sewak Ram, the Karta of the Hindu undivided family, Defendant No. 1 became the Karta of the Hindu undivided family and as per the tenets of Hindu Law Defendant No. 1 was not entitled to surrender the tenanted premises without the consent of the other coparceners of the Hindu undivided family….45. In view of my findings above, there is no difficulty in concluding that the suit premises was let out to Ram Sewak Ram who carried joint family hotel business in the said premises until his death i.e. in January, 1960 whereafter Defendant No. 1 became the Karta of the family and succeeded to the joint family business including the suit premises along with his sons and grandsons constituting the joint family, as such, without the consent of the other members of the joint family could not have surrendered the tenancy in favour of Mutawalli of the Wakf Estate through the so-called surrender letter dated 31.5.1996.29. Thus, even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undi- vided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family. The High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card un-less there is evidence that the funds of joint Hindu Family were in- vested in the business in the tenanted premises.30. The Allahabad High Court in Ram Awalamb held that notions of Hindu law, or Mohamedan law, or any other personal law cannot be imported into the rights created by the U.P. Zamindari Abolition and Land Reforms Act. The Court held as under:8. Hindu joint families have existed from times immemorial and they exist even now. However, it is by no means necessary that every Hindu Joint family should be possessed of joint family property also. Where any property is ancestral or it is acquired by all the members of a joint Hindu family or after having been acquired by one member of the joint family only it is thrown in the common stock it is regarded to be joint family property or coparcenary property. Until partition takes place, or only one member of the family is left, without having any male issue, the coparcenary property remains with the family and upon the death of any one member only his interest devolves on the surviving coparceners. The Karta or manager of the family alone has the right to transfer the property either for legal necessity or for the benefit of the estate.45. Our conclusions can, therefore, be briefly summarised as follows:—(1) Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status.(2) Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to the enforcement of the Act, be described as joint family property or coparcenary property, the position changed after Act 1 of 1951 came into force. Thereafter the interest of each bhumidhar, being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit.(3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member.(4) The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Sec. 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land, e.g., existence of legal necessity, do not apply.31. We thus find that the High Court has committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Busi- ness. There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such pre- sumption is attached to a business activity carried out by an indi- vidual in a tenanted premise.32. A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff. Even if the great grandfather was maintaining the family out of the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surren- der it to the landlord. The High Court has clearly erred in law by holding that since the grandfather was a tenant, the tenancy is a joint family asset. The contract of tenancy is an independent con- tract than the joint Hindu family business.33. In fact, the evidence produced by the plaintiff is payment of rent by either Ram Sewak Ram or by the grandfather of the plaintiff. Such payment of rent is not indicative of the fact that the hotel business was by the joint Hindu family. This Court in a judgment reported as G. Narayana Raju (Dead) by his Legal Representative v. G. Chamaraju & Ors. AIR 1968 SC 1276 , held that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family, unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate. This Court held as under:3. … It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. …….6. … It is a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognised by the Judicial Committee (See Hurpurshad v. Sheo Dayal, (1876) 3 Ind App 259 (PC) and Lal Bahadur v. Kanhaia Lal, (1907) 34 Ind App 65 (PC). But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection (See the decision in Lala Muddun Gopal v. Khikhindu Koer, (1891) 18 Ind App 9 (PC). For instance, in Naina Pillai v. Daivanai Ammal, AIR 1936 Madras 177 where in a series of documents self- acquired property was described and dealt with as ancestral joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A mans intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. … (Emphasis Supplied)35. Thus, mere payment of rent by great grandfather or by the grand- father of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis.36. Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the ten- anted premises, the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mulla (para 240) inter alia to the following effect:Alienation by manager of coparcenary property for legal necessity. – (1) The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir, as defined by the Judicial Committee.(2) The manager of a joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. A manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minors father (or grandfather) when there is no other reasonable course open to him (Dharmaraj Singh v. Chandrasekhar Rao, (1942) Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained.In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p. 101, the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity, but without the express consent of the adult coparceners, the alienation is binding on them. However, in later decisions of the same tribunal, the view taken is that if legal necessity is established, the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation by manager for joint family business.Where any such transaction has been entered into for legal necessity by a manager, it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram, AIR 1967 SC 574 ).37. The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore, the liability to pay monthly rent contin- ued to accrue upon karta - Devendra Prasad Sinha. The question is as to whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of ten- ancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or ten- able. The executor of the surrender letter has admitted such sur- render letter in the written statement and while appearing as a witness as DW-5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW-10. Merely for the reason that signa- tures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the transla- tion can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transac- tion. It is one thing to say that the document is unreliable and an- other to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family. | 1 | 8,496 | 5,309 | ### Instruction:
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and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A mans intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. … (Emphasis Supplied) 34. This Court in a judgment reported as P.S. Sairam & Anr. v. P.S. Rama Rao Pissey & Ors. (2004) 11 SCC 320 following the above said judgment held that so far as immovable property is concerned, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to a business. It was held as under: 7. Crucial question in the present appeal is as to whether business which was conducted by defendant No. 1 was his separate business or it belonged to joint family, consisting of himself and his sons. It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business…………… 35. Thus, mere payment of rent by great grandfather or by the grand- father of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis. 36. Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the ten- anted premises, the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mulla (para 240) inter alia to the following effect: Alienation by manager of coparcenary property for legal necessity. – (1) The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir, as defined by the Judicial Committee. (2) The manager of a joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. A manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minors father (or grandfather) when there is no other reasonable course open to him (Dharmaraj Singh v. Chandrasekhar Rao, (1942) Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained. In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p. 101, the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity, but without the express consent of the adult coparceners, the alienation is binding on them. However, in later decisions of the same tribunal, the view taken is that if legal necessity is established, the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation by manager for joint family business. Where any such transaction has been entered into for legal necessity by a manager, it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram, AIR 1967 SC 574 ). 37. The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore, the liability to pay monthly rent contin- ued to accrue upon karta - Devendra Prasad Sinha. The question is as to whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of ten- ancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or ten- able. The executor of the surrender letter has admitted such sur- render letter in the written statement and while appearing as a witness as DW-5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW-10. Merely for the reason that signa- tures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the transla- tion can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transac- tion. It is one thing to say that the document is unreliable and an- other to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family.
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App 259 (PC) and Lal Bahadur v. Kanhaia Lal, (1907) 34 Ind App 65 (PC). But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection (See the decision in Lala Muddun Gopal v. Khikhindu Koer, (1891) 18 Ind App 9 (PC). For instance, in Naina Pillai v. Daivanai Ammal, AIR 1936 Madras 177 where in a series of documents self- acquired property was described and dealt with as ancestral joint family property was not sufficient but an intention of the coparcener must be shown to waive his claims with full knowledge of his right to it as his separate property. The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A mans intention can be discovered only from his words or from his acts and conduct. When his intention with regard to his separate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must seek in every case, the acts and conduct being no more than evidence of the intention. … (Emphasis Supplied)35. Thus, mere payment of rent by great grandfather or by the grand- father of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis.36. Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family while carrying out hotel business in the ten- anted premises, the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. The powers of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mulla (para 240) inter alia to the following effect:Alienation by manager of coparcenary property for legal necessity. – (1) The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir, as defined by the Judicial Committee.(2) The manager of a joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. A manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minors father (or grandfather) when there is no other reasonable course open to him (Dharmaraj Singh v. Chandrasekhar Rao, (1942) Nag 214). It is not necessary to validate the alienation that the express consent of the adult members should have been obtained.In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p. 101, the Judicial Committee stated that it was not clearly settled whether where an alienation is made by a manager for a legal necessity, but without the express consent of the adult coparceners, the alienation is binding on them. However, in later decisions of the same tribunal, the view taken is that if legal necessity is established, the express consent of the adult coparceners is not necessary (Sahu Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation by manager for joint family business.Where any such transaction has been entered into for legal necessity by a manager, it would be deemed to be on behalf of the family and would bind it. The position is not worsened by the fact that a junior member joins the transaction and the joining by him is abortive by reason of his minority (Radha Krishnadas v. Kaluram, AIR 1967 SC 574 ).37. The pleaded stand of the Plaintiff is that the hotel was closed for several years. Therefore, the liability to pay monthly rent contin- ued to accrue upon karta - Devendra Prasad Sinha. The question is as to whether, in these circumstances, on account of cessation of activities of running of the hotel, the act of the surrender of ten- ancy is in fact for the benefit of the joint family. The learned High Court found that the letter of surrender was not reliable or ten- able. The executor of the surrender letter has admitted such sur- render letter in the written statement and while appearing as a witness as DW-5. The Mutawalli Md. Salimuddin has also accepted the surrender letter in the written statement and while appearing in the witness box as DW-10. Merely for the reason that signa- tures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the transla- tion can be incorrect but the correctness of the document in has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transac- tion. It is one thing to say that the document is unreliable and an- other to say that the document does not bind the plaintiff. We have no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Therefore, the act of surrender of tenancy was for the benefit of the Joint Hindu family.
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K.KISHAN Vs. M/S VIJAY NIRMAN COMPANY PVT. LTD. REP. BY ITS MANAGING DIRECTOR | case, I also consider it is a more just result that the alternative contended for by the petitioner.?15. A recent judgment of the Singapore High Court, contained in Lim PohYeoh (alias Lim Aster) and TS Ong Construction Pte Ltd. [2016] SGHC 179, was also referred to by Mr. Banerji. Again, in a situation which demands a far higher threshold that has to be crossed before the Insolvency Law can be said not to apply, the Singapore High Court referred to Rule 98(2)(a) of the Rules made under the Bankruptcy Act. The said Rule states that where a debtor appears to have a valid counter claim or cross-demand which is equivalent to or exceeds the amount of debt, the insolvency process will not be put against such debtor. It also referred to the Supreme Court Practice Directions to the same effect. (see paras 43 & 45 of the said judgment)16. We now come to some of the judgments referred to by learned counsel for the respondent. It is important to note that both the Practice Directions referred to in the U.K. judgment and the Singapore High Court judgment, referred to in LKM Investment Holdings Pte Ltd. vs. Cathay Theatres Pte Ltd. [2000] SGHC 13, are in situations where the debt needs to be bona fide disputed, which is not the situation under our Code. For this reason, it is not possible to agree with learned counsel for the Respondent that a pending proceeding challenging an award or decree of a tribunal or Court would not make the debt contained therein a debt that is disputed.17.The Australian High Court judgment also relied upon by the respondent in Ramsay Health Care Australia Pty Ltd vs. Adrian John Compton [2017] HCA 28 was relied upon to show, in para 111 thereof, that where a judgment debt has been obtained after testing of the merits in adversarial litigation, then in the absence of some evidence of fraud, collusion, or miscarriage of justice, a court exercising bankruptcy jurisdiction will rarely have substantial reasons to investigate whether the debt which emerged in the judgment was truly owed. With respect to the High Court of Australia, we may only state that following Mobilox Innovations (supra), it would be very difficult to incorporate the Australian law into our law. This is for the reason that our judgment in Mobilox Innovations (supra) has made it clear that the insolvency process, particularly in relation to operational creditors, cannot be used to bypass the adjudicatory and enforcement process of a debt contained in other statutes. We are, therefore, of the view that the higher threshold of fraud, collusion, or miscarriage of justice laid down by the Australian High Court will have no application to the situation under our Code.18. We repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an Arbitral Award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 & 37 has taken place.19. We may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put into operation.20. We may hasten to add that there may also be other cases where a Section 34 petition may have been instituted in the wrong court, as a result of which the petitioner may claim the application of Section 14 of the Limitation Act to get over the bar of limitation laid down in Section 34(3) of the Arbitration Act. In such cases also, it is obvious that the insolvency process cannot be put into operation without an adjudication on the applicability of Section 14 of the Limitation Act.21. With regard to the submission of learned counsel for the respondent, that the amount of Rs.1.71 Crores stood admitted by Mr. Banerji?s client, as was recorded in the Arbitral Award, suffice it to say that cross-claims of sums much above this amount has been turned down by the Arbitral Tribunal, which are pending in a Section 34 petition challenging the said Award. The very fact that there is a possibility that Mr. Banerji?s client may succeed on these cross-claims is sufficient to state that the operational debt, in the present case, cannot be said to be an undisputed debt.22. We also accept Mr. Banerji?s submission that the Appellate Tribunal was in error in referring to Section 238 of the Code. Section 238 of the Code would apply in case there is an inconsistency between the Code and the Arbitration Act in the present case. We see no such inconsistency. On the contrary, the Award passed under the Arbitration Act together with the steps taken for its challenge would only make it clear that the operational debt, in the present case, happens to be a disputed one.23. We are also of the view that the Appellate Tribunal, when it relied upon Form V Part 5 of the 2016 Rules to state that the operational debt would, therefore, be said to have been proved, missed the vital sub-clause (iii) in para 34 of Mobilox Innovations (supra). Even if it be clear that there be a record of an operational debt, it is important that the said debt be not disputed. If disputed within the parameters laid down in Mobilox Innovations (supra), an insolvency petition cannot be proceeded with further.24. | 1[ds]However, learned counsel appearing on behalf of the Respondent strongly relied on the fact that this is not an ordinary case inasmuch as the amount of Rs.1.71 Crores which was awarded was admitted by Mr. Banerji?s client in the arbitral proceedings to be a debt due, and that this being so, there can be no dispute regarding the same. We are afraid that we are unable to agree. As was correctly pointed out by Mr. Banerji, counter claims for amounts far exceeding this were rejected by the learned Arbitral Tribunal, which rejection is also the subjectmatter of challenge in a petition under Section 34 of the Act. It is important to note that unlike counter claim Nos. 1 and 2, which were rejected by the Arbitral Tribunal for lack of evidence, counter claim No.3 which amounts to Rs.19,88,20,475/was rejected on the basis of a price adjustment clause on merits. Therefore, it is difficult to say at this stage of the proceedings, that no dispute would exist between theIn para 38, this Court cautioned: We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties. Finally, the law was summed up as follows:51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9 (5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the ?existence? of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the ?dispute? is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject theFollowing this judgment, it becomes clear that operational creditors cannot use the Insolvency Code either prematurely or for extraneous considerations or as a substitute for debt enforcement procedures. The alarming result of an operational debt contained in an arbitral award for a small amount of say, two lakhs of rupees, cannot possibly jeopardize an otherwise solvent company worth several crores of rupees. Such a company would be well within its rights to state that it is challenging the Arbitral Award passed against it, and the mere factum of challenge would be sufficient to state that it disputes the Award. Such a case would clearly come within para 38 of Mobilox Innovations (supra), being a case of aongoing dispute between the parties. The Code cannot be used in terrorem to extract this sum of money of Rs. two lakhs even though it may not be finally payable as adjudication proceedings in respect thereto are still pending. We repeat that the object of the Code, at least insofar as operational creditors are concerned, is to put the insolvency process against a corporate debtor only in clear cases where a real dispute between the parties as to the debt owed does note Australian High Court judgment also relied upon by the respondent in Ramsay Health Care Australia Pty Ltd vs. Adrian John Compton [2017] HCA 28 was relied upon to show, in para 111 thereof, that where a judgment debt has been obtained after testing of the merits in adversarial litigation, then in the absence of some evidence of fraud, collusion, or miscarriage of justice, a court exercising bankruptcy jurisdiction will rarely have substantial reasons to investigate whether the debt which emerged in the judgment was truly owed. With respect to the High Court of Australia, we may only state that following Mobilox Innovations (supra), it would be very difficult to incorporate the Australian law into our law. This is for the reason that our judgment in Mobilox Innovations (supra) has made it clear that the insolvency process, particularly in relation to operational creditors, cannot be used to bypass the adjudicatory and enforcement process of a debt contained in other statutes. We are, therefore, of the view that the higher threshold of fraud, collusion, or miscarriage of justice laid down by the Australian High Court will have no application to the situation under ourWe repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an Arbitral Award shows that adispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 & 37 has takenWe may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put intoWe may hasten to add that there may also be other cases where a Section 34 petition may have been instituted in the wrong court, as a result of which the petitioner may claim the application of Section 14 of the Limitation Act to get over the bar of limitation laid down in Section 34(3) of the Arbitration Act. In such cases also, it is obvious that the insolvency process cannot be put into operation without an adjudication on the applicability of Section 14 of the LimitationWith regard to the submission of learned counsel for the respondent, that the amount of Rs.1.71 Crores stood admitted by Mr. Banerji?s client, as was recorded in the Arbitral Award, suffice it to say thatof sums much above this amount has been turned down by the Arbitral Tribunal, which are pending in a Section 34 petition challenging the said Award. The very fact that there is a possibility that Mr. Banerji?s client may succeed on theseis sufficient to state that the operational debt, in the present case, cannot be said to be an undisputedWe also accept Mr. Banerji?s submission that the Appellate Tribunal was in error in referring to Section 238 of the Code. Section 238 of the Code would apply in case there is an inconsistency between the Code and the Arbitration Act in the present case. We see no such inconsistency. On the contrary, the Award passed under the Arbitration Act together with the steps taken for its challenge would only make it clear that the operational debt, in the present case, happens to be a disputedWe are also of the view that the Appellate Tribunal, when it relied upon Form V Part 5 of the 2016 Rules to state that the operational debt would, therefore, be said to have been proved, missed the vital(iii) in para 34 of Mobilox Innovations (supra). Even if it be clear that there be a record of an operational debt, it is important that the said debt be not disputed. If disputed within the parameters laid down in Mobilox Innovations (supra), an insolvency petition cannot be proceeded with further. | 1 | 5,158 | 1,527 | ### Instruction:
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case, I also consider it is a more just result that the alternative contended for by the petitioner.?15. A recent judgment of the Singapore High Court, contained in Lim PohYeoh (alias Lim Aster) and TS Ong Construction Pte Ltd. [2016] SGHC 179, was also referred to by Mr. Banerji. Again, in a situation which demands a far higher threshold that has to be crossed before the Insolvency Law can be said not to apply, the Singapore High Court referred to Rule 98(2)(a) of the Rules made under the Bankruptcy Act. The said Rule states that where a debtor appears to have a valid counter claim or cross-demand which is equivalent to or exceeds the amount of debt, the insolvency process will not be put against such debtor. It also referred to the Supreme Court Practice Directions to the same effect. (see paras 43 & 45 of the said judgment)16. We now come to some of the judgments referred to by learned counsel for the respondent. It is important to note that both the Practice Directions referred to in the U.K. judgment and the Singapore High Court judgment, referred to in LKM Investment Holdings Pte Ltd. vs. Cathay Theatres Pte Ltd. [2000] SGHC 13, are in situations where the debt needs to be bona fide disputed, which is not the situation under our Code. For this reason, it is not possible to agree with learned counsel for the Respondent that a pending proceeding challenging an award or decree of a tribunal or Court would not make the debt contained therein a debt that is disputed.17.The Australian High Court judgment also relied upon by the respondent in Ramsay Health Care Australia Pty Ltd vs. Adrian John Compton [2017] HCA 28 was relied upon to show, in para 111 thereof, that where a judgment debt has been obtained after testing of the merits in adversarial litigation, then in the absence of some evidence of fraud, collusion, or miscarriage of justice, a court exercising bankruptcy jurisdiction will rarely have substantial reasons to investigate whether the debt which emerged in the judgment was truly owed. With respect to the High Court of Australia, we may only state that following Mobilox Innovations (supra), it would be very difficult to incorporate the Australian law into our law. This is for the reason that our judgment in Mobilox Innovations (supra) has made it clear that the insolvency process, particularly in relation to operational creditors, cannot be used to bypass the adjudicatory and enforcement process of a debt contained in other statutes. We are, therefore, of the view that the higher threshold of fraud, collusion, or miscarriage of justice laid down by the Australian High Court will have no application to the situation under our Code.18. We repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an Arbitral Award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 & 37 has taken place.19. We may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put into operation.20. We may hasten to add that there may also be other cases where a Section 34 petition may have been instituted in the wrong court, as a result of which the petitioner may claim the application of Section 14 of the Limitation Act to get over the bar of limitation laid down in Section 34(3) of the Arbitration Act. In such cases also, it is obvious that the insolvency process cannot be put into operation without an adjudication on the applicability of Section 14 of the Limitation Act.21. With regard to the submission of learned counsel for the respondent, that the amount of Rs.1.71 Crores stood admitted by Mr. Banerji?s client, as was recorded in the Arbitral Award, suffice it to say that cross-claims of sums much above this amount has been turned down by the Arbitral Tribunal, which are pending in a Section 34 petition challenging the said Award. The very fact that there is a possibility that Mr. Banerji?s client may succeed on these cross-claims is sufficient to state that the operational debt, in the present case, cannot be said to be an undisputed debt.22. We also accept Mr. Banerji?s submission that the Appellate Tribunal was in error in referring to Section 238 of the Code. Section 238 of the Code would apply in case there is an inconsistency between the Code and the Arbitration Act in the present case. We see no such inconsistency. On the contrary, the Award passed under the Arbitration Act together with the steps taken for its challenge would only make it clear that the operational debt, in the present case, happens to be a disputed one.23. We are also of the view that the Appellate Tribunal, when it relied upon Form V Part 5 of the 2016 Rules to state that the operational debt would, therefore, be said to have been proved, missed the vital sub-clause (iii) in para 34 of Mobilox Innovations (supra). Even if it be clear that there be a record of an operational debt, it is important that the said debt be not disputed. If disputed within the parameters laid down in Mobilox Innovations (supra), an insolvency petition cannot be proceeded with further.24.
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of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject theFollowing this judgment, it becomes clear that operational creditors cannot use the Insolvency Code either prematurely or for extraneous considerations or as a substitute for debt enforcement procedures. The alarming result of an operational debt contained in an arbitral award for a small amount of say, two lakhs of rupees, cannot possibly jeopardize an otherwise solvent company worth several crores of rupees. Such a company would be well within its rights to state that it is challenging the Arbitral Award passed against it, and the mere factum of challenge would be sufficient to state that it disputes the Award. Such a case would clearly come within para 38 of Mobilox Innovations (supra), being a case of aongoing dispute between the parties. The Code cannot be used in terrorem to extract this sum of money of Rs. two lakhs even though it may not be finally payable as adjudication proceedings in respect thereto are still pending. We repeat that the object of the Code, at least insofar as operational creditors are concerned, is to put the insolvency process against a corporate debtor only in clear cases where a real dispute between the parties as to the debt owed does note Australian High Court judgment also relied upon by the respondent in Ramsay Health Care Australia Pty Ltd vs. Adrian John Compton [2017] HCA 28 was relied upon to show, in para 111 thereof, that where a judgment debt has been obtained after testing of the merits in adversarial litigation, then in the absence of some evidence of fraud, collusion, or miscarriage of justice, a court exercising bankruptcy jurisdiction will rarely have substantial reasons to investigate whether the debt which emerged in the judgment was truly owed. With respect to the High Court of Australia, we may only state that following Mobilox Innovations (supra), it would be very difficult to incorporate the Australian law into our law. This is for the reason that our judgment in Mobilox Innovations (supra) has made it clear that the insolvency process, particularly in relation to operational creditors, cannot be used to bypass the adjudicatory and enforcement process of a debt contained in other statutes. We are, therefore, of the view that the higher threshold of fraud, collusion, or miscarriage of justice laid down by the Australian High Court will have no application to the situation under ourWe repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an Arbitral Award shows that adispute which culminates at the first stage of the proceedings in an Award, continues even after the Award, at least till the final adjudicatory process under Sections 34 & 37 has takenWe may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put intoWe may hasten to add that there may also be other cases where a Section 34 petition may have been instituted in the wrong court, as a result of which the petitioner may claim the application of Section 14 of the Limitation Act to get over the bar of limitation laid down in Section 34(3) of the Arbitration Act. In such cases also, it is obvious that the insolvency process cannot be put into operation without an adjudication on the applicability of Section 14 of the LimitationWith regard to the submission of learned counsel for the respondent, that the amount of Rs.1.71 Crores stood admitted by Mr. Banerji?s client, as was recorded in the Arbitral Award, suffice it to say thatof sums much above this amount has been turned down by the Arbitral Tribunal, which are pending in a Section 34 petition challenging the said Award. The very fact that there is a possibility that Mr. Banerji?s client may succeed on theseis sufficient to state that the operational debt, in the present case, cannot be said to be an undisputedWe also accept Mr. Banerji?s submission that the Appellate Tribunal was in error in referring to Section 238 of the Code. Section 238 of the Code would apply in case there is an inconsistency between the Code and the Arbitration Act in the present case. We see no such inconsistency. On the contrary, the Award passed under the Arbitration Act together with the steps taken for its challenge would only make it clear that the operational debt, in the present case, happens to be a disputedWe are also of the view that the Appellate Tribunal, when it relied upon Form V Part 5 of the 2016 Rules to state that the operational debt would, therefore, be said to have been proved, missed the vital(iii) in para 34 of Mobilox Innovations (supra). Even if it be clear that there be a record of an operational debt, it is important that the said debt be not disputed. If disputed within the parameters laid down in Mobilox Innovations (supra), an insolvency petition cannot be proceeded with further.
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M/S. New India Motors (P) Ltd.New Delhi Vs. K. T. Morris | employment or non-employment, or the terms of employment, or with the conditions of labour, of any person. It is well settled that before any dispute between the employer and his employee or employees can be said to be an industrial dispute under the Act it must be sponsored by a number of workmen or by a union representing them. It is not necessary that the number of workmen of the union that sponsors the dispute should represent the majority of workmen. Even so an individual dispute cannot become an industrial dispute at the instance of the aggrieved individual himself. It must be a dispute between the employer on the one hand and his employees acting collectively on the other. This essential nature of an industrial dispute must be borne in mind in interpreting the material clause in S. 33 (1) (a).8. Section 18 of the Act is also relevant for this purpose. It deals with persons on whom awards are binding. Section 18(3) provides, inter alia, that an award of a tribunal which has become enforceable shall be binding on (a) all parties to the industrial dispute, (b) all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause ((Clause (c) has been omitted in the copy of the judgment. - (Ed.)), and (d) where a party referred to in cl. (a) or cl. (b) is composed of workmen all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute, and all persons who subsequently become employed in that establishment or part. It is thus clear that the award passed in an industrial dispute raised even by a minority union binds not only the parties to the dispute but all employees in the establishment or part of the establishment, as the case may be, at the date of the dispute and even those who may join the establishment or part subsequently. Thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute. This aspect of the matter is also relevant in construing the material words in S. 33 (1) (a).9. In this connection the object of S. 33 must also be borne in mind. It is plain that by enacting S. 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of S. 33 the narrow construction of the material words used in S. 33 (1) (a) would tend to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the term and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying S. 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in S. 33 (1) (a).10. Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such dispute must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by S. 2(s) and with the provisions contained in S. 18 of the Act. Therefore, we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question.In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute.11. It appears that the construction of the relevant clause had given rise to a divergence of opinion in industrial courts, but it may be stated that on the whole the consensus of opinion appears to be in favour of the construction which we are putting on the said clause. In Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union, 1952 Lab AC 103, the appellate tribunal has referred to the said conflict of views and has held that the narrow construction of the clause is not justified. The High Courts of Madras and Andhra appear to have taken the same view (Vide : Newtone Studios Ltd. v. T. R. Ethirajulu, (1958) 1 Lab LJ 63 : (AIR 1957 Mad 737 ). On the other hand, in New Jehangir Vakil Mills, Ltd., Bhavnagar v. N. L. Vyas, AIR 1959 Bom 248, the Bombay High Court has adopted the narrow construction; but for reasons which we have already explained we must hold that the Bombay view is not justified on a fair and reasonable construction of the relevant clause. | 0[ds]The respondent has given evidence as to the nature of the work he was required to do as field service organiser. The letter of appointment issued to him in that behalf expressly required, inter alia, that the respondent had, if need be, to check up and carry out necessary adjustments and repairs of the vehicles sold by the appellant to its customers and obtain signature of responsible persons on the satisfaction forms which had been provided to him. The respondent swore that he looked after the working of the workshop and assisted the mechanics and others in their jobs. He attended to complicated work himself and made the workmen acquainted with Millers special tools and equipment needed for repairs and servicing of cars. He denied the suggestion that he was a member of the supervisory staff. On this evidence the tribunal has based its finding that the respondent was a workmen under S. 2 (s), and we see no reason to interfere with it.It has, however, been urged before us by the appellant that the complaint made by the respondent under S. 33A is not competent. It is common ground that a complaint can be made under S. 33A only if S. 33 has been contravened, and so the appellants argument is that S. 33 (1) (a) is inapplicable because the respondent was not a workmen concerned in the main industrial dispute, and as such his dismissal cannot be said to contravene the provisions of the said section. Indeed the principal point urged before us by the appellant is in regard to the construction of S. 33 (1) (a) of the Act.Then, as to the appellants case that it had to abolish the post of the respondent as it had lost the agency of DeSoto cars from Premier Automobiles, there is not reliable evidence to show when this agency was actually lost. Besides, the fact that the appellant has appointed a Technical Supervisor after discharging the respondent is also not without significance. Furthermore, the appellant is still the agent for Plymouth and Jeeps and the tribunal is right when it has found that it still needed a filed representative to look after servicing of sold cars at outside stations. On the other hand, the evidence of the respondent clearly shows that he supported the case of the 7 apprentices and that provoked the appellant to take the step of terminating his services. The process of finding fault with his work appears to have commenced after the appellant disapproved of the respondents conduct in that behalf. We are, therefore, satisfied that the tribunal was right in coming to the conclusion that the dismissal of the respondent is not supported on any reasonable ground, and in fact is due to the appellants indignation at the conduct of the respondent in the main industrial dispute between the appellant and its 7 employees. If that be the true position the industrial tribunal was justified in treating the dismissal of the respondent as mala fide.Section 33 (1) (a) as it stood prior to the amendment of 1956 provided, inter alia, that during the pendency of any proceedings before a tribunal, no employer shall alter to the prejudice of the workmen concerned in the said dispute the conditions of service applicable to them immediately before the commencement of the said proceedings, save with the express permission in writing of the tribunal.Section 33 has been modified from time to time and its scope has been finally limited by the amendment made by Act 36 of 1956. With the said amendments we are, however, not concerned. The expression "the workmen concerned in such dispute" which occurred in the earlier section has not been modified and the construction which we would place upon the said expression under the unamended section would govern the construction of the said expression even in the amended section. What does the expression "workmen concerned in such dispute" mean? The appellant contends that the main dispute was in regard to the discharge of 7 apprentices employed by the appellant, and it is only the said 7 apprentices who were concerned in the said dispute. The respondent was not concerned in the said dispute, and so the termination of his services cannot attract the provisions of S. 33 (1)(a).Prima facie the argument that "workmen concerned in such dispute" should be limited to the workmen directly or actually concerned in such dispute appears plausible, but if we examine the scheme of the Act and the effect of its material and relevant provisions this limited construction of the clause in question cannot be accepted.In this connection the object of S. 33 must also be borne in mind. It is plain that by enacting S. 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of S. 33 the narrow construction of the material words used in S. 33 (1) (a) would tend to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the term and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying S. 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in S. 33 (1) (a).10. Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such dispute must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by S. 2(s) and with the provisions contained in S. 18 of the Act. Therefore, we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question.In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute. | 0 | 2,975 | 1,308 | ### 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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employment or non-employment, or the terms of employment, or with the conditions of labour, of any person. It is well settled that before any dispute between the employer and his employee or employees can be said to be an industrial dispute under the Act it must be sponsored by a number of workmen or by a union representing them. It is not necessary that the number of workmen of the union that sponsors the dispute should represent the majority of workmen. Even so an individual dispute cannot become an industrial dispute at the instance of the aggrieved individual himself. It must be a dispute between the employer on the one hand and his employees acting collectively on the other. This essential nature of an industrial dispute must be borne in mind in interpreting the material clause in S. 33 (1) (a).8. Section 18 of the Act is also relevant for this purpose. It deals with persons on whom awards are binding. Section 18(3) provides, inter alia, that an award of a tribunal which has become enforceable shall be binding on (a) all parties to the industrial dispute, (b) all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause ((Clause (c) has been omitted in the copy of the judgment. - (Ed.)), and (d) where a party referred to in cl. (a) or cl. (b) is composed of workmen all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute, and all persons who subsequently become employed in that establishment or part. It is thus clear that the award passed in an industrial dispute raised even by a minority union binds not only the parties to the dispute but all employees in the establishment or part of the establishment, as the case may be, at the date of the dispute and even those who may join the establishment or part subsequently. Thus the circle of persons bound by the award is very much wider than the parties to the industrial dispute. This aspect of the matter is also relevant in construing the material words in S. 33 (1) (a).9. In this connection the object of S. 33 must also be borne in mind. It is plain that by enacting S. 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of S. 33 the narrow construction of the material words used in S. 33 (1) (a) would tend to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the term and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying S. 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in S. 33 (1) (a).10. Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such dispute must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by S. 2(s) and with the provisions contained in S. 18 of the Act. Therefore, we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question.In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute.11. It appears that the construction of the relevant clause had given rise to a divergence of opinion in industrial courts, but it may be stated that on the whole the consensus of opinion appears to be in favour of the construction which we are putting on the said clause. In Eastern Plywood Manufacturing Co. Ltd. v. Eastern Plywood Manufacturing Workers Union, 1952 Lab AC 103, the appellate tribunal has referred to the said conflict of views and has held that the narrow construction of the clause is not justified. The High Courts of Madras and Andhra appear to have taken the same view (Vide : Newtone Studios Ltd. v. T. R. Ethirajulu, (1958) 1 Lab LJ 63 : (AIR 1957 Mad 737 ). On the other hand, in New Jehangir Vakil Mills, Ltd., Bhavnagar v. N. L. Vyas, AIR 1959 Bom 248, the Bombay High Court has adopted the narrow construction; but for reasons which we have already explained we must hold that the Bombay view is not justified on a fair and reasonable construction of the relevant clause.
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33 has been contravened, and so the appellants argument is that S. 33 (1) (a) is inapplicable because the respondent was not a workmen concerned in the main industrial dispute, and as such his dismissal cannot be said to contravene the provisions of the said section. Indeed the principal point urged before us by the appellant is in regard to the construction of S. 33 (1) (a) of the Act.Then, as to the appellants case that it had to abolish the post of the respondent as it had lost the agency of DeSoto cars from Premier Automobiles, there is not reliable evidence to show when this agency was actually lost. Besides, the fact that the appellant has appointed a Technical Supervisor after discharging the respondent is also not without significance. Furthermore, the appellant is still the agent for Plymouth and Jeeps and the tribunal is right when it has found that it still needed a filed representative to look after servicing of sold cars at outside stations. On the other hand, the evidence of the respondent clearly shows that he supported the case of the 7 apprentices and that provoked the appellant to take the step of terminating his services. The process of finding fault with his work appears to have commenced after the appellant disapproved of the respondents conduct in that behalf. We are, therefore, satisfied that the tribunal was right in coming to the conclusion that the dismissal of the respondent is not supported on any reasonable ground, and in fact is due to the appellants indignation at the conduct of the respondent in the main industrial dispute between the appellant and its 7 employees. If that be the true position the industrial tribunal was justified in treating the dismissal of the respondent as mala fide.Section 33 (1) (a) as it stood prior to the amendment of 1956 provided, inter alia, that during the pendency of any proceedings before a tribunal, no employer shall alter to the prejudice of the workmen concerned in the said dispute the conditions of service applicable to them immediately before the commencement of the said proceedings, save with the express permission in writing of the tribunal.Section 33 has been modified from time to time and its scope has been finally limited by the amendment made by Act 36 of 1956. With the said amendments we are, however, not concerned. The expression "the workmen concerned in such dispute" which occurred in the earlier section has not been modified and the construction which we would place upon the said expression under the unamended section would govern the construction of the said expression even in the amended section. What does the expression "workmen concerned in such dispute" mean? The appellant contends that the main dispute was in regard to the discharge of 7 apprentices employed by the appellant, and it is only the said 7 apprentices who were concerned in the said dispute. The respondent was not concerned in the said dispute, and so the termination of his services cannot attract the provisions of S. 33 (1)(a).Prima facie the argument that "workmen concerned in such dispute" should be limited to the workmen directly or actually concerned in such dispute appears plausible, but if we examine the scheme of the Act and the effect of its material and relevant provisions this limited construction of the clause in question cannot be accepted.In this connection the object of S. 33 must also be borne in mind. It is plain that by enacting S. 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of S. 33 the narrow construction of the material words used in S. 33 (1) (a) would tend to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the term and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying S. 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in S. 33 (1) (a).10. Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such dispute must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by S. 2(s) and with the provisions contained in S. 18 of the Act. Therefore, we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question.In our opinion, that expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute.
|
DR. H.K. SHARMA Vs. RAM LAL | (e) and (f) of section 111 of the Transfer of Property Act, is an yielding up of the term of the lessees interest to him who has the immediate reversion or the lessors interest. It takes effect like a contract by mutual consent on the lessors acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact. 32. It is in the light of the aforementioned legal principle, the question involved in this case has to be examined. 33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights. 34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act. 35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts. Indeed, it will be clear from mere perusal of para 4 of the said decision quoted hereinbelow: 4. As aforesaid, the question for consideration is, whether the status of tenant as such changes on the execution of an agreement of sale with the landlord. It is relevant at this junction first to examine the terms of the agreement of sale. The relevant portions of the agreement of sale records the following: I the aforesaid Mrs. Beatrice Xavier hereby agree out my own free will, to sell, convey and transfer the property to you Mrs. R. Kanthimathi wife of Mr. S. Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed sale consideration of Rs.25,000/-. I shall be proceeding to Coimbatore and shall execute the sale deed and present the same for admission and registration before the Registering Authority, accepting and acknowledge payment of the balance of consideration of Rs. 5000/- (Rupees five thousand only) at the time of registration and shall complete the transaction of sale and conveyance as the property demised has already been surrendered to your possession. (Emphasis in Original) 36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant. 37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly. 38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.1993 39. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question. 40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it. 41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue. | 0[ds]23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals26. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease - whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts.36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.199339. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue. | 0 | 2,993 | 763 | ### 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:
(e) and (f) of section 111 of the Transfer of Property Act, is an yielding up of the term of the lessees interest to him who has the immediate reversion or the lessors interest. It takes effect like a contract by mutual consent on the lessors acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact. 32. It is in the light of the aforementioned legal principle, the question involved in this case has to be examined. 33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights. 34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act. 35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts. Indeed, it will be clear from mere perusal of para 4 of the said decision quoted hereinbelow: 4. As aforesaid, the question for consideration is, whether the status of tenant as such changes on the execution of an agreement of sale with the landlord. It is relevant at this junction first to examine the terms of the agreement of sale. The relevant portions of the agreement of sale records the following: I the aforesaid Mrs. Beatrice Xavier hereby agree out my own free will, to sell, convey and transfer the property to you Mrs. R. Kanthimathi wife of Mr. S. Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed sale consideration of Rs.25,000/-. I shall be proceeding to Coimbatore and shall execute the sale deed and present the same for admission and registration before the Registering Authority, accepting and acknowledge payment of the balance of consideration of Rs. 5000/- (Rupees five thousand only) at the time of registration and shall complete the transaction of sale and conveyance as the property demised has already been surrendered to your possession. (Emphasis in Original) 36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant. 37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly. 38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.1993 39. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question. 40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it. 41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue.
### Response:
0
### Explanation:
23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals26. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease - whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts.36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.199339. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue.
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Keraleeya Samajam & Anr Vs. Pratibha Dattatray Kulkarni (Dead) through LRs & Ors | writ petition. On the above submission, the petitioner to file the calculation memo as arrears of the amount payable to the teaching and non- teaching staff. Accordingly, the petitioners have filed calculation memo as per which the amount towards the salary for three years preceding the filing of writ petition (Sixth Pay Commission), Rs.1,49,13,459/- is payable. So far as the total arrears towards Fifth Pay Commission an amount of Rs.1,19,96,967/- is payable. Insofar as the Sixth Pay Commission an amount of Rs.5,34,50,719/- is stated to be the arrears payable. Thus the total arrear as per Fifth and Six Pay Commissions is Rs.6,54,47,686/- (Rs.1,19,96,967/- + Rs.5,34,50,719/-) and out of the said amount 50% works out to Rs.3,27,23,843/-. Mr. Shekhar Napahde, learned senior counsel, has submitted that the second petitioner being unaided school may not be in a position to deposit the entire amount. Considering the submission made at the Bar, there shall be an interim stay of the operation of the impugned order on condition that the petitioner shall deposit 50% of the total amount which works out to Rs.3,27,23,843/- within a period of eight weeks failing which the interim stay granted by this Court shall be automatically vacated. The deposit of the above amount shall be without prejudice to the contention of the petitioners in the matter. On such deposit, the amount of Rs.3,27,23,843/- shall be disbursed to the teaching and non-teaching staff of the second petitioner-school and other employees who are held entitled to get arrears as per the orders of the High Court. Issue notice. That thereafter a further order dated 29.01.2020 came to be passed by this court, which reads as under:- In compliance of Order dated 04.11.2019 the petitioners - Institution has deposited the amount of Rs.3,27,23,843/- (Rupees three crore twenty seven lakhs twenty three thousand eight hundred forty three) in the Registry of the Supreme Court. As per the said order the amount is to be disbursed to the teaching & non- teaching staff and the other employees of the second petitioner-Model English School who are entitled to get the arrears as per Order of the High Court. Ms. Bina Madhavan, learned counsel appearing for the petitioners and Mr. Akshay Girish Ringe & Mr. Bhaskar Y. Kulkarni, learned counsel appearing for the respondents, have agreed that the amount so deposited before this Court be disbursed to the teaching & non- teaching staff and the other employees of the second petitioner-Model English School through Deputy Director of Education, Education Department, State of Maharashtra. In view of above, the Registry is directed to transmit the amount of Rs.3,27,23,843/- (Rupees three crore twenty seven lakhs twenty three thousand eight hundred forty three) to Deputy Director of Education, Education Department, State of Maharashtra, either through RTGS or by Pay Order at the earliest. Ms. Bina Madhavan, learned counsel appearing for the petitioners-Institution, shall furnish the details of the bank account of the Deputy Director of Education, Education Department, State of Maharashtra, to the Registry of this Court within a period of two days from today. The Deputy Director of Education, Education Department, State of Maharashtra, is directed to identify the teaching, non-teaching staff and other employees of the second petitioner-Model English School who are entitled to receive the arrears as per order of the High Court and thereafter disburse the said amount proportionately as per arrears on proper receipt. The Deputy Director of Education, Education Department, State of Maharashtra, shall complete the exercise of disbursement of the said amount within four weeks from today. We make it clear that the disbursement of the said amount shall be without prejudice to the contentions of the petitioners and the respondents. Matter be listed in the last week of April 2020. 3. Therefore the entitlement of the teachers salaries as per the 5th and 6th Pay Commission to the teaching and non-teaching staff of the second petitioner – school is not required to gone into and only issue which is required to be considered is whether the arrears ought to have been restricted to three years preceding the filing of the writ petition? 4. Having heard Shri Shekhar Naphade, learned Senior Advocate appearing on behalf of the petitioners and learned counsel appearing on behalf of the respondents and considering orders passed in earlier round of litigations which ended up to this court the liability of the management to pay the salaries to the teaching and non-teaching staff as per the 4th Pay Commission and 5th Pay Commission ended in favour of the teaching and non-teaching staff working with the petitioners. Therefore as and when the 6 th Pay Commission recommendations was made applicable as such it was the duty cast upon the petitioners institution to pay the salary/wages to the teaching and non-teaching staff as per the applicable pay scale as per the 6 th Pay Commission recommendation and for which the staff was not required to move before the Deputy Director (Education) again and again. Therefore, the submissions on behalf of the petitioners that as the respondents approached the Deputy Director (Education) subsequently and therefore the question with respect to the limitation will come into play and therefore the respondents shall be entitled to the arrears of last three years preceding the filing of the writ petitions cannot be accepted. 5. The respondents were compelled to approach the Deputy Director only when the petitioners though were required to pay the wages as per the applicable rules and as per the recommendation of 6th Pay Commission, failed to make the payment, the respondents were compelled to approach the Deputy Director (Education) thereafter. Therefore for the lapse and inaction on the part of the petitioners, the respondents cannot be made to suffer and deny the arrears of the salaries as per the 6th Pay Commission recommendation, which otherwise they are entitled to. Every time the teachers were not supposed to approach the appropriate authority for getting the benefit as and when there is a revision of pay as per the pay commission recommendations. | 0[ds]4. Having heard Shri Shekhar Naphade, learned Senior Advocate appearing on behalf of the petitioners and learned counsel appearing on behalf of the respondents and considering orders passed in earlier round of litigations which ended up to this court the liability of the management to pay the salaries to the teaching and non-teaching staff as per the 4th Pay Commission and 5th Pay Commission ended in favour of the teaching and non-teaching staff working with the petitioners. Therefore as and when the 6 th Pay Commission recommendations was made applicable as such it was the duty cast upon the petitioners institution to pay the salary/wages to the teaching and non-teaching staff as per the applicable pay scale as per the 6 th Pay Commission recommendation and for which the staff was not required to move before the Deputy Director (Education) again and again. Therefore, the submissions on behalf of the petitioners that as the respondents approached the Deputy Director (Education) subsequently and therefore the question with respect to the limitation will come into play and therefore the respondents shall be entitled to the arrears of last three years preceding the filing of the writ petitions cannot be accepted.5. The respondents were compelled to approach the Deputy Director only when the petitioners though were required to pay the wages as per the applicable rules and as per the recommendation of 6th Pay Commission, failed to make the payment, the respondents were compelled to approach the Deputy Director (Education) thereafter. Therefore for the lapse and inaction on the part of the petitioners, the respondents cannot be made to suffer and deny the arrears of the salaries as per the 6th Pay Commission recommendation, which otherwise they are entitled to. Every time the teachers were not supposed to approach the appropriate authority for getting the benefit as and when there is a revision of pay as per the pay commission recommendations. | 0 | 1,427 | 343 | ### 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:
writ petition. On the above submission, the petitioner to file the calculation memo as arrears of the amount payable to the teaching and non- teaching staff. Accordingly, the petitioners have filed calculation memo as per which the amount towards the salary for three years preceding the filing of writ petition (Sixth Pay Commission), Rs.1,49,13,459/- is payable. So far as the total arrears towards Fifth Pay Commission an amount of Rs.1,19,96,967/- is payable. Insofar as the Sixth Pay Commission an amount of Rs.5,34,50,719/- is stated to be the arrears payable. Thus the total arrear as per Fifth and Six Pay Commissions is Rs.6,54,47,686/- (Rs.1,19,96,967/- + Rs.5,34,50,719/-) and out of the said amount 50% works out to Rs.3,27,23,843/-. Mr. Shekhar Napahde, learned senior counsel, has submitted that the second petitioner being unaided school may not be in a position to deposit the entire amount. Considering the submission made at the Bar, there shall be an interim stay of the operation of the impugned order on condition that the petitioner shall deposit 50% of the total amount which works out to Rs.3,27,23,843/- within a period of eight weeks failing which the interim stay granted by this Court shall be automatically vacated. The deposit of the above amount shall be without prejudice to the contention of the petitioners in the matter. On such deposit, the amount of Rs.3,27,23,843/- shall be disbursed to the teaching and non-teaching staff of the second petitioner-school and other employees who are held entitled to get arrears as per the orders of the High Court. Issue notice. That thereafter a further order dated 29.01.2020 came to be passed by this court, which reads as under:- In compliance of Order dated 04.11.2019 the petitioners - Institution has deposited the amount of Rs.3,27,23,843/- (Rupees three crore twenty seven lakhs twenty three thousand eight hundred forty three) in the Registry of the Supreme Court. As per the said order the amount is to be disbursed to the teaching & non- teaching staff and the other employees of the second petitioner-Model English School who are entitled to get the arrears as per Order of the High Court. Ms. Bina Madhavan, learned counsel appearing for the petitioners and Mr. Akshay Girish Ringe & Mr. Bhaskar Y. Kulkarni, learned counsel appearing for the respondents, have agreed that the amount so deposited before this Court be disbursed to the teaching & non- teaching staff and the other employees of the second petitioner-Model English School through Deputy Director of Education, Education Department, State of Maharashtra. In view of above, the Registry is directed to transmit the amount of Rs.3,27,23,843/- (Rupees three crore twenty seven lakhs twenty three thousand eight hundred forty three) to Deputy Director of Education, Education Department, State of Maharashtra, either through RTGS or by Pay Order at the earliest. Ms. Bina Madhavan, learned counsel appearing for the petitioners-Institution, shall furnish the details of the bank account of the Deputy Director of Education, Education Department, State of Maharashtra, to the Registry of this Court within a period of two days from today. The Deputy Director of Education, Education Department, State of Maharashtra, is directed to identify the teaching, non-teaching staff and other employees of the second petitioner-Model English School who are entitled to receive the arrears as per order of the High Court and thereafter disburse the said amount proportionately as per arrears on proper receipt. The Deputy Director of Education, Education Department, State of Maharashtra, shall complete the exercise of disbursement of the said amount within four weeks from today. We make it clear that the disbursement of the said amount shall be without prejudice to the contentions of the petitioners and the respondents. Matter be listed in the last week of April 2020. 3. Therefore the entitlement of the teachers salaries as per the 5th and 6th Pay Commission to the teaching and non-teaching staff of the second petitioner – school is not required to gone into and only issue which is required to be considered is whether the arrears ought to have been restricted to three years preceding the filing of the writ petition? 4. Having heard Shri Shekhar Naphade, learned Senior Advocate appearing on behalf of the petitioners and learned counsel appearing on behalf of the respondents and considering orders passed in earlier round of litigations which ended up to this court the liability of the management to pay the salaries to the teaching and non-teaching staff as per the 4th Pay Commission and 5th Pay Commission ended in favour of the teaching and non-teaching staff working with the petitioners. Therefore as and when the 6 th Pay Commission recommendations was made applicable as such it was the duty cast upon the petitioners institution to pay the salary/wages to the teaching and non-teaching staff as per the applicable pay scale as per the 6 th Pay Commission recommendation and for which the staff was not required to move before the Deputy Director (Education) again and again. Therefore, the submissions on behalf of the petitioners that as the respondents approached the Deputy Director (Education) subsequently and therefore the question with respect to the limitation will come into play and therefore the respondents shall be entitled to the arrears of last three years preceding the filing of the writ petitions cannot be accepted. 5. The respondents were compelled to approach the Deputy Director only when the petitioners though were required to pay the wages as per the applicable rules and as per the recommendation of 6th Pay Commission, failed to make the payment, the respondents were compelled to approach the Deputy Director (Education) thereafter. Therefore for the lapse and inaction on the part of the petitioners, the respondents cannot be made to suffer and deny the arrears of the salaries as per the 6th Pay Commission recommendation, which otherwise they are entitled to. Every time the teachers were not supposed to approach the appropriate authority for getting the benefit as and when there is a revision of pay as per the pay commission recommendations.
### Response:
0
### Explanation:
4. Having heard Shri Shekhar Naphade, learned Senior Advocate appearing on behalf of the petitioners and learned counsel appearing on behalf of the respondents and considering orders passed in earlier round of litigations which ended up to this court the liability of the management to pay the salaries to the teaching and non-teaching staff as per the 4th Pay Commission and 5th Pay Commission ended in favour of the teaching and non-teaching staff working with the petitioners. Therefore as and when the 6 th Pay Commission recommendations was made applicable as such it was the duty cast upon the petitioners institution to pay the salary/wages to the teaching and non-teaching staff as per the applicable pay scale as per the 6 th Pay Commission recommendation and for which the staff was not required to move before the Deputy Director (Education) again and again. Therefore, the submissions on behalf of the petitioners that as the respondents approached the Deputy Director (Education) subsequently and therefore the question with respect to the limitation will come into play and therefore the respondents shall be entitled to the arrears of last three years preceding the filing of the writ petitions cannot be accepted.5. The respondents were compelled to approach the Deputy Director only when the petitioners though were required to pay the wages as per the applicable rules and as per the recommendation of 6th Pay Commission, failed to make the payment, the respondents were compelled to approach the Deputy Director (Education) thereafter. Therefore for the lapse and inaction on the part of the petitioners, the respondents cannot be made to suffer and deny the arrears of the salaries as per the 6th Pay Commission recommendation, which otherwise they are entitled to. Every time the teachers were not supposed to approach the appropriate authority for getting the benefit as and when there is a revision of pay as per the pay commission recommendations.
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Collector of Customs, Bombay Vs. Modi Spinning and Weaving Mills Company Limited | The Assistant Collector of Customs assessed customs duty by classifying Step and Repeat Machine as "Photocopying Machine" failing under Heading 90.01, Automatic Photo Camera "Danagra" as falling under Heading 90.07 and Glass Film and Screens as falling under Heading 90.10 of the Customs Tariffs. On appeal, the Collector of Customs (Appeal) disagreed with the said classification of the goods by the Assistant Collector. He held that Step and Repeat Machine was classifiable under Heading 83.54 and Glass Film and Screens was classifiable under Heading 90.01 or 90.02. The classification of the Automatic Photo Camera "Danagraf" under Heading a 90.07 was maintained. The Collector gave the benefit of Notification No. 112/77 in respect of the Automatic Photo Camera "Danagraf" and Glass and Film Screens. The Central Government, being of the tentative view that the appellate authoritys findings in the matter of classification of the above articles were erroneous and improper, issued a show-cause notice dated 13-8-1981 stating that the Government in exercise of its powers under Section 131(3) of the Customs Act, 1962 (hereinafter referred to as "the Act") proposed to annul or modify the order-in-appeal and pass such order as deemed fit. In the said notice it was also stated that the Central Government was of the view that the Step and Repeat Machine is a photocopying machine and should have been classified under Heading 90.10 and that the benefit of Notification No. 112/77 could not be given with regard to the Automatic Photo Camera "Danagraf" and that the Glass Film and Screens should have been classified under Heading 90.10 without allowing the benefit of Notification No. 112/77. After the constitution of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as "the Tribunal") the powers conferred on the Central Government under Section 131 were transferred to the Tribunal and the Tribunal dealt with the proceedings arising out of the show-cause notice dated 13-8-1981. Before the Tribunal, an objection was raised by the respondent that the show-cause notice which was issued under sub-section (3) of Section 131 was barred by limitation since in view of the provisions of Section 28 of the Act such a proceeding could only be initiated within a period of one year from the date of the passing of the order sought to be annulled and that the show-cause notice was issued after the expiry of the period of one year from the date of the order of the appellate authority sought to be annulled since the said order had been passed on 5-4-1980 while the notice was issued on 13-8-1981. The said objection has been accepted by the Tribunal by the impugned judgment and the proceedings initiated on the basis of the said show-cause notice have been held to be not maintainable on the ground that they are barred by limitation 2. Shri Subba Rao, the learned counsel appearing for the Department, has urged that no period of limitation is prescribed for exercise by the Central Government of its power of revision under Section 131(3) which empowers the Central Government, on its own motion, to annul or modify any order passed under Section 128 or Section 130 and that in the present case the show-cause notice had been issued in respect of the order of the appellate authority passed under Section 128 of the Act. The submission of the learned counsel is that the period of limitation of one year under Section 28 of the Act is applicable to exercise of power under Section 131(5) of the Act in respect of an order passed by the original authority. In support of the said submission Shri Subba Rao has placed reliance on the decision of this Court in Indian Textile Paper Tube Co. Ltd. v. Collector of Customs [1990 SC 216 : 1990 SC 216 1990 SC 216] 3. In Indian Textile Paper Tube Co. Ltd. [ 1990 SC 216 : 1990 SC 216 1990 SC 216] this Court has construed the a provisions contained in sub-section (3) as well as sub-section (5) of Section 131 and it has been held that the orders which are contemplated under sub-section (3) of Section 131 are orders passed under Section 128 or Section 130 only, namely, the orders passed in appeal by the Appellate Collector or in revision by the Central Board of Excise and Customs respectively and that sub-section (5) of Section 131 contemplates proceedings against actions of the original assessing authority which have resulted in either not levying or short-levying the duty on goods. In the said case, Sawant J., speaking for the majority, has said : (SCC p. 70, para 8) "8. Thus the situations contemplated by sub-section (3) and by sub-section (5) are mutually exclusive in that whereas sub-section (3) speaks of the annulment or modification of the appellate or revisional orders, sub-section (5) speaks of the orders passed by the original assessing authority. Hence, the limitation applies when government seeks to annul or modify orders of the original assessing authority under sub-section (5) and not when the government takes action to annul or modify the appellate or revisional orders under sub-section (3)." * It is thus evident that while the period of limitation is prescribed for issue of a show-cause notice under sub-section (5) of Section 131 when the Central Government seeks to annul the order passed by the original assessing authority, (sic) no period of limitation with regard to show-cause notice issued under sub-section (3) of Section 131 where the order sought to be annulled is that of the appellate or revisional authority. In the present case, the show-cause notice dated 13-8-1981 has been issued in exercise of the power conferred under sub-section (3) of Section 131. Since no period of limitation is prescribed for exercising the power under sub-section (3) of Section 131, the proceeding initiated on the basis of the said show-cause notice could not be held to be not maintainable as being barred by limitation. We are, therefore, unable to uphold the impugned judgment of the Tribunal | 1[ds]It is thus evident that while the period of limitation is prescribed for issue of aion (5) of Section 131 when the Central Government seeks to annul the order passed by the original assessing authority, (sic) no period of limitation with regard tonotice issued under(3) of Section 131 where the order sought to be annulled is that of the appellate or revisional authority. In the present case, the981 has been issued in exercise of the power conferred under(3) of Section 131. Since no period of limitation is prescribed for exercising the power under(3) of Section 131, the proceeding initiated on the basis of the saidnotice could not be held to be not maintainable as being barred by limitation. We are, therefore, unable to uphold the impugned judgment of the Tribunal | 1 | 1,161 | 155 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
The Assistant Collector of Customs assessed customs duty by classifying Step and Repeat Machine as "Photocopying Machine" failing under Heading 90.01, Automatic Photo Camera "Danagra" as falling under Heading 90.07 and Glass Film and Screens as falling under Heading 90.10 of the Customs Tariffs. On appeal, the Collector of Customs (Appeal) disagreed with the said classification of the goods by the Assistant Collector. He held that Step and Repeat Machine was classifiable under Heading 83.54 and Glass Film and Screens was classifiable under Heading 90.01 or 90.02. The classification of the Automatic Photo Camera "Danagraf" under Heading a 90.07 was maintained. The Collector gave the benefit of Notification No. 112/77 in respect of the Automatic Photo Camera "Danagraf" and Glass and Film Screens. The Central Government, being of the tentative view that the appellate authoritys findings in the matter of classification of the above articles were erroneous and improper, issued a show-cause notice dated 13-8-1981 stating that the Government in exercise of its powers under Section 131(3) of the Customs Act, 1962 (hereinafter referred to as "the Act") proposed to annul or modify the order-in-appeal and pass such order as deemed fit. In the said notice it was also stated that the Central Government was of the view that the Step and Repeat Machine is a photocopying machine and should have been classified under Heading 90.10 and that the benefit of Notification No. 112/77 could not be given with regard to the Automatic Photo Camera "Danagraf" and that the Glass Film and Screens should have been classified under Heading 90.10 without allowing the benefit of Notification No. 112/77. After the constitution of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as "the Tribunal") the powers conferred on the Central Government under Section 131 were transferred to the Tribunal and the Tribunal dealt with the proceedings arising out of the show-cause notice dated 13-8-1981. Before the Tribunal, an objection was raised by the respondent that the show-cause notice which was issued under sub-section (3) of Section 131 was barred by limitation since in view of the provisions of Section 28 of the Act such a proceeding could only be initiated within a period of one year from the date of the passing of the order sought to be annulled and that the show-cause notice was issued after the expiry of the period of one year from the date of the order of the appellate authority sought to be annulled since the said order had been passed on 5-4-1980 while the notice was issued on 13-8-1981. The said objection has been accepted by the Tribunal by the impugned judgment and the proceedings initiated on the basis of the said show-cause notice have been held to be not maintainable on the ground that they are barred by limitation 2. Shri Subba Rao, the learned counsel appearing for the Department, has urged that no period of limitation is prescribed for exercise by the Central Government of its power of revision under Section 131(3) which empowers the Central Government, on its own motion, to annul or modify any order passed under Section 128 or Section 130 and that in the present case the show-cause notice had been issued in respect of the order of the appellate authority passed under Section 128 of the Act. The submission of the learned counsel is that the period of limitation of one year under Section 28 of the Act is applicable to exercise of power under Section 131(5) of the Act in respect of an order passed by the original authority. In support of the said submission Shri Subba Rao has placed reliance on the decision of this Court in Indian Textile Paper Tube Co. Ltd. v. Collector of Customs [1990 SC 216 : 1990 SC 216 1990 SC 216] 3. In Indian Textile Paper Tube Co. Ltd. [ 1990 SC 216 : 1990 SC 216 1990 SC 216] this Court has construed the a provisions contained in sub-section (3) as well as sub-section (5) of Section 131 and it has been held that the orders which are contemplated under sub-section (3) of Section 131 are orders passed under Section 128 or Section 130 only, namely, the orders passed in appeal by the Appellate Collector or in revision by the Central Board of Excise and Customs respectively and that sub-section (5) of Section 131 contemplates proceedings against actions of the original assessing authority which have resulted in either not levying or short-levying the duty on goods. In the said case, Sawant J., speaking for the majority, has said : (SCC p. 70, para 8) "8. Thus the situations contemplated by sub-section (3) and by sub-section (5) are mutually exclusive in that whereas sub-section (3) speaks of the annulment or modification of the appellate or revisional orders, sub-section (5) speaks of the orders passed by the original assessing authority. Hence, the limitation applies when government seeks to annul or modify orders of the original assessing authority under sub-section (5) and not when the government takes action to annul or modify the appellate or revisional orders under sub-section (3)." * It is thus evident that while the period of limitation is prescribed for issue of a show-cause notice under sub-section (5) of Section 131 when the Central Government seeks to annul the order passed by the original assessing authority, (sic) no period of limitation with regard to show-cause notice issued under sub-section (3) of Section 131 where the order sought to be annulled is that of the appellate or revisional authority. In the present case, the show-cause notice dated 13-8-1981 has been issued in exercise of the power conferred under sub-section (3) of Section 131. Since no period of limitation is prescribed for exercising the power under sub-section (3) of Section 131, the proceeding initiated on the basis of the said show-cause notice could not be held to be not maintainable as being barred by limitation. We are, therefore, unable to uphold the impugned judgment of the Tribunal
### Response:
1
### Explanation:
It is thus evident that while the period of limitation is prescribed for issue of aion (5) of Section 131 when the Central Government seeks to annul the order passed by the original assessing authority, (sic) no period of limitation with regard tonotice issued under(3) of Section 131 where the order sought to be annulled is that of the appellate or revisional authority. In the present case, the981 has been issued in exercise of the power conferred under(3) of Section 131. Since no period of limitation is prescribed for exercising the power under(3) of Section 131, the proceeding initiated on the basis of the saidnotice could not be held to be not maintainable as being barred by limitation. We are, therefore, unable to uphold the impugned judgment of the Tribunal
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Commissioner of Sales Tax, U.P., Lucknow Vs. Madan Lal Dayal Chand | his business dealings. So far the legal position is clear. But sub-section (4) of section 18 provides that on the basis of the average monthly turnover of a dealer who has commenced business during the course of any year, the assessing authority shall fix the turnover of the dealer for the next succeeding year, and shall tax him accordingly. The provision is mandatory, both as to the method of computation of the turnover and as to the assessment of tax on the turnover; it is not subject to any exception expressly enacted. 7. Counsel for the State, however, contended that having regard to the scheme of the proviso to section 7(1) and rules 40 and 41, sub-section (4) of section 18 is subject to an implied exception or reservation. Counsel says that sub-section (1) of section 7 alone and not the proviso thereto is subject to the provisions of section 18, and therefore when under the rules framed by the Government it is prescribed that a dealer or class of dealers may submit a return or returns of his turnover of the assessment year, and if the dealer avails himself of that option, sub-section (4) of section 18 has no application. In other words, the argument is that a dealer commencing business during the course of an assessment year is liable to be assessed in that year on the monthly statements of his turnover under section 18(3)(b) and (c), and the right to claim that his turnover be determined in the next succeeding year, in the manner provided by section 18(4) can only be exercised where the dealer has not opted to submit his return of turnover for the year of assessment. This, counsel says, is implicit in the scheme of the Act which gives an option to the dealer to elect to submit a return of turnover either for the previous year or of the assessment year; to hold that section 18(4) is mandatory and is not subject to any implication is to make the option to submit returns of the turnover for the assessment year futile, when the dealer has commenced business during the course of the previous year. Counsel says that the State had given an option to the respondents in respect of the year 1950-51 and they had exercised that option and submitted their returns for that year quarterly as provided by rule 39 and once that option was exercised for the year 1950-51 the tax had to be assessed under section 7(2) read with rule 4(5) on the turnover returned by the respondents.We are unable to agree with the contentions raised by counsel for the State. It appears that when the Act was originally enacted, it was intended that sales tax shall be levied on a dealer on his turnover of the previous year. Provision was also made in section 18 for determining the turnover of a dealer who commenced business during the course of an assessment year. Otherwise the dealer commencing his business during the course of an assessment year would have escaped liability to pay tax altogether, and even in respect of the next succeeding year he would have been liable to pay tax wholly unrelated to his true turnover of that year. In order to provide against these contingencies, section 18 was enacted. The scheme of the Act, as it stood originally enacted, was consistent and practical. But when the Legislature added the proviso to sub-section (1) of section 7 by Act 25 of 1948 giving an option to the dealer to submit in lieu of his return of the previous year the return of turnover of the current year, the significance of section 18(4) in the altered set up was apparently forgotten. Sub-section (4) of section 18 became inconsistent with the scheme of assessment of a dealer who exercised an option under rule 39(1) to submit his turnover of the assessment year. We may assume that it may not have been intended by the Legislature that a dealer who has exercised an option to submit his turnover for the year of assessment instead of the previous year, should still for the year immediately following the year in which he has commenced business be assessed to tax on a notional turnover. But if the Legislature has failed to make an adequate provision enabling assessment to be made in the light of the option, it cannot be assumed that section 18(4) became subject to such an implied limitation. The Court in construing a taxing statute must look at what is clearly expressed, and cannot make assumptions as to the intention of the Legislature. The Court will not introduce by interpretation in a taxing statute a provision which if the Legislature had appreciated the true position under the statute as enacted might have made, but has not made.The scheme of the Act as it stood at the relevant time was, that a person commencing business as a dealer in a particular year was liable to be assessed under section 18(3), clauses (b) and (c), and he was also liable to be assessed in the next year immediately following on the turnover equivalent to twelve times the monthly average of the turnover in the year in which he commenced business. If the Legislature chose to impose an obligation upon the assessing authority to compute the turnover in the manner prescribed and made no exception in the matter of determination of tax, it would be difficult to hold that when the assessee exercised an option under rule 39 his turnover and the assessment to tax were brought within the pale of rule 41(5). 8. Rule 41(5) cannot be read so as to modify an express provision of the Act. The statutory obligation imposed upon the authority to tax the dealer under sub-section (4) of section 18 remains absolute for the year following immediately the year in which the business was commenced by the dealer, and the method prescribed for determination of the turnover must be applied. | 0[ds]Ordinarily a dealer is required by section 7(1) of the Act to submit his return of turnover for the previous year. But that rule is subject to two exceptions. The dealer may elect under rule 39(1) to return his turnover for the assessment year. Again a dealer who commences business as a dealer in the course of an assessment year is enjoined to submit monthly statements of his turnover during that year. It the dealer elects to make a return of the turnover for the assessment year, instead of the previous year, he will be assessed to tax under section 7(2) and (3) read with rule 41(5). If the dealer has commenced a new business during an assessment year, he is liable to be assessed under section 18(3)(b) and (c). He cannot in the year in which he has commenced business seek to submit the return of his turnover of the previous year, for he has no previous year qua his business dealings. So far the legal position is clear. Butn (4) of section 18 provides that on the basis of the average monthly turnover of a dealer who has commenced business during the course of any year, the assessing authority shall fix the turnover of the dealer for the next succeeding year, and shall tax him accordingly. The provision is mandatory, both as to the method of computation of the turnover and as to the assessment of tax on the turnover; it is not subject to any exception expressly enactedWe are unable to agree with the contentions raised by counsel for the State. It appears that when the Act was originally enacted, it was intended that sales tax shall be levied on a dealer on his turnover of the previous year. Provision was also made in section 18 for determining the turnover of a dealer who commenced business during the course of an assessment year. Otherwise the dealer commencing his business during the course of an assessment year would have escaped liability to pay tax altogether, and even in respect of the next succeeding year he would have been liable to pay tax wholly unrelated to his true turnover of that year. In order to provide against these contingencies, section 18 was enacted. The scheme of the Act, as it stood originally enacted, was consistent and practical. But when the Legislature added the proviso ton (1) of section 7 by Act 25 of 1948 giving an option to the dealer to submit in lieu of his return of the previous year the return of turnover of the current year, the significance of section 18(4) in the altered set up was apparently forgotten.n (4) of section 18 became inconsistent with the scheme of assessment of a dealer who exercised an option under rule 39(1) to submit his turnover of the assessment year. We may assume that it may not have been intended by the Legislature that a dealer who has exercised an option to submit his turnover for the year of assessment instead of the previous year, should still for the year immediately following the year in which he has commenced business be assessed to tax on a notional turnover. But if the Legislature has failed to make an adequate provision enabling assessment to be made in the light of the option, it cannot be assumed that section 18(4) became subject to such an implied limitation. The Court in construing a taxing statute must look at what is clearly expressed, and cannot make assumptions as to the intention of the Legislature. The Court will not introduce by interpretation in a taxing statute a provision which if the Legislature had appreciated the true position under the statute as enacted might have made, but has not made.The scheme of the Act as it stood at the relevant time was, that a person commencing business as a dealer in a particular year was liable to be assessed under section 18(3), clauses (b) and (c), and he was also liable to be assessed in the next year immediately following on the turnover equivalent to twelve times the monthly average of the turnover in the year in which he commenced business. If the Legislature chose to impose an obligation upon the assessing authority to compute the turnover in the manner prescribed and made no exception in the matter of determination of tax, it would be difficult to hold that when the assessee exercised an option under rule 39 his turnover and the assessment to tax were brought within the pale of rule 41(5)8. Rule 41(5) cannot be read so as to modify an express provision of the Act. The statutory obligation imposed upon the authority to tax the dealer undern (4) of section 18 remains absolute for the year following immediately the year in which the business was commenced by the dealer, and the method prescribed for determination of the turnover must be applied | 0 | 2,842 | 925 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
his business dealings. So far the legal position is clear. But sub-section (4) of section 18 provides that on the basis of the average monthly turnover of a dealer who has commenced business during the course of any year, the assessing authority shall fix the turnover of the dealer for the next succeeding year, and shall tax him accordingly. The provision is mandatory, both as to the method of computation of the turnover and as to the assessment of tax on the turnover; it is not subject to any exception expressly enacted. 7. Counsel for the State, however, contended that having regard to the scheme of the proviso to section 7(1) and rules 40 and 41, sub-section (4) of section 18 is subject to an implied exception or reservation. Counsel says that sub-section (1) of section 7 alone and not the proviso thereto is subject to the provisions of section 18, and therefore when under the rules framed by the Government it is prescribed that a dealer or class of dealers may submit a return or returns of his turnover of the assessment year, and if the dealer avails himself of that option, sub-section (4) of section 18 has no application. In other words, the argument is that a dealer commencing business during the course of an assessment year is liable to be assessed in that year on the monthly statements of his turnover under section 18(3)(b) and (c), and the right to claim that his turnover be determined in the next succeeding year, in the manner provided by section 18(4) can only be exercised where the dealer has not opted to submit his return of turnover for the year of assessment. This, counsel says, is implicit in the scheme of the Act which gives an option to the dealer to elect to submit a return of turnover either for the previous year or of the assessment year; to hold that section 18(4) is mandatory and is not subject to any implication is to make the option to submit returns of the turnover for the assessment year futile, when the dealer has commenced business during the course of the previous year. Counsel says that the State had given an option to the respondents in respect of the year 1950-51 and they had exercised that option and submitted their returns for that year quarterly as provided by rule 39 and once that option was exercised for the year 1950-51 the tax had to be assessed under section 7(2) read with rule 4(5) on the turnover returned by the respondents.We are unable to agree with the contentions raised by counsel for the State. It appears that when the Act was originally enacted, it was intended that sales tax shall be levied on a dealer on his turnover of the previous year. Provision was also made in section 18 for determining the turnover of a dealer who commenced business during the course of an assessment year. Otherwise the dealer commencing his business during the course of an assessment year would have escaped liability to pay tax altogether, and even in respect of the next succeeding year he would have been liable to pay tax wholly unrelated to his true turnover of that year. In order to provide against these contingencies, section 18 was enacted. The scheme of the Act, as it stood originally enacted, was consistent and practical. But when the Legislature added the proviso to sub-section (1) of section 7 by Act 25 of 1948 giving an option to the dealer to submit in lieu of his return of the previous year the return of turnover of the current year, the significance of section 18(4) in the altered set up was apparently forgotten. Sub-section (4) of section 18 became inconsistent with the scheme of assessment of a dealer who exercised an option under rule 39(1) to submit his turnover of the assessment year. We may assume that it may not have been intended by the Legislature that a dealer who has exercised an option to submit his turnover for the year of assessment instead of the previous year, should still for the year immediately following the year in which he has commenced business be assessed to tax on a notional turnover. But if the Legislature has failed to make an adequate provision enabling assessment to be made in the light of the option, it cannot be assumed that section 18(4) became subject to such an implied limitation. The Court in construing a taxing statute must look at what is clearly expressed, and cannot make assumptions as to the intention of the Legislature. The Court will not introduce by interpretation in a taxing statute a provision which if the Legislature had appreciated the true position under the statute as enacted might have made, but has not made.The scheme of the Act as it stood at the relevant time was, that a person commencing business as a dealer in a particular year was liable to be assessed under section 18(3), clauses (b) and (c), and he was also liable to be assessed in the next year immediately following on the turnover equivalent to twelve times the monthly average of the turnover in the year in which he commenced business. If the Legislature chose to impose an obligation upon the assessing authority to compute the turnover in the manner prescribed and made no exception in the matter of determination of tax, it would be difficult to hold that when the assessee exercised an option under rule 39 his turnover and the assessment to tax were brought within the pale of rule 41(5). 8. Rule 41(5) cannot be read so as to modify an express provision of the Act. The statutory obligation imposed upon the authority to tax the dealer under sub-section (4) of section 18 remains absolute for the year following immediately the year in which the business was commenced by the dealer, and the method prescribed for determination of the turnover must be applied.
### Response:
0
### Explanation:
Ordinarily a dealer is required by section 7(1) of the Act to submit his return of turnover for the previous year. But that rule is subject to two exceptions. The dealer may elect under rule 39(1) to return his turnover for the assessment year. Again a dealer who commences business as a dealer in the course of an assessment year is enjoined to submit monthly statements of his turnover during that year. It the dealer elects to make a return of the turnover for the assessment year, instead of the previous year, he will be assessed to tax under section 7(2) and (3) read with rule 41(5). If the dealer has commenced a new business during an assessment year, he is liable to be assessed under section 18(3)(b) and (c). He cannot in the year in which he has commenced business seek to submit the return of his turnover of the previous year, for he has no previous year qua his business dealings. So far the legal position is clear. Butn (4) of section 18 provides that on the basis of the average monthly turnover of a dealer who has commenced business during the course of any year, the assessing authority shall fix the turnover of the dealer for the next succeeding year, and shall tax him accordingly. The provision is mandatory, both as to the method of computation of the turnover and as to the assessment of tax on the turnover; it is not subject to any exception expressly enactedWe are unable to agree with the contentions raised by counsel for the State. It appears that when the Act was originally enacted, it was intended that sales tax shall be levied on a dealer on his turnover of the previous year. Provision was also made in section 18 for determining the turnover of a dealer who commenced business during the course of an assessment year. Otherwise the dealer commencing his business during the course of an assessment year would have escaped liability to pay tax altogether, and even in respect of the next succeeding year he would have been liable to pay tax wholly unrelated to his true turnover of that year. In order to provide against these contingencies, section 18 was enacted. The scheme of the Act, as it stood originally enacted, was consistent and practical. But when the Legislature added the proviso ton (1) of section 7 by Act 25 of 1948 giving an option to the dealer to submit in lieu of his return of the previous year the return of turnover of the current year, the significance of section 18(4) in the altered set up was apparently forgotten.n (4) of section 18 became inconsistent with the scheme of assessment of a dealer who exercised an option under rule 39(1) to submit his turnover of the assessment year. We may assume that it may not have been intended by the Legislature that a dealer who has exercised an option to submit his turnover for the year of assessment instead of the previous year, should still for the year immediately following the year in which he has commenced business be assessed to tax on a notional turnover. But if the Legislature has failed to make an adequate provision enabling assessment to be made in the light of the option, it cannot be assumed that section 18(4) became subject to such an implied limitation. The Court in construing a taxing statute must look at what is clearly expressed, and cannot make assumptions as to the intention of the Legislature. The Court will not introduce by interpretation in a taxing statute a provision which if the Legislature had appreciated the true position under the statute as enacted might have made, but has not made.The scheme of the Act as it stood at the relevant time was, that a person commencing business as a dealer in a particular year was liable to be assessed under section 18(3), clauses (b) and (c), and he was also liable to be assessed in the next year immediately following on the turnover equivalent to twelve times the monthly average of the turnover in the year in which he commenced business. If the Legislature chose to impose an obligation upon the assessing authority to compute the turnover in the manner prescribed and made no exception in the matter of determination of tax, it would be difficult to hold that when the assessee exercised an option under rule 39 his turnover and the assessment to tax were brought within the pale of rule 41(5)8. Rule 41(5) cannot be read so as to modify an express provision of the Act. The statutory obligation imposed upon the authority to tax the dealer undern (4) of section 18 remains absolute for the year following immediately the year in which the business was commenced by the dealer, and the method prescribed for determination of the turnover must be applied
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Municipal Corporation of Greater Bombay Vs. M/s. New Standard Engineering Company Limited | pp. 144-45). 12. In Banwarilal Agarwalla v. State of Bihar ( 1962 (1) SCR 33the question arose whether Section 59(3) of the Mines Act, 1952 requiring the Central Government to consult every Mining Board before framing regulations was mandatory. The court held that since the regulations framed would impinge heavily on the actual working of mines, the requirement of consultation of the Mining Boards is mandatory. This view has been affirmed in Kali Pada Chowdhury v. Union of India ( 1963 (2) SCR 904 the provision regarding consultation with the State Electricity Board in Section 4 of the Electricity Act, 1910 as amended in 1950 for exercising the power of revoking a licence by the State Government was held to be mandatory since it was intended to provide additional safeguard to the licensee. In Naraindas Indurkhya v. State of M.P. ( 1974 (4) SCC 788the prior consultation with the Education Board under Section 4(1) of the M.P. Act 13 of 1973 for prescription of text-books by the State Government is also held to be mandatory since it is a condition for the exercise of the power. In Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd. ( 1972 (1) WLR 190 : 1972 (1) All(ER) 280 the Minister was required before making an industrial training order, to have prior consultations with the interested Associations under Section 2(4) of the Industrial Training Act, 1964. The Minister invited numerous organisations to consult with him about an order for agricultural industries, but in one of the cases, the letter miscarried so that the Mushroom Growers Association was not consulted. Members of the Association, it was held were not bound by the order of the Minister since a mandatory requirement had not been observed. 13. Prof. Wade points out : (H.W.R. Wade, Administrative Law, 6th edn., p. 247) "Procedural safeguards, which are so often imposed for the benefit of persons affected by the exercise of administrative powers, are normally regarded as mandatory, so that it is fatal to disregard them. Where there is a statutory duty to consult persons affected, this must genuinely be done, and reasonable opportunity for comment must be given." * 14. In the instant case, the Corporation has numerous obligatory functions to perform, namely drains and drainage works, scavenging and removal and disposal of refuse and rubbish, construction and maintenance of public streets, bridges, culverts, of works and means for providing water supply, electricity, maintenance of fire brigade, measures for preventing and checking the spread of dangerous diseases etc. (see Section 61 of the Act). All these measures require funds. The property tax appears to be the major source of corporation revenue. Consultation as envisaged under the Explanation is therefore definitely a matter of importance and consequence to the Corporation. Its right to recover normal rates of property tax would be deprived of if the government prepares a scheme for subsidised housing without its consultation. Section 154 provides for fixing the rateable value of the building for the purpose of levying property tax. Sub-section (1) provides a general principle for fixing the rateable value. Sub-section (3) is an exception to that principle and it is required to be followed in certain specified categories. The Corporation is bound to follow the exception provided under sub-section (3) if the building has been erected as part of a recognised scheme of subsidised housing for industrial workers. In such a case, the rateable value shall not exceed Rs. 32.50 for each such tenement inclusive of all service and other charges. That would affect the financial interests of the Corporation. Even according to the High Court the consultation referred to in the Explanation is a safeguard added in favour of the Corporation because the Corporation is likely to suffer to some extent its revenue in a given case. But nevertheless it was held that the consultation is directory and not to be regarded as mandatory. The High Court seems to have erred in this regard. The right to be consulted in opposition to a claim or proposal which will adversely affect its financial interests is to be regarded as mandatory. 15. There must be opportunity for the Corporation to express its views on the recognised scheme and the terms thereof. The opinion expressed by the Corporation may not be binding on the government to take decision. The government may take its own decision but consultation with the Corporation must be there on the essential points and the core of the subject involved. The consultation must enable the Corporation to consider the pros and cons of the question as to the concessional rate of property tax. (See : (i) Fletcher v. Minister of Town Planning and Country Planning ( 1947 (2) ALLER 496 ii) R. Pushpam v. State of Madras 1953 AIR(Mad) 392 : 1953 (1) MLJ 88 ).). If there is no such consultation the Corporation cannot be compelled to fix the rateable value of the building under sub-section (3). 16. Finally, we should refer briefly to one other reasoning adopted by the High Court. The High Court has stated that since the building plans were approved by the Corporation and the construction work was almost complete before the respondent approached the government for subsidy, it will have to be presumed that the government had taken judicial note of the rates likely to be charged by the Corporation or the loss, if any, it was likely to suffer. This assumption is wholly unjustified. No such inference could be possible from the Corporation licence for building construction. Such licence has nothing to do with the property tax to be levied. Our attention has not been drawn to any other material on which the government could have taken note of the rates likely to be charged by the Corporation or the loss that it might suffer in recovering the property tax on the basis of rentals of each tenement at Rs. 26.50. We are, therefore, not impressed with the conclusion reached by the High Court. | 1[ds]14. In the instant case, the Corporation has numerous obligatory functions to perform, namely drains and drainage works, scavenging and removal and disposal of refuse and rubbish, construction and maintenance of public streets, bridges, culverts, of works and means for providing water supply, electricity, maintenance of fire brigade, measures for preventing and checking the spread of dangerous diseases etc. (see Section 61 of the Act). All these measures require funds. The property tax appears to be the major source of corporation revenue. Consultation as envisaged under the Explanation is therefore definitely a matter of importance and consequence to the Corporation. Its right to recover normal rates of property tax would be deprived of if the government prepares a scheme for subsidised housing without its consultation. Section 154 provides for fixing the rateable value of the building for the purpose of levying property tax. Sub-section (1) provides a general principle for fixing the rateable value. Sub-section (3) is an exception to that principle and it is required to be followed in certain specified categories. The Corporation is bound to follow the exception provided under sub-section (3) if the building has been erected as part of a recognised scheme of subsidised housing for industrial workers. In such a case, the rateable value shall not exceed Rs. 32.50 for each such tenement inclusive of all service and other charges. That would affect the financial interests of the Corporation. Even according to the High Court the consultation referred to in the Explanation is a safeguard added in favour of the Corporation because the Corporation is likely to suffer to some extent its revenue in a given case. But nevertheless it was held that the consultation is directory and not to be regarded as mandatory. The High Court seems to have erred in this regard. The right to be consulted in opposition to a claim or proposal which will adversely affect its financial interests is to be regarded asThere must be opportunity for the Corporation to express its views on the recognised scheme and the terms thereof. The opinion expressed by the Corporation may not be binding on the government to take decision. The government may take its own decision but consultation with the Corporation must be there on the essential points and the core of the subject involved. The consultation must enable the Corporation to consider the pros and cons of the question as to the concessional rate of property tax. (See : (i) Fletcherv. Minister of Town Planning and Country Planning ( 1947 (2) ALLER 496ii) R. Pushpam v. State of Madras 1953 AIR(Mad) 392 : 1953 (1) MLJ 88 ).). If there is no such consultation the Corporation cannot be compelled to fix the rateable value of the building under sub-sectionFinally, we should refer briefly to one other reasoning adopted by the High Court. The High Court has stated that since the building plans were approved by the Corporation and the construction work was almost complete before the respondent approached the government for subsidy, it will have to be presumed that the government had taken judicial note of the rates likely to be charged by the Corporation or the loss, if any, it was likely to suffer. This assumption is wholly unjustified. No such inference could be possible from the Corporation licence for building construction. Such licence has nothing to do with the property tax to be levied. Our attention has not been drawn to any other material on which the government could have taken note of the rates likely to be charged by the Corporation or the loss that it might suffer in recovering the property tax on the basis of rentals of each tenement at Rs. 26.50. We are, therefore, not impressed with the conclusion reached by the High Court | 1 | 3,189 | 703 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
pp. 144-45). 12. In Banwarilal Agarwalla v. State of Bihar ( 1962 (1) SCR 33the question arose whether Section 59(3) of the Mines Act, 1952 requiring the Central Government to consult every Mining Board before framing regulations was mandatory. The court held that since the regulations framed would impinge heavily on the actual working of mines, the requirement of consultation of the Mining Boards is mandatory. This view has been affirmed in Kali Pada Chowdhury v. Union of India ( 1963 (2) SCR 904 the provision regarding consultation with the State Electricity Board in Section 4 of the Electricity Act, 1910 as amended in 1950 for exercising the power of revoking a licence by the State Government was held to be mandatory since it was intended to provide additional safeguard to the licensee. In Naraindas Indurkhya v. State of M.P. ( 1974 (4) SCC 788the prior consultation with the Education Board under Section 4(1) of the M.P. Act 13 of 1973 for prescription of text-books by the State Government is also held to be mandatory since it is a condition for the exercise of the power. In Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd. ( 1972 (1) WLR 190 : 1972 (1) All(ER) 280 the Minister was required before making an industrial training order, to have prior consultations with the interested Associations under Section 2(4) of the Industrial Training Act, 1964. The Minister invited numerous organisations to consult with him about an order for agricultural industries, but in one of the cases, the letter miscarried so that the Mushroom Growers Association was not consulted. Members of the Association, it was held were not bound by the order of the Minister since a mandatory requirement had not been observed. 13. Prof. Wade points out : (H.W.R. Wade, Administrative Law, 6th edn., p. 247) "Procedural safeguards, which are so often imposed for the benefit of persons affected by the exercise of administrative powers, are normally regarded as mandatory, so that it is fatal to disregard them. Where there is a statutory duty to consult persons affected, this must genuinely be done, and reasonable opportunity for comment must be given." * 14. In the instant case, the Corporation has numerous obligatory functions to perform, namely drains and drainage works, scavenging and removal and disposal of refuse and rubbish, construction and maintenance of public streets, bridges, culverts, of works and means for providing water supply, electricity, maintenance of fire brigade, measures for preventing and checking the spread of dangerous diseases etc. (see Section 61 of the Act). All these measures require funds. The property tax appears to be the major source of corporation revenue. Consultation as envisaged under the Explanation is therefore definitely a matter of importance and consequence to the Corporation. Its right to recover normal rates of property tax would be deprived of if the government prepares a scheme for subsidised housing without its consultation. Section 154 provides for fixing the rateable value of the building for the purpose of levying property tax. Sub-section (1) provides a general principle for fixing the rateable value. Sub-section (3) is an exception to that principle and it is required to be followed in certain specified categories. The Corporation is bound to follow the exception provided under sub-section (3) if the building has been erected as part of a recognised scheme of subsidised housing for industrial workers. In such a case, the rateable value shall not exceed Rs. 32.50 for each such tenement inclusive of all service and other charges. That would affect the financial interests of the Corporation. Even according to the High Court the consultation referred to in the Explanation is a safeguard added in favour of the Corporation because the Corporation is likely to suffer to some extent its revenue in a given case. But nevertheless it was held that the consultation is directory and not to be regarded as mandatory. The High Court seems to have erred in this regard. The right to be consulted in opposition to a claim or proposal which will adversely affect its financial interests is to be regarded as mandatory. 15. There must be opportunity for the Corporation to express its views on the recognised scheme and the terms thereof. The opinion expressed by the Corporation may not be binding on the government to take decision. The government may take its own decision but consultation with the Corporation must be there on the essential points and the core of the subject involved. The consultation must enable the Corporation to consider the pros and cons of the question as to the concessional rate of property tax. (See : (i) Fletcher v. Minister of Town Planning and Country Planning ( 1947 (2) ALLER 496 ii) R. Pushpam v. State of Madras 1953 AIR(Mad) 392 : 1953 (1) MLJ 88 ).). If there is no such consultation the Corporation cannot be compelled to fix the rateable value of the building under sub-section (3). 16. Finally, we should refer briefly to one other reasoning adopted by the High Court. The High Court has stated that since the building plans were approved by the Corporation and the construction work was almost complete before the respondent approached the government for subsidy, it will have to be presumed that the government had taken judicial note of the rates likely to be charged by the Corporation or the loss, if any, it was likely to suffer. This assumption is wholly unjustified. No such inference could be possible from the Corporation licence for building construction. Such licence has nothing to do with the property tax to be levied. Our attention has not been drawn to any other material on which the government could have taken note of the rates likely to be charged by the Corporation or the loss that it might suffer in recovering the property tax on the basis of rentals of each tenement at Rs. 26.50. We are, therefore, not impressed with the conclusion reached by the High Court.
### Response:
1
### Explanation:
14. In the instant case, the Corporation has numerous obligatory functions to perform, namely drains and drainage works, scavenging and removal and disposal of refuse and rubbish, construction and maintenance of public streets, bridges, culverts, of works and means for providing water supply, electricity, maintenance of fire brigade, measures for preventing and checking the spread of dangerous diseases etc. (see Section 61 of the Act). All these measures require funds. The property tax appears to be the major source of corporation revenue. Consultation as envisaged under the Explanation is therefore definitely a matter of importance and consequence to the Corporation. Its right to recover normal rates of property tax would be deprived of if the government prepares a scheme for subsidised housing without its consultation. Section 154 provides for fixing the rateable value of the building for the purpose of levying property tax. Sub-section (1) provides a general principle for fixing the rateable value. Sub-section (3) is an exception to that principle and it is required to be followed in certain specified categories. The Corporation is bound to follow the exception provided under sub-section (3) if the building has been erected as part of a recognised scheme of subsidised housing for industrial workers. In such a case, the rateable value shall not exceed Rs. 32.50 for each such tenement inclusive of all service and other charges. That would affect the financial interests of the Corporation. Even according to the High Court the consultation referred to in the Explanation is a safeguard added in favour of the Corporation because the Corporation is likely to suffer to some extent its revenue in a given case. But nevertheless it was held that the consultation is directory and not to be regarded as mandatory. The High Court seems to have erred in this regard. The right to be consulted in opposition to a claim or proposal which will adversely affect its financial interests is to be regarded asThere must be opportunity for the Corporation to express its views on the recognised scheme and the terms thereof. The opinion expressed by the Corporation may not be binding on the government to take decision. The government may take its own decision but consultation with the Corporation must be there on the essential points and the core of the subject involved. The consultation must enable the Corporation to consider the pros and cons of the question as to the concessional rate of property tax. (See : (i) Fletcherv. Minister of Town Planning and Country Planning ( 1947 (2) ALLER 496ii) R. Pushpam v. State of Madras 1953 AIR(Mad) 392 : 1953 (1) MLJ 88 ).). If there is no such consultation the Corporation cannot be compelled to fix the rateable value of the building under sub-sectionFinally, we should refer briefly to one other reasoning adopted by the High Court. The High Court has stated that since the building plans were approved by the Corporation and the construction work was almost complete before the respondent approached the government for subsidy, it will have to be presumed that the government had taken judicial note of the rates likely to be charged by the Corporation or the loss, if any, it was likely to suffer. This assumption is wholly unjustified. No such inference could be possible from the Corporation licence for building construction. Such licence has nothing to do with the property tax to be levied. Our attention has not been drawn to any other material on which the government could have taken note of the rates likely to be charged by the Corporation or the loss that it might suffer in recovering the property tax on the basis of rentals of each tenement at Rs. 26.50. We are, therefore, not impressed with the conclusion reached by the High Court
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Udhoji Shrikishandas Vs. Commissioner of Income Tax, Bombay City I | accepted the claim of the assessee that out of the amount credited, Rs. 4, 51, 843 represented the value of assets brought by the assessee when he migrated to India and rejected his claim for the balance. The Income-tax Officer, in proceedings for reassessment commenced under section 34 of the Income-tax Act, brought to tax Rs. 79, 989 in the assessment year 1948-49, Rs. 1, 89, 800 in the year 1949-50 and Rs. 64, 880 in the year 1952-53. The Appellate Assistant Commissioner accepted the case of the assessee that the three amounts were part of the assets brought with him either in cash or as jewellery when the assessee migrated to India. The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner in so far as it related to the assessment years 1948-49 and 1949-50. But the Tribunal held that the assessee had failed to prove the claim that Rs. 55, 293, out of the amount of Rs. 64, 880 assessed to tax in 1952-53, represented the value of ornaments, which the assessee claimed were sold by him after the death of his wife, Gopi Bai. The Tribunal accepted the claim of the assessee that the balance of Rs. 9, 537 represented cash gifts received by Ishwari Bai. The Tribunal accordingly set aside the order of the Appellate Assistant Commissioner and directed that Rs. 55, 293 be brought to tax in the assessment year 1952-53The assessee then applied to the Tribunal praying that a statement of the case be drawn up and the following questions arising out of the order of the Tribunal be submitted to the High Court: " (a) Whether there was evidence before the Tribunal to hold that the credit of Rs. 55, 293 in the account of the wife of the assessee did not represent the sale proceeds of her gold ornaments ? (b) If the answer to question No. 1 is in the affirmative, whether the sum of Rs. 55, 293 could be held as the undisclosed income of the assessee himself ? " The Tribunal rejected the application holding that they had not accepted the case of the assessee about the sale of the ornaments of Gopi Bai. The assessee then applied to the High Court of Bombay for an order under section 66(2) of the Indian Income-tax Act directing the Tribunal to state a case and refer the questions of law arising out of the order of the Tribunal. The High Court rejected the application 3. It appears from the order of the Appellate Assistant Commissioner that the assessee had produced considerable documentary evidence in support of his case that in May, 1947, a quantity of gold jewellery was given by him to a refinery for melting and that 518 tolas of gold were sold by him on May 17, 1951. It was the case of the assessee that gold jewellery melted was out of the " outmoded ornaments " of Gopi Bai, his first wife. The Appellate Assistant Commissioner, in dealing with the claim for excluding Rs. 55, 293 from the amount brought to tax on reassessment observed: " ...... the appellant has filed a copy of the voucher for the sale proceeds of 518 tolas of gold sold after the refinement to Ambalal Amichand of Bombay on May 17, 1951. The sale proceeds are duly supported with vouchers as also with the melting charges paid and also with a list of the ornaments received by her from several relatives ...... On the face of the overwhelming evidence produced by the appellant, I am unable to understand the Income-tax Officers contentions that the credits did not represent the sale proceeds of gold or that the account was a benami account of the appellant."In determining whether the " version " of the assessee was true, the Tribunal was impressed by the improbability of the claim : the Tribunal did not consider the documentary evidence produced by the assessee. In rejecting the application for a reference under section 66(1) the Tribunal observed that there was no " conclusive proof of the assessees version that gold ornaments were melted and sold. " 4. The Income-tax Appellate Tribunal performs a judicial function under the Indian Income-tax Act : it is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its finding on all the contentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law. 5. The judgment of the Tribunal suffers from a manifest infirmity. The Tribunal has not adjudicated upon the truth of the case of the assessee in the light of the evidence adduced by the assessee in support of his case. The infirmity becomes more pronounced when regard is had to the fact that, relying upon the documentary evidence tendered by the assessee, the Appellate Assistant Commissioner had accepted the claim of the assessee relating to the sale of Gopi Bais ornaments. The Tribunal was undoubtedly competent to disagree with the view of the Appellate Assistant Commissioner. But in proceeding to do so, the Tribunal had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determining the questions of fact raised before the Tribunal 6. It is for the income-tax authorities to prove that a particular receipt is taxable. In deciding whether an item of receipt is taxable as income, the Tribunal may consider the evidence in the light of the statements made by the assessee, his conduct and the probabilities, but in arriving at its conclusion there must be a fair and reasonably full review of the evidenceIn our view, questions of law set out in the application of the assessee under section 66(1) did arise out of the order of the Tribunal | 1[ds]5. The judgment of the Tribunal suffers from a manifest infirmity. The Tribunal has not adjudicated upon the truth of the case of the assessee in the light of the evidence adduced by the assessee in support of his case. The infirmity becomes more pronounced when regard is had to the fact that, relying upon the documentary evidence tendered by theassessee,the Appellate Assistant Commissionerhad accepted the claim of the assessee relating to the sale of Gopi Bais ornaments. The Tribunal was undoubtedly competent to disagree with the view ofthe Appellate Assistant. But in proceeding to do, theTribunal had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determining the questions of fact raised before the Tribunal6. It is for thex authorities to prove that a particular receipt is taxable. In deciding whether an item of receipt is taxable as, theTribunal may consider the evidence in the light of the statements made by theassessee,his conduct and the probabilities, but in arriving at its conclusion there must be a fair and reasonably full review of the evidenceIn our view, questions of law set out in the application of the assessee under section 66(1) did arise out of the order of the Tribunal | 1 | 1,209 | 257 | ### 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:
accepted the claim of the assessee that out of the amount credited, Rs. 4, 51, 843 represented the value of assets brought by the assessee when he migrated to India and rejected his claim for the balance. The Income-tax Officer, in proceedings for reassessment commenced under section 34 of the Income-tax Act, brought to tax Rs. 79, 989 in the assessment year 1948-49, Rs. 1, 89, 800 in the year 1949-50 and Rs. 64, 880 in the year 1952-53. The Appellate Assistant Commissioner accepted the case of the assessee that the three amounts were part of the assets brought with him either in cash or as jewellery when the assessee migrated to India. The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner in so far as it related to the assessment years 1948-49 and 1949-50. But the Tribunal held that the assessee had failed to prove the claim that Rs. 55, 293, out of the amount of Rs. 64, 880 assessed to tax in 1952-53, represented the value of ornaments, which the assessee claimed were sold by him after the death of his wife, Gopi Bai. The Tribunal accepted the claim of the assessee that the balance of Rs. 9, 537 represented cash gifts received by Ishwari Bai. The Tribunal accordingly set aside the order of the Appellate Assistant Commissioner and directed that Rs. 55, 293 be brought to tax in the assessment year 1952-53The assessee then applied to the Tribunal praying that a statement of the case be drawn up and the following questions arising out of the order of the Tribunal be submitted to the High Court: " (a) Whether there was evidence before the Tribunal to hold that the credit of Rs. 55, 293 in the account of the wife of the assessee did not represent the sale proceeds of her gold ornaments ? (b) If the answer to question No. 1 is in the affirmative, whether the sum of Rs. 55, 293 could be held as the undisclosed income of the assessee himself ? " The Tribunal rejected the application holding that they had not accepted the case of the assessee about the sale of the ornaments of Gopi Bai. The assessee then applied to the High Court of Bombay for an order under section 66(2) of the Indian Income-tax Act directing the Tribunal to state a case and refer the questions of law arising out of the order of the Tribunal. The High Court rejected the application 3. It appears from the order of the Appellate Assistant Commissioner that the assessee had produced considerable documentary evidence in support of his case that in May, 1947, a quantity of gold jewellery was given by him to a refinery for melting and that 518 tolas of gold were sold by him on May 17, 1951. It was the case of the assessee that gold jewellery melted was out of the " outmoded ornaments " of Gopi Bai, his first wife. The Appellate Assistant Commissioner, in dealing with the claim for excluding Rs. 55, 293 from the amount brought to tax on reassessment observed: " ...... the appellant has filed a copy of the voucher for the sale proceeds of 518 tolas of gold sold after the refinement to Ambalal Amichand of Bombay on May 17, 1951. The sale proceeds are duly supported with vouchers as also with the melting charges paid and also with a list of the ornaments received by her from several relatives ...... On the face of the overwhelming evidence produced by the appellant, I am unable to understand the Income-tax Officers contentions that the credits did not represent the sale proceeds of gold or that the account was a benami account of the appellant."In determining whether the " version " of the assessee was true, the Tribunal was impressed by the improbability of the claim : the Tribunal did not consider the documentary evidence produced by the assessee. In rejecting the application for a reference under section 66(1) the Tribunal observed that there was no " conclusive proof of the assessees version that gold ornaments were melted and sold. " 4. The Income-tax Appellate Tribunal performs a judicial function under the Indian Income-tax Act : it is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its finding on all the contentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law. 5. The judgment of the Tribunal suffers from a manifest infirmity. The Tribunal has not adjudicated upon the truth of the case of the assessee in the light of the evidence adduced by the assessee in support of his case. The infirmity becomes more pronounced when regard is had to the fact that, relying upon the documentary evidence tendered by the assessee, the Appellate Assistant Commissioner had accepted the claim of the assessee relating to the sale of Gopi Bais ornaments. The Tribunal was undoubtedly competent to disagree with the view of the Appellate Assistant Commissioner. But in proceeding to do so, the Tribunal had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determining the questions of fact raised before the Tribunal 6. It is for the income-tax authorities to prove that a particular receipt is taxable. In deciding whether an item of receipt is taxable as income, the Tribunal may consider the evidence in the light of the statements made by the assessee, his conduct and the probabilities, but in arriving at its conclusion there must be a fair and reasonably full review of the evidenceIn our view, questions of law set out in the application of the assessee under section 66(1) did arise out of the order of the Tribunal
### Response:
1
### Explanation:
5. The judgment of the Tribunal suffers from a manifest infirmity. The Tribunal has not adjudicated upon the truth of the case of the assessee in the light of the evidence adduced by the assessee in support of his case. The infirmity becomes more pronounced when regard is had to the fact that, relying upon the documentary evidence tendered by theassessee,the Appellate Assistant Commissionerhad accepted the claim of the assessee relating to the sale of Gopi Bais ornaments. The Tribunal was undoubtedly competent to disagree with the view ofthe Appellate Assistant. But in proceeding to do, theTribunal had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determining the questions of fact raised before the Tribunal6. It is for thex authorities to prove that a particular receipt is taxable. In deciding whether an item of receipt is taxable as, theTribunal may consider the evidence in the light of the statements made by theassessee,his conduct and the probabilities, but in arriving at its conclusion there must be a fair and reasonably full review of the evidenceIn our view, questions of law set out in the application of the assessee under section 66(1) did arise out of the order of the Tribunal
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Godrej and Boyce Manufacturing Company Limited Vs. Dy. Commissioner of Income Tax and Ors | so read, it is clear that it disallows certain expenditure incurred to earn exempt income from being deducted from other income which is includible in the "total income" for the purpose of chargeability to tax." The views expressed in Walfort Share and Stock Brokers P. Ltd. (supra), in our considered opinion, yet again militate against the plea urged on behalf of the Assessee. 34. For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case. In this regard we may remind ourselves of what has been observed by this Court in Radhasoami Satsang v. Commissioner of Income-Tax, (1992) 193 ITR (SC) 321 [ At Page 329]. "We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year." 39. In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions. | 1[ds]22. All the said provisions, noticeably, exclude dividend received under Section 115-O. As the provisions of the aforesaid Sections of the Act contemplate deduction of tax payable by the shareholder on the dividend income, however, to the exception of dividend income under Section 115-O, it is submitted by the learned Solicitor General that it is crystal clear that the additional income tax paid under Section 115-O by the dividend paying company cannot assume the character of tax paid on dividend income by the assessee shareholder. The position, according to the learned Solicitor General, is further fortified by the provisions of Section 115-O(4), reference to which has already been made earlier. Specific reference is made to Section 199 of the Act which provides for credit to be given for the tax deducted at source on dividend paid. If the tax paid on dividend under Section 115-O is on income earned by the shareholder, Section 199 would have also provided for deduction of tax at source in respect of the dividends paid under Section 115-O of the Act to the assessee, it is contended.23. Insofar as the second issue arising in the case is concerned, namely, the appellate orders of the learned Tribunal for the Assessment Years 1998-1999, 1999-2000 and 2001-2002 granting the benefit of full deduction on interest expenditure, it is submitted by the learned Solicitor General that each assessment year has to be reckoned separately; there is no estoppel and, furthermore, sub-sections (2) and (3) of Section 14A having been introduced by the Finance Act of 2006, the Tribunal and the High Court was fully justified in remanding the matter to the Assessing Officer for a de novo consideration in the light of the provisions contained in sub-sections (2) and (3) of Section 14A of the Act.24. The object behind the introduction of Section 14A of the Act by the Finance Act of 2001 is clear and unambiguous. The legislature intended to check the claim of allowance of expenditure incurred towards earning exempted income in a situation where an assessee has both exempted and non-exempted income or includible or non-includible income. While there can be no scintilla of doubt that if the income in question is taxable and, therefore, includible in the total income, the deduction of expenses incurred in relation to such an income must be allowed, such deduction would not be permissible merely on the ground that the tax on the dividend received by the assessee has been paid by the dividend paying company and not by the recipient assessee, when under Section 10(33) of the Act such income by way of dividend is not a part of the total income of the recipient assessee. A plain reading of Section 14A would go to show that the income must not be includible in the total income of the assessee. Once the said condition is satisfied, the expenditure incurred in earning the said income cannot be allowed to be deducted. The section does not contemplate a situation where even though the income is taxable in the hands of the dividend paying company the same to be treated as not includible in the total income of the recipient assessee, yet, the expenditure incurred to earn that income must be allowed on the basis that no tax on such income has been paid by the assessee. Such a meaning, if ascribed to Section 14A, would be plainly beyond what the language of Section 14A can be understood to reasonably convey.We do not see how the aforesaid principle of law in K.P. Varghese (supra) can assist the Assessee in the present case. The literal meaning of Section 14A, far from giving rise to any absurdity, appears to be wholly consistent with the scheme of the Act and the object/purpose of levy of tax on income. Therefore, the well entrenched principle of interpretation that where the words of the statute are clear and unambiguous recourse cannot be had to principles of interpretation other than the literal view will apply.While it is correct that Section 10(33) exempts only dividend income under Section 115-O of the Act and there are other species of dividend income on which tax is levied under the Act, we do not see how the said position in law would assist the assessee in understanding the provisions of Section 14A in the manner indicated. What is required to be construed is the provisions of Section 10(33) read in the light of Section 115-O of the Act. So far as the species of dividend income on which tax is payable under Section 115-O of the Act is concerned, the earning of the said dividend is tax free in the hands of the assessee and not includible in the total income of the said assessee. If that is so, we do not see how the operation of Section 14A of the Act to such dividend income can be foreclosed. The fact that Section 10(33) and Section 115-O of the Act were brought in together; deleted and reintroduced later in a composite manner, also, does not assist the assessee. Rather, the aforesaid facts would countenance a situation that so long as the dividend income is taxable in the hands of the dividend paying company, the same is not includible in the total income of the recipient assessee. At such point of time when the said position was reversed (by the Finance Act of 2002; reintroduced again by the Finance Act, 2003), it was the assessee who was liable to pay tax on such dividend income. In such a situation the assessee was entitled under Section 57 of the Act to claim the benefit of exemption of expenditure incurred to earn such income. Once Section 10(33) and 115-O was reintroduced the position was reversed. The above, actually fortifies the situation that Section 14A of the Act would operate to disallow deduction of all expenditure incurred in earning the dividend income under Section 115-O which is not includible in the total income of the assessee.31. So far as the provisions of Section 115-O of the Act are concerned, even if it is assumed that the additional income tax under the aforesaid provision is on the dividend and not on the distributed profits of the dividend paying company, no material difference to the applicability of Section 14A would arise. Sub-sections (4) and (5) of Section 115-O of the Act makes it very clear that the further benefit of such payments cannot be claimed either by the dividend paying company or by the recipient assessee. The provisions of Sections 194, 195, 196C and 199 of the Act, quoted above, would further fortify the fact that the dividend income under Section 115-O of the Act is a special category of income which has been treated differently by the Act making the same non-includible in the total income of the recipient assessee as tax thereon had already been paid by the dividend distributing company. The other species of dividend income which attracts levy of income tax at the hands of the recipient assessee has been treated differently and made liable to tax under the aforesaid provisions of the Act. In fact, if the argument is that tax paid by the dividend paying company under Section 115-O is to be understood to be on behalf of the recipient assessee, the provisions of Section 57 should enable the assessee to claim deduction of expenditure incurred to earn the income on which such tax is paid. Such a position in law would be wholly incongruous in view of Section 10(33) of the Act.For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case.In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions. | 1 | 9,427 | 2,276 | ### 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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so read, it is clear that it disallows certain expenditure incurred to earn exempt income from being deducted from other income which is includible in the "total income" for the purpose of chargeability to tax." The views expressed in Walfort Share and Stock Brokers P. Ltd. (supra), in our considered opinion, yet again militate against the plea urged on behalf of the Assessee. 34. For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case. In this regard we may remind ourselves of what has been observed by this Court in Radhasoami Satsang v. Commissioner of Income-Tax, (1992) 193 ITR (SC) 321 [ At Page 329]. "We are aware of the fact that strictly speaking res judicata does not apply to income tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year." 39. In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions.
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of such payments cannot be claimed either by the dividend paying company or by the recipient assessee. The provisions of Sections 194, 195, 196C and 199 of the Act, quoted above, would further fortify the fact that the dividend income under Section 115-O of the Act is a special category of income which has been treated differently by the Act making the same non-includible in the total income of the recipient assessee as tax thereon had already been paid by the dividend distributing company. The other species of dividend income which attracts levy of income tax at the hands of the recipient assessee has been treated differently and made liable to tax under the aforesaid provisions of the Act. In fact, if the argument is that tax paid by the dividend paying company under Section 115-O is to be understood to be on behalf of the recipient assessee, the provisions of Section 57 should enable the assessee to claim deduction of expenditure incurred to earn the income on which such tax is paid. Such a position in law would be wholly incongruous in view of Section 10(33) of the Act.For the aforesaid reasons, the first question formulated in the appeal has to be answered against the appellant-assessee by holding that Section 14A of the Act would apply to dividend income on which tax is payable under Section 115-O of the Act.35. We may now deal with the second question arising in the case.36. Section 14A as originally enacted by the Finance Act of 2001 with effect from 1.4.1962 is in the same form and language as currently appearing in sub-section (1) of Section 14A of the Act. Sections 14A (2) and (3) of the Act were introduced by the Finance Act of 2006 with effect from 1.4.2007. The finding of the Bombay High Court in the impugned order that sub-sections (2) and (3) of Section 14A is retrospective has been challenged by the Revenue in another appeal which is presently pending before this Court. The said question, therefore, need not and cannot be gone into. Nevertheless, irrespective of the aforesaid question, what cannot be denied is that the requirement for attracting the provisions of Section 14A(1) of the Act is proof of the fact that the expenditure sought to be disallowed/deducted had actually been incurred in earning the dividend income. Insofar as the appellant-assessee is concerned, the issues stand concluded in its favour in respect of the Assessment Years 1998-1999, 1999-2000 and 2001-2002. Earlier to the introduction of sub-sections (2) and (3) of Section 14A of the Act, such a determination was required to be made by the Assessing Officer in his best judgment. In all the aforesaid assessment years referred to above it was held that the Revenue had failed to establish any nexus between the expenditure disallowed and the earning of the dividend income in question. In the appeals arising out of the assessments made for some of the assessment years the aforesaid question was specifically looked into from the standpoint of the requirements of the provisions of sub-sections (2) and (3) of Section 14A of the Act which had by then been brought into force. It is on such consideration that findings have been recorded that the expenditure in question bore no relation to the earning of the dividend income and hence the assessee was entitled to the benefit of full exemption claimed on account of dividend income.37. We do not see how in the aforesaid fact situation a different view could have been taken for the Assessment Year 2002-2003. Sub-sections (2) and (3) of Section 14A of the Act read with Rule 8D of the Rules merely prescribe a formula for determination of expenditure incurred in relation to income which does not form part of the total income under the Act in a situation where the Assessing Officer is not satisfied with the claim of the assessee. Whether such determination is to be made on application of the formula prescribed under Rule 8D or in the best judgment of the Assessing Officer, what the law postulates is the requirement of a satisfaction in the Assessing Officer that having regard to the accounts of the assessee, as placed before him, it is not possible to generate the requisite satisfaction with regard to the correctness of the claim of the assessee. It is only thereafter that the provisions of Section 14A(2) and (3) read with Rule 8D of the Rules or a best judgment determination, as earlier prevailing, would become applicable.38. In the present case, we do not find any mention of the reasons which had prevailed upon the Assessing Officer, while dealing with the Assessment Year 2002-2003, to hold that the claims of the Assessee that no expenditure was incurred to earn the dividend income cannot be accepted and why the orders of the Tribunal for the earlier Assessment Years were not acceptable to the Assessing Officer, particularly, in the absence of any new fact or change of circumstances. Neither any basis has been disclosed establishing a reasonable nexus between the expenditure disallowed and the dividend income received. That any part of the borrowings of the assessee had been diverted to earn tax free income despite the availability of surplus or interest free funds available (Rs. 270.51 crores as on 1.4.2001 and Rs. 280.64 crores as on 31.3.2002) remains unproved by any material whatsoever. While it is true that the principle of res judicata would not apply to assessment proceedings under the Act, the need for consistency and certainty and existence of strong and compelling reasons for a departure from a settled position has to be spelt out which conspicuously is absent in the present case.In the above circumstances, we are of the view that the second question formulated must go in favour of the assessee and it must be held that for the Assessment Year in question i.e. 2002-2003, the assessee is entitled to the full benefit of the claim of dividend income without any deductions.
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Sgt Chaman Lal Vs. Union Of India | that less percentage of disability suffered by the appellant per se cannot be the basis to place the appellant under category A4G3 promotable medical category. Needless to mention that the appellant had resorted to other proceedings including by way of two successive writ petitions before the High Court regarding the issue of nature of medical treatment given to him and incorrect categorisation. Findings recorded in those proceedings could have been the basis for the Tribunal to non-suit the appellant at the threshold. However, we find that the Tribunal independently considered each of the grievances of the appellant and rejected the same being devoid of merit. We fully agree with that analysis and conclusions therefor. 15. The fact that the appellant has been empanelled in the list of candidates due for promotion and also qualified the merit bench mark, does not mean that he has acquired any vested right. The promotion to the post of JWO, indisputably, is a select promotion hedged with the medical fitness eligibility criterion to be fulfilled by the incumbent. That is not so in the case of time bound promotion. We hold that there is no substance in the contention that the appellant has in fact or in law been discriminated in any manner. 16. We may now advert to the second contention pursued by the appellant, founded on Section 47 of the said Act. The said provision reads thus: "47. Non-discrimination in Government employments.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." Sub-section (1) has no application to the fact situation of the present case. Sub-section (2), is attracted to cases of promotion. It has an enabling provision in the form of a proviso. Thus, it is not an absolute stipulation, but subject to the proviso. The proviso empowers the appropriate Government to exempt any establishment from its application, by issuing notification in that behalf. Admittedly, the Government of India, Ministry of Social Justice and Empowerment has issued Notification No.16-27/2001-N 101, dated 28.03.2002 after the assent was given by the President of India in April 2002. It was published in the Official Gazette on 13.04.2002. The same reads thus: "MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT New Delhi, the 28TH March, 2002 S.O. 1179.- In exercise of the powers conferred by proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of combatant personnel of the Armed Forces from the provision of the said section. [No. 16-27/2001-NI.I] Smt. RAJWANT SANDHU, Jt. Secy." 17. The effect of issuance of this notification is to exempt the establishment in which the appellant was in service at the relevant time from the application of the provisions of the said Act. It is not the case of the appellant that the appellant was empanelled in the list of candidates due for promotion prior to the issuance of the aforesaid notification. He was empanelled for the first time for promotion post March 2002. Thus understood, the appellant cannot claim benefit of Section 47, which has no application consequent to the issuance of the stated notification. 18. It is a well established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfillment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly in 2005-06 and also in the year 2006-07, but he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case. 19. As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4G4 (P) would not be eligible for select promotion and can be considered only for time bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion. | 0[ds]9. With regard to the first contention raised by the appellant regarding discrimination, the same, in our view, has been justly rejected by the Tribunal. As aforesaid, in the original application the appellant had adverted to cases of only two officers viz. Air Commodore P. Chakraborty and Honorary Flying Officer P.K. Choudhury. During the hearing of the original application before the Tribunal, the appellant also referred to the cases of three other officers namely Warrant Officer Chandrasekhar, Warrant Officer J.B. Yadav and Cadet R.K. Herojit Singh. The relevant facts regarding the aforementioned officers have been analysed by the Tribunal and we find no infirmity in the said analysis, as the same is founded on the record before the Tribunal. The officers Air Commodore P. Chakraborty, Honorary Flying Officer P.K. Choudhury, Warrant Officer Chandrasekhar and Warrant Officer J.B. Yadav have been placed in low medical category "other than A4G4 (P)" which are promotional/promotable medical categories, unlike A4G4 (P) in which the appellant has been categorised. Indisputably, persons classified in A4G4 (P) category are not eligible for select promotion but are eligible only for time bound promotions. The appellant is claiming promotion to the post of JWO, which is a select promotion. The appellant has already been given time bound promotion as sergeant; and is working as such since 1998. The appellant has also been granted financial benefit as available to a JWO under MAC applicable w.e.f. 01.09.2008.As regards the case of Cadet R.K. Herojit Singh, the respondents have explained the circumstances in which he was commissioned, but deputed to work in the accounts department for the whole tenure as a special case and under special circumstances. His case was different (of being commissioned) because of the special circumstances; and not being a case of promotion inspite of low medical category.The argument of the appellant, that the above named officers had a higher percentage of disability and were kept in high medical category, but the appellant was not given similar benefit deserves to be rejected.No tangible reason is forthcoming to doubt the medical assessment report in the case of the appellant, categorising the appellant as A4G4 (P). The fact that the percentage of disability of the appellant is relatively less than the other named officers would make no difference. In that, the percentage of disability is not the governing factor, but the relevant consideration is the categorisation done by the Medical Board. The categorisation is based on several factors and not singularly dependent on the percentage of disability. To wit, an individual may bear more percentage of disability but would still have nil employability restrictions. The medical category is thus dependent on the employment and functional capacity of the individual which may vary from case to case. That is determined by the experts after applying the objective parameters noted in the policy document in that regard. Even otherwise, having regard to the exigencies of the service involved and in the interest of overall standard of efficiency thereof, relatively increased rigorous adherence of all relevant norms bearing on the suitability for select promotion is called for.Suffice it to observe that less percentage of disability suffered by the appellant per se cannot be the basis to place the appellant under category A4G3 promotable medical category. Needless to mention that the appellant had resorted to other proceedings including by way of two successive writ petitions before the High Court regarding the issue of nature of medical treatment given to him and incorrect categorisation. Findings recorded in those proceedings could have been the basis for the Tribunal tothe appellant at the threshold. However, we find that the Tribunal independently considered each of the grievances of the appellant and rejected the same being devoid of merit. We fully agree with that analysis and conclusions therefor.The fact that the appellant has been empanelled in the list of candidates due for promotion and also qualified the merit bench mark, does not mean that he has acquired any vested right. The promotion to the post of JWO, indisputably, is a select promotion hedged with the medical fitness eligibility criterion to be fulfilled by the incumbent. That is not so in the case of time bound promotion. We hold that there is no substance in the contention that the appellant has in fact or in law been discriminated in any(1) has no application to the fact situation of the present case.(2), is attracted to cases of promotion. It has an enabling provision in the form of a proviso. Thus, it is not an absolute stipulation, but subject to the proviso.The effect of issuance of this notification is to exempt the establishment in which the appellant was in service at the relevant time from the application of the provisions of the said Act. It is not the case of the appellant that the appellant was empanelled in the list of candidates due for promotion prior to the issuance of the aforesaid notification. He was empanelled for the first time for promotion post March 2002. Thus understood, the appellant cannot claim benefit of Section 47, which has no application consequent to the issuance of the stated notification.It is a well established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfillment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly inand also in the yearbut he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case.As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4G4 (P) would not be eligible for select promotion and can be considered only for time bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion. | 0 | 6,829 | 1,290 | ### 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:
that less percentage of disability suffered by the appellant per se cannot be the basis to place the appellant under category A4G3 promotable medical category. Needless to mention that the appellant had resorted to other proceedings including by way of two successive writ petitions before the High Court regarding the issue of nature of medical treatment given to him and incorrect categorisation. Findings recorded in those proceedings could have been the basis for the Tribunal to non-suit the appellant at the threshold. However, we find that the Tribunal independently considered each of the grievances of the appellant and rejected the same being devoid of merit. We fully agree with that analysis and conclusions therefor. 15. The fact that the appellant has been empanelled in the list of candidates due for promotion and also qualified the merit bench mark, does not mean that he has acquired any vested right. The promotion to the post of JWO, indisputably, is a select promotion hedged with the medical fitness eligibility criterion to be fulfilled by the incumbent. That is not so in the case of time bound promotion. We hold that there is no substance in the contention that the appellant has in fact or in law been discriminated in any manner. 16. We may now advert to the second contention pursued by the appellant, founded on Section 47 of the said Act. The said provision reads thus: "47. Non-discrimination in Government employments.- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." Sub-section (1) has no application to the fact situation of the present case. Sub-section (2), is attracted to cases of promotion. It has an enabling provision in the form of a proviso. Thus, it is not an absolute stipulation, but subject to the proviso. The proviso empowers the appropriate Government to exempt any establishment from its application, by issuing notification in that behalf. Admittedly, the Government of India, Ministry of Social Justice and Empowerment has issued Notification No.16-27/2001-N 101, dated 28.03.2002 after the assent was given by the President of India in April 2002. It was published in the Official Gazette on 13.04.2002. The same reads thus: "MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT New Delhi, the 28TH March, 2002 S.O. 1179.- In exercise of the powers conferred by proviso to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) the Central Government having regard to the type of work carried on hereby exempt all categories of posts of combatant personnel of the Armed Forces from the provision of the said section. [No. 16-27/2001-NI.I] Smt. RAJWANT SANDHU, Jt. Secy." 17. The effect of issuance of this notification is to exempt the establishment in which the appellant was in service at the relevant time from the application of the provisions of the said Act. It is not the case of the appellant that the appellant was empanelled in the list of candidates due for promotion prior to the issuance of the aforesaid notification. He was empanelled for the first time for promotion post March 2002. Thus understood, the appellant cannot claim benefit of Section 47, which has no application consequent to the issuance of the stated notification. 18. It is a well established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfillment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly in 2005-06 and also in the year 2006-07, but he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case. 19. As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4G4 (P) would not be eligible for select promotion and can be considered only for time bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion.
### Response:
0
### Explanation:
not eligible for select promotion but are eligible only for time bound promotions. The appellant is claiming promotion to the post of JWO, which is a select promotion. The appellant has already been given time bound promotion as sergeant; and is working as such since 1998. The appellant has also been granted financial benefit as available to a JWO under MAC applicable w.e.f. 01.09.2008.As regards the case of Cadet R.K. Herojit Singh, the respondents have explained the circumstances in which he was commissioned, but deputed to work in the accounts department for the whole tenure as a special case and under special circumstances. His case was different (of being commissioned) because of the special circumstances; and not being a case of promotion inspite of low medical category.The argument of the appellant, that the above named officers had a higher percentage of disability and were kept in high medical category, but the appellant was not given similar benefit deserves to be rejected.No tangible reason is forthcoming to doubt the medical assessment report in the case of the appellant, categorising the appellant as A4G4 (P). The fact that the percentage of disability of the appellant is relatively less than the other named officers would make no difference. In that, the percentage of disability is not the governing factor, but the relevant consideration is the categorisation done by the Medical Board. The categorisation is based on several factors and not singularly dependent on the percentage of disability. To wit, an individual may bear more percentage of disability but would still have nil employability restrictions. The medical category is thus dependent on the employment and functional capacity of the individual which may vary from case to case. That is determined by the experts after applying the objective parameters noted in the policy document in that regard. Even otherwise, having regard to the exigencies of the service involved and in the interest of overall standard of efficiency thereof, relatively increased rigorous adherence of all relevant norms bearing on the suitability for select promotion is called for.Suffice it to observe that less percentage of disability suffered by the appellant per se cannot be the basis to place the appellant under category A4G3 promotable medical category. Needless to mention that the appellant had resorted to other proceedings including by way of two successive writ petitions before the High Court regarding the issue of nature of medical treatment given to him and incorrect categorisation. Findings recorded in those proceedings could have been the basis for the Tribunal tothe appellant at the threshold. However, we find that the Tribunal independently considered each of the grievances of the appellant and rejected the same being devoid of merit. We fully agree with that analysis and conclusions therefor.The fact that the appellant has been empanelled in the list of candidates due for promotion and also qualified the merit bench mark, does not mean that he has acquired any vested right. The promotion to the post of JWO, indisputably, is a select promotion hedged with the medical fitness eligibility criterion to be fulfilled by the incumbent. That is not so in the case of time bound promotion. We hold that there is no substance in the contention that the appellant has in fact or in law been discriminated in any(1) has no application to the fact situation of the present case.(2), is attracted to cases of promotion. It has an enabling provision in the form of a proviso. Thus, it is not an absolute stipulation, but subject to the proviso.The effect of issuance of this notification is to exempt the establishment in which the appellant was in service at the relevant time from the application of the provisions of the said Act. It is not the case of the appellant that the appellant was empanelled in the list of candidates due for promotion prior to the issuance of the aforesaid notification. He was empanelled for the first time for promotion post March 2002. Thus understood, the appellant cannot claim benefit of Section 47, which has no application consequent to the issuance of the stated notification.It is a well established position that mere empanelment of an incumbent in the list of candidates due for promotion would not create any vested right in him, to be promoted on select post. At best he would only have a right to be considered for promotion. That claim of promotion would depend on the fulfillment of eligibility requirements as per the promotion policy applicable at the relevant time. The appellant did not possess the medical fitness qualification for being considered for select promotion to the post of JWO. The appellant has erroneously assumed that he was due for promotion in March 2002, which fact is not corroborated from the record. The record, however, indicates that the appellant was considered for promotion firstly inand also in the yearbut he could not qualify the merit criteria within the available vacancies in his trade rank. He was not considered nor was due for promotion to the next higher rank pre March 2002. Suffice it to observe that the dispensation stipulated in Section 47 of the said Act, has no application to the present case.As regards the third contention, the same deserves to be stated to be rejected. The fact that the appellant is doing the same job for the past eleven years, cannot be the basis to issue direction to promote the appellant notwithstanding lack of eligibility regarding medical fitness for the select promotion. There is no challenge to the promotion policy applicable at the relevant time or as is presently applicable for select promotion. That plainly commands that airmen holding medical categories A4G4 (P) would not be eligible for select promotion and can be considered only for time bound promotion. The post of JWO is admittedly a select promotion post. The appellant, therefore, cannot succeed merely on the basis of his claim of vast experience, knowledge and performance unless he fulfills the eligibility criteria including medical fitness for select promotion.
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E. Hill & Co. Ltd Vs. State of U.P. and Ors | B.N. KIRPAL (1) Special leave granted.(2) The respondent Gufran Ali who was working in the appellants unit at Khamariah was transferred to the Bisunderpur unit of the company. This transfer was challenged and the dispute was referred to the labour court. (3) In 1991 after Gufran Ali had joined at Bisunderpur unit, by letter dated 27th April, 1991 Gufran Ali was informed that his services were terminated as a result of the closure of the said unit and closure compensation and notice pay as contemplated by section 25FF of the Industrial Disputes Act amounting to Rs. 8,416.45p. was paid to him. Subsequently by another letter dated 30th May, 1991, on account of closure of the said Bisunderpur unit, the appellant paid a sum of Rs. 25,679.80p. to Gufran Ali as his provident fund dues, Rs. 6,617.45p. was paid to him on account of gratuity and Rs. 1251.30p. was paid by the appellant towards Gufran Alis leave encashment.(4) It is not in dispute that the same paid to Gufran Ali by the said letters of 27th April, 1991 and 30th May, 1991 were accepted by him. In addition to the same, by letter dated 29th November, 1991 Gufran Ali was paid a further sum of Rs. 2,432/- as bonus for the year 1991 and Rs. 96/- as bonus till his last day of working in the year 1991-92. These sums were also accepted.(5) Having accepted the aforesaid amounts, it is quite obvious that the conduct of Gufran Ali showed that even though he had challenged his transfer to Bisunderpur unit of the company he accepted his termination of services by the company on accepting all amounts which were payable to him in accordance with law on account of closure of the unit where he was working. In view of this subsequent development, the earlier challenge of Gufran Alis transfer from Khamariah to Bisunderpur, in fact, became infructuous because by his conduct he accepted the transfer when the terminal benefits which were paid to him on the closure of the unit at Bisunderpur were accepted by him. Under these circumstances the High Court fell in error in not setting aside the award of the labour court which had held that Gufran Alis transfer from Khamariah to Bisunderpur was not valid. Even if the said transfer was not in accordance with law, but, as already observed hereinabove, by subsequent conduct Gufran Ali accepted his transfer and then terminal benefits which were paid to him pursuant to the closure of the unit of Bisunderpur. | 1[ds](5) Having accepted the aforesaid amounts, it is quite obvious that the conduct of Gufran Ali showed that even though he had challenged his transfer to Bisunderpur unit of the company he accepted his termination of services by the company on accepting all amounts which were payable to him in accordance with law on account of closure of the unit where he was working. In view of this subsequent development, the earlier challenge of Gufran Alis transfer from Khamariah to Bisunderpur, in fact, became infructuous because by his conduct he accepted the transfer when the terminal benefits which were paid to him on the closure of the unit at Bisunderpur were accepted by him. Under these circumstances the High Court fell in error in not setting aside the award of the labour court which had held that Gufran Alis transfer from Khamariah to Bisunderpur was not valid. Even if the said transfer was not in accordance with law, but, as already observed hereinabove, by subsequent conduct Gufran Ali accepted his transfer and then terminal benefits which were paid to him pursuant to the closure of the unit of Bisunderpur. | 1 | 473 | 206 | ### 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:
B.N. KIRPAL (1) Special leave granted.(2) The respondent Gufran Ali who was working in the appellants unit at Khamariah was transferred to the Bisunderpur unit of the company. This transfer was challenged and the dispute was referred to the labour court. (3) In 1991 after Gufran Ali had joined at Bisunderpur unit, by letter dated 27th April, 1991 Gufran Ali was informed that his services were terminated as a result of the closure of the said unit and closure compensation and notice pay as contemplated by section 25FF of the Industrial Disputes Act amounting to Rs. 8,416.45p. was paid to him. Subsequently by another letter dated 30th May, 1991, on account of closure of the said Bisunderpur unit, the appellant paid a sum of Rs. 25,679.80p. to Gufran Ali as his provident fund dues, Rs. 6,617.45p. was paid to him on account of gratuity and Rs. 1251.30p. was paid by the appellant towards Gufran Alis leave encashment.(4) It is not in dispute that the same paid to Gufran Ali by the said letters of 27th April, 1991 and 30th May, 1991 were accepted by him. In addition to the same, by letter dated 29th November, 1991 Gufran Ali was paid a further sum of Rs. 2,432/- as bonus for the year 1991 and Rs. 96/- as bonus till his last day of working in the year 1991-92. These sums were also accepted.(5) Having accepted the aforesaid amounts, it is quite obvious that the conduct of Gufran Ali showed that even though he had challenged his transfer to Bisunderpur unit of the company he accepted his termination of services by the company on accepting all amounts which were payable to him in accordance with law on account of closure of the unit where he was working. In view of this subsequent development, the earlier challenge of Gufran Alis transfer from Khamariah to Bisunderpur, in fact, became infructuous because by his conduct he accepted the transfer when the terminal benefits which were paid to him on the closure of the unit at Bisunderpur were accepted by him. Under these circumstances the High Court fell in error in not setting aside the award of the labour court which had held that Gufran Alis transfer from Khamariah to Bisunderpur was not valid. Even if the said transfer was not in accordance with law, but, as already observed hereinabove, by subsequent conduct Gufran Ali accepted his transfer and then terminal benefits which were paid to him pursuant to the closure of the unit of Bisunderpur.
### Response:
1
### Explanation:
(5) Having accepted the aforesaid amounts, it is quite obvious that the conduct of Gufran Ali showed that even though he had challenged his transfer to Bisunderpur unit of the company he accepted his termination of services by the company on accepting all amounts which were payable to him in accordance with law on account of closure of the unit where he was working. In view of this subsequent development, the earlier challenge of Gufran Alis transfer from Khamariah to Bisunderpur, in fact, became infructuous because by his conduct he accepted the transfer when the terminal benefits which were paid to him on the closure of the unit at Bisunderpur were accepted by him. Under these circumstances the High Court fell in error in not setting aside the award of the labour court which had held that Gufran Alis transfer from Khamariah to Bisunderpur was not valid. Even if the said transfer was not in accordance with law, but, as already observed hereinabove, by subsequent conduct Gufran Ali accepted his transfer and then terminal benefits which were paid to him pursuant to the closure of the unit of Bisunderpur.
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S.G. BARAPATRE AND ORS Vs. ANANTA GAJANAN GAIKI AND ORS | Kurian Joseph, J. 1. Leave granted. 2. Permission to file special leave petition(s) is granted. 3. The appellants are before this Court, aggrieved by the orders dated 13.04.2018 in Writ Petition No.6740/2016 and dated 4.5.2018 in Review Application No.491 of 2018 in W.P. No.6740 of 2016 passed by the High Court of Judicature at Bombay, Bench at Nagpur. 4. Some of the appellants are parties before the High Court. The appellants had declined to subject themselves to caste scrutiny and, therefore, pursuant to the directions of the High Court their services are to be discontinued and their payments or dues are not to be released. The High Court further directed to recover the payments already made. The relevant paragraphs are set out below:- 65. The Food Corporation of India or the Reserve Bank of India shall forthwith discontinue and not release any payments or dues to the Respondent employees before this Court who have given up their castes and were/are still continued by them. 66. The Food Corporation of India or the Reserve Bank of India shall also initiate necessary steps within next two months to recover payments or dues released, from the Respondent employees before this Court who have given up caste claim. 5. However, we find that the very same issue was subject matter of consideration by the High Court leading to the judgment dated 1.11.2012 in Writ Petition No.5198/2009 and connected cases, in the case of appellants herein. 6. In paragraph 18 of the judgment, the Division Bench of the High Court held as under:- 18. In that view of the matter, we find that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It is declared that the petitioners would be entitled to protection of their appointments. It is further declared that if any benefits are granted after 28.11.2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to withdraw the said benefits and restore the position as on 28.11.2000. The respondents to take further necessary steps in accordance therewith. 7. The Employer, namely, Food Corporation of India challenged that order and filed special leave petition(s) before this Court, which was dismissed by order dated 12.04.2013. Review Petition(s) was also attempted and the same was also dismissed by order dated 26.02.2014. 8. Therefore, the said judgment qua the employees, who were parties to those writ petitions have become final. The benefits which have been granted, as per the judgment specifically referred to in paragraph 18 of the judgment, which is extracted above, cannot be taken away in collateral proceedings. | 1[ds]5. However, we find that the very same issue was subject matter of consideration by the High Court leading to the judgment dated 1.11.2012 in Writ Petition No.5198/2009 and connected cases, in the case of appellants herein.6. In paragraph 18 of the judgment, the Division Bench of the High Court held as under:-18. In that view of the matter, we find that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It is declared that the petitioners would be entitled to protection of their appointments. It is further declared that if any benefits are granted after 28.11.2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to withdraw the said benefits and restore the position as on 28.11.2000. The respondents to take further necessary steps in accordance therewith.7. The Employer, namely, Food Corporation of India challenged that order and filed special leave petition(s) before this Court, which was dismissed by order dated 12.04.2013. Review Petition(s) was also attempted and the same was also dismissed by order dated 26.02.2014.8. Therefore, the said judgment qua the employees, who were parties to those writ petitions have become final. The benefits which have been granted, as per the judgment specifically referred to in paragraph 18 of the judgment, which is extracted above, cannot be taken away in collateral proceedings. | 1 | 510 | 276 | ### 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:
Kurian Joseph, J. 1. Leave granted. 2. Permission to file special leave petition(s) is granted. 3. The appellants are before this Court, aggrieved by the orders dated 13.04.2018 in Writ Petition No.6740/2016 and dated 4.5.2018 in Review Application No.491 of 2018 in W.P. No.6740 of 2016 passed by the High Court of Judicature at Bombay, Bench at Nagpur. 4. Some of the appellants are parties before the High Court. The appellants had declined to subject themselves to caste scrutiny and, therefore, pursuant to the directions of the High Court their services are to be discontinued and their payments or dues are not to be released. The High Court further directed to recover the payments already made. The relevant paragraphs are set out below:- 65. The Food Corporation of India or the Reserve Bank of India shall forthwith discontinue and not release any payments or dues to the Respondent employees before this Court who have given up their castes and were/are still continued by them. 66. The Food Corporation of India or the Reserve Bank of India shall also initiate necessary steps within next two months to recover payments or dues released, from the Respondent employees before this Court who have given up caste claim. 5. However, we find that the very same issue was subject matter of consideration by the High Court leading to the judgment dated 1.11.2012 in Writ Petition No.5198/2009 and connected cases, in the case of appellants herein. 6. In paragraph 18 of the judgment, the Division Bench of the High Court held as under:- 18. In that view of the matter, we find that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It is declared that the petitioners would be entitled to protection of their appointments. It is further declared that if any benefits are granted after 28.11.2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to withdraw the said benefits and restore the position as on 28.11.2000. The respondents to take further necessary steps in accordance therewith. 7. The Employer, namely, Food Corporation of India challenged that order and filed special leave petition(s) before this Court, which was dismissed by order dated 12.04.2013. Review Petition(s) was also attempted and the same was also dismissed by order dated 26.02.2014. 8. Therefore, the said judgment qua the employees, who were parties to those writ petitions have become final. The benefits which have been granted, as per the judgment specifically referred to in paragraph 18 of the judgment, which is extracted above, cannot be taken away in collateral proceedings.
### Response:
1
### Explanation:
5. However, we find that the very same issue was subject matter of consideration by the High Court leading to the judgment dated 1.11.2012 in Writ Petition No.5198/2009 and connected cases, in the case of appellants herein.6. In paragraph 18 of the judgment, the Division Bench of the High Court held as under:-18. In that view of the matter, we find that the petitioners are entitled to limited relief, that they are praying for. In the result, the impugned show cause notices are quashed and set aside. It is declared that the petitioners would be entitled to protection of their appointments. It is further declared that if any benefits are granted after 28.11.2000 on the basis that they belong to Scheduled Tribes, the respondent Authorities are at liberty to withdraw the said benefits and restore the position as on 28.11.2000. The respondents to take further necessary steps in accordance therewith.7. The Employer, namely, Food Corporation of India challenged that order and filed special leave petition(s) before this Court, which was dismissed by order dated 12.04.2013. Review Petition(s) was also attempted and the same was also dismissed by order dated 26.02.2014.8. Therefore, the said judgment qua the employees, who were parties to those writ petitions have become final. The benefits which have been granted, as per the judgment specifically referred to in paragraph 18 of the judgment, which is extracted above, cannot be taken away in collateral proceedings.
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CENTRAL BUREAU OF INVESTIGATION Vs. MOHD.PARVEZ ABDUL KAYUUM | position, and in such a case, any member of the public acting bona fide, can move the court for relief under Article 32 and a fortiorari, also under Article 226 so that the fundamental rights may become meaningful not only for the rich and the well to do but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness, and resources unable to seek judicial redress. Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons for judicial enforcement of the fundamental rights. This Court has further observed that the provisions of Article 32 do not specifically indicate who can move the court. In the absence of such a provision in that respect, it is plain that the petitioner may be anyone in whom the law has conferred power to maintain an action of such nature. It is open to anybody who is interested in the petition under Article 32 of the Constitution for relief. The aforesaid proposition cannot be doubted. In the instant case, the petition cannot be said to have been filed bona fide as in the facts and circumstances as narrated above. In case it is at the instance of family members, their rights have been adjudicated by the High Court and concluded up to this Court. Accused persons are represented by able lawyers throughout and in criminal appeals. But unfortunate part is that they had a hand in filing of the petition by supplying the materials to the petitioner CPIL and CPIL in all fairness, ought not to have filed the petition in the form of PIL but an application should have been filed on behalf of the accused persons or any other person interested in criminal appeals. When all concerned were aware that appeal was being heard in this Court for the last 2 months before the filing of the petition, publications being made in reports when the appeal has been taken up for hearing is also not a proper scenario and may tantamount to undue interference in course of justice. 265. We have dealt with on merits the various submissions raised by the petitioner as to the falsity of the case of the prosecution and investigation in criminal appeals and have found that on merits the submissions raised to cast doubt on prosecution case by CPIL are baseless vide detailed discussion which we have made while dealing with the criminal appeals decided today by separate judgment in which we have reiterated the judgment of conviction recorded by the Trial Court. 266. During the course of arguments, we had put a query to Mr. Prashant Bhushan, learned counsel appearing on behalf of CPIL, how he can appear as counsel in the case filed by CPIL as he admittedly is a member of the executive committee of CPIL. In view of the rule of professional ethics framed by the Bar Council of India contained in section I of Chapter II of Part VI, Rule 8 is extracted hereunder: "8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation: Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. 267. Rule 8 makes an exception only if such a member is appearing as an amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. There is no exception to a body like CPIL. Mr. Prashant Bhushan learned counsel has stated that he had questioned the vires of Rule 8 by way of filing a writ petition in the High Court. In order to save vires of aforesaid Rule 8, the statement was made in the Court by the Bar Council that they are going to amend the rules, however, he submitted that the Bar Council has not amended the rules in spite of making the statement. The rule is arbitrary and ultra vires as such he can appear. 268. We are not happy with the entire scenario. There cannot be any justification to appear in violation of Rule 8, on the ground that the rule is arbitrary or ultra vires. The rule is not so far declared to be illegal or ultra vires by the Court. The Rule 8 is binding on the members of the Bar unless and until the rule in question is amended or declared to be arbitrary or ultra vires for any reason, it is to be observed scrupulously by members of the Bar. Rules of professional ethics are meant to be observed by all concerned. In case their observance is done in a breach that too before this Court and that too knowing its implication on the aforesaid canvassed untenable ground, no one can prevent breach of rules of ethics. If the Bar Council after making a statement has not amended the rule, the rule ought to have been questioned afresh in an appropriate petition. The appearance on behalf of the CPIL by a lawyer who is in the Executive Committee of the said Centre, cannot be said to be proper as it is defined misconduct under the rules. This is in breach of Rule 8 of the aforesaid Rules. We need not say any further on this. However, until it is declared ultra vires, we hold that the advocates are bound to observe the same. | 0[ds]32. In our opinion, precise rolling of the glass when he was fired at, cannot be stated by any person with precision. It is too much to expect a person to state how much rolling of the glass of windows had been done at the time of firing. Even if the witness had stated so, that would be merely his guesswork. When a person is rolling the glass up, it is possible that he might have been fired the shot when the window was quite wide open and when he was in the process of rolling it up. The person in order to save himself from the firing would also try to roll up the glass with speed then also gunshot firing can be made in the process. Thus the argument raised that there was a tiny opening of 3 inches when the shots were fired, is against the normal course of human conduct to make such statement and the way in which the incident has taken place it cannot be said with precision how much rolling of the glass of windows was done before firing took place and how much rolling was done after suffering some shots or in the process of firing. It can only be said that he was in the process of rolling the glass up when the firing tookwe consider the aforesaid report, injury No.1 is on the lower part of the front of the neck on the right side, that is on the right clavicle. The doctor has clearly expressed that injury Nos.5 and 6 are communicating ones. As a matter of fact, in communicating injuries it is not necessary that the bullet to have entered the proximal to junction of the index and middle finger. It could have passed touching the area and then caused injury on the right forearm in the process of reaching right up to the front on a lower part of the front to cause injury No.1. The medical evidence clearly establishes that injury No.5 was caused first, 6 thereafter and No.7 was ultimately caused by the same bullet and doctor has clearly explained it. While replying to question No.14, the doctor said that if the hand is reflexly kept in front of neck region on the right side and that back of the hand is facing the opposite side of the victim, bullet injury No.1 may be caused after causing injury Nos.5 and 6.The conclusion of the High Court is only right to the extent that injury Nos.5 and 6 could not be said to be entry and exit wounds. They were rather communicating wounds caused in the process of causing injury No.1. The conclusion to the contrary averred by the High Court as to independent injuries is absolutely incorrect. Testimony of PW-55 cannot be said to be falsified on the basis of aforesaid medical evidence. There is no inconsistency with respect to the aforesaid aspect in the medical version and the ocular version ofis apparent from the aforesaid answer that wound has been referred by doctor PW-8 as a small part of the body and soft tissue. Thus, it is a communicating injury of soft tissue not piercing through or entering the wrist. It is clear that injuries 5 and 6 are communicating injuries and injury No.1 has been caused by the same bullet. The entry and exit wounds have been seen and explained by the doctor in the aforesaid manner which has to be communicating one only caused by the same bullet.It was also urged that the account of a number of injuries of the bullet is not matching with the number of injuries found. There were 7 gunshot wounds whereas 5 bullets were recovered from the body of the deceased. As already explained 5 bullet injuries were caused as suggested by ocular evidence of PW-55 and also by medical evidence that 5 bullets were found as injury Nos.5 and 6 were communicating injuries leading ultimately to injury No.1 as discussed above. Thus, there is no inconsistency rather ocular evidence is fortified by the medical evidence.The accused person has relied upon "Grays Anatomy" and "A Colour Atlas of Human Anatomy" to contend that there are 32 tightly packed bones in the palm. The tightest packed are wrist bones and the carpal tunnel is just about 8.3 mm in depth (as per medical journals). A 0.32 caliber bullet has a diameter of 7.65 mm. Therefore, in the absence of any credible competent forensic explanation of the track of injuries 5 and 6, this theory set up by CBI at the stage of arguments, is liable to be dismissed.There is no dispute that the palm has tightly packed bones. In the instant case, as the bullet has not entered inside and only touched the soft tissue in injury No.5, the injury was caused on the soft tissue and then it has superficially touched the wrist.The doctor has stated in para 8 that external injuries 5 and 6 were found communicating with each other. Fracture of 2 nd right metacarpal bone was present. He has further stated that bullets were made of white metal, they were sealed, labelled and handed over to the police officer on duty. When the treating doctor was asked how there were 5 bullets and 6 entry wounds, he has opined that one injury will be of the entry of the bullet and that was precisely the communicating injuries 5 and 6 leading to injury No.1 that was the re-entry wound. Whether injury No.1 was original or re-entry, he has referred to post mortem report to opine that injury Nos.5 and 6 are communicating injuries.The High Court as well confused as to the number of injuries on the basis of 7 wounds and 5 number of bullets fired. In case of such communicating injuries, it is not necessary that the bullet should enter any part of the body while reaching to the last injury, it may cause scratch or touched the small part of the body or soft tissue as has been done in the instant case. It has happened in the instant case.it has been observed that in some cases it is difficult to determine a direction but in the instant case considering the fact that the injuries are only on the right side which is on drivers side, 3 wounds were caused on the chest and injury Nos.1, 5 and 6 were caused by the same bullet obviously fired from the drivers side window only as is apparent from the direction of communicating injuries also. There is no inconsistency in ocular and medical evidence in the instant case.In our opinion, from the statement of PW-55 it is clear that when Haren Pandya fell in the car, his leg came up. Obviously, the left leg would come up towards the drivers side and where the injury is caused to him, obviously it would be in the same direction and travel the same way it has travelled. The same is the statement of witness PW-55 made in the examination-in-chief cannot be said to be an improvement. He has stated what he has seen. It is not necessary to state every minute details in the statement under section 161 Cr.P.C. It is not for the autopsy doctor to give a vivid description as to how the deceased reacted at the time when gunshots were fired upon him as he was not an eye witness. In view of the evidence on record, the statement made by PW-55, the direction of causing of injury No. 7 is fully explained and an eye witness cannot be said to state all these details with mathematical precision. Question is whether he is otherwise reliable and whether other evidence corroborates him. Corroborating evidence is available in abundance.As to the precise distance inch-wise position at the time of firing, there is no witness who can give an exact description as suggested in a lengthy cross-examination. Lengthy cross-examination on this line was wholly uncalled for and wholly unnecessary and witness is not supposed to furnish all such details with precision. Though the witness has withstood the test of cross-examination also.In Ram Narain Singh (supra) the Court observed that the prosecution has to prove that injury was caused by the weapon in the manner as alleged. There is no dispute with the aforesaid proposition. However, the applicability of ratio has to be seen in the facts and circumstances of each case. In the instant case, the ocular evidence of PW-55 is not discredited by the medical evidence.With respect to track of bullet for injury No. 7 much was argued. As already stated in Modi?s Jurisprudence, the track of bullet may take a different course once the injury has been caused. Bullet may ricochet inside the body after causing the injury. In view of entry wound as explained in Modi?s jurisprudence too much cannot be made out of the direction when the injury could have been caused in the method and manner suggested by PW-55. The High Court while appreciating injury No.7 has not considered the fact that Haren Pandya fell down inside on adjoining seat and his left leg came up as stated by the witness. The High Court has simply proceeded on the basis that the victim was sitting on the driver?s seat or was sliding on to the adjoining seat. The aforesaid material part of the statement of witness makes it clear how the injury was caused.It was also urged that the mobile phone of Mr. Pandya was not investigated. In our opinion, it was not necessary at all in the facts of the case. It is not disputed that he had left the house in the morning toIt was urged that no fingerprints were lifted from the car or from the weapon recovered afterward and shoes were not recovered. In our opinion, it was not a case of a cold-blooded murder where there was no eye witness. Thus, when the accused has not touched the car, taking fingerprints from the car was not at all necessary and the weapon of offence has also been recovered from the accused. It was not necessary after quite some time when its recovery was made to lift the fingerprints from it. Merely non-recovery of shoes of deceased from the hospital where a large number of persons had gathered by itself is not enough to discredit prosecution case.The High Court in para 16 has observed that negligible blood was found near the driver?s seat. The clothes of the deceased bore tell- tale signs of profuse bleeding from injuries on his neck and fore-arm and mobile phone and keys lying under the seat had stains of blood. Thus, it is apparent that there was blood on the seat as well as on the mobile phone and keys which were lying on the floor.As eye witness has clearly stated the position where he was. He has been cross-examined at length, blood on cloth was found, how much, where it was found is not going to discredit the ocular version and an entire incident.When questioned about the blood, PW-8 has answered, it would depend whether haemorrhage was internal or external. If there is internal haemorrhage there would not be much blood outside. The volume of the blood on the spot would depend upon the type of injuries. Out of 7 bullet injuries, 6 were internal wounds, and on the fore-arm where minimum or less blood is possible, it was external. In answer to question No.111, the doctor has stated.The High Court has mostly proceeded on the basis that there should have been more blood found in the Maruti car. As already discussed, it would depend upon the injury whether it was internal bleeding and how a person is lying, it can also spill on the clothes and fact remains blood has also been recovered from the Maruti car. It is not necessary for how much quantity it should have been recovered. It was found on mobile phone also and keys as observed by the High Court.It was submitted that the FIR was not lodged by PW-55. The police control room was informed by IGP Mr. Suman. Thus, the conduct of PW-55 does not inspire confidence, he was not an eye witness. In our opinion, Anil Yadram, PW-55 had gone to inform the factum of the incident to the owner of Chitty Bang, Mr. Nanubhai S Wala (CW-1) at Desai Hall. It is not uncommon for a person to react in the manner PW-55 has done. He first wanted to inform the owner of the place as to the murder of Haren Pandya. He was not a literate. CW-1 has also supported the version of PW-55, the narration of incident to CW-1 by PW-55 is quite natural and inspire confidence and there is due corroboration of the version by CW-1 Nanubhai. In the circumstances, non-production of Shukla Chacha who had simply given the lift in a rickshaw to Anil Yadram, PW-55 and has taken him to the house of CW-1, Nanubhai does not cause any dent in the prosecution version. Merely on the ground of non-examination of the witness Kanhaiya, the deposition of PW-55 cannot be discarded. By the time PW-55 came back to the spot police had already arrived and the body of the deceased was taken in another vehicle to the hospital. Anil Yadram has stated to Nanubhai CW-1 that Haren Pandya had been shot dead and ?woh gadi mein ulte hokar ke pade hain? and he had seen the accused taking to their heels. It could not be said from the deposition of PW-55 that he had received the information of the incident, in fact, he has given a vivid description as eye witness noted PW-55 or CW-1 had no ill-will or malice against the accused. It does not make any difference whether Nanubhai CW-1 was examined as a court witness or as a prosecution witness. Once a witness has been examined, his evidentiary value has to be considered in accordance with the law. Once he has been examined no question to draw any adverse inference against the prosecution arises.It was submitted that CW-1 had attempted to shrink the timeline by stating that PW-55 came at around 9.15 a.m. instead of 9.45 a.m. On a rough estimate of time, no adverse inference can be drawn as to the correctness of the version by the aforesaid witness. Estimation of time may differ by some margin when a statement is made in court after years together. Merely by the fact that CW-1 asked PW-55 twice whether he had seen the incident, he said ‘yes he had seen the incident twice. That does not cause any dent in the prosecution case and does not render the statement of PW-55 doubtful in any manner. We find no embellishment or material improvement in the courts statement as compared to the one recorded under section 161 Cr.P.C. The question of whether CW-1 had asked PW-55 whether he was speaking the truth and omission of that in the statement under section 161 cannot be said to be a material omission. Material facts have been stated in the statement and there is no contradiction with respect to the material facts with the statement under section 161 Cr.P.C. as to the approximation of time also nothing can be made out by the accused.The argument was raised on behalf of A-1 that PW-55 did not mention in the examination-in-chief the time of the incident at around 7.30 a.m. He admitted that he does not have a watch. No one can tell the correct time. How by the aforesaid statement any benefit can be derived by the accused, passes comprehension as it is not uncommon that various persons do not keep a watch and they go by rough estimation of the time. It was not necessary to speak about the time of occurrence in the examination-in-chief nonetheless it has been brought about in the cross-examination. There is nothing to disbelieve the estimation of time made in the cross-examination. Time assessment may differ in some duration. It was urged that as far as the time consumed by PW-55 is concerned, the incident had not taken place at 7.30 a.m., the submission is futile. As urged, in which condition the deceased was taken to the hospital, is not material whether sitting or lying. He was taken to the hospital when he was already dead.It was urged that the conduct of PW-55 is inconsistent with that of an eye witness. The witness should have contacted to the regular walkers in the Law Garden. He did not go to the Law Garden. It is not likely that he had witnessed the incident. He has stated that he was too scared to go to the police and stated to Shukla Chacha that he wanted to tell the police. In our opinion, overall conduct of the witness is not unnatural considering the person belongs to poor strata of the society and decided to inform the owner of the Chitty Bang where his cart was parked, is not common and is very usual conduct in the course of normal human conduct.It was submitted that on the basis of the statement of PW 55 sketch Ex. 620 was prepared. There is crucial variance with the description recorded under section 161 Cr.PC. The descriptive features mentioned by him are not even reflected in the sketch. PW-55?s deposition cannot be discredited or tainted in any manner by faulty preparation of sketch. Even otherwise the evidence of sketch is not of much significance. Sometime the sketch may not tally with the version given by a witness.In view of the identification made by the witness in the test identification parade, no dent is caused by the so-called sketch in the ocular evidence of PW-55. Considering the intricate nature of the investigation, we find that there was no undue delay in holding the T.I.P. It was held on 5.5.2003 after 20 days of the arrest of the accused. The accused had been identified in the same. Jagdish Tiwari (PW-39) also, later on, had rightly identified A-1 (Mohmed Asgar Ali) as the assailant. The decision relied upon in Subash and Shiv Shankar v. State of U.P. 1987 (3) SCC 331 wherein the test identification parade was done after 3 weeks. In the facts of the said case, the identification was disbelieved. The decision is distinguishable and turns on its own facts and circumstances.It is the duty of the High Court to examine the details of the intrinsic merit of the evidence of eye-witnesses. As observed by this Court in State of U.P. v. Sahai & Ors., AIR 1981 SC 1442 , PW-55 has been cross-examined repeatedly on the same question as to Maruti Fronti came from Gajjar Hall Cross Road side which he withstood. The reason employed by the High Court that the presence of PW-55 at the gate at 7.30 a.m. (sharp) is doubtful, is also wrong as he was there because he had parked his hand cart in the Chitty Bang and the fact is corroborated by CW-1, Nanubhai who was known to him for the last 15 years. The time-frame employed by the High Court with respect to the witness travelling time that he should have come back at 10.30 a.m. and not at 11 a.m. is based on estimation as if PW55 was not a witness but was an accused. The version of the witness is not shaken by the aforesaid aspect. The timing stated by the witness is by estimation as he did not carry the watch. The High Court has adopted hyper-technical approach in assessing the evidence and has been moved by minor discrepancies which do not go to heart of the matter and shake the basic version of the prosecution witness, as held in Vijay @ Chinee v. State of M.P. 2010 (8) SCC 191 , and Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana (2011) 7 SCR 1. The High Court is also moved by the fact that PW-55 claims to have seen the kurta of Mr. Pandya and stated the colour of stripes of kurta as brown whereas stripes of kurta were red in colour. There can be confusion in identification of the colour of the kurta and memory may also fade after several years and there is not much difference between red and brown. It is a minor discrepancy which has weighed with the High Court whereas it ought to have been ignored.It was also submitted on behalf of A-1 that bullet recovered was not sent for ballistic examination and bullets produced in court differ in colour and the state of deformation recorded during post mortem. However, it is clear that it was not put to the doctor that the bullets which were produced in the court, were not the same which he has recovered.It was further submitted on behalf of the accused that the colour depends on whether it is a pure lead bullet or a bullet with a lead core covered by a jacket of zinc. A pure lead bullet is used in a revolver, a jacketed bullet with a lead core is used in a pistol. A pure lead bullet will never look white. Its colour will always be greyish black. If pure lead bullets caused the wounds on Haren Pandyas body, they would have been greyish black even when removed at the time of post mortem. The bullet sent to CFSL and later produced in court were pure lead bullets which could never have looked white. Therefore, these bullets could not be the ones recovered from the body at post mortem which were white metal bullets, seen by the four doctors conducting the post mortem. As a matter of fact, the doctor has clearly opined that white bullets were seized and they were sent for ballistic examination and they have been produced from the CFSL. In our opinion, it was necessary to put in the cross-examination of PW-8 the fact that the bullets which were produced in court were not the same which were recovered at the time of post mortem, which has not been done. Thus his testimony cannot be discredited on this aspect.On behalf of the accused, it was submitted that the chemical test on the clothes has not been done to ascertain the nature of bullets used in the offence.The test, as well as breach face mark, have to be performed which is prescribed in the CBI Forensic Manual. The test is must to eliminate by proper evidence before concluding that un- jacketed bullets had been used and therefore the revolver was used. Metal will be present in both unjacketed and jacketed bullets. No copper test was done in the case, therefore, it is not known whether the actual weapon was a pistol or revolver. In our opinion, even in the absence of the aforesaid test, the evidence conclusively establishes that the revolver was used in the offence for firing the bullets in question and that has been proved to be a weapon of the offence and recovered too.It is apparent that every fired bullet has individual characteristics in the form of minute striae along with the land and groove impression. The bullets are finally identified with the specific weapons on the basis of these striae. DW-8 has also stated that in 95 % of the cases, filing in marks alone permit identification of the firearm, but in the event of any tampering of firing pin, the expert would examine breach face mark which shall have to be compared with test fired cartridges to confirm the opinion that the cartridges are fired from the said firearm.Thus, the evidence of DW-8 also makes it clear that breach face alone is sufficient to confirm the opinion if they are found to be repetitive and also of repetitive character of the striations which are due to an individual firearm can be related to a particular firearm. In this case, while ignoring the difference caused by tampering of the firing pin found the second time, the basic striation marks remain the same which is individual for every revolver and is not to be found in any other such weapon. Thus, the evidence is conclusive to prove that the revolver in question was used in firing the bullets recovered from the body of the deceased Haren Pandya. The medical evidence, thus, supports the version of PW-55.It was submitted on behalf of the accused that Ms. Jagrutiben, wife of Haren Pandya should have been examined so as to prove that the offence took place at about 7.30 a.m. as she has stated in the statement under Section 161 Cr.P.C. tha deceased left house at around 7.00 a.m. Some of the friends of deceased and P.A. etc. later on reached the spot they have not been examined.In our opinion, no dent is caused as Jagrutiben and other persons were not the eye- witnesses. In case of any doubt, they could have been examined as defence witnesses. Jagrutiben, even if examined, would have proved the fact that deceased left for Law Garden at around 7 a.m. and he would have reached there around 7.10 a.m. No benefit can be drawn from the aforesaid aspect. No adverse inference can be drawn against prosecution due to non-examination of Jagrutiben. As estimation of time may differ and as per Jagrutiben, deceased left for Law Garden only where he used to go for a morning walk.In spite of the tampering of the firing pin, the material striations are telling the tale and overall evidence inspires confidence and no dent is caused in the prosecution case. In our considered opinion the bullets and cartridges seized from A-1 match with the revolver and bullet recovered from Haren Pandyas body. We reject the submission raised by A-1. The recovery was from the rented flat of A-1 at Ahmedabad. No one had access to the place and knowledge. Thus, the recovery at the instance of A-1 is not doubtful.Statement of PW-76, Akhtar is not at all with respect to the disclosure and discovery attributed to A-1 on the intervening night of 26.4.2003 and 27.4.2003 of a revolver, pistol, and cartridges. PW-76 has deposed as to the motorcycle. In our opinion, it was not for the police to explain as to who had put two locks on the flat as submitted by the accused. That no adverse inference can be drawn for failure to explain putting of 2 locks. In no case, locks can be attributed to CBI.The High Court has observed that in view of the concession granted by the counsel for the appellants, voluminous records and number of controversies about each piece of evidence, it was not necessary to be dealt with and each and every argument of learned counsel for both the sides. It could not be said to be the proper approach of the High Court. The High Court ought to have examined the entire background as to what facts and circumstances prevailed and whether the chain was complete to make out the case of conspiracy. It was absolutely necessary so as to find out the conspiracy. The acquittal recorded by the High Court was wholly uncalled for and is based on basically a wrong approach. It was incumbent upon the High Court to come a close quarter of reasoning employed by the trial Court and assessment of the evidence of the witnesses done by the trial court with great care, in an elaborate manner. The High Court has failed to consider the reasons and has jumped to the conclusion.This Court has observed that safeguards have been provided in various provisions made in section 32. Exclusive provisions have been made in section 32. The notable safeguards which were lacking in TADA are to be found in sub-sections (4) and (5). While interpreting the provisions of section 32(5), this Court has observed that ordinarily the person should be sent to judicial custody. In exceptional cases, police custody can be granted and not otherwise. Non-compliance with usual custody requirement does not per se vitiate the confession. In the instant case, the accused persons have been sent to judicial custody and the provisions of section 32 have been complied with in pith and substance.It was also submitted on behalf of accused persons the strength of the Parliament attack case that the Magistrate should have read out the confession or at least gist of the same for compliance of provisions of section 32(5).The magistrate should also assure the accused beforehand that he can be sent to judicial custody and thereafter it is not enough that he ends up sending him to judicial custody. The statement of the accused is read over by the S.P. and if the same is admitted to be correct, thereafter he had put his signatures. Section 32(4) requires that the person whose confession has been recorded to be produced before the Magistrate along with an ordinary statement of confession within 48 hours. The Magistrate shall record the statement, if any, made by the person so produced and get his signatures or thumb impression. If there is any complaint of torture then medical examination has to be ordered and thereafter he shall be sent to judicial custody.When we read order sheets, it is apparent that the Magistrate has recorded the statement made by the accused and has obtained the signatures. The Magistrate has clearly enquired whether he was ill-treated or tortured by the CBI while in custody, for recording a confessional statement to which he replied in the negative. The accused was asked what he wanted to say to which he responded that he made a voluntary confessional statement. Then he was remanded to judicial custody. In view of the fact that the officer of the rank of S.P. has duly recorded that he has read over the statement and the accused has admitted it to be correct, as in due compliance with the provisions of section 32, so it was not necessary for the Magistrate to read over the same again to the accused, in view of clear language employed in section 32(4) and (5) the duties enjoined upon the Magistrate have been duly observed.The application which was filed by the prosecution before Magistrate was not for police remand but for sending him to judicial custody. Thus, when the accused had been sent to judicial custody, it cannot be said that he was not aware that he was to be sent to judicial custody. Since there was no complaint of any torture and S.P. had also recorded the fact that there was no complaint of torture or any mark of injury or violence on his body, he was sent to judicial custody.The decision in Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat, (2014) 7 SCC 716 in which confessional statement was made after 11 months and the accused was given only 15 minutes? time to reflect- whether they wanted to make confessional statement and thereafter it was recorded, and it appears that the record of the case also did not reflect that it was read over. It does not appear that in the said case it was read over by the Superintendent of Police. Be that as it may. The requirement has been fulfilled in the instant case as the S.P. has read over and is so recorded, that he has read over and it was admitted to be correct and thereafter the accused has signed it. The original statements were recorded in the Hindi language which was known to the accused persons in their ownthe instant case, the confessions have been recorded from 4.6.2003 to 22.6.2003. In the instant case the accused were arrested on different dates in May and June and some were taken into custody from one case to another and then taken on police remand, and in the facts and circumstances of the present case there was no such prolonged custody so as to render the confessional statement doubtful in any manner only due to the fact of police custody. The impact of police custody would depend upon the facts of each case. What is the impact of police custody on the confessional statement has to be considered also in view of the fact whether the accused were given sufficient time to think over which was given in the instant case. They had legal assistance also as they had communicated with advocates also after they were arrested and then the S.P. explained in writing to them the consequences of making such a statement. S.P. ensured that they were not under any fear or greed etc. and that they were not tortured. Thereafter confessional statement had been made. Sufficient time for reflection had also been given. Thus, no benefit can be derived from the aforesaid decision.Learned counsel appearing on behalf of A-1 has pointed out that he remained in police custody from 17.4.2003 to 23.5.2003. Thereafter he was sent for judicial remand and again taken on police remand on 12.6.2003. After his confession in another POTA case, A-1 was remanded back to police custody from 16.5.2003 to 23.5.2003. Thus, A-1 had lost the confidence to speak out during his 10 minutes production before the Magistrate and was not sure that he may be sent to police remand again.In our opinion the submission is baseless. It cannot be said to be prolonged police custody. When several accused persons are involved in various cases and an accused is found involved in a series of cases, obviously, his police remand has to be taken in a particular case. That does not mean that he has been sent to police remand in some other cases would adversely affect the confession. What is envisaged is that with respect to the same crime, he should not normally be subjected to police remand once he makes a statement in the court with respect to his confession as we see under section 32(4) and (5), he has to be sent to judicial custody. That has been precisely followed. In the case, it cannot be said that he was subjected to prolonged police custody or he had lost the confidence that he would not be sent to judicial custody.Learned counsel on behalf of accused further submitted that in view of the decision of this Court in Shivappa v. State of Karnataka, (1995) 2 SCC 76 , searching inquiry should be made by the Magistrate before recording confessional statements.In the instant case, under section 32 of POTA, since there is a departure and confession is made to a senior police officer has been made admissible, the aforesaid decision based on section 164 Cr.P.C. is not attracted, even otherwise when we apply the aforesaid test laid down with respect to section 164 Cr.P.C. as in Shivappa (supra), in our opinion the S.P. under section 32(1), (2) and (3) and the concerned Magistrate under subsections 4 and 5 of section 32 have performed their duties effectively as per the law laid down by this Court in the aforesaid decision in which this CourtFrom the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrates jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub- section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody.The decision in Aloke Nath Dutta & Ors. v. State of West Bengal (2007) 12 SCC 230 , relied on behalf of the accused is based upon section 164 Cr.P.C. which is quite different in which the confession is recorded by the Magistrate. Section 32 is a departure from the same. S.P. is authorised to remand and he has observed all the safeguards.Thus, the decision for the aforesaid reasons has no application.There is no dispute with the aforesaid proposition. However, it would depend upon the nature of the case and the facts and circumstances and evidence in each case whether the confessional statement is truthful and is corroborated. That has to be seen in each case. In Parliament attack case (supra) certain observations have been made with respect to section 52(2) of POTA Act which specifically provided that the person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the Police Station. Section 52(3) provides that information of his arrest shall be given immediately to a family member or a relative.observations made by this Court in Parliament attack case carry the case no further as the accused were having the legal assistance after their arrest and they were never deprived of the same, and it is not their case they had asked for lawyer?s assistance during the period of reflection before confessing and they were denied the same.In the Parliament Attack case, the observation has been made by this Court in the light of the submission that the confession cannot be truly judged from the standpoint of probabilities and natural course of human conduct, though this Court has commented that they were plausible andCourt has merely laid down that confession of accused is not admissible as against co-accused person and when TADA makes the confession against co-accused admissible, it could not be said that the words co-accused were added in Section 15(1) of TADA, ex majore cautela. Through the expression, they were admissible against the accused has not been used in Section 32 of POTA. It is relevant and admissible against the maker of it.In our opinion, there was no violation of safeguards provided under the provisions of section 32(5) vis a vis any accused person. The confessions cannot be said to be inadmissible. The provisions of section 32 have been duly complied with.It was also submitted on behalf of accused persons that recording of confessions was flawed. The accused were placed in seclusion and they were not informed of the time at which they would be summoned. PW-21 has admitted that none of them called him in- between.In our opinion, the time of reflection was granted which was adequate in this case and after giving an opportunity to accused whether they wanted to make a confession after being told that it may be used against them, it was the case of observance of the aforesaid principle and it is not the case that the accused had asked for legal assistance during that period and were deprived of it. The legal aspect of the effect of confession had been duly informed to the accused persons beforehand in writing so many words, and adequate time was given for reflection so as to consider the consequence of making a confession. Nothing more could have been advised by a lawyer. Thus, by not volunteering to provide aid of lawyer in view of the fact that the case, where it was not asked for during the time of reflection, even on the assumption that it was necessary, no prejudice can be said to have been caused to any of the accused persons as they were given enough time for reflection, whether they wanted to make confession as it could be used against them. Thus, there was no breach of any of the constitutional rights flowing from Articles 21, 22(3) and 20(3) of the Constitution of India. As already mentioned that they were assisted by lawyers also in the main case when remand etc. was sought. The submission that PW-21 has stated that police custody has no relevance upon the voluntary nature of confession, which is as per counsel is against the settled jurisprudence, is also untenable for the reason that section 32 makes a voluntary confession to a police officer admissible.It was also submitted on behalf of accused persons that the use of words like ?suraksha?, ?prabandh?, ?poorva? ‘netritva? ‘anusar? ‘hatya? sampark", etc., which are highly Sanskritised words would never occur spontaneously to a Muslim of A-1s background from the Deccan/Hyderabad region. "Spontaneously to a Muslim like the background of A-1 who hails from Hyderabad", and to other accused persons, the submission is not tenable. It would depend on several factors. Firstly, the aforesaid words cannot be said to be Sanskritised. Secondly, it would depend upon the educational background of a Muslim in which he has been brought up.Merely by the fact that A-1 happens to be a Muslim, it cannot be said that he would not know these words, particularly when it would depend upon his own education and the family background in which he has been brought up. There are highly cultured and literary families found in Muslims also who know several languages not only Urdu and are known for their Tehzeeb. Thus the criticism made of the confessional statement due to use of the aforesaid words that they could not have been employed by A-1 or by other accused persons is not only unwarranted but also unacceptable and the same is liable to be and is hereby rejected.In the confessional statement accused have referred to mobile numbers cannot be said to be rendering it unreliable. It is not uncommon to remember mobile numbers and to narrate them.The argument was raised that when accused asked for a glass of water, this renders the confessional statement unworthy of credence. A police officer is not supposed to remember all these aspects and tell about them for several years and statements cannot be discredited on the ground whether the accused had asked for water or not.With respect to retraction of the confessions by all the accused persons on the same day after a month, it is apparent from the reasons recorded by the court that they have given different reasons for retraction. The court has individually heard each and every accused. A-1 has stated that his signatures had been obtained on the blank papers. A-2 has stated that was a fact that under fear of encounter, he has given the statement. A-2 says that confession has been forcibly obtained. A-4 says that he was forced to make the confession. Similar is the statement of A-5. A-6 says that he has not given any confessional statement, his signatures have been obtained. A-7 says that by hook or crook, he was asked to make this confession and was forced to make it. A-8 says that he was forced to make a confession. When he refused to sign, blinds were applied for 2 days. A- 9 says that confession is forcible, he was compelled to sign. He signed the written confession. A-12 says that his confession was forcible and was obtained under threat. A-13 also made a similar statement. Thus, it is apparent that the accused persons have not retracted their confession at first opportunity when they were produced. Reasons behind retraction also do not inspire confidence. The details with which the confessional statements have been recorded after the observance of due safeguards and other corroborative evidence on record are indicative of the fact that reasons for retraction, as stated, are not correct. There is no allegation that they were tortured by the police. In the absence of the same, it does not inspire confidence that they have signed on blank papers, etc. There was a general statement that they were under fear made by some of the accused persons. The fact remains that the statements have been recorded by the S.P., a high ranking officer as envisaged under section 32 which cannot be lightly discredited in the facts and circumstances of thethere was no mal-treatment, no manifest complaint of torture, confession appears to be voluntary and all the accused persons were sent to judicial custody. Subsequent retraction of confession is of no consequence, the same is anour opinion, the non-recovery of a water bottle from the car is not at all material as it had nothing to do with the offence in question. Every material found in the car was not required to be seized. The witness PW-55 has also said that Haren Pandya drank water from the bottle. There is no contradiction as sought to be made out on behalf of the learned counsel appearing for A-1.Confession of A-1 (Mohmed Asgar Ali) has been supported by various other evidence on the record like phone calls, recovery of the weapon, vehicle, hiring of rooms, etc. It was submitted that conduct of A-1 (Mohmed Asgar Ali) as stated in the confession does not inspire confidence. There is no conceivable reason for preserving cartridge case and weapons and spending time which must be precious to a murderer for escaping from the spot. It was not reasonable for the accused to preserve empty cartridges. There was the possibility of their recovery from the place of occurrence. In case he had thrown them at the place of occurrence, as such, in our opinion, it was not unusual for accused A-1 to carry them and he wanted to run away from the spot also as such he did not waste time in throwing them on spot and leave the evidence.In our opinion, it makes hardly any difference of one or two minutes when it is possible to travel the distance from where the calls were made by A-1 to A-14 in a few minutes and from distance of 15 to 17 km. calls in 45 minutes. Cell phone location also supports the ocular version and lends credence to the fact that murder had taken at the place near Law Garden. In addition, for tracking A-1 (Mohmed Asgar Ali), a landline at Nalgonda was used. It was proved that A-1 used phone No.9825494251. In the confession also, the number has been stated. Even on the next date of the incident, the phone was used by A-1, stands established by the prosecution.In view of overall evidence against him, we are of the view that his acquittal by High Court for murder of Haren Pandya and POTA offence deserves to be set aside and conviction and sentence as ordered by Trial Court is restored.It is thus apparent that A-5 played a vital role at all stages of conspiracy, right from the very inception, extending to the murder of Haren Pandya and the subsequent abscondment of various accused, including himself. He was present in several meetings at various Masjids where different aspects of the conspiracy were hatched and put into operation. He played a crucial role in the procurement, handling, and storage of the illegally procured arms. 7.65 mm pistol was in fact discovered and recovered at his instance. No great significance can be attached to PW-69 not supporting the prosecution. First of all, this witness was A5s first cousin. Secondly, his Section 164 CrPC statement is on record. No complaint to any authority was ever made that this statement was forcibly extracted.He was, thus, rightly convicted and sentenced by the Trial Court for commission of offence under section 3(1) r/w 3(3) of POTA as well as 120B and 120B read with 302 IPC for commission of offence of murder of Haren Pandya. The same is restored.In our view, the submissions on behalf of the accused are baseless. Alpesh Ranchhodbhai Patel (PW-11), SrinathSinh ShambhauSinh (PW-13), Manojkumar Baldevbhai (PW-17), Hemantkumar Ratilal Patel (PW-33) and Rajendra Singh S. Chhikara (PW-110) are the witnesses to corroborate the confessional statement. They are also witnesses to the recoveries of SIM cards. Alpesh Ranchhodbhai Patel (PW-11) and Manojkumar Baldevbhai (PW-17) are the witnesses of BSNL SIM cards, which were used during an incident to remain in contact with each other. Discovery of 7.5 mm pistol bearing no.EE330 at the instance of A-1 (Mohmed Asgar Ali) from Flat No.4/B, Kamar Flats was from Batiwala stove and Srinathsinh Shambhausinh (PW-13) was the witness of that discovery. In his testimony, he had discussed at length A-1 (Mohmed Asgar Ali) had hidden two weapons given to him by the accused. Jayantibhai Vitthaldas Suthar (PW-27) had proved the landline number at the house of A-6 (Mohmed Yunus Sareshwala) at A/12, Sunrise Apartment, Juhapura, and the said fact had also been admitted by A- 6 (Mohmed Yunus Sareswala). Record of mobile phone location also revealed the incriminating circumstances as proved by the evidence. Rajendra Singh S. Chhikara (PW-110) was present at Kamar Flat when the discovery was effected. Motorbike used during the commission of the offence was handed over to Javed Abdul Rashid Khan Pathan (PW-45), who turned hostile to the case of the prosecution. He had taken A-1 (Mohmed Asgar Ali) to spot and brought him back also and carried a weapon too. Keeping in view his proximity with rest of the group and his involvement in the conspiracy to kill Haren Pandya, the conviction and sentence awarded to A-6 (Mohmed Yunus Sareswala) by the Trial Court under Section 120B read with Section 302 IPC and under section 3(1) and 3(3) of the POTA, is found to be appropriate.It was submitted on behalf of accused by Shri Raju Ramachandran, learned Senior Counsel that there was no necessity to escort A-6 (Mohmed Yunus Sareshwala), who is a local resident of Ahmedabad. The CDR (Exhibit 310) has failed to show the location of the number which was being used by A-7 (Rehan Puthawala) on 26.3.2003 and the CDR was inadmissible in evidence.The allegation against the accused was far from the truth and also baseless. The evidence of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) is fraught with infirmities. There is a doubt as to whether A-7 (Rehan Puthawala) approached him for a false number plate of the motorcycle. The receipt produced contains no name and he has erased Splendor and written Yamaha against the entry of number 5189, whereas it is his original case that he was asked to prepare a number plate for Yamaha which was later changed to Splendor. The job book is recovered on 22.5.2003 whereas he has not stated that CBI has come to his shop before 23.5.2003. The statement is typed on a computer, but there is no computer at the shop of Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) and he has not been confronted with number plate in the court as a material object to identify as the one made at the behest of A-7 (Rehan Puthawala).In our opinion submissions are baseless. There is no reason for Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) to speak lie and it is apparent that he is a reliable witness and that the fake number plate of motorcycles had been got prepared by the accused was recovered and it was used at the time of the commission of the offence. Shaikh Mohmed Riyaz Hussainmiyan Pirmiyan (PW-52) is categorical about A-7 (Rehan Puthawala) and A-8 (Mohmed Riyaz) having approached him for a number plate. It was at the instance of A-7 (Rehan Puthawala) and A-8 (Mohmed Riyaz) CBI officers came to know of the place where number plates have been prepared. The motorcycle was stolen one and fake number plates have been discovered from the bushes near Tarapur Highway. It was A-10 (Parvez Khan Pathan) who left the motorcycle at Tarapur Highway in the bush. The recovery of the motorcycle is proved by Bhagwan Singh Rathod (PW-50) corroborated by Alpesh Ranchhodbhai Rathod (PW-86 - the panch witness) and by deposition of Investigating Officer, CBI and Dr. Sushilkumar S. Gupta (PW-120). The vehicle was used in killing Haren Pandya and the fake number plate was put by the accused so as to save themselves from the clutches of law and prevent identification. The guilt stand proved against the A-7 (Rehan Puthawala) as found established by the Trial Court.The conviction and sentence imposed by the Trial Court on Rehan Puthawala is found to be proper under section 3(1) and 3(3) of POTA as well as section 120B r/w section 302 IPC for commission of murder of Harenis very incredulous that prior to receiving of Court summons, this witness had no knowledge of what it was that occurred, neither did he make any inquiries in relation to A-8 (the son of DW3?s neighbour). Equally, he is himself unsure of the exact date. Therefore, even if, arguendo, his version was to be believed, it would still not dent the prosecution. Thus, there is nothing to suspect arrest of A-8.As for the discrepancies alleged in the format of the call records, these would not go to the falsify the prosecution?s case. At the time of his arrest, SIM Card was found from his pocket. Mobile Nos. 9426007240 and 9825384241 (Hutch) belonged to A8, along with mobile phone bearing IMEI No. 448478527477630). In view of the evidence on record, A-8 (Mohmed Riyaz @ Goru) had rightly been convicted and sentenced by the Trial Court for commission of offence under section 3(1) read with section 3(3) of POTA as well as under section 120B and 120B read with section 302 IPC for commission of murder of Haren Pandya. The same is restored.There is no substance in the aforesaid defence arguments. The defence did not ask for a recall of PW-21 to cross-examine him as to aforesaid aspects. Even if medical papers were produced late, nothing prevented the defence from asking for his recall. It cannot thus be concluded that PW-21 perjured himself. In fact, PW-21 was duty- bound to refer the accused persons for medical check-up every 48 hours. The outer time-limit for medical examination is provided for under D.K. Basu Guidelines. Bonafide compliance of this mandate cannot be held to be against prosecution?s case. It is to be also kept in mind that during the reflection time of 60 hours given to A-9, he was not sent for medical examination. A perusal of Ex. 772 shows that A-9 was last sent to Civil Hospital on 03.06.03 at 9.35 am. This aspect also throws light on the necessity for sending A-9 for medical check- up on 07.06.03.Lastly, the defence contention of forcible extraction of confession is also to be noted, if only to be rejected. There is no proof of the alleged torture. There is no medical evidence substantiating the same. On the other, sufficient corroboration is available for A-9?s confession. Considering the overall evidence, the Trial Court convicted and sentenced him rightly under section 3(1) read with section 3(3) of POTA as well as 120B IPC and 120B read with 302 IPC also for commission of murder of Haren Pandya. The same isaforesaid evidence clearly proves the role of A-10 (Parvez Khan Pathan) in the conspiracy to murder Haren Pandya and he has been rightly convicted by the Trial Court under POTA and for murder of Haren Pandya.It was urged on behalf of accused persons that FIR of such incident registered belatedly is doubtful. The submissions though attractive have no legs to stand.It is apparent that car was parked at Chitty Bang near Law Garden and the glasses of the car of Haren Pandya were dark and rolled up considerably and in the process of firing he fell down on the side seat. Obviously, in order to save himself, he tried to lie down and bullets were fired at him constantly one after the other by A-1 (Mohmed Asgar Ali). In the process, his legs came up. As the glasses were dark, obviously it was not possible for others to take note of the fact that Haren Pandya was lying killed in the vehicle. The eye witness - Anil Yadram Patel (PW-55) has gone to inform the owner of Chitty Bang and by the time he could come back, police had arrived at the spot and were taking Haren Pandya to Hospital. This explains the so-called delay and explains the situation of the spot and due to dark glasses, it may not have been possible for the passer-by immediately to take note of the fact that as to what had happened inside the car, which was parked on the side of Chitty Bang. Thus, the submission on behalf of accused persons cannot be accepted and the evidence discloses that family members of Haren Pandya, his P.A., and other political leaders had also arrived in the meantime at the spot on coming to know of theTrial Court has convicted A-2 (Mohmed Raouf) under Section 3(3) of POTA and sentenced him to 7 years rigorous imprisonment and the High Court has also confirmed and maintained the conviction as well as the amount of fine i.e., Rs.10,000/-. The sentence of rigorous imprisonment has been modified to the period already undergone in jail i.e., 5 years. Against the decision of the High Court, the CBI is in appeal. The minimum sentence is 5 years under Section 3(3) of POTA and by now 8 years have passed and the accused has already undergone little more than 5 years. No case for further interference is called for as CBI did not prefer an appeal against the judgment and order of the Trial Court. The decision of the High Court as to conviction and sentence under POTA is affirmed.Though, in the instant case, the trial court has found that attempt on the life of Jagdish Tiwari and the murder of Haren Pandya has been committed in the method and manner as per prosecution case. However, with regard to present accused M.J. Sheikh, it has been held that the prosecution has not been able to prove his guilt beyond the periphery ofthe case, accused persons were acquitted. Azam Khan has stated that Sohrabudin had told him that the contract to kill Haren Pandya had been given to him by IPS Officer G.D. Vanzara and that Sohrabuddin?s associate Tulsiram Prajapati along with one Naeem Khan and Shahid Rampuri murdered Haren Pandya. Azam Khan?s statement has been placed on record as Annexure P-1 on the basis whereof a news report had been carried out by the Indian Express on 5.11.2018 filed as Annexure P-2. Ajam Khan has revealed that he had given the information to the CBI in 2010. The CBI did not pay any heed to this information.As the writ petition has been filed on 22.1.2014 when this Court was finally hearing the criminal appeals with effect from December 2018 and most of documents and grounds taken are similar as such, during the course of hearing we asked Mr. Prashant Bhushan, learned counsel appearing on behalf of the petitioner that when criminal appeals were being heard by this Court at that time on the basis of almost the same grounds why PIL has been filed. In case it was felt necessary that further investigation is required, why an application was not filed seeking further investigation or re-investigation in the matter by the concerned persons or by CPIL and how the very same documents have been obtained and filed in the petition which forms part of the criminal appeal. Mr. Prashant Bhushan admitted that certain documents have been supplied by learned counsel who is appearing on behalf of the accused persons/ respondents in criminal appeals. He had consultations with said counsel to file the petition. It was considered appropriate to file a separate petition.We are not happy the way in which the writ petition has been filed. It has been filed acting obviously in conjunction with the accused persons in the case as the counsel for accused has admittedly supplied the documents to the petitioner and had consultations. It was also pointed out by Mr. Tushar Mehta that presence of the counsel appearing on behalf of CPIL and one of them appearing for the accused, has also been recorded in the writ petition in the order dated 8.2.2019. A perusal of the order dated 8.2.2019 indicates that the presence of the counsel for an accused in criminal appeals has been recorded on behalf of the petitioner CPIL along with Mr. Prashant Bhushan and Mr. Rohit K Singh, advocates. Mr. Prashant Bhushan tried to explain the aforesaid position on the ground that his clerk has wrongly given the appearance of said learned counsel who is appearing on behalf of an accused person in criminal appeals. However, as admitted by Mr. Prashant Bhushan, the said counsel was associated with him in furnishing the information, documents, etc. Be that as it may. The fact is apparent that accused persons were instrumental in getting filed this writ petition for further investigation in the case. If the accused so wanted then they ought to have approached this Court by way of filing an appropriate application in the criminal appeals only and not by way of filing a PIL, that too through the CPIL. It cannot be said to be an appropriate way of filing a writ petition for further investigation, the motive is oblique, improper and against discipline, especially when the criminal appeals were being heard finally and this Court was in seisin of the matter and judgment has been reserved ultimately on 31.1.2019. At the relevant time when the petition was filed, obviously the petitioner CPIL was well aware of the hearing of criminal appeals and that fact has not been stated in the writ petition that criminal appeals were being heard on merits for the last several months w.e.f. 1.11.2018. It is shocking and surprising that the accused have resorted to the aforesaid method of getting filed the petition in guise of the PIL by supplying the documents to CPIL in their self-interest and virtually attacking the case of the prosecution on the same grounds and whatever new material has been filed, we will discuss the value of the same hereafter.Statement of Mohd. Azam Khan who was examined as a witness in Sessions Case No.177/2013 etc. has been relied on, it was stated by him that Sohrabuddin told him that Shahid Rampuri, Naeem Khan and he got a contract to kill Haren Pandya and they had killed him. He felt sad and told Sohrabuddin that they have killed a good person. Thereafter Sohrabuddin told him that this contract of killing was given by Mr. Vanzara. In our opinion, the aforesaid statement made by Azam Khan was totally out of the context of a criminal case in which he had deposed. It was clearly an attempt as an afterthought to make the statement as to some other matter irrelevant to controversy.Azam Khan has stated that CBI recorded his statement twice in the year 2010, but he was unable to give any reason for omission in his statement recorded by the CBI. Even otherwise the statement made after more than 15 years is wholly unreliable and an afterthought and was not connected with the matter in question in which it was made. Thus, it appears to be clearly a motivated one and bundle of falsehood as he could not give any reason for omission in the previous statement in which also this issue was not involved.A book by Ms. Rana Ayyub has also been relied upon in which it has been observed that Haren Pandya?s case is like a volcano. ?Once the truth is out, (xxx) will go home. He will be jailed.? The counsel has further relied upon an article in the Outlook based upon the statement of Mr. Vithal Pandya, father of Haren Pandya. It appears from that he entertained a doubt as to the actual killer, but with no material against anybody. The Book by Rana Ayyub is of no utility. It is based upon surmises, conjectures, and suppositions and has no evidentiary value. The opinion of a person is not in the realm of the evidence. There is a likelihood of the same being politically motivated, cannot be ruled out. The way in which the things have moved in Gujarat post- Godhra incident, such allegations and counter-allegations are not uncommon and had been raised a number of times and have been found to be untenable and afterthought.The High Court has further observed that non-examination of Jagrutiben is no ground for further investigation. The High Court has also observed that in the interview published in ‘Tehelka? on 19.8.2006, it is clearly admitted by Ms. Jagrutiben that she has no proof/material with respect to political rivalry. Only on allegation of political rivalry, further investigation or re-investigation cannot be ordered. The I.O. has stated that during the investigation he did not get any material with respect to political rivalry on the basis of the vague statement of Mr. Vithalbhai Pandya, father of deceased, further investigation was not possible to be ordered against political figures. The applicant has no material to substantiate the material of political rivalry. In the absence of material, there cannot be an order for further investigation or re-investigation. On merit, the applicant has failed to make out a case for further investigation or re-investigation.Coming back to Jagrutiben, she was not an eye-witness, admittedly, and has no personal knowledge and it is apparent from the report she has stated that the deceased left the house for a morning walk at around 0645 hours/0700 hours. Thus, the doubt raised in the newspaper report was that it would not have taken half an hour to reach the Law Garden. It would have taken 10 minutes to reach Law Garden. The submission of dropping of Jagrutiben is too tenuous to be accepted. She has not unfolded any story regarding the real assailants to be someone else and in case she would have been examined, her statement would have supported the case of the prosecution that deceased had left the house in the morning only for a walk. The assessment of the time may differ by 15 to 20 minutes also or even half an hour. On the basis of approximation of the time by Jagrutiben in the newspaper reports and on the basis whereof the happening at Law Garden at 7.30 a.m. cannot be doubted at all. Deceased Haren Pandya had as per her version left for Law Garden. She was not an eye-witness to be examined in the case. Thus, it cannot be said that the prosecution has withheld her and she would have unfolded any part story which was material to the case.The SLP against the aforesaid decision in the case of Vithal Bhai of the Gujarat High Court has been dismissed by this Court on 15.7.2009. This Court condoned the delay and dismissed the SLP. Thus, the order passed by the High Court that no investigation was warranted, has attained finality.Thus, it is apparent that the matter has attained finality. Again, in criminal appeals, we have examined the case on merits as the case relates to Haren Pandya, former Home Minister of Gujarat. In our opinion on merits in view of the material that has been placed on record including that of Azam Khan?s statement and Book by Rana Ayyub, no case is made out on the basis of material placed on record so as to direct further investigation or re-investigation. There is absolutely no material for that purpose. The matter has already attained finality due to the dismissal of SLP. Even otherwise the petition has been based upon reports in the newspapers/magazines. It has been observed by this Court in Kusum Lata v. Union of India, (2006) 6 SCC 180 that newspaper reports do not constitute evidence. This Court also observed that the writ petition should be dismissed with costs so that the message goes in the right direction that a petition filed by the oblique motive does not have the approval of courts.As we are deciding the criminal appeals along with the order, we have dealt with veracity of prosecution case and fairness of investigation in our opinion the observations made by the High Court were not only uncalled for but based on incorrect appreciation of medical/forensic evidence and ignoring material evidence on record.On behalf of the petitioner, reliance has been placed on A. R. Antulay v. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500 in which private complaint lodged by Shri R.S. Nayak was held to be maintainable against A.R. Antulay, the then Chief Minister. It was urged that any person can bring to the notice of the court the fact which constitutes the offence and a Special Judge can take cognizance on such complaint or even on information received from any person other than a police officer or upon his own knowledge of the fact that the offence has been committed. | 0 | 68,492 | 12,799 | ### Instruction:
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position, and in such a case, any member of the public acting bona fide, can move the court for relief under Article 32 and a fortiorari, also under Article 226 so that the fundamental rights may become meaningful not only for the rich and the well to do but also for the large masses of people who are living a life of want and destitution and who are by reason of lack of awareness, assertiveness, and resources unable to seek judicial redress. Court can and must allow any member of the public acting bona fide to espouse the cause of such person or class of persons for judicial enforcement of the fundamental rights. This Court has further observed that the provisions of Article 32 do not specifically indicate who can move the court. In the absence of such a provision in that respect, it is plain that the petitioner may be anyone in whom the law has conferred power to maintain an action of such nature. It is open to anybody who is interested in the petition under Article 32 of the Constitution for relief. The aforesaid proposition cannot be doubted. In the instant case, the petition cannot be said to have been filed bona fide as in the facts and circumstances as narrated above. In case it is at the instance of family members, their rights have been adjudicated by the High Court and concluded up to this Court. Accused persons are represented by able lawyers throughout and in criminal appeals. But unfortunate part is that they had a hand in filing of the petition by supplying the materials to the petitioner CPIL and CPIL in all fairness, ought not to have filed the petition in the form of PIL but an application should have been filed on behalf of the accused persons or any other person interested in criminal appeals. When all concerned were aware that appeal was being heard in this Court for the last 2 months before the filing of the petition, publications being made in reports when the appeal has been taken up for hearing is also not a proper scenario and may tantamount to undue interference in course of justice. 265. We have dealt with on merits the various submissions raised by the petitioner as to the falsity of the case of the prosecution and investigation in criminal appeals and have found that on merits the submissions raised to cast doubt on prosecution case by CPIL are baseless vide detailed discussion which we have made while dealing with the criminal appeals decided today by separate judgment in which we have reiterated the judgment of conviction recorded by the Trial Court. 266. During the course of arguments, we had put a query to Mr. Prashant Bhushan, learned counsel appearing on behalf of CPIL, how he can appear as counsel in the case filed by CPIL as he admittedly is a member of the executive committee of CPIL. In view of the rule of professional ethics framed by the Bar Council of India contained in section I of Chapter II of Part VI, Rule 8 is extracted hereunder: "8. An advocate shall not appear in or before any court or tribunal or any other authority for or against an organisation or an institution, society or corporation if he is a member of the Executive Committee of such organisation or institution or society or corporation. "Executive Committee", by whatever name it may be called, shall include any Committee or body of persons which, for the time being, is vested with the general management of the affairs of the organisation or institution, society or corporation: Provided that this rule shall not apply to such a member appearing as amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. 267. Rule 8 makes an exception only if such a member is appearing as an amicus curiae or without a fee on behalf of a Bar Council, Incorporated Law Society or a Bar Association. There is no exception to a body like CPIL. Mr. Prashant Bhushan learned counsel has stated that he had questioned the vires of Rule 8 by way of filing a writ petition in the High Court. In order to save vires of aforesaid Rule 8, the statement was made in the Court by the Bar Council that they are going to amend the rules, however, he submitted that the Bar Council has not amended the rules in spite of making the statement. The rule is arbitrary and ultra vires as such he can appear. 268. We are not happy with the entire scenario. There cannot be any justification to appear in violation of Rule 8, on the ground that the rule is arbitrary or ultra vires. The rule is not so far declared to be illegal or ultra vires by the Court. The Rule 8 is binding on the members of the Bar unless and until the rule in question is amended or declared to be arbitrary or ultra vires for any reason, it is to be observed scrupulously by members of the Bar. Rules of professional ethics are meant to be observed by all concerned. In case their observance is done in a breach that too before this Court and that too knowing its implication on the aforesaid canvassed untenable ground, no one can prevent breach of rules of ethics. If the Bar Council after making a statement has not amended the rule, the rule ought to have been questioned afresh in an appropriate petition. The appearance on behalf of the CPIL by a lawyer who is in the Executive Committee of the said Centre, cannot be said to be proper as it is defined misconduct under the rules. This is in breach of Rule 8 of the aforesaid Rules. We need not say any further on this. However, until it is declared ultra vires, we hold that the advocates are bound to observe the same.
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in the year 2010, but he was unable to give any reason for omission in his statement recorded by the CBI. Even otherwise the statement made after more than 15 years is wholly unreliable and an afterthought and was not connected with the matter in question in which it was made. Thus, it appears to be clearly a motivated one and bundle of falsehood as he could not give any reason for omission in the previous statement in which also this issue was not involved.A book by Ms. Rana Ayyub has also been relied upon in which it has been observed that Haren Pandya?s case is like a volcano. ?Once the truth is out, (xxx) will go home. He will be jailed.? The counsel has further relied upon an article in the Outlook based upon the statement of Mr. Vithal Pandya, father of Haren Pandya. It appears from that he entertained a doubt as to the actual killer, but with no material against anybody. The Book by Rana Ayyub is of no utility. It is based upon surmises, conjectures, and suppositions and has no evidentiary value. The opinion of a person is not in the realm of the evidence. There is a likelihood of the same being politically motivated, cannot be ruled out. The way in which the things have moved in Gujarat post- Godhra incident, such allegations and counter-allegations are not uncommon and had been raised a number of times and have been found to be untenable and afterthought.The High Court has further observed that non-examination of Jagrutiben is no ground for further investigation. The High Court has also observed that in the interview published in ‘Tehelka? on 19.8.2006, it is clearly admitted by Ms. Jagrutiben that she has no proof/material with respect to political rivalry. Only on allegation of political rivalry, further investigation or re-investigation cannot be ordered. The I.O. has stated that during the investigation he did not get any material with respect to political rivalry on the basis of the vague statement of Mr. Vithalbhai Pandya, father of deceased, further investigation was not possible to be ordered against political figures. The applicant has no material to substantiate the material of political rivalry. In the absence of material, there cannot be an order for further investigation or re-investigation. On merit, the applicant has failed to make out a case for further investigation or re-investigation.Coming back to Jagrutiben, she was not an eye-witness, admittedly, and has no personal knowledge and it is apparent from the report she has stated that the deceased left the house for a morning walk at around 0645 hours/0700 hours. Thus, the doubt raised in the newspaper report was that it would not have taken half an hour to reach the Law Garden. It would have taken 10 minutes to reach Law Garden. The submission of dropping of Jagrutiben is too tenuous to be accepted. She has not unfolded any story regarding the real assailants to be someone else and in case she would have been examined, her statement would have supported the case of the prosecution that deceased had left the house in the morning only for a walk. The assessment of the time may differ by 15 to 20 minutes also or even half an hour. On the basis of approximation of the time by Jagrutiben in the newspaper reports and on the basis whereof the happening at Law Garden at 7.30 a.m. cannot be doubted at all. Deceased Haren Pandya had as per her version left for Law Garden. She was not an eye-witness to be examined in the case. Thus, it cannot be said that the prosecution has withheld her and she would have unfolded any part story which was material to the case.The SLP against the aforesaid decision in the case of Vithal Bhai of the Gujarat High Court has been dismissed by this Court on 15.7.2009. This Court condoned the delay and dismissed the SLP. Thus, the order passed by the High Court that no investigation was warranted, has attained finality.Thus, it is apparent that the matter has attained finality. Again, in criminal appeals, we have examined the case on merits as the case relates to Haren Pandya, former Home Minister of Gujarat. In our opinion on merits in view of the material that has been placed on record including that of Azam Khan?s statement and Book by Rana Ayyub, no case is made out on the basis of material placed on record so as to direct further investigation or re-investigation. There is absolutely no material for that purpose. The matter has already attained finality due to the dismissal of SLP. Even otherwise the petition has been based upon reports in the newspapers/magazines. It has been observed by this Court in Kusum Lata v. Union of India, (2006) 6 SCC 180 that newspaper reports do not constitute evidence. This Court also observed that the writ petition should be dismissed with costs so that the message goes in the right direction that a petition filed by the oblique motive does not have the approval of courts.As we are deciding the criminal appeals along with the order, we have dealt with veracity of prosecution case and fairness of investigation in our opinion the observations made by the High Court were not only uncalled for but based on incorrect appreciation of medical/forensic evidence and ignoring material evidence on record.On behalf of the petitioner, reliance has been placed on A. R. Antulay v. Ramdas Sriniwas Nayak & Anr., (1984) 2 SCC 500 in which private complaint lodged by Shri R.S. Nayak was held to be maintainable against A.R. Antulay, the then Chief Minister. It was urged that any person can bring to the notice of the court the fact which constitutes the offence and a Special Judge can take cognizance on such complaint or even on information received from any person other than a police officer or upon his own knowledge of the fact that the offence has been committed.
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Karimbil Kunhikoman Vs. State Of Kerala | This principle cannot be applied in a case where a person is deprived of his property under the power of eminent domain for which he is entitled to compensation. There is no reason why when two persons are deprived of their property one richer than the other, they should be paid at different rates when the property of which they are deprived is of the same kind and differs only in extent. No such principle can be applied in a case where compensation is being granted to a person for deprivation of his property. Where one person owns property valued at Rs. 15,000/- while another owns property valued at Rs. 30,000/-, both are equally deprived of the property. When therefore it comes to a question of payment of compensation we can see no reason why a person whose compensation amounts to Rs. 1,500/- should get the whole of it or a large part of it while another person whose compensation amounts to (say) Rs. 30,000/- should get something less than the first person. It is not as if there is some difference in the nature of the property which might justify different payments of compensation. What the Act provides is to work out the purchase price or the market value first for the purpose of determining compensation land then make different cuts from the purchase price or the market value according in whether in one case the purchase price or the market value is Rs. 15000/- and in another case it is more than Rs. 15,000/-.No justification is pointed out for this discrimination except the principle on which the slab system for the purpose of income-tax is justified. That principle as we have just pointed out does not apply to a case of compensation. 32. Nor are we able to see any rational classification which would justify different cuts based simply on the amount of compensation worked out on the basis of purchase price or market value. The only thing we can see is that because a person is possibly richer he must be paid less for the same type of land while a person who is poorer must he paid more. This kind of discrimination in the payment of compensation cannot in our opinion be possibly justified on the objects and purposes of the Act. The object and purpose of the Act as we have already said, is to grant rights to cultivating tenants so that they may improve their lands resulting in larger production to the benefit of the national economy. Secondly, the object of the Act is to provide land for the landless and to those who may have little land by taking excess land from those who have large tracts of lands so that peasant proprietorship may increase with consequent increase in production due to greater interest of the cultivator in the soil. But these objects have no rational relation which would justify the making of different cuts from the purchase price or the market value for the purpose of giving compensation to those whose interests are being acquired under the Act.We can therefore see no justification for giving different compensation based on different cuts from the purchase price or the market value as provided in Ss. 52 and 64 of the Act. 33. We may in this connection refer to Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91 (SB) in which a similar question with respect to compensation provided in the Bihar Land Reforms Act, 1950, came up for consideration. There the Act provided compensation at different rates depending upon the net income. The landowner having the smallest net income below Rs. 500/- was to get twenty times the net income as compensation while the landowner having the largest net income, i.e., above 1,00,000 /- was to get only three times of the net income. Intermediate slabs provided different multiples for different amounts of net income. That provision was struck down by the Special Bench of the Patna High Court as violative of Art. 14. It may be mentioned that that decision was given before the Constitution (First Amendment) Act adding Art. 31A and the Ninth Schedule to the Constitution was passed. Three learned Judges composing the Special Bench who heard that case were unanimously of the opinion that such difference in payment was violative of Art. 14 and that the principle of progressive taxation did not apply to compensation for land acquired. We are of opinion that the view taken in that case is correct and the same applies to the present case. We may point out that that case came in appeal to this Court (see State of Bihar v. Kameshwar Singh, 1952 SCR 889 ; (AIR 1952 SC 252 )). The appeal however was heard after Art. 31A and the Ninth Schedule had been introduced in the Constitution and therefore this Court had no occasion to consider whether such difference in payment of compensation would be violative of Art. 14.We are therefore clearly of opinion that the manner in which progressive cuts have been imposed on the purchase price under S. 52 and the market value under S. 64 in order to determine the compensation payable to land owners or intermediaries in one case and to persons from whom excess land is taken in another, results in discrimination and cannot be justified on any intelligible differentia which has any relation to the objects and purposes of the Act. As the provision as to compensation is all pervasive, the entire Act must be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of Madras. 34. In view of what we have said above on the main points urged in the petitions, it is unnecessary to consider other subsidiary points attacking particular sections of the Act on the ground that they were unreasonable restrictions on the right to acquire, hold and dispose of property under Art. 19(1)(f). | 1[ds]3. The questionwhether the Bill which finally received the assent of the President on January 21, 1961, had lapsed because the legislative assembly which originally passed it was dissolved and a new legislative assembly which came into being after the general elections reconsidered and re-passed it under Art. 201 of the Constitutionhas been considered by us in Writ petition No. 105 of 1961 (SC)*,judgment in which has just been delivered and it has been held there that the bill did not lapse and therefore it validly became law when the President assented to it. The attack on the Act therefore on this ground must fail*See AIR 1962 SC 694 R. 161 which provides for eligibility for grants and loans. That rule in our opinion goes beyond the scope of S. 80 in so far as it provides for making of grants or loans to persons not affected by the Act. We may in this connection refer to R. 161(a)(i) and (ii) and R. 161(b)(i) and (ii) which are so framed as to take within their scope even persons not affected by the Act, though R. 161(a)(iii) and R. 161(b)(iii) are with respect to persons who may be affected by the Act. Rule 161(a)(i) and (ii) and R.161 (b)(i) and (ii) in so far as they take in persons not affected by the Act are ultra vires of the provisions of S. 80 and must be struck down on that ground and may have to be replaced by more suitable rules. But the rules which have been actually framed will not affect the provisions of S. 80 which clearly show that the fund is for the benefit of those who are affected by the Act, namely, those who are affected by Chapters II and III of the Act, i.e., those landowners whose rights have been acquired under Ss. 41 and 42 and those persons from whom excess land is taken away under S. 62. Section 80 thus clearly shows that any surplus that may arise is not taken away by the State for its own revenue purposes but is meant to be used for the benefit of those affected by the Act and therefore even the apparent result of the difference between Ss. 45 and 52 and Ss. 64 and 72 is taken away by the constitution of the fund under S. 80, and it cannot be said at all under the circumstances that any device has been employed in the Act to take away the moneys of the landowners or the persons from whom excess land is taken away for the purpose of adding to the revenue of the State. We are therefore of opinion that the Act cannot be struck down as a colourable piece of legislation which is beyond the competence of the State LegislatureIf a term therefore is defined in any existing law in a local area which corresponds to this basic idea of an estate that term would be a local equivalent of the word "estate" in that areaTherefore, when the Constitution came into force the ryotwari pattadars of South Canara were in the same position as the ryotwari pattadars of the rest of the State of Madras. Further, as the Act of 1908 was in force in South Canara also, though there may not be many estates as defined in that Act in this area it follows that in this area also the word "estate would have the same meaning as in the Act of 1908 and therefore ryotwari pattadars and their lands would not be covered by the word "estate". Further, there can be no question of seeking for a local equivalent so far as this part of the State of Kerala which has come to it from the former State of Madras is concerned. We are therefore of opinion that lands held by ryotwari pattadars in this part which his come to the State of Kerala by virtue of the States Reorganisation Act from the State of Madras are not estates within the meaning of Art. 31A(2) (a) of the Constitution and therefore the Act is not protected under Art. 31A (1) from attack under Arts. 14, 19 and 31of the ConstitutionMaking all the presumptions in favour of the classification made under S. 2(39) it is clear that there is nothing on the face of the law or the surrounding circumstances which has been brought to our notice in this case on which the classification contained in S. 2(39) can be said to be reasonably based. Considering the object and purpose of the Act and the basis on which exemption has been granted under Chapters II and III to plantations as defined in the Act, there appears to be no reason for making any distinction between tea coffee and rubber on the one hand and areca and pepper on the other in this particular case. It is not as if tea, coffee and rubber are grown only on a large scale while areca and pepper are mostly grown on a small scale. We find from the report of the Plantation Inquiry Commission, 1956, that small holdings exist in tea, coffee and rubber plantations also and are in fact the majority of such plantations. For example, in the report of the Plantation Inquiry Commission relating to coffee at pp. 9 and 14 we find that out of the total number of registered estates more than 4,500 are between 5 acres and 25 acres while only about 2,200 estates are above 25 acres. Further there are more than 24,000 estates below 5 acres. Similary at p. 97, Chap. XI, Part III of the Report dealing with rubber, out of the total of over 26,700 rubber estates, 23,300 are up to 5 acres, 1,900 up to 10 acres and only about 1,500 above 10 acres. So it appears that the large majority of plantations whether they be of coffee or rubber are below 10 acres and that is also the case with areca and pepper plantations. Thus there in no reason for giving preference to plantations of tea, coffee and rubber over plantations of areca and pepper for the conditions in the two sets of plantations whether for the purpose of ceiling under Chap. III or for the purpose of acquisition of landowners rights under Chap. II are the same. The reason therefore which calls for exemption of tea, coffee and rubber plantations equally apply to areca and pepper plantations and there is no intelligible differentia related to the object and purpose of the Act which would justify any distinction in the case of tea, coffee and rubber plantations as against areca and pepper plantations. We are therefore of opinion that the provisions relating to plantations are violative of Art. 14 of the ConstitutionThe discriminatory nature of the provision has to be judged from the results that follow from it and we have no doubt that the results which follow from this double provision as to ceiling are bound to be discriminatory. If the ceiling had been fixed with respect to one standard whether it be of an individual person or of a natural family by which we mean a family recognised in personal law, the results may not have been discriminatory. But where the ceiling is fixed as in the present case by a double standard and over and above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provisionNo justification has been shown to us on behalf of the State for this discriminatory treatment of two individual persons; nor are we able to understand why such discrimination which clearly results from the application of the provisions of S. 58(1) is not violative of Art. 14 of the Constitution. Examples can be multiplied with reference to joint Hindu families also, which would show that in many cases discrimination will result on the application of these provisions to joint Hindu families. Similar would in our opinion be the case with Marumakhathayam and Aliyasanthana families where as we have already pointed out the husband and wife do not belong to the same family as known to personal law.Discrimination therefore is writ large on the consequences that follow from the provisions of S. 58 (1). We are therefore of opinion that S. 58 (1) is violative of the fundamental right enshrined in Art.14; as that Section is the basis of entire Chap. III the whole Chapter must fall with it. This would be an additional reason why Chap. III should be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of MadrasThat would then raise the question of adequacy of compensation and unless the cut was so large as to make the compensation illusory the cut may be protected by Art. 31(2). But in the present case there is not a uniform cut on the purchase price or the market value for all persons, the cut is higher as the purchase price or the market value gets bigger and bigger after the first slab of Rs. 15,000/-. This difference in cut is being justified on behalf of the State on the same principle on which (for example) the slab system exists for purposes of income-tax. We are however of opinion that there is no comparison between the slab system of income-tax rates and the present cuts. Taxation is a compulsory levy from each individual for the purpose of the maintenance of the State. We may therefore reasonably expect that a rich man may be required to make a contribution which may be higher than what may be proportionately due from his income for that purpose as compared to a poor man.This principle cannot be applied in a case where a person is deprived of his property under the power of eminent domain for which he is entitled to compensation. There is no reason why when two persons are deprived of their property one richer than the other, they should be paid at different rates when the property of which they are deprived is of the same kind and differs only in extent. No such principle can be applied in a case where compensation is being granted to a person for deprivation of his property. Where one person owns property valued at Rs. 15,000/- while another owns property valued at Rs. 30,000/-, both are equally deprived of the property. When therefore it comes to a question of payment of compensation we can see no reason why a person whose compensation amounts to Rs. 1,500/- should get the whole of it or a large part of it while another person whose compensation amounts to (say) Rs. 30,000/- should get something less than the first person. It is not as if there is some difference in the nature of the property which might justify different payments of compensation. What the Act provides is to work out the purchase price or the market value first for the purpose of determining compensation land then make different cuts from the purchase price or the market value according in whether in one case the purchase price or the market value is Rs. 15000/- and in another case it is more than Rs. 15,000/-.No justification is pointed out for this discrimination except the principle on which the slab system for the purpose of income-tax is justified. That principle as we have just pointed out does not apply to a case of compensationNor are we able to see any rational classification which would justify different cuts based simply on the amount of compensation worked out on the basis of purchase price or market value. The only thing we can see is that because a person is possibly richer he must be paid less for the same type of land while a person who is poorer must he paid more. This kind of discrimination in the payment of compensation cannot in our opinion be possibly justified on the objects and purposes of the Act. The object and purpose of the Act as we have already said, is to grant rights to cultivating tenants so that they may improve their lands resulting in larger production to the benefit of the national economy. Secondly, the object of the Act is to provide land for the landless and to those who may have little land by taking excess land from those who have large tracts of lands so that peasant proprietorship may increase with consequent increase in production due to greater interest of the cultivator in the soil. But these objects have no rational relation which would justify the making of different cuts from the purchase price or the market value for the purpose of giving compensation to those whose interests are being acquired under the Act.We can therefore see no justification for giving different compensation based on different cuts from the purchase price or the market value as provided in Ss. 52 and 64 of the ActAs the provision as to compensation is all pervasive, the entire Act must be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of Madras | 1 | 13,934 | 2,423 | ### Instruction:
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This principle cannot be applied in a case where a person is deprived of his property under the power of eminent domain for which he is entitled to compensation. There is no reason why when two persons are deprived of their property one richer than the other, they should be paid at different rates when the property of which they are deprived is of the same kind and differs only in extent. No such principle can be applied in a case where compensation is being granted to a person for deprivation of his property. Where one person owns property valued at Rs. 15,000/- while another owns property valued at Rs. 30,000/-, both are equally deprived of the property. When therefore it comes to a question of payment of compensation we can see no reason why a person whose compensation amounts to Rs. 1,500/- should get the whole of it or a large part of it while another person whose compensation amounts to (say) Rs. 30,000/- should get something less than the first person. It is not as if there is some difference in the nature of the property which might justify different payments of compensation. What the Act provides is to work out the purchase price or the market value first for the purpose of determining compensation land then make different cuts from the purchase price or the market value according in whether in one case the purchase price or the market value is Rs. 15000/- and in another case it is more than Rs. 15,000/-.No justification is pointed out for this discrimination except the principle on which the slab system for the purpose of income-tax is justified. That principle as we have just pointed out does not apply to a case of compensation. 32. Nor are we able to see any rational classification which would justify different cuts based simply on the amount of compensation worked out on the basis of purchase price or market value. The only thing we can see is that because a person is possibly richer he must be paid less for the same type of land while a person who is poorer must he paid more. This kind of discrimination in the payment of compensation cannot in our opinion be possibly justified on the objects and purposes of the Act. The object and purpose of the Act as we have already said, is to grant rights to cultivating tenants so that they may improve their lands resulting in larger production to the benefit of the national economy. Secondly, the object of the Act is to provide land for the landless and to those who may have little land by taking excess land from those who have large tracts of lands so that peasant proprietorship may increase with consequent increase in production due to greater interest of the cultivator in the soil. But these objects have no rational relation which would justify the making of different cuts from the purchase price or the market value for the purpose of giving compensation to those whose interests are being acquired under the Act.We can therefore see no justification for giving different compensation based on different cuts from the purchase price or the market value as provided in Ss. 52 and 64 of the Act. 33. We may in this connection refer to Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91 (SB) in which a similar question with respect to compensation provided in the Bihar Land Reforms Act, 1950, came up for consideration. There the Act provided compensation at different rates depending upon the net income. The landowner having the smallest net income below Rs. 500/- was to get twenty times the net income as compensation while the landowner having the largest net income, i.e., above 1,00,000 /- was to get only three times of the net income. Intermediate slabs provided different multiples for different amounts of net income. That provision was struck down by the Special Bench of the Patna High Court as violative of Art. 14. It may be mentioned that that decision was given before the Constitution (First Amendment) Act adding Art. 31A and the Ninth Schedule to the Constitution was passed. Three learned Judges composing the Special Bench who heard that case were unanimously of the opinion that such difference in payment was violative of Art. 14 and that the principle of progressive taxation did not apply to compensation for land acquired. We are of opinion that the view taken in that case is correct and the same applies to the present case. We may point out that that case came in appeal to this Court (see State of Bihar v. Kameshwar Singh, 1952 SCR 889 ; (AIR 1952 SC 252 )). The appeal however was heard after Art. 31A and the Ninth Schedule had been introduced in the Constitution and therefore this Court had no occasion to consider whether such difference in payment of compensation would be violative of Art. 14.We are therefore clearly of opinion that the manner in which progressive cuts have been imposed on the purchase price under S. 52 and the market value under S. 64 in order to determine the compensation payable to land owners or intermediaries in one case and to persons from whom excess land is taken in another, results in discrimination and cannot be justified on any intelligible differentia which has any relation to the objects and purposes of the Act. As the provision as to compensation is all pervasive, the entire Act must be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of Madras. 34. In view of what we have said above on the main points urged in the petitions, it is unnecessary to consider other subsidiary points attacking particular sections of the Act on the ground that they were unreasonable restrictions on the right to acquire, hold and dispose of property under Art. 19(1)(f).
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above that the family has been given an artificial definition which does not correspond with a natural family as known to personal law, there is bound to be discrimination resulting from such a provisionNo justification has been shown to us on behalf of the State for this discriminatory treatment of two individual persons; nor are we able to understand why such discrimination which clearly results from the application of the provisions of S. 58(1) is not violative of Art. 14 of the Constitution. Examples can be multiplied with reference to joint Hindu families also, which would show that in many cases discrimination will result on the application of these provisions to joint Hindu families. Similar would in our opinion be the case with Marumakhathayam and Aliyasanthana families where as we have already pointed out the husband and wife do not belong to the same family as known to personal law.Discrimination therefore is writ large on the consequences that follow from the provisions of S. 58 (1). We are therefore of opinion that S. 58 (1) is violative of the fundamental right enshrined in Art.14; as that Section is the basis of entire Chap. III the whole Chapter must fall with it. This would be an additional reason why Chap. III should be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of MadrasThat would then raise the question of adequacy of compensation and unless the cut was so large as to make the compensation illusory the cut may be protected by Art. 31(2). But in the present case there is not a uniform cut on the purchase price or the market value for all persons, the cut is higher as the purchase price or the market value gets bigger and bigger after the first slab of Rs. 15,000/-. This difference in cut is being justified on behalf of the State on the same principle on which (for example) the slab system exists for purposes of income-tax. We are however of opinion that there is no comparison between the slab system of income-tax rates and the present cuts. Taxation is a compulsory levy from each individual for the purpose of the maintenance of the State. We may therefore reasonably expect that a rich man may be required to make a contribution which may be higher than what may be proportionately due from his income for that purpose as compared to a poor man.This principle cannot be applied in a case where a person is deprived of his property under the power of eminent domain for which he is entitled to compensation. There is no reason why when two persons are deprived of their property one richer than the other, they should be paid at different rates when the property of which they are deprived is of the same kind and differs only in extent. No such principle can be applied in a case where compensation is being granted to a person for deprivation of his property. Where one person owns property valued at Rs. 15,000/- while another owns property valued at Rs. 30,000/-, both are equally deprived of the property. When therefore it comes to a question of payment of compensation we can see no reason why a person whose compensation amounts to Rs. 1,500/- should get the whole of it or a large part of it while another person whose compensation amounts to (say) Rs. 30,000/- should get something less than the first person. It is not as if there is some difference in the nature of the property which might justify different payments of compensation. What the Act provides is to work out the purchase price or the market value first for the purpose of determining compensation land then make different cuts from the purchase price or the market value according in whether in one case the purchase price or the market value is Rs. 15000/- and in another case it is more than Rs. 15,000/-.No justification is pointed out for this discrimination except the principle on which the slab system for the purpose of income-tax is justified. That principle as we have just pointed out does not apply to a case of compensationNor are we able to see any rational classification which would justify different cuts based simply on the amount of compensation worked out on the basis of purchase price or market value. The only thing we can see is that because a person is possibly richer he must be paid less for the same type of land while a person who is poorer must he paid more. This kind of discrimination in the payment of compensation cannot in our opinion be possibly justified on the objects and purposes of the Act. The object and purpose of the Act as we have already said, is to grant rights to cultivating tenants so that they may improve their lands resulting in larger production to the benefit of the national economy. Secondly, the object of the Act is to provide land for the landless and to those who may have little land by taking excess land from those who have large tracts of lands so that peasant proprietorship may increase with consequent increase in production due to greater interest of the cultivator in the soil. But these objects have no rational relation which would justify the making of different cuts from the purchase price or the market value for the purpose of giving compensation to those whose interests are being acquired under the Act.We can therefore see no justification for giving different compensation based on different cuts from the purchase price or the market value as provided in Ss. 52 and 64 of the ActAs the provision as to compensation is all pervasive, the entire Act must be struck down as violative of Art. 14 in its application to ryotwari lands which have come to the State of Kerala from the State of Madras
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Collector Of Customs, Bombay Vs. Swastic Woollen (P) Ltd. & Ors | Advice which suggested that wool wastes may consist of free fibres and clippings, cuttings, etc. These should not consist of long lengths of yarn or of rovings or slivers. The Tribunal was of the view that rovings, slivers/tops of short lengths or ends alone could be considered as wool wastes. The wool contents of the present disputed consignments are more than 98 per cent or completely wool and it is not mixed with any other wastes. The lengths of samples were not less than 3 metres but ranged between 3 to 30 metres or even more. It was, therefore, urged that these could not be treated appropriately as wool wastes.The Tribunal, however, noted that the experts produced by the importers are said to be based their views on their experience, no literature or evidence regarding accepted trade practice with regard to any technical literature has been produced. The experts had no occasion to see the goods in dispute. It appeared before the Tribunal when the consignment was examine for the first time, the customs staff reported that the goods could be considered as wool wastes. The expert panels report was not unanimous. The report did not say that the subject-goods were the result of deliberate cutting of slivers. It said that the fibres were of varying, different lengths. But the majority report considered that the goods were not wastes apparently on the basis of the length of the fibres being above 3 metres. The term "wool waste" could cover slivers provided these were not deliberately cut and were not of uniform length. The evidence produced in support of the contention that slivers up to, and even more than 15 metres in length could be considered as wastes was, without justification, ignored. The Tribunal noted all these. It is clear that the goods comprised fibres of uniform length, the result of deliberate cutting. That was the basis on which the Additional Collector proceeded but there was no evidence to that effect. After taking all these factors and submissions into consideration, the Tribunal came to the conclusion that these are classed as "wool wastes". The propriety and the validity of this finding is under challenge. 4. The Additional Solicitor-General, appearing for the appellant, contended that the Tribunal has ignored vital material and relevant factors. He submitted that Technical Committees report about the expression "wool waste", C.C.C.N.s observations and the Boards Tariff Advice had been ignored. We are unable to accept this criticism advanced on behalf of the Revenue.The short question involved before the Tribunal and the validity of which is under challenge in these appeals is, whether the goods in question are wool wastes. If these are then these are entitled to exemption under the relevant notification and if these are not wool wastes, these are not entitled to exemption. 5. The expression "wool wastes" is not defined in the relevant Act or in the notification. This expression is not an expression of art. It may be understood as in most of financial measures where the expressions are not defined not in a technical or preconceived basis but on the basis of trade understanding of those who deal with these goods as mentioned hereinbefore. The Tribunal proceeded on that basis. The Tribunal has not ignored the Technical Committees observations. We have noted in brief the Tribunals handling of that report. The Tribunal has neither ignored the observations of C.C.C.N. nor the Boards Tariff Advice. These observations have been examined in the light of the facts and circumstances of the case. One of the basic factual disputes was long length of sliver tops. Having regard to the long length, we find that the Tribunal was not in error. Whether a particular item and the particular goods in this case are wool wastes, should be so considered or not is primarily and essentially a question of fact. The decision on such a question of fact must be arrive at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority, be it the Supreme Court or the High Court, may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under section 130E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of section 130E of the Act.In the facts and in the circumstances, in our opinion, the Tribunal has acted within jurisdiction. The Tribunal has taken all relevant and material facts into consideration. The Tribunal has not ignored any relevant and material facts. The Tribunal has not applied any wrong principles of law. Therefore, the decision of the Tribunal is unassailable even in the appeal before this Court. 6. | 0[ds]The expression "wool wastes" is not defined in the relevant Act or in the notification. This expression is not an expression of art. It may be understood as in most of financial measures where the expressions are not defined not in a technical or preconceived basis but on the basis of trade understanding of those who deal with these goods as mentioned hereinbefore. The Tribunal proceeded on that basis. The Tribunal has not ignored the Technical Committees observations. We have noted in brief the Tribunals handling of that report. The Tribunal has neither ignored the observations of C.C.C.N. nor the Boards Tariff Advice. These observations have been examined in the light of the facts and circumstances of the case. One of the basic factual disputes was long length of sliver tops. Having regard to the long length, we find that the Tribunal was not in error.Whether a particular item and the particular goods in this case are wool wastes, should be so considered or not is primarily and essentially a question of fact.The decision on such a question of fact must be arrive at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority, be it the Supreme Court or the High Court, may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under section 130E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of section 130E of the Act.In the facts and in the circumstances, in our opinion, the Tribunal has acted within jurisdiction. The Tribunal has taken all relevant and material facts into consideration. The Tribunal has not ignored any relevant and material facts. The Tribunal has not applied any wrong principles of law. Therefore, the decision of the Tribunal is unassailable even in the appeal before this Court. | 0 | 2,864 | 577 | ### Instruction:
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Advice which suggested that wool wastes may consist of free fibres and clippings, cuttings, etc. These should not consist of long lengths of yarn or of rovings or slivers. The Tribunal was of the view that rovings, slivers/tops of short lengths or ends alone could be considered as wool wastes. The wool contents of the present disputed consignments are more than 98 per cent or completely wool and it is not mixed with any other wastes. The lengths of samples were not less than 3 metres but ranged between 3 to 30 metres or even more. It was, therefore, urged that these could not be treated appropriately as wool wastes.The Tribunal, however, noted that the experts produced by the importers are said to be based their views on their experience, no literature or evidence regarding accepted trade practice with regard to any technical literature has been produced. The experts had no occasion to see the goods in dispute. It appeared before the Tribunal when the consignment was examine for the first time, the customs staff reported that the goods could be considered as wool wastes. The expert panels report was not unanimous. The report did not say that the subject-goods were the result of deliberate cutting of slivers. It said that the fibres were of varying, different lengths. But the majority report considered that the goods were not wastes apparently on the basis of the length of the fibres being above 3 metres. The term "wool waste" could cover slivers provided these were not deliberately cut and were not of uniform length. The evidence produced in support of the contention that slivers up to, and even more than 15 metres in length could be considered as wastes was, without justification, ignored. The Tribunal noted all these. It is clear that the goods comprised fibres of uniform length, the result of deliberate cutting. That was the basis on which the Additional Collector proceeded but there was no evidence to that effect. After taking all these factors and submissions into consideration, the Tribunal came to the conclusion that these are classed as "wool wastes". The propriety and the validity of this finding is under challenge. 4. The Additional Solicitor-General, appearing for the appellant, contended that the Tribunal has ignored vital material and relevant factors. He submitted that Technical Committees report about the expression "wool waste", C.C.C.N.s observations and the Boards Tariff Advice had been ignored. We are unable to accept this criticism advanced on behalf of the Revenue.The short question involved before the Tribunal and the validity of which is under challenge in these appeals is, whether the goods in question are wool wastes. If these are then these are entitled to exemption under the relevant notification and if these are not wool wastes, these are not entitled to exemption. 5. The expression "wool wastes" is not defined in the relevant Act or in the notification. This expression is not an expression of art. It may be understood as in most of financial measures where the expressions are not defined not in a technical or preconceived basis but on the basis of trade understanding of those who deal with these goods as mentioned hereinbefore. The Tribunal proceeded on that basis. The Tribunal has not ignored the Technical Committees observations. We have noted in brief the Tribunals handling of that report. The Tribunal has neither ignored the observations of C.C.C.N. nor the Boards Tariff Advice. These observations have been examined in the light of the facts and circumstances of the case. One of the basic factual disputes was long length of sliver tops. Having regard to the long length, we find that the Tribunal was not in error. Whether a particular item and the particular goods in this case are wool wastes, should be so considered or not is primarily and essentially a question of fact. The decision on such a question of fact must be arrive at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority, be it the Supreme Court or the High Court, may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under section 130E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of section 130E of the Act.In the facts and in the circumstances, in our opinion, the Tribunal has acted within jurisdiction. The Tribunal has taken all relevant and material facts into consideration. The Tribunal has not ignored any relevant and material facts. The Tribunal has not applied any wrong principles of law. Therefore, the decision of the Tribunal is unassailable even in the appeal before this Court. 6.
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The expression "wool wastes" is not defined in the relevant Act or in the notification. This expression is not an expression of art. It may be understood as in most of financial measures where the expressions are not defined not in a technical or preconceived basis but on the basis of trade understanding of those who deal with these goods as mentioned hereinbefore. The Tribunal proceeded on that basis. The Tribunal has not ignored the Technical Committees observations. We have noted in brief the Tribunals handling of that report. The Tribunal has neither ignored the observations of C.C.C.N. nor the Boards Tariff Advice. These observations have been examined in the light of the facts and circumstances of the case. One of the basic factual disputes was long length of sliver tops. Having regard to the long length, we find that the Tribunal was not in error.Whether a particular item and the particular goods in this case are wool wastes, should be so considered or not is primarily and essentially a question of fact.The decision on such a question of fact must be arrive at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority, be it the Supreme Court or the High Court, may have a different perspective of that question, in our opinion, is no ground to interfere with that finding in an appeal from such a finding. In the new scheme of things, the Tribunals have been entrusted with the authority and the jurisdiction to decide the questions involving determination of the rate of duty of excise or to the value of goods for purposes of assessment. An appeal has been provided to this Court to oversee that the subordinate tribunals act within the law. Merely because another view might be possible by a competent court of law is no ground for interference under section 130E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking order, in our opinion, even if superior court feels that another view is possible, that is no ground for substitution of that view in exercise of power under clause (b) of section 130E of the Act.In the facts and in the circumstances, in our opinion, the Tribunal has acted within jurisdiction. The Tribunal has taken all relevant and material facts into consideration. The Tribunal has not ignored any relevant and material facts. The Tribunal has not applied any wrong principles of law. Therefore, the decision of the Tribunal is unassailable even in the appeal before this Court.
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Harendra H. Mehta Vs. Mukesh H. Mehta | Harendra or Plan A, the united States package, and B-1, the united States package, and B-1, the Indian note, which we are collectively marking at this proceeding as Exhibit C. The United States Package is four pages and the Indian Note is four pages. there is a total of eight pages in Exhibit C. (Plan A and Plan B-1, the Indian Note, marked as Exhibit C for Identification). MR. KHANNA : Each of these pages have been initialed by Amita Mehta and the attorneys immediately below the Exhibit mark. THE COURT : I would also like the reporter to mark as Exhibit D, the Power of Attorney, going from Harendra to Amita. (Power of Attorney marked as Exhibit `D for identification.) THE COURT : Regarding transfer documents, it is my understanding and the arbitrators understanding, that an agreement has been made regarding these transfer documents. MR. SCIACCA : Correct, that is provided for in a transfer agreement. THE COURT : according to the original submission, the arbitrator had two fold function. One was to make the award. And two was to implement that award. Again a mere look at the agreement shows that it is not an agreement for transfer as understood in clause (a) of Section 269 UA of Chapter XX-C of the IT Act. The settlement agreement also does not stipulate exchange of any immoveable property. It rather divides equally businesses and properties between Harendra and Mukesh. Exchange has been defined under Section 118 of the Transfer of Property Act where two persons mutually transfer of Property Act where two persons mutually transfer the ownership of one thing for ownership of another. When we consider exchange of immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property which is defined in clause (d) of Section 269UA. It is difficult to appreciate the arguments of Mr. Ganesh as to how in the present case, there is transfer of any immovable property under the settlement agreement. It appears to us that the bone of contention is a flat in Urvashi building in Mumbai which formed part of B+A1 of Mukesh. It was not disputed before us that for this the appellants did execute a gift deed in favour of the respondents on advice received but n steps were taken to compel the transaction as, it appears, relations soured. This would also show that the settlement agreement on the award did not require filing of any declaration under Chapter XX-C of the IT Act. Moreover, in our view in the case of a foreign award, provisions of Chapter XX-C of the IT Act are not attracted. It was said that under Chapter XX-C a net has been thrown wide to bring within its purview all sorts of immovable properties but that net is not wide enough to cover foreign award covering businesses and properties both in India and in a foreign country. Apprehension of Mr. Ganesh that if we give this interpretation a method can be found by the parties to escape the rigour of Chapter XX-C knocking at the very provision of law which strikes at the root of black-money rampant in the sale and purchase of immovable property. If that is so, legislature can always step in to block the gap if it finds there is any escapement of revenue. We are also of the view that a foreign award under the Foreign Awards Act does not require registeration under the Registration Act. 43. A decree or order of a court does not require registration under clause (b) of sub-section (1) of Section 17 of the Registration Act. This is the effect of clause (vi) of Section 2 of Section 17. Earlier under this clause (vi) before its amendment in 1929 even an award did not require registration. However, after omission of the words and any award an award creating or declaring right or interest in immovable property of the value of Rs. 100 would require registration. But then that award would be an award under the Arbitration Act, 1940 and certainly not an foreign award. 44. Let us examine this argument of Mr. Ganesh that foreign award required registration from another angle. He said that the foreign award has already merged in the foreign judgment on the basis of which Mukesh has brought suit in the Bombay High Court. A foreign judgment does not require registration as the process of suit having been decreed on that basis will have to be gone through. When a decree is passed by the Court, it does not require registration in view of clause (vi) of sub-section 2 of Section 17 of the Registration Act. A decree or order of a court affecting the rights mentioned in Section 17(1)(b) and (c) would not require registration. It would, however, require registration where the decree or order on the basis of compromise affects the immovable property other than that which is the subject matter of the suit or proceeding. Even a decree passed by the foreign court execution of which is sought under Section 44A of the Code of Civil Procedure would not require registration. That being the position, we are of the view that foreign award under the provisions of the Foreign Awards Act does not require registration under the Registration Act. In any case, in the present case the award creates a right to obtain transfer and closing documents which as regards Indian properties and businesses are yet to be executed by D.M. Harish & Co., Chartered Accountants. Decision of this Court in Mrs. Tehmi P. Sidhwa case, 1974(2) SCC 579 as rightly pointed by Mr. Dholakia, learned counsel appearing for the respondents, would be fully applicable and the argument that the award required registration has to be rejected on this ground as well. | 0[ds]matter came to this Court on a certificate granted by the High Court under Article 134A read with Article 134(1)(c) of the Constitution. The impugned judgment had been rendered by a single Judge. There was some controversy if a single Judge could grant such a certificate. However, considering the importance of the issue involved, this Court admitted the appeal. The controversy, therefore, does not survive in the present appeal.In our view these two judgments do not help the appellants. Rather the stress in these judgments is that broad and not restricted construction should be given to the word commercial appearing in Section 2 of the Foreign Awards Act. In R.M. Investment and Trading Companies Pvt. Limiteds case, terms of the agreement required the petitioner to play an active role in promoting the sale and to provide commercial and managerial assistance and information which may be helpful in respondents sales efforts. It was held that relationship between the appellants and respondents was of commercial nature. This Court said that the word commercial under Section 2 of the Foreign Awards Act should be liberally construed. In Renusagars case no doubt this Court observed that the Foreign Awards Act was calculated and designed to subserve the cause of facilitating international trade and promotion thereof by providing for speedy settlement of disputes arising in such trade through arbitration and also said that any expression or phrase occurring therein should receive consistent with its literal and grammatical sense, a liberal construction.We do not understand as to how it could be said that the award was not a foreign award. All the ingredients of foreign award were there. Parties were having business both in India and in the United States of America as a joint venture and they also acquired properties. Differences that arose between the parties were out of legal relationships and certainly of commercial nature under the laws of this country. Agreement to refer the disputes to arbitration, in writing, was made in the United States where arbitration proceedings held and award given. It is not disputed that United States is a country to which clause (b) of Section 2 of the Foreign Awards Act applies. In the present case, the parties are no doubt related to each other but that could not take the award outside the ambit of the Foreign Awards Act. We asked Mr. Ganesh as to what would happen if there were two strangers having businesses both in India and in United States or when there was a joint venture between an Indian and a US national having properties both moveable and immovable in both the countries and disputes having arisen and award given in the United States. Mr. Ganesh, in spite of his resourcefulness, was unable to give any convincing reply. There is no merit in the objection of the appellant that the award is not a foreign award and that it is outside the Foreign Awards Act.judgment hardly helps Mr. Ganesh in his submissions. In the present case, the parties entered into the settlement during pendency of the arbitration proceedings. Appellant himself approached the courts in the United States never complaining that it was not an award. In proceedings under CPLR 7507 and CPLR 7510. Harendra had even accepted the execution of the settlement agreement and the award made by the arbitrator. We find that no such plea was taken either in the High Court or in the grounds of appeal to this Court. Nassau County Court noticed the functions to be performed by the arbitrator in the settlement agreement. We do not find any merit in the argument of Mr. Ganesh that arbitration agreement stood revoked when the parties during the course of arbitration proceedings entered into a settlement among themselves and yet wanted the arbitrator to give his award in terms thereof. It is nobodys case that authority of the arbitrator was revoked at any time. This argument of Mr. Ganesh seems to us to be made in more desperation24. Nassau County Court did not modify the award as such it merely corrected the award so as to conform to the law of the State of New York25. Contention of the appellants that fraud was committed subsistuting schedules in the award which schedules formed part of the settlement agreement referring disputes to arbitration was also a subject matter of challenge in Nassau County Court by the appellants which was rejected.Supreme Court of New York, Appellate Division rejected the appellants plea regarding fraudulent substitution of the schedules to the award. It will be seen that a competent court in the State of New York rejected the contention of the appellants that any fraud had been committed. Therefore, sub-section (2) of Section 7 of the Foreign Awards Act would not be applicable. There are no conditions now exist under sub-section (1) of Section 7 of the Foreign Awards Act not to enforce the award on the alleged ground of fraud. We find no merit in the plea of the appellant that schedules to the award were substituted. This contention of the appellants must fail.judgment, in our view, is not applicable in the present case. If read out of context, it may appear to be so applicable but it is not so.The judgment of this Court in Badat & Co. is based on the English Common Law. Provisions of the Arbitration (Protocol and Convention) Act, 1937 were held to be inapplicable to the facts of the case. Here we are concerning with the provisions of Foreign Awards Act which give effect to the Convention on the Recognition and Enforcement of Foreign Arbitral) Awards held at New York on June 10, 1958 to which India was a party. To enforce a foreign award, what we have to see is : if it is a foreign award within the meaning of Section 2 of the Foreign Awards Act and conditions as prescribed by Section 7 for its enforcement exist. Under Section 4 of this Act, a foreign award shall, subject to the provisions of the Act, be enforceable in India as if it were an award made on a matter referred to arbitration in India. The Court has to apply the provisions of the Foreign Awards Act to enforce a foreign award within the meaning of Section 2 of the said Act. It would not be relevant to consider if the said Act. It would not be relevant to consider if the foreign award has attained finality in the country where it was made. Further, if a judgment has been obtained on the basis of the award in the country of its origin, the person in whose favour the judgment is made may also be entitled to file suit in this country based on that judgment if it satisfies the criteria laid by law in this country. That may give that person an alternative mode to enforce the award but that would not mean that the provision of Foreign Award Act can be given a go by. We, therefore, find no force in the submission of Mr. Ganesh that once the award attained finality in the Supreme Court of New York, proceedings to enforce foreign award would not be maintainable and that only suit could be filed on the foreign judgment, being the judgment given by the Supreme Court of New York.Thus, as held in Renusagars case, 1984(4) SCC 679 Foreign Awards Act is a complete Code in itself providing for all the possible contingencies in relation to foreign awards. Once it is held that an award is a foreign award, the provisions of the foreign Awards Act would apply and where the conditions for enforcement of such an award exist as mentioned in Section 7 of this Act, the Court shall order the award to be filed and shall proceed to pronounce judgment granting award and upon the judgment so pronounced, decree shall follow. It is not material for the purpose of enforcement of a foreign award under the Foreign Awards Act that in any other country than India, a judgment has already been passed by a Court of competent jurisdiction in terms of that award. A party may have other remedy for filing a suit passed on a foreign judgment but that will not oust jurisdiction of the Court to enforce a foreign award under the Foreign Awards Act. Provisions as contained in Sections 13 and 14 of the Code of Civil Procedure (for short, the `Code) would apply when a suit is brought on a foreign award. Under Section 44A of the Code, there is a provision for execution of decrees passed by Courts in reciprocating territory. Explanation 1 to this section defines reciprocating territory to mean any country or territory outside India which the Central Government may, by notification, in the Official Gazette, declare to be a reciprocating territory for the purposes of this section. Reciprocating territory specified in Section 44A of the Code may not be same as that specified in clause (b) of Section 2 of the Foreign Awards Act. We are not called upon to decide in the present proceedings what is the effect of the judgment given on the award in question in the United States and how the High Court would proceed in the matter when a suit has been filed on the basis of the judgment. The argument that the foreign award has merged in the judgment of the Supreme Court of the State of New York has, therefore, to be rejected.34. The mere fact that the documents of conveyance/exchange/lease are to be executed subsequently in pursuance of the said agreement for transfer is of no relevance or consequence at all. In fact, such documents of conveyance can be executed only if and after the requisite no objection certificate 9NOC) under the provisions of Chapter XX-C is issued. The scheme of Chapter XX-C is that once an agreement for transfer has been entered into, the parties have to mandatorily comply with the requirements of Chapter XX-C and are prohibited from effecting transfer of the property without first complying with the provisions of Chapter XX-C, that is to say, filing the Section 269 UC statement within the specified time and obtain the requisite NOC from the Appropriate Authority. It was submitted that the only situation in which Chapter XX-C does not apply is where the transfer of property takes place without such an agreement ever having been reached and without the volition of the owner, such as, for example, when the property is sold by auction under a Courts order. Conversely, whenever there is an agreement for transfer as defined under Chapter XX-C, which has been entered into between the parties, Chapter XX-C would be applicable in all force.37. In Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd. and others, AIR 1970 SC 406 , this Court was considering whether a consent decree operates as res judicata. It said that consent decree does snot operate as res judicata as it is merely the record of a contract between the parties to a suit to which is super-added the seal of the court and that a matter in contest in a suit may operate as res judicata only if there is an adjudication by the court. The Court said that the terms of Section 11 of the Code of Civil Procedure left no scope for a contrary view.42. We do not think that submissions made by Mr. Ganesh on Chapter XX-C of IT Act have any sound basis. Settlement agreement dated March 20, 1990 is not a mere agreement for transfer. As noted above, parties had vast businesses and properties both in India and in the USA. Settlement agreement was between (1) Harendra Mehta, his wife Amita Mehta and he himself as Karta of Harendra Mehta HUF : (2) Mukesh Mehta, his wife Daksha Mehta and he himself as Karta of Mukesh Mehta HUF; (3) Mettaco Enterprises Trust; and (4) A.D. Developments Ltd., a New York Corporation having its principal office at New York. The settlement agreement runs into 57 long pages. It is a complex agreement. It also mentioned litigation between parties pending in the Supreme Court of the State of New York, Nassau County Court. After the parties have got their respective packages of the properties and businesses both in India and in the United States the award required the parties to execute transfer and closing documents.a mere look at the agreement shows that it is not an agreement for transfer as understood in clause (a) of Section 269 UA of Chapter XX-C of the IT Act. The settlement agreement also does not stipulate exchange of any immoveable property. It rather divides equally businesses and properties between Harendra and Mukesh. Exchange has been defined under Section 118 of the Transfer of Property Act where two persons mutually transfer of Property Act where two persons mutually transfer the ownership of one thing for ownership of another. When we consider exchange of immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property which is defined in clause (d) of Section 269UA. It is difficult to appreciate the arguments of Mr. Ganesh as to how in the present case, there is transfer of any immovable property under the settlement agreement. It appears to us that the bone of contention is a flat in Urvashi building in Mumbai which formed part of B+A1 of Mukesh. It was not disputed before us that for this the appellants did execute a gift deed in favour of the respondents on advice received but n steps were taken to compel the transaction as, it appears, relations soured. This would also show that the settlement agreement on the award did not require filing of any declaration under Chapter XX-C of the IT Act. Moreover, in our view in the case of a foreign award, provisions of Chapter XX-C of the IT Act are not attracted. It was said that under Chapter XX-C a net has been thrown wide to bring within its purview all sorts of immovable properties but that net is not wide enough to cover foreign award covering businesses and properties both in India and in a foreign country. Apprehension of Mr. Ganesh that if we give this interpretation a method can be found by the parties to escape the rigour of Chapter XX-C knocking at the very provision of law which strikes at the root of black-money rampant in the sale and purchase of immovable property. If that is so, legislature can always step in to block the gap if it finds there is any escapement of revenue. We are also of the view that a foreign award under the Foreign Awards Act does not require registeration under the Registration Act43. A decree or order of a court does not require registration under clause (b) of sub-section (1) of Section 17 of the Registration Act. This is the effect of clause (vi) of Section 2 of Section 17. Earlier under this clause (vi) before its amendment in 1929 even an award did not require registration. However, after omission of the words and any award an award creating or declaring right or interest in immovable property of the value of Rs. 100 would require registration. But then that award would be an award under the Arbitration Act, 1940 and certainly not an foreign award.foreign judgment does not require registration as the process of suit having been decreed on that basis will have to be gone through. When a decree is passed by the Court, it does not require registration in view of clause (vi) of sub-section 2 of Section 17 of the Registration Act. A decree or order of a court affecting the rights mentioned in Section 17(1)(b) and (c) would not require registration. It would, however, require registration where the decree or order on the basis of compromise affects the immovable property other than that which is the subject matter of the suit or proceeding. Even a decree passed by the foreign court execution of which is sought under Section 44A of the Code of Civil Procedure would not require registration. That being the position, we are of the view that foreign award under the provisions of the Foreign Awards Act does not require registration under the Registration Act. In any case, in the present case the award creates a right to obtain transfer and closing documents which as regards Indian properties and businesses are yet to be executed by D.M. Harish & Co., Chartered Accountants.Decision of this Court in Mrs. Tehmi P. Sidhwa case, 1974(2) SCC 579 as rightly pointed by Mr. Dholakia, learned counsel appearing for the respondents, would be fully applicable and the argument that the award required registration has to be rejected on this ground as well. | 0 | 13,204 | 3,080 | ### Instruction:
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Harendra or Plan A, the united States package, and B-1, the united States package, and B-1, the Indian note, which we are collectively marking at this proceeding as Exhibit C. The United States Package is four pages and the Indian Note is four pages. there is a total of eight pages in Exhibit C. (Plan A and Plan B-1, the Indian Note, marked as Exhibit C for Identification). MR. KHANNA : Each of these pages have been initialed by Amita Mehta and the attorneys immediately below the Exhibit mark. THE COURT : I would also like the reporter to mark as Exhibit D, the Power of Attorney, going from Harendra to Amita. (Power of Attorney marked as Exhibit `D for identification.) THE COURT : Regarding transfer documents, it is my understanding and the arbitrators understanding, that an agreement has been made regarding these transfer documents. MR. SCIACCA : Correct, that is provided for in a transfer agreement. THE COURT : according to the original submission, the arbitrator had two fold function. One was to make the award. And two was to implement that award. Again a mere look at the agreement shows that it is not an agreement for transfer as understood in clause (a) of Section 269 UA of Chapter XX-C of the IT Act. The settlement agreement also does not stipulate exchange of any immoveable property. It rather divides equally businesses and properties between Harendra and Mukesh. Exchange has been defined under Section 118 of the Transfer of Property Act where two persons mutually transfer of Property Act where two persons mutually transfer the ownership of one thing for ownership of another. When we consider exchange of immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property which is defined in clause (d) of Section 269UA. It is difficult to appreciate the arguments of Mr. Ganesh as to how in the present case, there is transfer of any immovable property under the settlement agreement. It appears to us that the bone of contention is a flat in Urvashi building in Mumbai which formed part of B+A1 of Mukesh. It was not disputed before us that for this the appellants did execute a gift deed in favour of the respondents on advice received but n steps were taken to compel the transaction as, it appears, relations soured. This would also show that the settlement agreement on the award did not require filing of any declaration under Chapter XX-C of the IT Act. Moreover, in our view in the case of a foreign award, provisions of Chapter XX-C of the IT Act are not attracted. It was said that under Chapter XX-C a net has been thrown wide to bring within its purview all sorts of immovable properties but that net is not wide enough to cover foreign award covering businesses and properties both in India and in a foreign country. Apprehension of Mr. Ganesh that if we give this interpretation a method can be found by the parties to escape the rigour of Chapter XX-C knocking at the very provision of law which strikes at the root of black-money rampant in the sale and purchase of immovable property. If that is so, legislature can always step in to block the gap if it finds there is any escapement of revenue. We are also of the view that a foreign award under the Foreign Awards Act does not require registeration under the Registration Act. 43. A decree or order of a court does not require registration under clause (b) of sub-section (1) of Section 17 of the Registration Act. This is the effect of clause (vi) of Section 2 of Section 17. Earlier under this clause (vi) before its amendment in 1929 even an award did not require registration. However, after omission of the words and any award an award creating or declaring right or interest in immovable property of the value of Rs. 100 would require registration. But then that award would be an award under the Arbitration Act, 1940 and certainly not an foreign award. 44. Let us examine this argument of Mr. Ganesh that foreign award required registration from another angle. He said that the foreign award has already merged in the foreign judgment on the basis of which Mukesh has brought suit in the Bombay High Court. A foreign judgment does not require registration as the process of suit having been decreed on that basis will have to be gone through. When a decree is passed by the Court, it does not require registration in view of clause (vi) of sub-section 2 of Section 17 of the Registration Act. A decree or order of a court affecting the rights mentioned in Section 17(1)(b) and (c) would not require registration. It would, however, require registration where the decree or order on the basis of compromise affects the immovable property other than that which is the subject matter of the suit or proceeding. Even a decree passed by the foreign court execution of which is sought under Section 44A of the Code of Civil Procedure would not require registration. That being the position, we are of the view that foreign award under the provisions of the Foreign Awards Act does not require registration under the Registration Act. In any case, in the present case the award creates a right to obtain transfer and closing documents which as regards Indian properties and businesses are yet to be executed by D.M. Harish & Co., Chartered Accountants. Decision of this Court in Mrs. Tehmi P. Sidhwa case, 1974(2) SCC 579 as rightly pointed by Mr. Dholakia, learned counsel appearing for the respondents, would be fully applicable and the argument that the award required registration has to be rejected on this ground as well.
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of a contract between the parties to a suit to which is super-added the seal of the court and that a matter in contest in a suit may operate as res judicata only if there is an adjudication by the court. The Court said that the terms of Section 11 of the Code of Civil Procedure left no scope for a contrary view.42. We do not think that submissions made by Mr. Ganesh on Chapter XX-C of IT Act have any sound basis. Settlement agreement dated March 20, 1990 is not a mere agreement for transfer. As noted above, parties had vast businesses and properties both in India and in the USA. Settlement agreement was between (1) Harendra Mehta, his wife Amita Mehta and he himself as Karta of Harendra Mehta HUF : (2) Mukesh Mehta, his wife Daksha Mehta and he himself as Karta of Mukesh Mehta HUF; (3) Mettaco Enterprises Trust; and (4) A.D. Developments Ltd., a New York Corporation having its principal office at New York. The settlement agreement runs into 57 long pages. It is a complex agreement. It also mentioned litigation between parties pending in the Supreme Court of the State of New York, Nassau County Court. After the parties have got their respective packages of the properties and businesses both in India and in the United States the award required the parties to execute transfer and closing documents.a mere look at the agreement shows that it is not an agreement for transfer as understood in clause (a) of Section 269 UA of Chapter XX-C of the IT Act. The settlement agreement also does not stipulate exchange of any immoveable property. It rather divides equally businesses and properties between Harendra and Mukesh. Exchange has been defined under Section 118 of the Transfer of Property Act where two persons mutually transfer of Property Act where two persons mutually transfer the ownership of one thing for ownership of another. When we consider exchange of immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property falling within the definition of `exchange in Section 118 both the properties would situated in India. Agreement for transfer refers to immovable property which is defined in clause (d) of Section 269UA. It is difficult to appreciate the arguments of Mr. Ganesh as to how in the present case, there is transfer of any immovable property under the settlement agreement. It appears to us that the bone of contention is a flat in Urvashi building in Mumbai which formed part of B+A1 of Mukesh. It was not disputed before us that for this the appellants did execute a gift deed in favour of the respondents on advice received but n steps were taken to compel the transaction as, it appears, relations soured. This would also show that the settlement agreement on the award did not require filing of any declaration under Chapter XX-C of the IT Act. Moreover, in our view in the case of a foreign award, provisions of Chapter XX-C of the IT Act are not attracted. It was said that under Chapter XX-C a net has been thrown wide to bring within its purview all sorts of immovable properties but that net is not wide enough to cover foreign award covering businesses and properties both in India and in a foreign country. Apprehension of Mr. Ganesh that if we give this interpretation a method can be found by the parties to escape the rigour of Chapter XX-C knocking at the very provision of law which strikes at the root of black-money rampant in the sale and purchase of immovable property. If that is so, legislature can always step in to block the gap if it finds there is any escapement of revenue. We are also of the view that a foreign award under the Foreign Awards Act does not require registeration under the Registration Act43. A decree or order of a court does not require registration under clause (b) of sub-section (1) of Section 17 of the Registration Act. This is the effect of clause (vi) of Section 2 of Section 17. Earlier under this clause (vi) before its amendment in 1929 even an award did not require registration. However, after omission of the words and any award an award creating or declaring right or interest in immovable property of the value of Rs. 100 would require registration. But then that award would be an award under the Arbitration Act, 1940 and certainly not an foreign award.foreign judgment does not require registration as the process of suit having been decreed on that basis will have to be gone through. When a decree is passed by the Court, it does not require registration in view of clause (vi) of sub-section 2 of Section 17 of the Registration Act. A decree or order of a court affecting the rights mentioned in Section 17(1)(b) and (c) would not require registration. It would, however, require registration where the decree or order on the basis of compromise affects the immovable property other than that which is the subject matter of the suit or proceeding. Even a decree passed by the foreign court execution of which is sought under Section 44A of the Code of Civil Procedure would not require registration. That being the position, we are of the view that foreign award under the provisions of the Foreign Awards Act does not require registration under the Registration Act. In any case, in the present case the award creates a right to obtain transfer and closing documents which as regards Indian properties and businesses are yet to be executed by D.M. Harish & Co., Chartered Accountants.Decision of this Court in Mrs. Tehmi P. Sidhwa case, 1974(2) SCC 579 as rightly pointed by Mr. Dholakia, learned counsel appearing for the respondents, would be fully applicable and the argument that the award required registration has to be rejected on this ground as well.
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Narayana Prabhu Venkateswara Prabhu Vs. Narayan Prabhu Krishna Prabhu & Ors | of three Judges of this Court, where Chandrachud, J. observed (at p. 534, para 19) :"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial Court in the appellants suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents suit became final and conclusive.It was also observed there (para 19) :The decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a former suit within the meaning of Section 11, Explanation I, Civil Procedure Code."18. The expression "former suit", according to Explanation I of Section 11, Civil Procedure Code, makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge. This, as learned Counsel for the respondents rightly submits, follows from the decision of this Court in Lonankuttys case.19. The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit makes any difference to the applicability of the principle of res judicata in this case. Learned Counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation VI of Section 11, Civil Procedure Code which provides as follows :Where person litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.On the other hand, learned Counsel for the respondent submits that the case of the respondents is fully covered by this explanation and relies on Kumaravelu Chettiar v. T. P. Ramaswami Ayyar (AIR 1933 PC 183 : 60 IA 278 : 143 IC 665) where it was held :Explanation 6 is not confined to cases covered by Order 1, Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves.20. We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interest are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here.21. We need not deal with other cases of this Court cited, including Sheodan Singh v. Smt. Daryao Kunwar ([1966] 3 SCR 300 : AIR 1966 SC 1332 ) which supports the respondents submissions, and Raj Lakshmi Dasi v. Banamali Sen (1953 SCR 154 : AIR 1953 SC 33 ) which is not directly applicable inasmuch as that was a case in which the general principles of res judicata, and not Section 11 Civil Procedure Code, were applied. The preliminary objection in the case before us is fully supported, for the reasons given above, by Section 11, Civil Procedure Code read in the light of the explanations mentioned above. Consequently, the preliminary objection must prevail.22. Learned Counsel for the appellant, conscious of the difficulties in his way, filed, after the hearing of the appeal was begun before us, an application for condonation of delay in applying for leave to appeal against the judgment of the High Court in the money suit. He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his clients favour. On the other hand, learned Counsel for the respondents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents. It seems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us. | 0[ds]7. It is true that the appeals against both the decrees of the trial Court were heard together in the High Court, and, although the appeal in the money suit is decided under a separate heading and the short judgment in it appears to be practically consequential on the judgment in the partition suit, yet, the judgments in the two appeals decided a common issue and resulted in twoquestion of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one.It seems to us that to be fair to confine the ratio decidendi of the Hyderabad case to cases where there is only one suit. In the case now before us, not only were the decrees different but the suits were different. The mere fact that the judgment in the two suits were given together or in continuation did not matter. In fact, even in form, the judgment in the appeal relating to the money suit was separate from the rest of the judgment. And, in any case, there were two separate decrees.11. We think that Section 11 Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence : firstly, interest reipublicae ut sit finis litium - it concerns the State that there be an end to law suits; and, secondly, nemo debet bis verxari pro una et eadem cause - no man should be vexed twice over for the same cause.12. Sir Lawrence Jenkins pointed out, in Sheoprasan Singh v. Ramanandan Prasad Narayan Sing (AIR 1916 PC 78 : 43 IA 91 : 43 Cal 694), that the rule of res judicata "while founded on ancient precedent, is dictated by a wisdom which is for all time". Litigation which has no end or finality defeats its very object. This object is decision of disputes or an end to each litigation. But, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible. Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy. An "estoppel", even if it be "by record", rests on somewhat different grounds. Even such a estoppel savours of an equity or justice created by actions of parties the results of which have become recorded formally behind which they are not allowed to go.It seems to us that Section 11 itself refers to a Court which actually tries the two suits. We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was, obviously, competent to try both the suits. After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided both of them. This was enough to make the difference in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial. Similarly, the High Court was competent to hear appeals from judgments in both. It heard and decided the two appeals together.16. So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned Counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in Section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal. The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question to the correctness or finality of that decision even by means of an application for special leave to appeal.We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interest are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the caseseems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us. | 0 | 3,897 | 1,388 | ### Instruction:
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of three Judges of this Court, where Chandrachud, J. observed (at p. 534, para 19) :"Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial Court in the appellants suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents suit became final and conclusive.It was also observed there (para 19) :The decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a former suit within the meaning of Section 11, Explanation I, Civil Procedure Code."18. The expression "former suit", according to Explanation I of Section 11, Civil Procedure Code, makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge. This, as learned Counsel for the respondents rightly submits, follows from the decision of this Court in Lonankuttys case.19. The only other point which we need consider is whether the fact that the money suit was only between the defendant-appellant and one of his brothers, who was also a respondent in the partition suit makes any difference to the applicability of the principle of res judicata in this case. Learned Counsel for the appellant submits that the defendant-appellant could not come within the ambit of Explanation VI of Section 11, Civil Procedure Code which provides as follows :Where person litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.On the other hand, learned Counsel for the respondent submits that the case of the respondents is fully covered by this explanation and relies on Kumaravelu Chettiar v. T. P. Ramaswami Ayyar (AIR 1933 PC 183 : 60 IA 278 : 143 IC 665) where it was held :Explanation 6 is not confined to cases covered by Order 1, Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves.20. We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interest are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here.21. We need not deal with other cases of this Court cited, including Sheodan Singh v. Smt. Daryao Kunwar ([1966] 3 SCR 300 : AIR 1966 SC 1332 ) which supports the respondents submissions, and Raj Lakshmi Dasi v. Banamali Sen (1953 SCR 154 : AIR 1953 SC 33 ) which is not directly applicable inasmuch as that was a case in which the general principles of res judicata, and not Section 11 Civil Procedure Code, were applied. The preliminary objection in the case before us is fully supported, for the reasons given above, by Section 11, Civil Procedure Code read in the light of the explanations mentioned above. Consequently, the preliminary objection must prevail.22. Learned Counsel for the appellant, conscious of the difficulties in his way, filed, after the hearing of the appeal was begun before us, an application for condonation of delay in applying for leave to appeal against the judgment of the High Court in the money suit. He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his clients favour. On the other hand, learned Counsel for the respondents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents. It seems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.
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the appeal relating to the money suit was separate from the rest of the judgment. And, in any case, there were two separate decrees.11. We think that Section 11 Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence : firstly, interest reipublicae ut sit finis litium - it concerns the State that there be an end to law suits; and, secondly, nemo debet bis verxari pro una et eadem cause - no man should be vexed twice over for the same cause.12. Sir Lawrence Jenkins pointed out, in Sheoprasan Singh v. Ramanandan Prasad Narayan Sing (AIR 1916 PC 78 : 43 IA 91 : 43 Cal 694), that the rule of res judicata "while founded on ancient precedent, is dictated by a wisdom which is for all time". Litigation which has no end or finality defeats its very object. This object is decision of disputes or an end to each litigation. But, if there is no finality to it, the dispute cannot be said to be really decided at all. It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible. Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy. An "estoppel", even if it be "by record", rests on somewhat different grounds. Even such a estoppel savours of an equity or justice created by actions of parties the results of which have become recorded formally behind which they are not allowed to go.It seems to us that Section 11 itself refers to a Court which actually tries the two suits. We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court. That Court was, obviously, competent to try both the suits. After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided both of them. This was enough to make the difference in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial. Similarly, the High Court was competent to hear appeals from judgments in both. It heard and decided the two appeals together.16. So far as the question of appeal to this Court is concerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned Counsel for the respondents is correct in submitting that the question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in Section 11, has been heard and finally decided. That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal. The mere fact that the defendant-appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question to the correctness or finality of that decision even by means of an application for special leave to appeal.We think that the submission made by the learned Counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interest are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the caseseems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned. Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal. Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant-appellant, it seems to us that the appellant would have a very uphill task indeed in arguing his appeal even in the partition suit. We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957. If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.
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Sat Pal Vs. State of Punjab & Others | on 22-10-1981 there was in that case as here a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under Section 11. The Court struck down the order of detention on the ground that there was a denial of the constitutional safeguard of the right of being afforded the earliest opportunity of making a representation against the order as contemplated by Art. 22(5). Chandrachud, C.J. speaking for the Court observed:"Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to defend and assert his fundamental right of personal liberty."The learned Chief Justice went on to say"May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenu. Section 11(a) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free."The decision in Rattan Singhs case (supra) is, however, distinguishable on facts. In that case, the representation made to the Central Government for revocation of the order of detention was not forwarded at all to the Central Government and, therefore, the continued detention of the detenu was held to be illegal. As against this, in the instant case, the representation made by the detenu was forwarded to the Central Government on September 23, 1981, i.e., after a lapse of 2 months and 15 days. The Central Government acted with great promptitude in dealing with the representation and found no ground to interfere with the order of detention. Shri N. I. Ramanathan, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, has revealed that the copy of the representation endorsed to the Central Government was received in the Ministry of Finance on September 24, 1981. The said representation was considered by the Central Government and rejected on September 28, 198112. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singhs case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically13. We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singhs case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. There consideration, however, do not arise in the present case14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab. Home Department. In his counter-affidavit there is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect"..... the time imperative can never be absolute or obsessive. The occasional observations that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula." We are at a loss to appreciate the propriety of this observation. It betrays complete lack of awareness of the constitutional obligations imposed under Art. 22(5) and shows disrespect to the several decisions of this Court laying down that matters where the liberty of the subject is involved, should not be treated in a cavalier fashion | 0[ds]12. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singhs case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically13. We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singhs case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. There consideration, however, do not arise in the present case14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab. Home Department. In histhere is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect"..... the time imperative can never be absolute or obsessive. The occasional observations that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula." We are at a loss to appreciate the propriety of this observation. It betrays complete lack of awareness of the constitutional obligations imposed under Art. 22(5) and shows disrespect to the several decisions of this Court laying down that matters where the liberty of the subject is involved, should not be treated in a cavalierThe whole purpose of a representation that a detenu makes under Art. 22(5) of the Constitution read with Section 8 of the Act, is to secure revocation of the order of detention. It is evident from the scheme of the Act that the power of revocation is exercisable at two stages. In the first place, there is a duty cast on the appropriate Government, i.e. the Central Government or the State Government, as the case may be, to revoke the detention order under Section 8(f) of the Act and cause the person to be released forthwith, where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention. Secondly, the Central Government, may, at any time under clause (b) of(1) of Section 11 of the Act, revoke an order of detention that has been made by an officer of the Central Government or by a State Government. Under Clause (a) thereof, the State Government may likewise exercise such power in relation to an order made by an officer of the State Government. Under Section 11(1)(b) of the Act, the Central Government, therefore, has the overriding power to revoke a detention order, at any time, made by the State Government, or an officer of the State Government, under(1) of Section 3 of the Act. That is as it should be, as under our federal structure the Central must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Art. 21 | 0 | 3,556 | 862 | ### Instruction:
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on 22-10-1981 there was in that case as here a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under Section 11. The Court struck down the order of detention on the ground that there was a denial of the constitutional safeguard of the right of being afforded the earliest opportunity of making a representation against the order as contemplated by Art. 22(5). Chandrachud, C.J. speaking for the Court observed:"Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to defend and assert his fundamental right of personal liberty."The learned Chief Justice went on to say"May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenu. Section 11(a) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free."The decision in Rattan Singhs case (supra) is, however, distinguishable on facts. In that case, the representation made to the Central Government for revocation of the order of detention was not forwarded at all to the Central Government and, therefore, the continued detention of the detenu was held to be illegal. As against this, in the instant case, the representation made by the detenu was forwarded to the Central Government on September 23, 1981, i.e., after a lapse of 2 months and 15 days. The Central Government acted with great promptitude in dealing with the representation and found no ground to interfere with the order of detention. Shri N. I. Ramanathan, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, has revealed that the copy of the representation endorsed to the Central Government was received in the Ministry of Finance on September 24, 1981. The said representation was considered by the Central Government and rejected on September 28, 198112. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singhs case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically13. We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singhs case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. There consideration, however, do not arise in the present case14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab. Home Department. In his counter-affidavit there is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect"..... the time imperative can never be absolute or obsessive. The occasional observations that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula." We are at a loss to appreciate the propriety of this observation. It betrays complete lack of awareness of the constitutional obligations imposed under Art. 22(5) and shows disrespect to the several decisions of this Court laying down that matters where the liberty of the subject is involved, should not be treated in a cavalier fashion
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12. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singhs case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically13. We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singhs case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. There consideration, however, do not arise in the present case14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab. Home Department. In histhere is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect"..... the time imperative can never be absolute or obsessive. The occasional observations that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula." We are at a loss to appreciate the propriety of this observation. It betrays complete lack of awareness of the constitutional obligations imposed under Art. 22(5) and shows disrespect to the several decisions of this Court laying down that matters where the liberty of the subject is involved, should not be treated in a cavalierThe whole purpose of a representation that a detenu makes under Art. 22(5) of the Constitution read with Section 8 of the Act, is to secure revocation of the order of detention. It is evident from the scheme of the Act that the power of revocation is exercisable at two stages. In the first place, there is a duty cast on the appropriate Government, i.e. the Central Government or the State Government, as the case may be, to revoke the detention order under Section 8(f) of the Act and cause the person to be released forthwith, where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention. Secondly, the Central Government, may, at any time under clause (b) of(1) of Section 11 of the Act, revoke an order of detention that has been made by an officer of the Central Government or by a State Government. Under Clause (a) thereof, the State Government may likewise exercise such power in relation to an order made by an officer of the State Government. Under Section 11(1)(b) of the Act, the Central Government, therefore, has the overriding power to revoke a detention order, at any time, made by the State Government, or an officer of the State Government, under(1) of Section 3 of the Act. That is as it should be, as under our federal structure the Central must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Art. 21
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Sarwarlal And Others Vs. The State Of Hyderabad | Nizam in and before the month of September, 1948 was an absolute ruler invested with all authority, executive legislative and judicial is indisputable. He had supreme powers vested in him to modify, restrict, take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before and tribunal or authority.9. The Farman promulgated on September 19, 1948, by His Exalted Highness the Nizam delegated his sovereign authority to the Military Governor and to remove all doubts as to the effect of that delegation, an explanatory Farman dated August 7, 1949,was issued. It was declared in express terms by that Farman that the authority of the Military Governor "included and has always included the authority to make Regulations". In the clearest terms, the author of the Farman proclaimed the content of the authority delegated by him to the Military Governor.10. The plea rather faintly urged by Mr. Varma that the Farman merely recited that the Military Governor had been invested with authority for administration and did not by its own force purport to invest the Military Governor with authority to administer the State is plainly inconsistent with the argument which was advanced in the High Court and the statement of the case filed in this court and was therefore rightly abandoned by him.11. Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments, the sovereignty of His Exalted Highness the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the abolition Regulation.The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation, and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation.12. The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty, or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished.13. The authority of the Military Governor, being unrestricted, so long as it ensured, his action is issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative authority. The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence of the body. But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations, cannot be declared invalid as enacted in colourable exercise of its powers.14. The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority, the power exercised by him being the legislative power as the delegate of the Sovereign.15. The plea that the fundamental rights of the appellant under the Constitution were infringed by the two Regulations does not require any detailed examination.By virtue of the Abolition Regulation, the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation, the quantum of compensation payable to him was determined by a pre-Constitution legislation. The Regulations were competently promulgated in exercise of legislative authority in that behalf: and the Constitution does not operate retrospectively to revive the rights which had been, before it was enacted, extinguished.The Constitution has, except as otherwise expressly provided, no retrospective operation: Keshavan Madhava Menon v. State of Bombay, (1951) SCR 228 : (AIR 1951 SC 128 ): and rights which were by legislation extinguished, before it was enacted, are not revived thereby.16. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation.It may also be observed that the Parliament has, by the Constitution (1st Amendment) Act included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Article 31-B, the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution. | 0[ds]By the plain words used in the Farman, "all authority for the administration of the State was conferred upon the Military Governor" and there is nothing in the text of the Farman which warrants the view that only executive authority was intended to be delegated thereby. Within the expression. "all administrative authority" is encompassed the entirety of the authority of the sovereign, and by the delegation from His Exalted Highness the Nizam, the Military Governor was invested with that authority in all its amplitude. The injunction to the subjects of the State to carry out all such orders as the Military Governor may deem fit to issue and the appeal to the officers of the State and the appeal to the officers of the State and the subjects to render faithful and unflinching obedience and to conduct themselves in a manner calculated to bring about the speedy restoration of law and order, do not detract from the amplitude of the powers delegated to the Military Governor. The expression, "orders" would include every order made in exercise of authority for the administration of the State; and the object intended to be achieved viz., the speedy restoration of law and order in the State by His Exalted Highness the Nizam as expressed in the appeal was not restrictive of that authority. That His Exalted Highness the Nizam in and before the month of September, 1948 was an absolute ruler invested with all authority, executive legislative and judicial is indisputable. He had supreme powers vested in him to modify, restrict, take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before and tribunal or authority.Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments, the sovereignty of His Exalted Highness the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the abolition Regulation.The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation, and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation.12. The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty, or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished.13. The authority of the Military Governor, being unrestricted, so long as it ensured, his action is issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative authority. The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence of the body. But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations, cannot be declared invalid as enacted in colourable exercise of its powers.14. The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority, the power exercised by him being the legislative power as the delegate of thevirtue of the Abolition Regulation, the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation, the quantum of compensation payable to him was determined by a pre-Constitution legislation. The Regulations were competently promulgated in exercise of legislative authority in that behalf: and the Constitution does not operate retrospectively to revive the rights which had been, before it was enacted, extinguished.The Constitution has, except as otherwise expressly provided, no retrospectiveMadhava Menon v. State of Bombay, (1951) SCR 228 : (AIR 1951 SC 128 ): and rights which were by legislation extinguished, before it was enacted, are not revived thereby.16. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation.It may also be observed that the Parliament has, by the Constitution (1st Amendment) Act included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Article 31-B, the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution. | 0 | 2,607 | 1,128 | ### 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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Nizam in and before the month of September, 1948 was an absolute ruler invested with all authority, executive legislative and judicial is indisputable. He had supreme powers vested in him to modify, restrict, take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before and tribunal or authority.9. The Farman promulgated on September 19, 1948, by His Exalted Highness the Nizam delegated his sovereign authority to the Military Governor and to remove all doubts as to the effect of that delegation, an explanatory Farman dated August 7, 1949,was issued. It was declared in express terms by that Farman that the authority of the Military Governor "included and has always included the authority to make Regulations". In the clearest terms, the author of the Farman proclaimed the content of the authority delegated by him to the Military Governor.10. The plea rather faintly urged by Mr. Varma that the Farman merely recited that the Military Governor had been invested with authority for administration and did not by its own force purport to invest the Military Governor with authority to administer the State is plainly inconsistent with the argument which was advanced in the High Court and the statement of the case filed in this court and was therefore rightly abandoned by him.11. Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments, the sovereignty of His Exalted Highness the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the abolition Regulation.The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation, and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation.12. The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty, or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished.13. The authority of the Military Governor, being unrestricted, so long as it ensured, his action is issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative authority. The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence of the body. But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations, cannot be declared invalid as enacted in colourable exercise of its powers.14. The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority, the power exercised by him being the legislative power as the delegate of the Sovereign.15. The plea that the fundamental rights of the appellant under the Constitution were infringed by the two Regulations does not require any detailed examination.By virtue of the Abolition Regulation, the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation, the quantum of compensation payable to him was determined by a pre-Constitution legislation. The Regulations were competently promulgated in exercise of legislative authority in that behalf: and the Constitution does not operate retrospectively to revive the rights which had been, before it was enacted, extinguished.The Constitution has, except as otherwise expressly provided, no retrospective operation: Keshavan Madhava Menon v. State of Bombay, (1951) SCR 228 : (AIR 1951 SC 128 ): and rights which were by legislation extinguished, before it was enacted, are not revived thereby.16. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation.It may also be observed that the Parliament has, by the Constitution (1st Amendment) Act included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Article 31-B, the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution.
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which warrants the view that only executive authority was intended to be delegated thereby. Within the expression. "all administrative authority" is encompassed the entirety of the authority of the sovereign, and by the delegation from His Exalted Highness the Nizam, the Military Governor was invested with that authority in all its amplitude. The injunction to the subjects of the State to carry out all such orders as the Military Governor may deem fit to issue and the appeal to the officers of the State and the appeal to the officers of the State and the subjects to render faithful and unflinching obedience and to conduct themselves in a manner calculated to bring about the speedy restoration of law and order, do not detract from the amplitude of the powers delegated to the Military Governor. The expression, "orders" would include every order made in exercise of authority for the administration of the State; and the object intended to be achieved viz., the speedy restoration of law and order in the State by His Exalted Highness the Nizam as expressed in the appeal was not restrictive of that authority. That His Exalted Highness the Nizam in and before the month of September, 1948 was an absolute ruler invested with all authority, executive legislative and judicial is indisputable. He had supreme powers vested in him to modify, restrict, take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before and tribunal or authority.Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments, the sovereignty of His Exalted Highness the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the abolition Regulation.The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation, and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation.12. The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty, or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished.13. The authority of the Military Governor, being unrestricted, so long as it ensured, his action is issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative authority. The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence of the body. But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations, cannot be declared invalid as enacted in colourable exercise of its powers.14. The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority, the power exercised by him being the legislative power as the delegate of thevirtue of the Abolition Regulation, the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation, the quantum of compensation payable to him was determined by a pre-Constitution legislation. The Regulations were competently promulgated in exercise of legislative authority in that behalf: and the Constitution does not operate retrospectively to revive the rights which had been, before it was enacted, extinguished.The Constitution has, except as otherwise expressly provided, no retrospectiveMadhava Menon v. State of Bombay, (1951) SCR 228 : (AIR 1951 SC 128 ): and rights which were by legislation extinguished, before it was enacted, are not revived thereby.16. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation.It may also be observed that the Parliament has, by the Constitution (1st Amendment) Act included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Article 31-B, the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution.
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Dulal Chandra Majumdar Vs. The State of West Bengal | on the public order I was bona fide satisfied that the said act was sufficient for making the said detention order. I was also further satisfied that if the detenu petitioner is not detained under the said act he is likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community."It will be seen from this statement made by the District Magistrate that from the material on record he was not only satisfied that it was necessary to detain the petitioner with a view to preventing him from maintenance of public order, but was also satisfied that if the petitioner was not detained, be would be likely to act in a manner prejudicial to the maintenance of supplieds and services essential to the community. The argument of the petitioner was that there was no nexus at all between the grounds of detention communicated to the petitioner and the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community and the order of detention based inter alia on such subjective satisfaction was invalid. Now, there can be no doubt that if the order of detention was based on the subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community, it would be bad because the incident of decoity in a third class compartment of a running train set out in the grounds of detention would be wholly irrelevant to support such subjective satisfaction. It would be impossible for any rational human being to say that an incident of decoity in a third class compartment of running train where cash money was stolen is such an act that from it an inference can be raised that the person committing the decoity would be likely to act in manner prejudicial to the maintenance of supplied and services essential to the community. The respondent realising the seriousness of this difficulty in its way, contended that the averment in paragraph 4 of the affidavit-in-reply that the District Magistrate was satisfied that if the petitioner was not detained, he would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community had crept in through mistake and should not be taken into account by the Court in adjudging the validity of the order an detention. The argument of the respondent was that the only subjective satisfaction on which the order of detention was founded was that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order as recited in the order of detention and the grounds of detain and it was not correct to state that the District Magistrate was also subjectively satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community and had on that account made the order of detention. We do not think we can accept this contention of the respondent. It must be remembered that the affidavit-in-reply has been made by the District Magistrate himself and we must presume that the District Magistrate must have made the statements contained in the affidavit-in-reply with the since of responsibility which his high office necessarily carries. If the District Magistrate was also not subjectively satisfied in regard to the likehood of the petitioner to act in a manner prejudicial to the maintenance of supplies and services essential to the community, he would not have made such an averment in paragraph 4 of his affidavit in reply. Ordinarily when an averment is made by a high officer like the District Magistrate in an affidavit which is made on oath, the Court is inclined to accept the averment as correct and the burden lies heavily on the party who alleges to the contrary. We cannot therefore, lightly accept the submission of the respondent that the District Magistrate has made on incorrect statement in paragraph 4 of his affidavit-in-reply. The position might have been different if the District Magistrate himself had made a subsequent affidavit stating on oath that he had made a mistake in the earlier affidavit-in-reply and explained the circumstances under which he came to make such mistake. The Court would then have examined the explanation given by the District Magistrate and if satisfied as regards the genuineness of the mistake, the Court would have accepted the subsequent statement of the District Magistrate and ignored the earlier averment made in the affidavit-in-reply. But here there is no affidavit made by the District Magistrate confessing his mistake in making the earlier averment in paragraph 4 of the affidavit-in-reply. We must, therefore, accept the averment made by the District Magistrate in paragraph 4 of his affidavit-in-reply as correct and proceed on the basis that the order of detention was based not only on his subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of public order but also on his further subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. And if that be so, the order of detention must be held to the invalid since the incident of decoity in a third class compartment of a running train for committing theft of money which constituted the solitary ground of detention was wholly irrelevant and the subjective satisfaction of the District Magistrate that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community could not be founded upon it and was hence colourable and no satisfaction at all. | 1[ds]It will be seen from this statement made by the District Magistrate that from the material on record he was not only satisfied that it was necessary to detain the petitioner with a view to preventing him from maintenance of public order, but was also satisfied that if the petitioner was not detained, be would be likely to act in a manner prejudicial to the maintenance of supplieds and services essential to the community. The argument of the petitioner was that there was no nexus at all between the grounds of detention communicated to the petitioner and the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community and the order of detention based inter alia on such subjective satisfaction was invalid. Now, there can be no doubt that if the order of detention was based on the subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community, it would be bad because the incident of decoity in a third class compartment of a running train set out in the grounds of detention would be wholly irrelevant to support such subjective satisfaction. It would be impossible for any rational human being to say that an incident of decoity in a third class compartment of running train where cash money was stolen is such an act that from it an inference can be raised that the person committing the decoity would be likely to act in manner prejudicial to the maintenance of supplied and services essential to the community. The respondent realising the seriousness of this difficulty in its way, contended that the averment in paragraph 4 of the affidavit-in-reply that the District Magistrate was satisfied that if the petitioner was not detained, he would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community had crept in through mistake and should not be taken into account by the Court in adjudging the validity of the order an detention. The argument of the respondent was that the only subjective satisfaction on which the order of detention was founded was that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order as recited in the order of detention and the grounds of detain and it was not correct to state that the District Magistrate was also subjectively satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community and had on that account made the order of detention. We do not think we can accept this contention of the respondent. It must be remembered that the affidavit-in-reply has been made by the District Magistrate himself and we must presume that the District Magistrate must have made the statements contained in the affidavit-in-reply with the since of responsibility which his high office necessarily carries. If the District Magistrate was also not subjectively satisfied in regard to the likehood of the petitioner to act in a manner prejudicial to the maintenance of supplies and services essential to the community, he would not have made such an averment in paragraph 4 of his affidavit in reply. Ordinarily when an averment is made by a high officer like the District Magistrate in an affidavit which is made on oath, the Court is inclined to accept the averment as correct and the burden lies heavily on the party who alleges to the contrary. We cannot therefore, lightly accept the submission of the respondent that the District Magistrate has made on incorrect statement in paragraph 4 of his affidavit-in-reply. The position might have been different if the District Magistrate himself had made a subsequent affidavit stating on oath that he had made a mistake in the earlier affidavit-in-reply and explained the circumstances under which he came to make such mistake. The Court would then have examined the explanation given by the District Magistrate and if satisfied as regards the genuineness of the mistake, the Court would have accepted the subsequent statement of the District Magistrate and ignored the earlier averment made in the affidavit-in-reply. But here there is no affidavit made by the District Magistrate confessing his mistake in making the earlier averment in paragraph 4 of the affidavit-in-reply. We must, therefore, accept the averment made by the District Magistrate in paragraph 4 of his affidavit-in-reply as correct and proceed on the basis that the order of detention was based not only on his subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of public order but also on his further subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. And if that be so, the order of detention must be held to the invalid since the incident of decoity in a third class compartment of a running train for committing theft of money which constituted the solitary ground of detention was wholly irrelevant and the subjective satisfaction of the District Magistrate that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community could not be founded upon it and was hence colourable and no satisfaction at all. | 1 | 1,511 | 977 | ### 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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on the public order I was bona fide satisfied that the said act was sufficient for making the said detention order. I was also further satisfied that if the detenu petitioner is not detained under the said act he is likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community."It will be seen from this statement made by the District Magistrate that from the material on record he was not only satisfied that it was necessary to detain the petitioner with a view to preventing him from maintenance of public order, but was also satisfied that if the petitioner was not detained, be would be likely to act in a manner prejudicial to the maintenance of supplieds and services essential to the community. The argument of the petitioner was that there was no nexus at all between the grounds of detention communicated to the petitioner and the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community and the order of detention based inter alia on such subjective satisfaction was invalid. Now, there can be no doubt that if the order of detention was based on the subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community, it would be bad because the incident of decoity in a third class compartment of a running train set out in the grounds of detention would be wholly irrelevant to support such subjective satisfaction. It would be impossible for any rational human being to say that an incident of decoity in a third class compartment of running train where cash money was stolen is such an act that from it an inference can be raised that the person committing the decoity would be likely to act in manner prejudicial to the maintenance of supplied and services essential to the community. The respondent realising the seriousness of this difficulty in its way, contended that the averment in paragraph 4 of the affidavit-in-reply that the District Magistrate was satisfied that if the petitioner was not detained, he would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community had crept in through mistake and should not be taken into account by the Court in adjudging the validity of the order an detention. The argument of the respondent was that the only subjective satisfaction on which the order of detention was founded was that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order as recited in the order of detention and the grounds of detain and it was not correct to state that the District Magistrate was also subjectively satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community and had on that account made the order of detention. We do not think we can accept this contention of the respondent. It must be remembered that the affidavit-in-reply has been made by the District Magistrate himself and we must presume that the District Magistrate must have made the statements contained in the affidavit-in-reply with the since of responsibility which his high office necessarily carries. If the District Magistrate was also not subjectively satisfied in regard to the likehood of the petitioner to act in a manner prejudicial to the maintenance of supplies and services essential to the community, he would not have made such an averment in paragraph 4 of his affidavit in reply. Ordinarily when an averment is made by a high officer like the District Magistrate in an affidavit which is made on oath, the Court is inclined to accept the averment as correct and the burden lies heavily on the party who alleges to the contrary. We cannot therefore, lightly accept the submission of the respondent that the District Magistrate has made on incorrect statement in paragraph 4 of his affidavit-in-reply. The position might have been different if the District Magistrate himself had made a subsequent affidavit stating on oath that he had made a mistake in the earlier affidavit-in-reply and explained the circumstances under which he came to make such mistake. The Court would then have examined the explanation given by the District Magistrate and if satisfied as regards the genuineness of the mistake, the Court would have accepted the subsequent statement of the District Magistrate and ignored the earlier averment made in the affidavit-in-reply. But here there is no affidavit made by the District Magistrate confessing his mistake in making the earlier averment in paragraph 4 of the affidavit-in-reply. We must, therefore, accept the averment made by the District Magistrate in paragraph 4 of his affidavit-in-reply as correct and proceed on the basis that the order of detention was based not only on his subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of public order but also on his further subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. And if that be so, the order of detention must be held to the invalid since the incident of decoity in a third class compartment of a running train for committing theft of money which constituted the solitary ground of detention was wholly irrelevant and the subjective satisfaction of the District Magistrate that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community could not be founded upon it and was hence colourable and no satisfaction at all.
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It will be seen from this statement made by the District Magistrate that from the material on record he was not only satisfied that it was necessary to detain the petitioner with a view to preventing him from maintenance of public order, but was also satisfied that if the petitioner was not detained, be would be likely to act in a manner prejudicial to the maintenance of supplieds and services essential to the community. The argument of the petitioner was that there was no nexus at all between the grounds of detention communicated to the petitioner and the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community and the order of detention based inter alia on such subjective satisfaction was invalid. Now, there can be no doubt that if the order of detention was based on the subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community, it would be bad because the incident of decoity in a third class compartment of a running train set out in the grounds of detention would be wholly irrelevant to support such subjective satisfaction. It would be impossible for any rational human being to say that an incident of decoity in a third class compartment of running train where cash money was stolen is such an act that from it an inference can be raised that the person committing the decoity would be likely to act in manner prejudicial to the maintenance of supplied and services essential to the community. The respondent realising the seriousness of this difficulty in its way, contended that the averment in paragraph 4 of the affidavit-in-reply that the District Magistrate was satisfied that if the petitioner was not detained, he would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community had crept in through mistake and should not be taken into account by the Court in adjudging the validity of the order an detention. The argument of the respondent was that the only subjective satisfaction on which the order of detention was founded was that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order as recited in the order of detention and the grounds of detain and it was not correct to state that the District Magistrate was also subjectively satisfied that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community and had on that account made the order of detention. We do not think we can accept this contention of the respondent. It must be remembered that the affidavit-in-reply has been made by the District Magistrate himself and we must presume that the District Magistrate must have made the statements contained in the affidavit-in-reply with the since of responsibility which his high office necessarily carries. If the District Magistrate was also not subjectively satisfied in regard to the likehood of the petitioner to act in a manner prejudicial to the maintenance of supplies and services essential to the community, he would not have made such an averment in paragraph 4 of his affidavit in reply. Ordinarily when an averment is made by a high officer like the District Magistrate in an affidavit which is made on oath, the Court is inclined to accept the averment as correct and the burden lies heavily on the party who alleges to the contrary. We cannot therefore, lightly accept the submission of the respondent that the District Magistrate has made on incorrect statement in paragraph 4 of his affidavit-in-reply. The position might have been different if the District Magistrate himself had made a subsequent affidavit stating on oath that he had made a mistake in the earlier affidavit-in-reply and explained the circumstances under which he came to make such mistake. The Court would then have examined the explanation given by the District Magistrate and if satisfied as regards the genuineness of the mistake, the Court would have accepted the subsequent statement of the District Magistrate and ignored the earlier averment made in the affidavit-in-reply. But here there is no affidavit made by the District Magistrate confessing his mistake in making the earlier averment in paragraph 4 of the affidavit-in-reply. We must, therefore, accept the averment made by the District Magistrate in paragraph 4 of his affidavit-in-reply as correct and proceed on the basis that the order of detention was based not only on his subjective satisfaction that the petitioner would be likely to act in a manner prejudicial to the maintenance of public order but also on his further subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. And if that be so, the order of detention must be held to the invalid since the incident of decoity in a third class compartment of a running train for committing theft of money which constituted the solitary ground of detention was wholly irrelevant and the subjective satisfaction of the District Magistrate that the petitioner would be likely to act in a manner prejudicial to the maintenance of supplies and services essential to the community could not be founded upon it and was hence colourable and no satisfaction at all.
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DR. AMIT KUMAR Vs. DR. SONILA | appellant and his second wife, the matrimonial arrangement was with the understanding that Respondent Nos.2 and 3 would stay with the appellant, and the second wife of the appellant would take care of them. The second wife of the appellant is an MBA graduate and was previously working with a bank, but resigned to take care of domestic responsibilities. The appellant also stated that while on the one hand no financial aid had been given by respondent No.1 to the appellant for the daughter, as per the obligations in the consent decree on other hand she had been transferring substantive amounts to the person with whom she allegedly had a liaison. On the Court?s query, respondent No.1 initially took offence to the fact that the appellant had access to her bank details, but on a pointed query admitted that she did transfer the funds to her colleague, but stated that the same was her own business. She sought to plead that it was immaterial whether she was or was not a good wife, but that she was indeed a good mother, as had become apparent in the interaction of the children with the learned Single Judge. 15. We have given deep thought to the matter. The issue is not so simple as it involves the interests of these young children, respondent Nos.2 & 3, which is of paramount concern. While saying so, it has been kept in mind that these children are still young and are of an impressionable age and the interaction can only be one of the factors to be taken into account. 16. In our view, it clearly emerges that the decision to give custody to the appellant, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. Respondent No.1 is well-educated and is a medical practitioner. There was a six (6) months? hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have a re-think, if they so deem it appropriate. The parties had clearly agreed as per clause 5 that they were free to re-marry. As per the terms of the custody, the said marriage does not have any effect on the custody rights, at least in the terms between the parties. The appellant has also borne all the expenses for both the children, as respondent No.1 even initially failed to contribute anything towards the expenses for the daughter, contrary to the agreement inter se the parties. 17. The trigger for respondent No.1 claiming custody of the children only arose when the appellant asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of respondent No.1 to contribute for her own daughter, while simultaneously transferring amounts to a colleague of hers. It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to not claim any amounts. We may also invite attention to Order II Rule 2 of the Code of Civil Procedure, 1908 specifying that where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished. Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is also highly doubtful. 18. We may hasten to add that it is not as if there can be no eventuality where such terms may require modification, but that would arise if the interests of the children so desire, and more specifically if the appellant had failed to honour his commitments, or look after the children. The second marriage of the appellant cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent No.1. 19. A perusal of the impugned order shows that it is not as if the appellant was not looking after the children. The children showed affection for their father. It was due to the exigencies of the appellant?s service condition that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit now, by claiming that the decree of divorce is null and void, when there is admission of a mutual consent for divorce and the appellant has already re-married. We are not going into the details of the allegations against respondent No.1?s liaison with another man in the same service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present proceedings. We, however, see no reason why the appellant has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant. | 1[ds]16. In our view, it clearly emerges that the decision to give custody to the appellant, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. Respondent No.1 isand is a medical practitioner. There was a six (6) months? hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have aif they so deem it appropriate. The parties had clearly agreed as per clause 5 that they were free toAs per the terms of the custody, the said marriage does not have any effect on the custody rights, at least in the terms between the parties. The appellant has also borne all the expenses for both the children, as respondent No.1 even initially failed to contribute anything towards the expenses for the daughter, contrary to the agreement inter se the parties.The trigger for respondent No.1 claiming custody of the children only arose when the appellant asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of respondent No.1 to contribute for her own daughter, while simultaneously transferring amounts to a colleague of hers. It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to not claim any amounts. We may also invite attention to Order II Rule 2 of the Code of Civil Procedure, 1908 specifying that where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished. Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is also highly doubtful.We may hasten to add that it is not as if there can be no eventuality where such terms may require modification, but that would arise if the interests of the children so desire, and more specifically if the appellant had failed to honour his commitments, or look after the children. The second marriage of the appellant cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent No.1.A perusal of the impugned order shows that it is not as if the appellant was not looking after the children. The children showed affection for their father. It was due to the exigencies of the appellant?s service condition that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit now, by claiming that the decree of divorce is null and void, when there is admission of a mutual consent for divorce and the appellant has alreadyWe are not going into the details of the allegations against respondent No.1?s liaison with another man in the same service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present proceedings. We, however, see no reason why the appellant has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant. | 1 | 2,963 | 793 | ### 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:
appellant and his second wife, the matrimonial arrangement was with the understanding that Respondent Nos.2 and 3 would stay with the appellant, and the second wife of the appellant would take care of them. The second wife of the appellant is an MBA graduate and was previously working with a bank, but resigned to take care of domestic responsibilities. The appellant also stated that while on the one hand no financial aid had been given by respondent No.1 to the appellant for the daughter, as per the obligations in the consent decree on other hand she had been transferring substantive amounts to the person with whom she allegedly had a liaison. On the Court?s query, respondent No.1 initially took offence to the fact that the appellant had access to her bank details, but on a pointed query admitted that she did transfer the funds to her colleague, but stated that the same was her own business. She sought to plead that it was immaterial whether she was or was not a good wife, but that she was indeed a good mother, as had become apparent in the interaction of the children with the learned Single Judge. 15. We have given deep thought to the matter. The issue is not so simple as it involves the interests of these young children, respondent Nos.2 & 3, which is of paramount concern. While saying so, it has been kept in mind that these children are still young and are of an impressionable age and the interaction can only be one of the factors to be taken into account. 16. In our view, it clearly emerges that the decision to give custody to the appellant, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. Respondent No.1 is well-educated and is a medical practitioner. There was a six (6) months? hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have a re-think, if they so deem it appropriate. The parties had clearly agreed as per clause 5 that they were free to re-marry. As per the terms of the custody, the said marriage does not have any effect on the custody rights, at least in the terms between the parties. The appellant has also borne all the expenses for both the children, as respondent No.1 even initially failed to contribute anything towards the expenses for the daughter, contrary to the agreement inter se the parties. 17. The trigger for respondent No.1 claiming custody of the children only arose when the appellant asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of respondent No.1 to contribute for her own daughter, while simultaneously transferring amounts to a colleague of hers. It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to not claim any amounts. We may also invite attention to Order II Rule 2 of the Code of Civil Procedure, 1908 specifying that where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished. Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is also highly doubtful. 18. We may hasten to add that it is not as if there can be no eventuality where such terms may require modification, but that would arise if the interests of the children so desire, and more specifically if the appellant had failed to honour his commitments, or look after the children. The second marriage of the appellant cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent No.1. 19. A perusal of the impugned order shows that it is not as if the appellant was not looking after the children. The children showed affection for their father. It was due to the exigencies of the appellant?s service condition that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit now, by claiming that the decree of divorce is null and void, when there is admission of a mutual consent for divorce and the appellant has already re-married. We are not going into the details of the allegations against respondent No.1?s liaison with another man in the same service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present proceedings. We, however, see no reason why the appellant has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant.
### Response:
1
### Explanation:
16. In our view, it clearly emerges that the decision to give custody to the appellant, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. Respondent No.1 isand is a medical practitioner. There was a six (6) months? hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have aif they so deem it appropriate. The parties had clearly agreed as per clause 5 that they were free toAs per the terms of the custody, the said marriage does not have any effect on the custody rights, at least in the terms between the parties. The appellant has also borne all the expenses for both the children, as respondent No.1 even initially failed to contribute anything towards the expenses for the daughter, contrary to the agreement inter se the parties.The trigger for respondent No.1 claiming custody of the children only arose when the appellant asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of respondent No.1 to contribute for her own daughter, while simultaneously transferring amounts to a colleague of hers. It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to not claim any amounts. We may also invite attention to Order II Rule 2 of the Code of Civil Procedure, 1908 specifying that where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished. Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is also highly doubtful.We may hasten to add that it is not as if there can be no eventuality where such terms may require modification, but that would arise if the interests of the children so desire, and more specifically if the appellant had failed to honour his commitments, or look after the children. The second marriage of the appellant cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which has been specifically conferred on him with the consent of respondent No.1.A perusal of the impugned order shows that it is not as if the appellant was not looking after the children. The children showed affection for their father. It was due to the exigencies of the appellant?s service condition that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. The second wife of the appellant is an educated lady. Merely because the appellant has decided to go ahead in life, and has had a second marriage, it provides no ground whatsoever to deprive him of the custody of the children as agreed upon between the appellant and respondent No.1, especially when he has been looking after the children and has not gone back on any of his commitments. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing the suit now, by claiming that the decree of divorce is null and void, when there is admission of a mutual consent for divorce and the appellant has alreadyWe are not going into the details of the allegations against respondent No.1?s liaison with another man in the same service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present proceedings. We, however, see no reason why the appellant has been compelled to go through this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the interest of the children, have given the custody to the appellant.
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SATLUJ JAL VIDYUT NIGAM LTD Vs. RAJ KUMAR RAJINDER SINGH(D)THRU LRS | to gain by anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non- suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.? 73. In K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 , it was observed that one of the examples cited as an abuse of the process of the court is re- litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. 74. Learned counsel for the respondent has placed reliance on the decision rendered in Ujjagar Singh v. Collector, Bhatinda, (1996) 5 SCC 14 , wherein this Court examined the effect of coming into force of Punjab Land Reforms Act, 1972 and vesting of the surplus area in the State. In this case, the area in possession of landlord was declared surplus under the Pepsu Act, but possession had not been taken by the State. It was held that area did not vest finally as the surplus area under the Pepsu Act, owing to coming into force of the new Act, the ceiling area must be determined afresh under the new Punjab Act. In the instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act. Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed. 75. In State of H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights. It is totally distinguishable and cannot be applied to the instant case. 76. Learned counsel on behalf of the respondent has referred to the decision rendered in Madan Kishore v. Major Sudhir Sewal, (2008) 8 SCC 744 , wherein question arose with respect to entitlement of sub- tenant to apply under Section 27(4). It was held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4). It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act. In Re Q. No.5 Bona fide Transferees : 77. With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the Reference Court that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not propose to give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way. | 1[ds]42. A reading of section 27 makes it clear that on the abolition of estates except for the land which is under personal cultivation of the landowner, vests in the State. Vesting is automatic and would not depend upon the payment of compensation and this has already been held by this Court vide order dated 17.9.1969 in the case filed by Late RajinderSingh. It is crystal clear that vesting of the land is not confined to the land held under the tenancy right. The expression used in section 27 is ?landowner? who holds the land. Thus, there is no scope for the submission that section 27 is applicable only to a land held by the tenant in tenancy. It is applicable to all kinds of land asdefined in the Abolition Act held by the landowner and the definition of the land in Abolition Act is inclusive and would include all kinds of land in a town or village which is not occupied by any site of the building. Thus, all land which is not occupied by any building situated in a town or building would vest in the State and a land whichhas been let for agricultural purpose or for purposes subservient to agriculture or for pasture including the sites of building and other structure of the land, orchard, and ghasnies would vest in the State. Thus, it is apparent that the land which is Banjar, Abadi, Gharat, Kalhu, and Gair-Mumkin are all covered under the definition of land.The big estates were sought to be abolished by the H.P. Abolition Act. When section 27 of the Abolition Act and definition of land is read with ‘holding? and ‘estate? and ‘landowner? as defined in the Punjab Land Revenue Act, 1887 it is clear that the land held by late Rajinder Singh definitely exceeded revenue of Rs.125 per year as is apparent from documents and various orders passed in the case. The object of the Abolition Act is to provide for the abolition of big landed estates and to bring land reform in the law relating to tenancies and to make provisions for matters connected therewith. The land holding of Late Rajinder Singh was a big estate and was definitely covered under the purview of the Act and in particular under section 27 and all the lands vested in the State except the land under his personal cultivation.Thus, we are of the considered opinion thatthe area under personal cultivation which was saved in favour of Rajinder Singh was 64 bighas 12 Biswas only as specified. It is apparent from the order dated 27.2.1962 Khata No.1 Kita measuring 1011 bighas 6 Biswas vested in the ownership of Government of Himachal Pradesh in village Jhakri. In the review on 19.9.1964, there was only partial modification with respect to area 14 bighas 12 Biswas. The land revenue of land at Jakhri as apparent from Jamabandi of 1955-56 at the time when the Abolition Act came into force was Rs.155.58 it was more than Rs.125 as such the land which was Banjar kadim or otherwise not under personal cultivation had vested in the State.The fact is conclusively established that land in question had been declared as surplus and compensation under the Ceiling Act had also been received, even though the land had already vested in the Stateunder the Abolition Act. Once the disputed land had been admittedly declared surplus in Ceiling Act vide order dated 30.6.1980, there was no question of payment of compensation to Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act. The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raisedin the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his LRs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into.Thus, we are of the considered opinion thatonce land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case. (iii) In Re: Effect of withdrawal of C.S. No.15/1970 inThe proceedings were initiated in the year 1987for the acquisition of land whereas the order of ceiling was passed earlier in 1980 and 1985 subsequently the surplus area was increased in 1993. By no stretch of any principle of law, Late Rajinder Singh or his successors could have claimed compensation in the proceedings in questioninitiated under the LA Act in the year 1987. In our considered opinion the respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system. As a matter of fact, compensation has been taken for the land in the proceedings under the Abolition Act. Even if compensation in respect of certain land was not payable or paid, vesting would not depend upon the same. Land not under personal cultivation of Jagirdars had vested in the State, as such it was not open even to obtain compensation for the very same land either under the provisions of the Ceiling Act which has been received or under the provisions of the LA Act. It was wholly impermissible and illegal and tantamountto scam committed by fraudsters. The cases were withdrawn one after the other just to perpetuate the fraud on the legal system by raising the inconsistent pleas and taking unfair and undue advantage of the wrong continuation of entries in the revenuethe instant case, there had been earlier proceedings which makes it clear that Rajinder Singh was not entitled to claim compensation under the LA Act. It is apparent that there was no subsisting right, title or interest left with Rajinder Singh or his LRs., thus, they could not be permitted to obtain thethe instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act.Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed.H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights.It is totally distinguishable and cannot be applied to the instantwas held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4).It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act.With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the ReferenceCourt that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not proposeto give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way. | 1 | 17,865 | 1,702 | ### 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:
to gain by anothers loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non- suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.? 73. In K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 , it was observed that one of the examples cited as an abuse of the process of the court is re- litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. 74. Learned counsel for the respondent has placed reliance on the decision rendered in Ujjagar Singh v. Collector, Bhatinda, (1996) 5 SCC 14 , wherein this Court examined the effect of coming into force of Punjab Land Reforms Act, 1972 and vesting of the surplus area in the State. In this case, the area in possession of landlord was declared surplus under the Pepsu Act, but possession had not been taken by the State. It was held that area did not vest finally as the surplus area under the Pepsu Act, owing to coming into force of the new Act, the ceiling area must be determined afresh under the new Punjab Act. In the instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act. Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed. 75. In State of H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights. It is totally distinguishable and cannot be applied to the instant case. 76. Learned counsel on behalf of the respondent has referred to the decision rendered in Madan Kishore v. Major Sudhir Sewal, (2008) 8 SCC 744 , wherein question arose with respect to entitlement of sub- tenant to apply under Section 27(4). It was held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4). It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act. In Re Q. No.5 Bona fide Transferees : 77. With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the Reference Court that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not propose to give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way.
### Response:
1
### Explanation:
to Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act. The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raisedin the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his LRs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into.Thus, we are of the considered opinion thatonce land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case. (iii) In Re: Effect of withdrawal of C.S. No.15/1970 inThe proceedings were initiated in the year 1987for the acquisition of land whereas the order of ceiling was passed earlier in 1980 and 1985 subsequently the surplus area was increased in 1993. By no stretch of any principle of law, Late Rajinder Singh or his successors could have claimed compensation in the proceedings in questioninitiated under the LA Act in the year 1987. In our considered opinion the respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system. As a matter of fact, compensation has been taken for the land in the proceedings under the Abolition Act. Even if compensation in respect of certain land was not payable or paid, vesting would not depend upon the same. Land not under personal cultivation of Jagirdars had vested in the State, as such it was not open even to obtain compensation for the very same land either under the provisions of the Ceiling Act which has been received or under the provisions of the LA Act. It was wholly impermissible and illegal and tantamountto scam committed by fraudsters. The cases were withdrawn one after the other just to perpetuate the fraud on the legal system by raising the inconsistent pleas and taking unfair and undue advantage of the wrong continuation of entries in the revenuethe instant case, there had been earlier proceedings which makes it clear that Rajinder Singh was not entitled to claim compensation under the LA Act. It is apparent that there was no subsisting right, title or interest left with Rajinder Singh or his LRs., thus, they could not be permitted to obtain thethe instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act.Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed.H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting non-occupant tenant in possession of the land had acquired ownership rights.It is totally distinguishable and cannot be applied to the instantwas held that the expression in Section 27(4), such tenant who cultivates such land, does not entitle a sub-tenant either to claim proprietary rights or apply for the same under Section 27(4).It was held that he was not a sub-tenant. The decision is of no help to the cause espoused on behalf of LRs. of Rajinder Singh. In the peculiar facts projected in the case the principle fraud vitiates is clearly applicable it cannot be ignored and overlooked under the guise of the scope of proceedings under Section 18/30 of the LA Act.With respect to the appeals filed by SJVN Ltd. arising out of judgment and order of 2013 in the matter of bona fide transferees, filed in the year 2014, the High Court has held that the respondents are bona fide transferees from Rajinder Singh. However, it was pointed out on behalf of the appellants that in 72 reference cases, the regular first appeal is still pending in the High Court. It has been held by the ReferenceCourt that the claimants are not entitled to any compensation. In case regular first appeal is pending in the High Court as against the order of reference court against the respondents who claim to be bona fide transferees, obviously, the question of bona fide transferee has to be decided finally in the pending regular first appeal before the High Court. In case appeal has not been filed or has been decided, the compensation to follow the decision. We do not proposeto give final verdict on issue at this stage. We leave the question open to the High Court to adjudicate. However, in case compensation has been paid to transferees, the compensation paid shall not be recovered till such time pending appeal is decided. In case no matter against transferees is pending and appeal has been decided in favour of land owners, obviously they have to be paid and this Order will not come in the way.
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Punjab & Sind Bank Vs. M/s. C.S. Company & Others | plaintiff-bank has produced Ex-A82 and Ex-A3 which show that the invocation was done by the Chief Engineer (Civil) General as per the terms of the Bank Guarantees. It is significant to note that Ex-A4 is subsequent to Ex-A82 and relates to Bank Guarantee of Rs.19 lakhs and Ex-A7 is subsequent to Ex-A3 and relates to Bank Guarantee of Rs.1 lakh. The trial court has rightly held them to be genuine documents. The invocation of Bank Guarantees was also done when they were in force, in view of their extension. 18. Perhaps the most significant piece of evidence which has not been noticed by the trial court and though referred to by the High Court but not appreciated by it, is the letter dated 7/7/1984 (Ex-A6) in which the Managing Partner of defendant 1 has admitted execution of Bank Guarantees and expressed willingness to pay the amount. This is a letter written by defendant 1 to the plaintiff-bank in response to the demand notice dated 23/6/1984 issued to defendant 1. DW-1 in his evidence has admitted that the said letter (Ex-A6) was written by defendant 1. We deem it appropriate to quote the said letter entirely. “In response to the demand notice dated 23-6-1984 issued to me and after prolong discussion with the officials concerned, we give you this reply placing certain conditions and suggestions for a smooth banking transaction between us.A bank guarantee for a sum of Rs. 19,00,000/- was arranged by you for a contract work which we have entered into with the K.S.E.Board (Kakkad Hydro Electric Tunnel Project, costing Rs. 6.5 Crores). The work is going on in a full swing and for the continuation of the work we have invested a huge amount for the purchase of machineries and other things. It is relevant to state here that the contract is for a sum of Rs.6.5 crores. Unfortunately, allegations were levelled against the concerned Minister regarding this contract and this matter as referred for a finding before Justice Janaky Amma Commission. The Commission came to the conclusion that all the charges levelled against the Minister were false. Not satisfied with this finding, the opposition parties of the Kerala Legislative Assembly have now raised certain questions regarding this matter in the Assembly. All allegations levelled against the Minister was regarding allowing a sum ofRs.19,00,000/- as mobilization advance. As per the agreement, we have entered into with the K.S.E.Board, we are entitled to get a sum of Rs.20 lakhs. To be immune from the allegations the Board has withdrawn the amount advanced to us without even issuing a notice either to us or to the Bank.We could have approached before a civil court and obtained a stay, but we avoided it only to maintain a good relationship with KSEB for a smooth execution of the contract. Now you have issued a notice asking us to remit the outstanding amount of Rs. 14,43,037.92. Since we have invested a huge amount and since we want to proceed with the work and since we have not so far as received any amount from the department for the work we have done till the date, we are now not in a position to remit the entire amount. As per the conclusion of the discussion with the bank officials on 6-7- 1984, we hereby undertake to remit 10% of the amount of every bill from our coming running part payments.To face the financial situation, we have reconstituted our partnership by including new partners who are substantially rich and well experienced in the field of contract work and by way of increasing the capital.Now we are approaching you for an clean over-draft for a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs only) and for sanctioning it we are prepared to give sufficient additional securities the bank requires. Being an outstanding contract, without this much of amount we cannot proceed with the work and only to face this circumstance we make this request and it is just from the part of the bank to sanction our request.We hereby make a suggestion that we would make arrangements from some sources to deposit a substantial amount to the bank. We make this arrangement to face the financial condition, if any, of the bank. Hence, it is prayed that in the circumstances mentioned above, your goodself may be pleased to make immediate arrangements to sanction the request we have made above.” 19. In this letter defendant 1 has accepted the case of the plaintiff-bank and undertaken to remit 10% of the amount of every bill from the running part payments receivable by it. Once defendant 1 admits execution of the Bank Guarantees and expresses its desire to repay the amount and when Counter Guarantees, number of title deeds, encumbrance certificates and confirmation letters are on record, in the facts of this case, decree must follow. In our opinion, the conduct of the defendants needs to be deprecated. After having taken the benefit of the Bank Guarantees, the defendants have tried to persuade the court to absolve them of the liability to repay the amount by taking up untenable and false contentions. In O.P. No.62 of 1986 in the schedule of properties under the heading “assets of partners”, defendant 1 has categorically stated that the said properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. It is surprising that to evade their liability to make payments, defendant took a contrary stand in this case and tried to mislead the court. The trial court was, therefore, right in decreeing the suit. In the circumstances, the plaintiff-bank must succeed. We must, however, express our extreme displeasure about the conduct of the officers of the plaintiff-bank. The plaintiff- bank is a nationalized bank. It is surprising how the originals of the Bank Guarantees could not be produced by it in the trial court. Such conduct is not expected from the officers of the plaintiff-bank who deal with public money. They have dealt with this matter with extreme casualness. | 1[ds]14. The defendants case regarding blank signed papers is not substantiated by any evidence except their say so. The trial court has rightly rejected this story and we concur with the trial court. Apart from the fact that there is nothing on record to establish the case of the defendants that thewas party to such a fraud of creating fabricated documents after obtaining blank signed papers from the defendants, it also does not stand to reason that the defendants and its partners and other defendants are so gullible as to hand over to theseveral signed blank papers. Falsity of their case is seen from the documents on record.15. The title deeds are at5 to Ex54 andThe tax and revenue receipts relating to the properties are at5 andEncumbrances certificates upto April, 1983 are at, Ex6. Confirmation letters regarding deposit of title deeds are at34 and ExA72. We have carefully perused these letters. It is impossible to come to a conclusion that thehas fabricated these letters on the blank signed papers allegedly given to it by the defendants. There is no manner of doubt that they are genuine documents. There are Memoranda of deposit of title deeds duly signed by the defendants giving details of the properties. They are at Ex, Ex3. We have seen these exhibits also. We are convinced that they are genuine documents. The defendants have not been able to give any valid acceptable explanation as to how so many original title deeds came in the custody of thePertinently, the trial court has noted that defendant 1 has filed O.P. No.62 of 1986 in theat Ernakulam against thefor recovery of Rs.In the schedule of properties under the headingit is clearly stated that these properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. The trial court has further noted that whenwas confronted with this fact, he had no reply. At the cost of repetition, it needs to be stated that it is the case of defendants 6 to 8 in their written statement that they are not partners of defendant 1; they have no connection with the Bank Guarantee and, hence, there is no question of there being any equitable mortgage; that the original title deeds were only given for scrutiny and that thehad taken blank signed papers from them when the first Bank Guarantee for Rs.1 lakh dated 11/5/1983 was taken. This explanation itself falsifies the case of defendants 6 to 8. They have admitted that the first Bank Guarantee of Rs.1 lakh dated 11/5/1983 was executed. Even assuming without admitting that some blank papers with their signatures were taken by thefrom them, unless they were concerned with the Bank Guarantee, such documents would not be demanded from them nor would they have given such documents to theTheir efforts to disassociate themselves from defendantand the Bank Guarantees cannot, therefore, be countenanced. It is equally impossible to accept that these documents were taken for scrutiny by theNone of the defendants have successfully explained why and for what purpose, the scrutiny of their documents was necessary. We concur with the trial court that all these documents cut at the very root of the defence regarding theof the equitable mortgage. The case of the defendants that there was no equitable mortgage will have to be, therefore, rejected.16. The defendants contention that theillegally encashed the Fixed Deposit Receipts in the sum of Rs.4,75,000/must also be rejected. It is the plaintiffbanks case that this amount was deposited as security for the Bank Guarantee of Rs.19 lakhs availed of by theand the liability incurred bydefendants contend that the said Fixed Deposit Receipts were given to thefor safe custody. Against the background of the aforementioned facts, the story that the Fixed Deposit Receipts were deposited with theSo far as invocation of Bank Guarantees is concerned, in our opinion, there is no infirmity in the case of plaintiffbank. It is true that in the plaint, there is a reference to Ex7, which indicates that the invocation is done by the Secretary of KSEB but when an objection was raised by the defendants that the invocation was not proper, theA82 andwhich show that the invocation was done by the Chief Engineer (Civil) General as per the terms of the Bank Guarantees. It is significant to note thatis subsequent toand relates to Bank Guarantee ofRs.19 lakhs ands subsequent tod relates to Bank Guarantee ofRs.1 lakh. The trial court has rightly held them to be genuine documents. The invocation of Bank Guarantees was also done when they were in force, in view of their extension.In this letter defendant 1 has accepted the case of theand undertaken to remit 10% of the amount of every bill from the running part payments receivable by it. Once defendant 1 admits execution of the Bank Guarantees and expresses its desire to repay the amount and when Counter Guarantees, number of title deeds, encumbrance certificates and confirmation letters are on record, in the facts of this case, decree must follow. In our opinion, the conduct of the defendants needs to be deprecated. After having taken the benefit of the Bank Guarantees, the defendants have tried to persuade the court to absolve them of the liability to repay the amount by taking up untenable and false contentions. In O.P. No.62 of 1986 in the schedule of properties under the headingdefendant 1 has categorically stated that the said properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. It is surprising that to evade their liability to make payments, defendant took a contrary stand in this case and tried to mislead the court. The trial court was, therefore, right in decreeing the suit. In the circumstances, themust succeed. We must, however, express our extreme displeasure about the conduct of the officers of thenk is a nationalized bank. It is surprising how the originals of the Bank Guarantees could not be produced by it in the trial court. Such conduct is not expected from the officers of thewho deal with public money. They have dealt with this matter with extreme casualness | 1 | 7,360 | 1,099 | ### 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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plaintiff-bank has produced Ex-A82 and Ex-A3 which show that the invocation was done by the Chief Engineer (Civil) General as per the terms of the Bank Guarantees. It is significant to note that Ex-A4 is subsequent to Ex-A82 and relates to Bank Guarantee of Rs.19 lakhs and Ex-A7 is subsequent to Ex-A3 and relates to Bank Guarantee of Rs.1 lakh. The trial court has rightly held them to be genuine documents. The invocation of Bank Guarantees was also done when they were in force, in view of their extension. 18. Perhaps the most significant piece of evidence which has not been noticed by the trial court and though referred to by the High Court but not appreciated by it, is the letter dated 7/7/1984 (Ex-A6) in which the Managing Partner of defendant 1 has admitted execution of Bank Guarantees and expressed willingness to pay the amount. This is a letter written by defendant 1 to the plaintiff-bank in response to the demand notice dated 23/6/1984 issued to defendant 1. DW-1 in his evidence has admitted that the said letter (Ex-A6) was written by defendant 1. We deem it appropriate to quote the said letter entirely. “In response to the demand notice dated 23-6-1984 issued to me and after prolong discussion with the officials concerned, we give you this reply placing certain conditions and suggestions for a smooth banking transaction between us.A bank guarantee for a sum of Rs. 19,00,000/- was arranged by you for a contract work which we have entered into with the K.S.E.Board (Kakkad Hydro Electric Tunnel Project, costing Rs. 6.5 Crores). The work is going on in a full swing and for the continuation of the work we have invested a huge amount for the purchase of machineries and other things. It is relevant to state here that the contract is for a sum of Rs.6.5 crores. Unfortunately, allegations were levelled against the concerned Minister regarding this contract and this matter as referred for a finding before Justice Janaky Amma Commission. The Commission came to the conclusion that all the charges levelled against the Minister were false. Not satisfied with this finding, the opposition parties of the Kerala Legislative Assembly have now raised certain questions regarding this matter in the Assembly. All allegations levelled against the Minister was regarding allowing a sum ofRs.19,00,000/- as mobilization advance. As per the agreement, we have entered into with the K.S.E.Board, we are entitled to get a sum of Rs.20 lakhs. To be immune from the allegations the Board has withdrawn the amount advanced to us without even issuing a notice either to us or to the Bank.We could have approached before a civil court and obtained a stay, but we avoided it only to maintain a good relationship with KSEB for a smooth execution of the contract. Now you have issued a notice asking us to remit the outstanding amount of Rs. 14,43,037.92. Since we have invested a huge amount and since we want to proceed with the work and since we have not so far as received any amount from the department for the work we have done till the date, we are now not in a position to remit the entire amount. As per the conclusion of the discussion with the bank officials on 6-7- 1984, we hereby undertake to remit 10% of the amount of every bill from our coming running part payments.To face the financial situation, we have reconstituted our partnership by including new partners who are substantially rich and well experienced in the field of contract work and by way of increasing the capital.Now we are approaching you for an clean over-draft for a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs only) and for sanctioning it we are prepared to give sufficient additional securities the bank requires. Being an outstanding contract, without this much of amount we cannot proceed with the work and only to face this circumstance we make this request and it is just from the part of the bank to sanction our request.We hereby make a suggestion that we would make arrangements from some sources to deposit a substantial amount to the bank. We make this arrangement to face the financial condition, if any, of the bank. Hence, it is prayed that in the circumstances mentioned above, your goodself may be pleased to make immediate arrangements to sanction the request we have made above.” 19. In this letter defendant 1 has accepted the case of the plaintiff-bank and undertaken to remit 10% of the amount of every bill from the running part payments receivable by it. Once defendant 1 admits execution of the Bank Guarantees and expresses its desire to repay the amount and when Counter Guarantees, number of title deeds, encumbrance certificates and confirmation letters are on record, in the facts of this case, decree must follow. In our opinion, the conduct of the defendants needs to be deprecated. After having taken the benefit of the Bank Guarantees, the defendants have tried to persuade the court to absolve them of the liability to repay the amount by taking up untenable and false contentions. In O.P. No.62 of 1986 in the schedule of properties under the heading “assets of partners”, defendant 1 has categorically stated that the said properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. It is surprising that to evade their liability to make payments, defendant took a contrary stand in this case and tried to mislead the court. The trial court was, therefore, right in decreeing the suit. In the circumstances, the plaintiff-bank must succeed. We must, however, express our extreme displeasure about the conduct of the officers of the plaintiff-bank. The plaintiff- bank is a nationalized bank. It is surprising how the originals of the Bank Guarantees could not be produced by it in the trial court. Such conduct is not expected from the officers of the plaintiff-bank who deal with public money. They have dealt with this matter with extreme casualness.
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any evidence except their say so. The trial court has rightly rejected this story and we concur with the trial court. Apart from the fact that there is nothing on record to establish the case of the defendants that thewas party to such a fraud of creating fabricated documents after obtaining blank signed papers from the defendants, it also does not stand to reason that the defendants and its partners and other defendants are so gullible as to hand over to theseveral signed blank papers. Falsity of their case is seen from the documents on record.15. The title deeds are at5 to Ex54 andThe tax and revenue receipts relating to the properties are at5 andEncumbrances certificates upto April, 1983 are at, Ex6. Confirmation letters regarding deposit of title deeds are at34 and ExA72. We have carefully perused these letters. It is impossible to come to a conclusion that thehas fabricated these letters on the blank signed papers allegedly given to it by the defendants. There is no manner of doubt that they are genuine documents. There are Memoranda of deposit of title deeds duly signed by the defendants giving details of the properties. They are at Ex, Ex3. We have seen these exhibits also. We are convinced that they are genuine documents. The defendants have not been able to give any valid acceptable explanation as to how so many original title deeds came in the custody of thePertinently, the trial court has noted that defendant 1 has filed O.P. No.62 of 1986 in theat Ernakulam against thefor recovery of Rs.In the schedule of properties under the headingit is clearly stated that these properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. The trial court has further noted that whenwas confronted with this fact, he had no reply. At the cost of repetition, it needs to be stated that it is the case of defendants 6 to 8 in their written statement that they are not partners of defendant 1; they have no connection with the Bank Guarantee and, hence, there is no question of there being any equitable mortgage; that the original title deeds were only given for scrutiny and that thehad taken blank signed papers from them when the first Bank Guarantee for Rs.1 lakh dated 11/5/1983 was taken. This explanation itself falsifies the case of defendants 6 to 8. They have admitted that the first Bank Guarantee of Rs.1 lakh dated 11/5/1983 was executed. Even assuming without admitting that some blank papers with their signatures were taken by thefrom them, unless they were concerned with the Bank Guarantee, such documents would not be demanded from them nor would they have given such documents to theTheir efforts to disassociate themselves from defendantand the Bank Guarantees cannot, therefore, be countenanced. It is equally impossible to accept that these documents were taken for scrutiny by theNone of the defendants have successfully explained why and for what purpose, the scrutiny of their documents was necessary. We concur with the trial court that all these documents cut at the very root of the defence regarding theof the equitable mortgage. The case of the defendants that there was no equitable mortgage will have to be, therefore, rejected.16. The defendants contention that theillegally encashed the Fixed Deposit Receipts in the sum of Rs.4,75,000/must also be rejected. It is the plaintiffbanks case that this amount was deposited as security for the Bank Guarantee of Rs.19 lakhs availed of by theand the liability incurred bydefendants contend that the said Fixed Deposit Receipts were given to thefor safe custody. Against the background of the aforementioned facts, the story that the Fixed Deposit Receipts were deposited with theSo far as invocation of Bank Guarantees is concerned, in our opinion, there is no infirmity in the case of plaintiffbank. It is true that in the plaint, there is a reference to Ex7, which indicates that the invocation is done by the Secretary of KSEB but when an objection was raised by the defendants that the invocation was not proper, theA82 andwhich show that the invocation was done by the Chief Engineer (Civil) General as per the terms of the Bank Guarantees. It is significant to note thatis subsequent toand relates to Bank Guarantee ofRs.19 lakhs ands subsequent tod relates to Bank Guarantee ofRs.1 lakh. The trial court has rightly held them to be genuine documents. The invocation of Bank Guarantees was also done when they were in force, in view of their extension.In this letter defendant 1 has accepted the case of theand undertaken to remit 10% of the amount of every bill from the running part payments receivable by it. Once defendant 1 admits execution of the Bank Guarantees and expresses its desire to repay the amount and when Counter Guarantees, number of title deeds, encumbrance certificates and confirmation letters are on record, in the facts of this case, decree must follow. In our opinion, the conduct of the defendants needs to be deprecated. After having taken the benefit of the Bank Guarantees, the defendants have tried to persuade the court to absolve them of the liability to repay the amount by taking up untenable and false contentions. In O.P. No.62 of 1986 in the schedule of properties under the headingdefendant 1 has categorically stated that the said properties are mortgaged to the Bank as security for Bank Guarantee of Rs.20 lakhs. It is surprising that to evade their liability to make payments, defendant took a contrary stand in this case and tried to mislead the court. The trial court was, therefore, right in decreeing the suit. In the circumstances, themust succeed. We must, however, express our extreme displeasure about the conduct of the officers of thenk is a nationalized bank. It is surprising how the originals of the Bank Guarantees could not be produced by it in the trial court. Such conduct is not expected from the officers of thewho deal with public money. They have dealt with this matter with extreme casualness
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K.I. Shephard & Others Vs. Union of India & Others | ipse dixit of RBI officers without verification of facts. It is quite possible that a manoeuvring officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad.14. It has been contended on behalf of respondents that moratorium could be for a total period of six months and that was the time allowed for the entire operation to be conducted. In view of the time frame, by necessary implication it must follow that application of natural justice compliance of which would involve a time-consuming process was ruled out. We do not think that there is any merit in this contention either. As a fact, in respect of the three banks the total number of excluded employees is around 125. It is the common case of parties that proceedings were pending against some .of them. It may be that in view of the time frame a detailed enquiry involving communication of allegations, show cause, opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may not be possible. Keeping the legislative scheme in view perhaps a simpler enquiry, for instance, communication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. In this case we are not really concerned with the manner or extent of hearing as there has been no hearing at all. It must, therefore, be held that the action of excluding these employees in the manner done cannot be supported.15. Fair play is apart of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a. hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment. 16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. 17. Amalgamation as such saved under Article 31A(l) (c) of the Constitution is not under challenge here. Strong reliance, however, had been placed on the provisions of sub-sec. (7A) of S. 45 of the Act. The relevant part of it is as requoted here for convenience : - "The sanction accorded by the Central Government under sub-sec, (7) ...................... shall be conclusive evidence that all the requirements of this section relating to ........amalgamation have been complied with .............................." 18. This provision is indeed one for purposes of evidence. In Smt. Somawanti v. State of Punjab, (1963) 2 SCR 774 : (AIR 1963 SC 151 ), this Court pointed out that there was no real difference between conclusive proof provided for in Section 4 of the Evidence Act and conclusive evidence as appearing in sub-sec. (7A).This provision does not bar the raising of a dispute of the nature received here. As we have already pointed out, amalgamation is not under challenge. Parties are disputing as to what exactly are the requirements of the procedure laid down under the Act and the position that no opportunity was afforded to the excluded employees is not in dispute. To a situation as here protection of the umbrella of conclusive evidence is not attached so as to bar the question from being examined. There is, therefore, nothing in sub-sec. (7A) to preclude examination of the question canvassed here. | 1[ds]3. Though employees of the other two banks had not challenged the vires of S. 45 of the Act, on behalf of Lakshmi such a challenge has been made. Since the grounds of attack on this score did not impress us at all, we do not propose to refer to that aspect of the submissions involving interpretation of Art. 31-A, Article 16 and Art. 21. It has often been said by this Court that Courts should not enter into constitutional issues and attempt interpretation of its provisions unless it is really necessary for disposal of the dispute. In our opinion, this group of cases can be disposed of without reference to question of vires of some part of Section 45 of the Act being examined.It is the common case of RBI as also the transferee banks that the records of service of each of the employees had been scrutinised and the names for inclusion in the scheme were picked up on the basis of materials like irresponsible action in regard to sanction of loans and accommodations to customers which affected the financial stability of the banking company concerned. Such an allegation made in the counter-affidavit in this Court has been seriously disputed by the litigating excluded employees. It is their positive case that there was no foundation in such allegation and dubious loans, if any, had been sanctioned under instructions of the superior in the banking company and, therefore, did not involve any delinquency on the part of such employees. Since it is the case of the. respondents, that exclusion had been ordered on the basis of an objective assessment and the very. foundation of the allegation upon which such assessment has been made is disputed, a situation arose where facts had to be ascertained; and it involved assessment . That has admittedly not been done.Admittedly the excluded employees have neither been put to notice that their services were not being continued under the transferee banks nor had they been given an opportunity of being heard with reference to the allegations now levelled against them. Learned counsel for RBI and the transferee banks have taken the stand that the scheme making process under S. 45 is legislative in character and, therefore, outside the -purview of the ambit of natural justice under the protective umbrella whereof the need to put the excluded employees to notice or enquiry arose. It is well-settled that natural justice will not be employed in the exercise of legislativeNatural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a manoeuvring officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad.14. It has been contended on behalf of respondents that moratorium could be for a total period of six months and that was the time allowed for the entire operation to be conducted. In view of the time frame, by necessary implication it must follow that application of natural justice compliance of which would involve a time-consuming process was ruled out. We do not think that there is any merit in this contention either. As a fact, in respect of the three banks the total number of excluded employees is around 125. It is the common case of parties that proceedings were pending against some .of them. It may be that in view of the time frame a detailed enquiry involving communication of allegations, show cause, opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may not be possible. Keeping the legislative scheme in view perhaps a simpler enquiry, for instance, communication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. In this case we are not really concerned with the manner or extent of hearing as there has been no hearing at all. It must, therefore, be held that the action of excluding these employees in the manner done cannot be supported.15. Fair play is apart of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a. hearing commensurate to the situation is afforded before a section of the employees is thrown out of45 of the Act provides a legislative scheme and the different steps required to be taken under this section have been put one after the other. A reading of this section indicates a sequence oriented pattern. What would ordinarily be incorporated in the draft scheme is indicated in(5). After the requirements of subsec. (5) are complied with and the scheme comes to a presentable shape,(6)(a) requires a copy thereof as prepared by RBI to be sent to the banking company (transferer) as also to the transferee bank. Clause (b) of(6) authorises RBI to make modifications in the draft scheme as it may consider necessary in the light of suggestions and objections received from the banking company and the transferee bank. On a simple construction of(5) and (6) and on the basis of the sequence pattern adopted in S. 45 it would be legitimate to hold that the Act contemplates the employees to be excluded to be specifically named in the draft scheme. Since it is a draft scheme prepared by RBI and the right to object or to make suggestions is extended to both the banking company as also the transferee bank, and in view of the fact that clause (i) of(5) specifies this item to be a matter which may be included in the scheme, it must follow that the legislative intention is that the scheme would incorporate the names of such employees as are intended to be excluded in, accordance with the scheme. Once it is incorporated in the scheme the banking company as also the transferee bank would be entitled to suggest/object to the inclusion of names of employees. It may be that the names of some of the employees may have been wrongly included and the banking companythe hitherto employer would be in a position to suggest/object to the inclusion of the names or it may even be that names of some undesirableemployees which should have been left out have been omitted and the banking company as the extant employer of such employees would be most competent to deal with such a situation to bring about rectification by exercising the power to suggest/object to the draftare of the view that in case some employees of the banking company are intended to be excluded, their names have to be specifically mentioned in the scheme at the draft stage. The requirement of specific mention is significant and the legislature must be taken to have intended compliance. of the requirement at that stage. Mr. Salve for the RBI adopted the stand that the provisions of Section 45 did not specifically concede a right of objection or making of suggestions to employees and in(6)(b) mention was made only of members, depositors or other creditors. For the reasons we have indicated above, this aspect of the contention does not impress us. | 1 | 6,523 | 1,697 | ### 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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ipse dixit of RBI officers without verification of facts. It is quite possible that a manoeuvring officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad.14. It has been contended on behalf of respondents that moratorium could be for a total period of six months and that was the time allowed for the entire operation to be conducted. In view of the time frame, by necessary implication it must follow that application of natural justice compliance of which would involve a time-consuming process was ruled out. We do not think that there is any merit in this contention either. As a fact, in respect of the three banks the total number of excluded employees is around 125. It is the common case of parties that proceedings were pending against some .of them. It may be that in view of the time frame a detailed enquiry involving communication of allegations, show cause, opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may not be possible. Keeping the legislative scheme in view perhaps a simpler enquiry, for instance, communication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. In this case we are not really concerned with the manner or extent of hearing as there has been no hearing at all. It must, therefore, be held that the action of excluding these employees in the manner done cannot be supported.15. Fair play is apart of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a. hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment. 16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. 17. Amalgamation as such saved under Article 31A(l) (c) of the Constitution is not under challenge here. Strong reliance, however, had been placed on the provisions of sub-sec. (7A) of S. 45 of the Act. The relevant part of it is as requoted here for convenience : - "The sanction accorded by the Central Government under sub-sec, (7) ...................... shall be conclusive evidence that all the requirements of this section relating to ........amalgamation have been complied with .............................." 18. This provision is indeed one for purposes of evidence. In Smt. Somawanti v. State of Punjab, (1963) 2 SCR 774 : (AIR 1963 SC 151 ), this Court pointed out that there was no real difference between conclusive proof provided for in Section 4 of the Evidence Act and conclusive evidence as appearing in sub-sec. (7A).This provision does not bar the raising of a dispute of the nature received here. As we have already pointed out, amalgamation is not under challenge. Parties are disputing as to what exactly are the requirements of the procedure laid down under the Act and the position that no opportunity was afforded to the excluded employees is not in dispute. To a situation as here protection of the umbrella of conclusive evidence is not attached so as to bar the question from being examined. There is, therefore, nothing in sub-sec. (7A) to preclude examination of the question canvassed here.
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mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad.14. It has been contended on behalf of respondents that moratorium could be for a total period of six months and that was the time allowed for the entire operation to be conducted. In view of the time frame, by necessary implication it must follow that application of natural justice compliance of which would involve a time-consuming process was ruled out. We do not think that there is any merit in this contention either. As a fact, in respect of the three banks the total number of excluded employees is around 125. It is the common case of parties that proceedings were pending against some .of them. It may be that in view of the time frame a detailed enquiry involving communication of allegations, show cause, opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may not be possible. Keeping the legislative scheme in view perhaps a simpler enquiry, for instance, communication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. In this case we are not really concerned with the manner or extent of hearing as there has been no hearing at all. It must, therefore, be held that the action of excluding these employees in the manner done cannot be supported.15. Fair play is apart of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a. hearing commensurate to the situation is afforded before a section of the employees is thrown out of45 of the Act provides a legislative scheme and the different steps required to be taken under this section have been put one after the other. A reading of this section indicates a sequence oriented pattern. What would ordinarily be incorporated in the draft scheme is indicated in(5). After the requirements of subsec. (5) are complied with and the scheme comes to a presentable shape,(6)(a) requires a copy thereof as prepared by RBI to be sent to the banking company (transferer) as also to the transferee bank. Clause (b) of(6) authorises RBI to make modifications in the draft scheme as it may consider necessary in the light of suggestions and objections received from the banking company and the transferee bank. On a simple construction of(5) and (6) and on the basis of the sequence pattern adopted in S. 45 it would be legitimate to hold that the Act contemplates the employees to be excluded to be specifically named in the draft scheme. Since it is a draft scheme prepared by RBI and the right to object or to make suggestions is extended to both the banking company as also the transferee bank, and in view of the fact that clause (i) of(5) specifies this item to be a matter which may be included in the scheme, it must follow that the legislative intention is that the scheme would incorporate the names of such employees as are intended to be excluded in, accordance with the scheme. Once it is incorporated in the scheme the banking company as also the transferee bank would be entitled to suggest/object to the inclusion of names of employees. It may be that the names of some of the employees may have been wrongly included and the banking companythe hitherto employer would be in a position to suggest/object to the inclusion of the names or it may even be that names of some undesirableemployees which should have been left out have been omitted and the banking company as the extant employer of such employees would be most competent to deal with such a situation to bring about rectification by exercising the power to suggest/object to the draftare of the view that in case some employees of the banking company are intended to be excluded, their names have to be specifically mentioned in the scheme at the draft stage. The requirement of specific mention is significant and the legislature must be taken to have intended compliance. of the requirement at that stage. Mr. Salve for the RBI adopted the stand that the provisions of Section 45 did not specifically concede a right of objection or making of suggestions to employees and in(6)(b) mention was made only of members, depositors or other creditors. For the reasons we have indicated above, this aspect of the contention does not impress us.
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M.C. Mehta & Others Vs. Union of India & Others | order directed levy and collection of ECC at the following rates: (i) The Category 2 (light duty vehicles etc.) and Category 3 (2 axle trucks) at the rate of Rs.700/- per vehicle; (ii) Category 4 (3 axle trucks) and Category 5 (4 axle trucks and above) at the rate of Rs.1300/- per truck. Passenger vehicles, ambulances and vehicles carrying essential commodities like food stuffs and oil tankers for Delhi were exempted from the above charges. 3. Mr. Harish N. Salve, learned senior counsel appearing as amicus, argued that imposition of ECC and the directions issued by this Court regarding diversion of commercial vehicles/trucks to alternative routes has made some difference but the pollution levels continue to remain high despite such measures. He submitted by reference to the material placed on record that the level of pollution detected on or before 9th October, 2015 was infact lower than the levels recorded on subsequent dates. Mr. Salve further submitted that although diversion of vehicles to alternative routes in terms of the order passed by this Court was given effect to belatedly on 6th November, 2015, yet the said direction has not been effectively enforced inasmuch as vehicles not bound for Delhi are being allowed to enter Delhi on payment of the prescribed ECC. It was submitted that the true spirit of the order passed by this Court was that vehicles that were bound for Delhi alone were to enter Delhi and other vehicles bound for other destinations/cities were supposed to bypass Delhi by using alternative routes. He drew our attention to a similar direction issued by this Court in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561. It was in that view urged that the order passed by this Court on 9th October, 2015 could be modified/clarified to make it clear that the State Governments shall take steps to divert vehicles that are not bound for Delhi through alternative routes especially those using National Highway-8 and National Highway-1 for entering the national capital. It was also contended by Mr. Salve that in order to effectively discourage vehicles from entering Delhi, the ECC could be revised upwards especially when the Government of NCT of Delhi, the M.C.D. and the Union of India were all agreeable to the same. 4. Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, submitted that diversion of traffic away from Delhi by use of alternative routes as also by way of enhancement of the ECC has been thoroughly discussed with the learned Amicus Curiae and that the Union of India and so also the Government of NCT have no objection to such a direction being issued. He submitted that as a matter of fact discussions held between the representatives of the two governments, namely, Union of India and Government of NCT of Delhi as also the M.C.D. had led to a consensus on five other points also on which this Court could issue suitable directions to help reduce the pollution levels in Delhi. It was submitted that the revision of ECC could be upto 100% of the amount already stipulated for vehicles that are Delhi bound while other vehicles which are not bound for Delhi could be directed to bypass Delhi by using alternative routes which the two governments could be directed to specify. 5. By our order dated 6th December, 2001 passed in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561, we had, inter alia, directed : 8. It appears that vehicles which transit through Delhi do not adhere to the vehicular standards which are applicable in Delhi, namely, they are not Euro II-compliant nor are they using low sulphur and low benzene fuel. There is no reason why very large number of goods vehicles should transit through Delhi thereby adding to the pollution level and the traffic on the road. 9. It is, therefore, proposed that with effect from 15.1.2002 no heavy-, medium- or light-goods vehicles will ply on inter-State routes by passing through Delhi or New Delhi. It is only those goods vehicles which on payment of octroi/toll tax carry goods to or from Delhi which would be allowed to ply. The Commissioner of Police is directed to formulate a scheme in this behalf and give due publicity to all concerned and implement the same. 6. Our order dated 9th October, 2015 was in the same spirit intended to act as a restraint against vehicles not bound for Delhi entering Delhi. The said direction appears to have been understood to mean as though vehicles not bound for Delhi could also enter Delhi provided they pay ECC. The true intention, however, was that the vehicles that are not bound for Delhi are diverted to alternative routes to bypass Delhi. The levy of ECC has no doubt resulted in some diversion of such vehicles but a very large number of vehicles not bound for Delhi still appear to be entering Delhi on payment of ECC, stipulated by us. In the circumstances, we consider it necessary to make it clear that no vehicle which is not bound for Delhi will be allowed to enter from N.H.-8 which connects Jaipur to Delhi and N.H.-1 that connects the States of Punjab, Haryana and other northern States to Delhi via Kundli border. We are limiting the restraint order to these two entry points for the present because from the figures given to us the largest number of vehicles that are entering into Delhi are from these two entry points. We according direct that traffic from these two entry points viz. Kundli border on N.H.-1 and Rajokri on N.H.-8, shall be diverted to bypass Delhi through such alternative routes as the transport/traffic departments of the governments concerned may stipulate. 7. We are further of the view that empty/unladen vehicles bound for Delhi, can enter Delhi on payment of the ECC earlier stipulated by us @ Rs.700/- and Rs.1300/- per vehicle depending upon the category to which the vehicle belongs. | 1[ds]Our order dated 9th October, 2015 was in the same spirit intended to act as a restraint against vehicles not bound for Delhi entering Delhi. The said direction appears to have been understood to mean as though vehicles not bound for Delhi could also enter Delhi provided they pay ECC. The true intention, however, was that the vehicles that are not bound for Delhi are diverted to alternative routes to bypass Delhi. The levy of ECC has no doubt resulted in some diversion of such vehicles but a very large number of vehicles not bound for Delhi still appear to be entering Delhi on payment of ECC, stipulated by us. In the circumstances, we consider it necessary to make it clear that no vehicle which is not bound for Delhi will be allowed to enter from N.H.-8 which connects Jaipur to Delhi and N.H.-1 that connects the States of Punjab, Haryana and other northern States to Delhi via Kundli border. We are limiting the restraint order to these two entry points for the present because from the figures given to us the largest number of vehicles that are entering into Delhi are from these two entry points. We according direct that traffic from these two entry points viz. Kundli border onN.H.-1 and Rajokri onWe are further of the view that empty/unladen vehicles bound for Delhi, can enter Delhi on payment of the ECC earlier stipulated by us @ Rs.700/- and Rs.1300/- per vehicle depending upon the category to which the vehicle belongs. We, however, direct that for Delhi bound vehicles loaded with goods, the ECC will be twice the charge stipulated by us by our order dated 9th October, 2015. This measure shall, in our opinion, discourage any vehicle trying to enter Delhi on a false pretext of the goods loaded on it being Delhi bound14. On the question of payment of service charge to the petitioner towards the service provided by way of collection of the ECC in terms of the orders passed by this Court, Mr. Salve submitted that the additional duty cast upon the petitioner toll contractor may have certainly involved engagement of additionalr but the determination of the extent of expenditure on the same may require a comprehensive exercise which may not be feasible in these proceedings15. Even so, the figures provided by the petitioner, contended Mr. Salve, suggest that there was an additional outlay towards employment of additional hands for manning the system and for collection of the ECC and other expenses incurred in that regard. All such expenses would not, however, exceed Rs. 2,00,00,000/(Rupees two crores) per month. The service charge claimed by the contractor should not exceed Rs. 2,00,00,000/(Rupees two crores) per month for a period of three months i.e. November 2015, December 2015 and January 2016. The total amount for those three months would work out to Rs. 6,00,00,000/(Rupees six crores) in all, which amount this Court could consider awarding in favour of the petitioner towards compensation for the service rendered by it in the matter of collection of ECC. Mr. Salve was not averse to this Court taking into consideration the fact that the presentm put in place by the petitioner would now be transferred to the new contractor/agency to be chosen by the Corporation which could also be suitably assessed for purposes of compensating the outgoing contractor. He urged that taking an overall view of all the aspects a total amount of Rs. 7,26,30,799/representing the differential which should have been paid and which remainedd by the petitioner could bef against the amount payable to the petitioner towards service charge/compensation for the infrastructure and premature termination of the toll collection contract and the petitioner be allowed to exit the contractual arrangement subject to the petitioner depositing, on a weekly basis, the contracted amount Rs. 10,54,13,115/for the remaining three weeks of January 2016.16. We have given our anxious consideration to the submissions made at the Bar. It is rarely, if ever, that this Court interferes with an arrangement in the realm of contract by exercising its powers under Article 142 of the Constitution especially when it is ang contract. But the present is a case where the parties agree that their rights and obligations be decided by this Court in these proceedings only. Recourse to separate legal proceedings would lead to multiplicity and unnecessary procrastination. The case at hand is in that sense distinguishable from the rest. We say so because we are dealing here with a situation where ang contract has been affected by what is perceived to be at of judicial orders passed by this court. Diversion of vehicles whether on account of orders directing such diversion or on account of environment cess imposed upon those entering Delhi, has had its impact, no matter the extent of such impact cannot be accurately assessed on a scientific basis. That apart, the proposed installation of RFIDs to improve the existing method of collection will, according to M/s. Harish N. Salve and Pinky Anand, take around nine months. An end of the current arrangement will help in taking steps for improving the system by using modern technology. We are also of the view that the existing contractual arrangement if terminated will not reduce litigation but also pave way for an all round improvement in the system; particularly when the proposed termination of the contract by the corporation on the ground that there was a default on the part of the contractor has not fructified so far. Even today, when the matter came up for final hearing and disposal, Ms. Anand was not armed with a termination order to be served upon the respondent. All that was said was that the option of terminating the contract was available, as indeed it would be, if a default is committed by the contractor, but the fact of the matter is that no termination has yet taken place. That being the position the parties have upon consideration of the pros and cons of the situation and eventually agreed to the petitioner being given an honourable exit upon terms and conditions that have been worked out by them with the help of Mr. Salve, learned amicuswe see no reason why owners of diesel vehicle, older than 10 years in the National Capital Region, should not be permitted to apply for grant of NOC or obtain such a certificate for sale of such vehicles to purchasers outside NCR/Delhi11. We had also by our Order dated 16th December, 2015 directed that vehicles registered in the year 2005 or earlier shall not qualify to enter Delhi even if they are Delhi bound. The State Governments and Union Territories were directed to evolve a suitable system for implementation of that direction.We are today informed by Mr. Salve that Ministry of Road Transport and Highways and the Transport Department in the NCT of Delhi are working out the modalities by which vehicles registered prior to 2006 (10 years older) could be identified and stopped from enteringSeveral options in that regard are according to Mr. Salve being examined and that the EPCA has asked the concerned authorities to finalise the method. We hope and trust that the directives issued by this Court are implemented at the earliest. We request the EPCA to pursue the matter further with the authorities concerned to ensure that the directions issued by us are implemented faithfully14. We make it clear that since thequestion whether any polluting construction sites has gone scot free on account of any indifference or apathy on the part of the enforcement agencywill require spot checks of verification. EPCA shall be free to make surprise checks wherever considered appropriate and submit a report as to the nature of the activity and the failure of enforcement agency in taking action against such violations. EPCA may also consider making use of credible volunteers/ organisations for undertaking such surprise checks on construction sites. | 1 | 1,360 | 1,414 | ### 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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order directed levy and collection of ECC at the following rates: (i) The Category 2 (light duty vehicles etc.) and Category 3 (2 axle trucks) at the rate of Rs.700/- per vehicle; (ii) Category 4 (3 axle trucks) and Category 5 (4 axle trucks and above) at the rate of Rs.1300/- per truck. Passenger vehicles, ambulances and vehicles carrying essential commodities like food stuffs and oil tankers for Delhi were exempted from the above charges. 3. Mr. Harish N. Salve, learned senior counsel appearing as amicus, argued that imposition of ECC and the directions issued by this Court regarding diversion of commercial vehicles/trucks to alternative routes has made some difference but the pollution levels continue to remain high despite such measures. He submitted by reference to the material placed on record that the level of pollution detected on or before 9th October, 2015 was infact lower than the levels recorded on subsequent dates. Mr. Salve further submitted that although diversion of vehicles to alternative routes in terms of the order passed by this Court was given effect to belatedly on 6th November, 2015, yet the said direction has not been effectively enforced inasmuch as vehicles not bound for Delhi are being allowed to enter Delhi on payment of the prescribed ECC. It was submitted that the true spirit of the order passed by this Court was that vehicles that were bound for Delhi alone were to enter Delhi and other vehicles bound for other destinations/cities were supposed to bypass Delhi by using alternative routes. He drew our attention to a similar direction issued by this Court in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561. It was in that view urged that the order passed by this Court on 9th October, 2015 could be modified/clarified to make it clear that the State Governments shall take steps to divert vehicles that are not bound for Delhi through alternative routes especially those using National Highway-8 and National Highway-1 for entering the national capital. It was also contended by Mr. Salve that in order to effectively discourage vehicles from entering Delhi, the ECC could be revised upwards especially when the Government of NCT of Delhi, the M.C.D. and the Union of India were all agreeable to the same. 4. Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, submitted that diversion of traffic away from Delhi by use of alternative routes as also by way of enhancement of the ECC has been thoroughly discussed with the learned Amicus Curiae and that the Union of India and so also the Government of NCT have no objection to such a direction being issued. He submitted that as a matter of fact discussions held between the representatives of the two governments, namely, Union of India and Government of NCT of Delhi as also the M.C.D. had led to a consensus on five other points also on which this Court could issue suitable directions to help reduce the pollution levels in Delhi. It was submitted that the revision of ECC could be upto 100% of the amount already stipulated for vehicles that are Delhi bound while other vehicles which are not bound for Delhi could be directed to bypass Delhi by using alternative routes which the two governments could be directed to specify. 5. By our order dated 6th December, 2001 passed in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561, we had, inter alia, directed : 8. It appears that vehicles which transit through Delhi do not adhere to the vehicular standards which are applicable in Delhi, namely, they are not Euro II-compliant nor are they using low sulphur and low benzene fuel. There is no reason why very large number of goods vehicles should transit through Delhi thereby adding to the pollution level and the traffic on the road. 9. It is, therefore, proposed that with effect from 15.1.2002 no heavy-, medium- or light-goods vehicles will ply on inter-State routes by passing through Delhi or New Delhi. It is only those goods vehicles which on payment of octroi/toll tax carry goods to or from Delhi which would be allowed to ply. The Commissioner of Police is directed to formulate a scheme in this behalf and give due publicity to all concerned and implement the same. 6. Our order dated 9th October, 2015 was in the same spirit intended to act as a restraint against vehicles not bound for Delhi entering Delhi. The said direction appears to have been understood to mean as though vehicles not bound for Delhi could also enter Delhi provided they pay ECC. The true intention, however, was that the vehicles that are not bound for Delhi are diverted to alternative routes to bypass Delhi. The levy of ECC has no doubt resulted in some diversion of such vehicles but a very large number of vehicles not bound for Delhi still appear to be entering Delhi on payment of ECC, stipulated by us. In the circumstances, we consider it necessary to make it clear that no vehicle which is not bound for Delhi will be allowed to enter from N.H.-8 which connects Jaipur to Delhi and N.H.-1 that connects the States of Punjab, Haryana and other northern States to Delhi via Kundli border. We are limiting the restraint order to these two entry points for the present because from the figures given to us the largest number of vehicles that are entering into Delhi are from these two entry points. We according direct that traffic from these two entry points viz. Kundli border on N.H.-1 and Rajokri on N.H.-8, shall be diverted to bypass Delhi through such alternative routes as the transport/traffic departments of the governments concerned may stipulate. 7. We are further of the view that empty/unladen vehicles bound for Delhi, can enter Delhi on payment of the ECC earlier stipulated by us @ Rs.700/- and Rs.1300/- per vehicle depending upon the category to which the vehicle belongs.
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1
### Explanation:
to the petitioner towards the service provided by way of collection of the ECC in terms of the orders passed by this Court, Mr. Salve submitted that the additional duty cast upon the petitioner toll contractor may have certainly involved engagement of additionalr but the determination of the extent of expenditure on the same may require a comprehensive exercise which may not be feasible in these proceedings15. Even so, the figures provided by the petitioner, contended Mr. Salve, suggest that there was an additional outlay towards employment of additional hands for manning the system and for collection of the ECC and other expenses incurred in that regard. All such expenses would not, however, exceed Rs. 2,00,00,000/(Rupees two crores) per month. The service charge claimed by the contractor should not exceed Rs. 2,00,00,000/(Rupees two crores) per month for a period of three months i.e. November 2015, December 2015 and January 2016. The total amount for those three months would work out to Rs. 6,00,00,000/(Rupees six crores) in all, which amount this Court could consider awarding in favour of the petitioner towards compensation for the service rendered by it in the matter of collection of ECC. Mr. Salve was not averse to this Court taking into consideration the fact that the presentm put in place by the petitioner would now be transferred to the new contractor/agency to be chosen by the Corporation which could also be suitably assessed for purposes of compensating the outgoing contractor. He urged that taking an overall view of all the aspects a total amount of Rs. 7,26,30,799/representing the differential which should have been paid and which remainedd by the petitioner could bef against the amount payable to the petitioner towards service charge/compensation for the infrastructure and premature termination of the toll collection contract and the petitioner be allowed to exit the contractual arrangement subject to the petitioner depositing, on a weekly basis, the contracted amount Rs. 10,54,13,115/for the remaining three weeks of January 2016.16. We have given our anxious consideration to the submissions made at the Bar. It is rarely, if ever, that this Court interferes with an arrangement in the realm of contract by exercising its powers under Article 142 of the Constitution especially when it is ang contract. But the present is a case where the parties agree that their rights and obligations be decided by this Court in these proceedings only. Recourse to separate legal proceedings would lead to multiplicity and unnecessary procrastination. The case at hand is in that sense distinguishable from the rest. We say so because we are dealing here with a situation where ang contract has been affected by what is perceived to be at of judicial orders passed by this court. Diversion of vehicles whether on account of orders directing such diversion or on account of environment cess imposed upon those entering Delhi, has had its impact, no matter the extent of such impact cannot be accurately assessed on a scientific basis. That apart, the proposed installation of RFIDs to improve the existing method of collection will, according to M/s. Harish N. Salve and Pinky Anand, take around nine months. An end of the current arrangement will help in taking steps for improving the system by using modern technology. We are also of the view that the existing contractual arrangement if terminated will not reduce litigation but also pave way for an all round improvement in the system; particularly when the proposed termination of the contract by the corporation on the ground that there was a default on the part of the contractor has not fructified so far. Even today, when the matter came up for final hearing and disposal, Ms. Anand was not armed with a termination order to be served upon the respondent. All that was said was that the option of terminating the contract was available, as indeed it would be, if a default is committed by the contractor, but the fact of the matter is that no termination has yet taken place. That being the position the parties have upon consideration of the pros and cons of the situation and eventually agreed to the petitioner being given an honourable exit upon terms and conditions that have been worked out by them with the help of Mr. Salve, learned amicuswe see no reason why owners of diesel vehicle, older than 10 years in the National Capital Region, should not be permitted to apply for grant of NOC or obtain such a certificate for sale of such vehicles to purchasers outside NCR/Delhi11. We had also by our Order dated 16th December, 2015 directed that vehicles registered in the year 2005 or earlier shall not qualify to enter Delhi even if they are Delhi bound. The State Governments and Union Territories were directed to evolve a suitable system for implementation of that direction.We are today informed by Mr. Salve that Ministry of Road Transport and Highways and the Transport Department in the NCT of Delhi are working out the modalities by which vehicles registered prior to 2006 (10 years older) could be identified and stopped from enteringSeveral options in that regard are according to Mr. Salve being examined and that the EPCA has asked the concerned authorities to finalise the method. We hope and trust that the directives issued by this Court are implemented at the earliest. We request the EPCA to pursue the matter further with the authorities concerned to ensure that the directions issued by us are implemented faithfully14. We make it clear that since thequestion whether any polluting construction sites has gone scot free on account of any indifference or apathy on the part of the enforcement agencywill require spot checks of verification. EPCA shall be free to make surprise checks wherever considered appropriate and submit a report as to the nature of the activity and the failure of enforcement agency in taking action against such violations. EPCA may also consider making use of credible volunteers/ organisations for undertaking such surprise checks on construction sites.
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M/S. GOLDEN EARTH GROVES LTD Vs. M/S. ION EXHANGE ENVIRO FARMS LTD | R. BANUMATHI,J.1. Leave granted.2. Being aggrieved by allowing of the Revision Petition filed by the respondent-decree holder and setting aside the order passed in E.A.No. 946/2006 in E.P.No. 267 of 2005 in O.S. No. 271 of 1999 (on the file of Principal Sub Court, Tirunelveli), the appellant-judgment debtor has preferred this appeal.3. The brief facts of the case are as follows:Respondent filed a suit being O.S. No. 271 of 1999 against the appellant with respect to recovery of money. It was decreed in favour of respondent vide order dated 22.02.2002. Respondent filed Execution Petition No. 158/2004 before the Court which was dismissed for default on 05.10.2004. Respondent filed another Execution Petition No. 267/2005. As no one appeared on behalf of the appellant-judgment debtor, the order was passed ex-parte in Execution Petition No. 267/2005 on 26.09.2005. Summons were returned; due to non-serving of summons, a publication was also made with respect to the auction of the property in the local newspaper. Subsequently, the property was sold in court auction on 03.02.2006 and the respondent-decree holder himself made a bid of the suit property for Rs.6,00,001/-. The sale was confirmed in the favour of respondent.4. The appellant aggrieved by the ex-parte order dated 26.09.2005 passed in Execution Petition No. 267/2005 filed an application before the Sub-Judge under Order 21 Rule 106 CPC. The appellant contended that he came to know about the exparte order only on 04.08.2006. Learned Sub-Judge vide order dated 04.04.2008 allowed the application filed by the appellant on the ground that : (i) when the summon was sent to the appellant?s address, the same was returned stating the remark that the appellant was not residing at that old address. It was held that the summon should have been sent properly to the correct address of appellant. It was further held that since there was no possibility for appellant to know about the Execution order and (ii) that appellant is entitled for the relief prayed by him as both the parties should be given equal opportunities to be heard. Ex-parte order dated 26.09.2005 was set aside and Execution Petition was directed to be heard afresh.5. Being aggrieved, the appellant-judgment debtor has preferred revision before the High Court. The High Court vide order dated 20.09.2017 allowed CRP on the ground that the appellant-judgment debtor had the knowledge about the ex-parte order, newspaper publication was also made and the notice of auction was pasted on the suit property. But the appellant did not take any action thereafter. When the auction was confirmed in favour of respondent, only thereafter appellant objected.6. We have heard Mr. V. Balaji, learned counsel appearing on behalf of the appellant as well as Mr. Amey Nargolkar, learned counsel appearing on behalf of the respondent-decree holder and perused the impugned judgment and materials on record.7. As pointed out by the Execution Court that when the summon was sent to the appellant?s address, the same was returned with the remark that the appellant was not residing at that old address. When summon has not been duly served upon the appellant-judgment debtor, the Execution Court should have ordered issuance of fresh notice. On the other hand, the appellant was set ex-parte on 04.08.2006 and the proceedings in Execution Petition proceeded further and the property was put to auction and the respondent-decree holder himself has become the auction purchaser in the sale conducted on 03.02.2006. Though it is stated that the publication was effected by the respondent-decree holder and it is also stated that the publication was in Malayalam. There is nothing on record to show that the appellant-judgment debtor was well conversant with Malayalam. When there was no effective service on the appellant-judgment debtor, in our view, the Execution Court ought to have issued a fresh notice rather than ordering auction of the property. In such view of the matter, the impugned order of the High Court is liable to be set aside. Consequently the Execution Petition No. 267/2005 has to be restored.8. Learned counsel appearing on behalf of the respondentdecree holder, on instructions, submitted that if the decree amount is paid with such interest as ordered by the Court, the respondent would be satisfied. Considering the submissions of the learned counsel appearing on behalf of the respondentdecree holder and the facts and circumstances of the case, we deem it appropriate that in full satisfaction of the decree passed in O.S. No. 271 of 1999, the respondent-decree holder would be entitled to receive the sum of Rs.12,50,000/- (Rupees twelve lakhs fifty thousand). | 1[ds]7. As pointed out by the Execution Court that when the summon was sent to the appellant?s address, the same was returned with the remark that the appellant was not residing at that old address. When summon has not been duly served upon the appellant-judgment debtor, the Execution Court should have ordered issuance of fresh notice. On the other hand, the appellant was set ex-parte on 04.08.2006 and the proceedings in Execution Petition proceeded further and the property was put to auction and the respondent-decree holder himself has become the auction purchaser in the sale conducted on 03.02.2006. Though it is stated that the publication was effected by the respondent-decree holder and it is also stated that the publication was in Malayalam. There is nothing on record to show that the appellant-judgment debtor was well conversant with Malayalam. When there was no effective service on the appellant-judgment debtor, in our view, the Execution Court ought to have issued a fresh notice rather than ordering auction of the property. In such view of the matter, the impugned order of the High Court is liable to be set aside. Consequently the Execution Petition No. 267/2005 has to be restoredConsidering the submissions of the learned counsel appearing on behalf of the respondentdecree holder and the facts and circumstances of the case, we deem it appropriate that in full satisfaction of the decree passed in O.S. No. 271 of 1999, the respondent-decree holder would be entitled to receive the sum of Rs.12,50,000/- (Rupees twelve lakhs fifty thousand). | 1 | 835 | 281 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
R. BANUMATHI,J.1. Leave granted.2. Being aggrieved by allowing of the Revision Petition filed by the respondent-decree holder and setting aside the order passed in E.A.No. 946/2006 in E.P.No. 267 of 2005 in O.S. No. 271 of 1999 (on the file of Principal Sub Court, Tirunelveli), the appellant-judgment debtor has preferred this appeal.3. The brief facts of the case are as follows:Respondent filed a suit being O.S. No. 271 of 1999 against the appellant with respect to recovery of money. It was decreed in favour of respondent vide order dated 22.02.2002. Respondent filed Execution Petition No. 158/2004 before the Court which was dismissed for default on 05.10.2004. Respondent filed another Execution Petition No. 267/2005. As no one appeared on behalf of the appellant-judgment debtor, the order was passed ex-parte in Execution Petition No. 267/2005 on 26.09.2005. Summons were returned; due to non-serving of summons, a publication was also made with respect to the auction of the property in the local newspaper. Subsequently, the property was sold in court auction on 03.02.2006 and the respondent-decree holder himself made a bid of the suit property for Rs.6,00,001/-. The sale was confirmed in the favour of respondent.4. The appellant aggrieved by the ex-parte order dated 26.09.2005 passed in Execution Petition No. 267/2005 filed an application before the Sub-Judge under Order 21 Rule 106 CPC. The appellant contended that he came to know about the exparte order only on 04.08.2006. Learned Sub-Judge vide order dated 04.04.2008 allowed the application filed by the appellant on the ground that : (i) when the summon was sent to the appellant?s address, the same was returned stating the remark that the appellant was not residing at that old address. It was held that the summon should have been sent properly to the correct address of appellant. It was further held that since there was no possibility for appellant to know about the Execution order and (ii) that appellant is entitled for the relief prayed by him as both the parties should be given equal opportunities to be heard. Ex-parte order dated 26.09.2005 was set aside and Execution Petition was directed to be heard afresh.5. Being aggrieved, the appellant-judgment debtor has preferred revision before the High Court. The High Court vide order dated 20.09.2017 allowed CRP on the ground that the appellant-judgment debtor had the knowledge about the ex-parte order, newspaper publication was also made and the notice of auction was pasted on the suit property. But the appellant did not take any action thereafter. When the auction was confirmed in favour of respondent, only thereafter appellant objected.6. We have heard Mr. V. Balaji, learned counsel appearing on behalf of the appellant as well as Mr. Amey Nargolkar, learned counsel appearing on behalf of the respondent-decree holder and perused the impugned judgment and materials on record.7. As pointed out by the Execution Court that when the summon was sent to the appellant?s address, the same was returned with the remark that the appellant was not residing at that old address. When summon has not been duly served upon the appellant-judgment debtor, the Execution Court should have ordered issuance of fresh notice. On the other hand, the appellant was set ex-parte on 04.08.2006 and the proceedings in Execution Petition proceeded further and the property was put to auction and the respondent-decree holder himself has become the auction purchaser in the sale conducted on 03.02.2006. Though it is stated that the publication was effected by the respondent-decree holder and it is also stated that the publication was in Malayalam. There is nothing on record to show that the appellant-judgment debtor was well conversant with Malayalam. When there was no effective service on the appellant-judgment debtor, in our view, the Execution Court ought to have issued a fresh notice rather than ordering auction of the property. In such view of the matter, the impugned order of the High Court is liable to be set aside. Consequently the Execution Petition No. 267/2005 has to be restored.8. Learned counsel appearing on behalf of the respondentdecree holder, on instructions, submitted that if the decree amount is paid with such interest as ordered by the Court, the respondent would be satisfied. Considering the submissions of the learned counsel appearing on behalf of the respondentdecree holder and the facts and circumstances of the case, we deem it appropriate that in full satisfaction of the decree passed in O.S. No. 271 of 1999, the respondent-decree holder would be entitled to receive the sum of Rs.12,50,000/- (Rupees twelve lakhs fifty thousand).
### Response:
1
### Explanation:
7. As pointed out by the Execution Court that when the summon was sent to the appellant?s address, the same was returned with the remark that the appellant was not residing at that old address. When summon has not been duly served upon the appellant-judgment debtor, the Execution Court should have ordered issuance of fresh notice. On the other hand, the appellant was set ex-parte on 04.08.2006 and the proceedings in Execution Petition proceeded further and the property was put to auction and the respondent-decree holder himself has become the auction purchaser in the sale conducted on 03.02.2006. Though it is stated that the publication was effected by the respondent-decree holder and it is also stated that the publication was in Malayalam. There is nothing on record to show that the appellant-judgment debtor was well conversant with Malayalam. When there was no effective service on the appellant-judgment debtor, in our view, the Execution Court ought to have issued a fresh notice rather than ordering auction of the property. In such view of the matter, the impugned order of the High Court is liable to be set aside. Consequently the Execution Petition No. 267/2005 has to be restoredConsidering the submissions of the learned counsel appearing on behalf of the respondentdecree holder and the facts and circumstances of the case, we deem it appropriate that in full satisfaction of the decree passed in O.S. No. 271 of 1999, the respondent-decree holder would be entitled to receive the sum of Rs.12,50,000/- (Rupees twelve lakhs fifty thousand).
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M/S. SUPER MALLS PRIVATE LIMITED Vs. PRINCIPAL COMMISSIONER OF INCOME TAX 8, NEW DELHI | documents so seized to the Assessing Officer of the other person. The Assessing Officer of the searched person simultaneously while transmitting the documents shall forward his satisfaction note to the Assessing Officer of the other person and is also required to make a note in the file of a searched person that he has done so. However, as rightly observed and held by the Delhi High Court in the case of Ganpati Fincap (supra), the same is for the administrative convenience and the failure by the Assessing Officer of the searched person, after preparing and dispatching the satisfaction note and the documents to the Assessing Officer of the other person, to make a note in the file of a searched person, will not vitiate the entire proceedings under Section 153C of the Act against the other person. At the same time, the satisfaction note by the Assessing Officer of the searched person that the documents etc. so seized during the search and seizure from the searched person belonged to the other person and transmitting such material to the Assessing Officer of the other person is mandatory. However, in the case where the Assessing Officer of the searched person and the other person is the same, it is sufficient by the Assessing Officer to note in the satisfaction note that the documents seized from the searched person belonged to the other person. Once the note says so, then the requirement of Section 153C of the Act is fulfilled. In case, where the Assessing Officer of the searched person and the other person is the same, there can be one satisfaction note prepared by the Assessing Officer, as he himself is the Assessing Officer of the searched person and also the Assessing Officer of the other person. However, as observed hereinabove, he must be conscious and satisfied that the documents seized/recovered from the searched person belonged to the other person. In such a situation, the satisfaction note would be qua the other person. The second requirement of transmitting the documents so seized from the searched person would not be there as he himself will be the Assessing Officer of the searched person and the other person and therefore there is no question of transmitting such seized documents to himself. 6.2. Now let us consider from the satisfaction note recorded by the Assessing Officer, in the present case. Whether there is a sufficient compliance of Section 153C of the Act or not. The satisfaction note reads as under: chart Reasons/Satisfaction note for taking up the case of M/s Super Malls (P) Ltd. Sector-12, HUDA, Karnal Regd. Office at 51, Transport Centre, Punjabi Bagh, New Delhi under Section 153C of the Income Tax Act, 1961. The jurisdiction of this case has been assigned to this Office u/s 127 of the Income Tax Act, 1961 by the worthy Commissioner of Income Tax-III New Delhi vide order F. No. CITIII/Delhi/Centralization/1012-1312455 dated 15.01.2013. By virtue of the authorization of the Director of Income Tax (Investigation), Chandigarh, a search & seizure operation u/s 132(1) of the Act was carried out on 08/09.04.2010 at the residential/business premises of Sh. Tejwant Singh & Sh. Ved Parkash Bharti Group of cases, Karnal, Panipat & Delhi and a survey u/s 133A of the IT. Act, 1961 was also carried out at the business premises of M/s Super Mall (P) Ltd. Karnal & New Delhi. During the course of search on 08/09.04.2010 at residence of Sh. Ved Parkash Bharti who is a Director in the assessee company M/s Super Mall (P) Ltd., Pen drives were found and seized as per Annexure-3 from vehicle No. HR06N-0063 parked in front of the residence of Sh. Ved Parkash Bharti. Some documents as per Annexure A-1 were seized after taking print out of the above said pen drives. These documents contain the details of cash receipt on sale of shop/offices at M/s Super Mall, Karnal also beside other concerns. These documents are required for assessment proceedings. During the statement of Sh. Ved Parkash Bharti at the time of search, he has also stated that these documents pertain to him and M/s Super Mall (P) Ltd., Karnal in which he is Director. In view of the above and as per the provisions of sub-section 91 of Section 153C of the Act, I am satisfied that the document seized from the residence of Sh. Ved Parkash Bharti belongs to a person i.e. Super Mall (P) Ltd., other than the person referred in section 153A. Accordingly, it is directed to issue such person (M/s Super Mall (P) Ltd.) notice and assess and reassess income in accordance with the provision of section 153A of the Act. Dated: 22.02.2013 sd/- (VED PARKASH KALIA) From the aforesaid satisfaction note, it emerges that the Assessing Officer is satisfied that the documents containing the details of the cash receipts on sale of shop/offices at M/s Super Mall, Karnal belonged to the other person – assessee – M/s Super Mall. He is also satisfied that the documents/pen drive are seized from the searched person. He is also satisfied that the documents so seized from the residence of the searched person/Ved Prakash Bharti belonged to the assessee – the other person. Therefore, the Assessing Officer was satisfied and it is specifically mentioned that the documents so seized belonged to the assessee – the other person. Therefore, it cannot be said that the mandatory requirements of Section 153C of the Act, in the facts and circumstances of the case, have not been complied with. The satisfaction note by the Assessing Officer clearly states that the documents so seized belonged to the other person – the assessee and not the searched person. Thus, the High Court is justified in observing that the requirement of Section 153C has been fulfilled. On facts, we are in complete agreement with the view taken by the High Court on the requirement of Section 153C of the Act being fulfilled by the Assessing Officer before initiating the proceedings under Section 153C of the Act. | 0[ds]6. This Court had an occasion to consider the scheme of Section 153C of the Act and the conditions precedent to be fulfilled/complied with before issuing notice under Section 153C of the Act in the case of Calcutta Knitwears (supra) as well as by the Delhi High Court in the case of Pepsi Food Pvt. Ltd. (supra). As held, before issuing notice under Section 153C of the Act, the Assessing Officer of the searched person must be satisfied that, inter alia, any document seized or requisitioned belongs to a person other than the searched person. That thereafter, after recording such satisfaction by the Assessing Officer of the searched person, he may transmit the records/documents/things/papers etc. to the Assessing Officer having jurisdiction over such other person. After receipt of the aforesaid satisfaction and upon examination of such other documents relating to such other person, the jurisdictional Assessing Officer may proceed to issue a notice for the purpose of completion of the assessment under Section 158BD of the Act and the other provisions of Chapter XIV-B shall apply6.1 It cannot be disputed that the aforesaid requirements are held to be mandatorily complied with. There can be two eventualities. It may so happen that the Assessing Officer of the searched person is different from the Assessing Officer of the other person and in the second eventuality, the Assessing Officer of the searched person and the other person is the same. Where the Assessing Officer of the searched person is different from the Assessing Officer of the other person, there shall be a satisfaction note by the Assessing Officer of the searched person and as observed hereinabove that thereafter the Assessing Officer of the searched person is required to transmit the documents so seized to the Assessing Officer of the other person. The Assessing Officer of the searched person simultaneously while transmitting the documents shall forward his satisfaction note to the Assessing Officer of the other person and is also required to make a note in the file of a searched person that he has done so. However, as rightly observed and held by the Delhi High Court in the case of Ganpati Fincap (supra), the same is for the administrative convenience and the failure by the Assessing Officer of the searched person, after preparing and dispatching the satisfaction note and the documents to the Assessing Officer of the other person, to make a note in the file of a searched person, will not vitiate the entire proceedings under Section 153C of the Act against the other person. At the same time, the satisfaction note by the Assessing Officer of the searched person that the documents etc. so seized during the search and seizure from the searched person belonged to the other person and transmitting such material to the Assessing Officer of the other person is mandatory. However, in the case where the Assessing Officer of the searched person and the other person is the same, it is sufficient by the Assessing Officer to note in the satisfaction note that the documents seized from the searched person belonged to the other person. Once the note says so, then the requirement of Section 153C of the Act is fulfilled. In case, where the Assessing Officer of the searched person and the other person is the same, there can be one satisfaction note prepared by the Assessing Officer, as he himself is the Assessing Officer of the searched person and also the Assessing Officer of the other person. However, as observed hereinabove, he must be conscious and satisfied that the documents seized/recovered from the searched person belonged to the other person. In such a situation, the satisfaction note would be qua the other person. The second requirement of transmitting the documents so seized from the searched person would not be there as he himself will be the Assessing Officer of the searched person and the other person and therefore there is no question of transmitting such seized documents to himselfFrom the aforesaid satisfaction note, it emerges that the Assessing Officer is satisfied that the documents containing the details of the cash receipts on sale of shop/offices at M/s Super Mall, Karnal belonged to the other person – assessee – M/s Super Mall. He is also satisfied that the documents/pen drive are seized from the searched person. He is also satisfied that the documents so seized from the residence of the searched person/Ved Prakash Bharti belonged to the assessee – the other person. Therefore, the Assessing Officer was satisfied and it is specifically mentioned that the documents so seized belonged to the assessee – the other person. Therefore, it cannot be said that the mandatory requirements of Section 153C of the Act, in the facts and circumstances of the case, have not been complied with. The satisfaction note by the Assessing Officer clearly states that the documents so seized belonged to the other person – the assessee and not the searched person. Thus, the High Court is justified in observing that the requirement of Section 153C has been fulfilled. On facts, we are in complete agreement with the view taken by the High Court on the requirement of Section 153C of the Act being fulfilled by the Assessing Officer before initiating the proceedings under Section 153C of the Act. | 0 | 3,103 | 953 | ### 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:
documents so seized to the Assessing Officer of the other person. The Assessing Officer of the searched person simultaneously while transmitting the documents shall forward his satisfaction note to the Assessing Officer of the other person and is also required to make a note in the file of a searched person that he has done so. However, as rightly observed and held by the Delhi High Court in the case of Ganpati Fincap (supra), the same is for the administrative convenience and the failure by the Assessing Officer of the searched person, after preparing and dispatching the satisfaction note and the documents to the Assessing Officer of the other person, to make a note in the file of a searched person, will not vitiate the entire proceedings under Section 153C of the Act against the other person. At the same time, the satisfaction note by the Assessing Officer of the searched person that the documents etc. so seized during the search and seizure from the searched person belonged to the other person and transmitting such material to the Assessing Officer of the other person is mandatory. However, in the case where the Assessing Officer of the searched person and the other person is the same, it is sufficient by the Assessing Officer to note in the satisfaction note that the documents seized from the searched person belonged to the other person. Once the note says so, then the requirement of Section 153C of the Act is fulfilled. In case, where the Assessing Officer of the searched person and the other person is the same, there can be one satisfaction note prepared by the Assessing Officer, as he himself is the Assessing Officer of the searched person and also the Assessing Officer of the other person. However, as observed hereinabove, he must be conscious and satisfied that the documents seized/recovered from the searched person belonged to the other person. In such a situation, the satisfaction note would be qua the other person. The second requirement of transmitting the documents so seized from the searched person would not be there as he himself will be the Assessing Officer of the searched person and the other person and therefore there is no question of transmitting such seized documents to himself. 6.2. Now let us consider from the satisfaction note recorded by the Assessing Officer, in the present case. Whether there is a sufficient compliance of Section 153C of the Act or not. The satisfaction note reads as under: chart Reasons/Satisfaction note for taking up the case of M/s Super Malls (P) Ltd. Sector-12, HUDA, Karnal Regd. Office at 51, Transport Centre, Punjabi Bagh, New Delhi under Section 153C of the Income Tax Act, 1961. The jurisdiction of this case has been assigned to this Office u/s 127 of the Income Tax Act, 1961 by the worthy Commissioner of Income Tax-III New Delhi vide order F. No. CITIII/Delhi/Centralization/1012-1312455 dated 15.01.2013. By virtue of the authorization of the Director of Income Tax (Investigation), Chandigarh, a search & seizure operation u/s 132(1) of the Act was carried out on 08/09.04.2010 at the residential/business premises of Sh. Tejwant Singh & Sh. Ved Parkash Bharti Group of cases, Karnal, Panipat & Delhi and a survey u/s 133A of the IT. Act, 1961 was also carried out at the business premises of M/s Super Mall (P) Ltd. Karnal & New Delhi. During the course of search on 08/09.04.2010 at residence of Sh. Ved Parkash Bharti who is a Director in the assessee company M/s Super Mall (P) Ltd., Pen drives were found and seized as per Annexure-3 from vehicle No. HR06N-0063 parked in front of the residence of Sh. Ved Parkash Bharti. Some documents as per Annexure A-1 were seized after taking print out of the above said pen drives. These documents contain the details of cash receipt on sale of shop/offices at M/s Super Mall, Karnal also beside other concerns. These documents are required for assessment proceedings. During the statement of Sh. Ved Parkash Bharti at the time of search, he has also stated that these documents pertain to him and M/s Super Mall (P) Ltd., Karnal in which he is Director. In view of the above and as per the provisions of sub-section 91 of Section 153C of the Act, I am satisfied that the document seized from the residence of Sh. Ved Parkash Bharti belongs to a person i.e. Super Mall (P) Ltd., other than the person referred in section 153A. Accordingly, it is directed to issue such person (M/s Super Mall (P) Ltd.) notice and assess and reassess income in accordance with the provision of section 153A of the Act. Dated: 22.02.2013 sd/- (VED PARKASH KALIA) From the aforesaid satisfaction note, it emerges that the Assessing Officer is satisfied that the documents containing the details of the cash receipts on sale of shop/offices at M/s Super Mall, Karnal belonged to the other person – assessee – M/s Super Mall. He is also satisfied that the documents/pen drive are seized from the searched person. He is also satisfied that the documents so seized from the residence of the searched person/Ved Prakash Bharti belonged to the assessee – the other person. Therefore, the Assessing Officer was satisfied and it is specifically mentioned that the documents so seized belonged to the assessee – the other person. Therefore, it cannot be said that the mandatory requirements of Section 153C of the Act, in the facts and circumstances of the case, have not been complied with. The satisfaction note by the Assessing Officer clearly states that the documents so seized belonged to the other person – the assessee and not the searched person. Thus, the High Court is justified in observing that the requirement of Section 153C has been fulfilled. On facts, we are in complete agreement with the view taken by the High Court on the requirement of Section 153C of the Act being fulfilled by the Assessing Officer before initiating the proceedings under Section 153C of the Act.
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6. This Court had an occasion to consider the scheme of Section 153C of the Act and the conditions precedent to be fulfilled/complied with before issuing notice under Section 153C of the Act in the case of Calcutta Knitwears (supra) as well as by the Delhi High Court in the case of Pepsi Food Pvt. Ltd. (supra). As held, before issuing notice under Section 153C of the Act, the Assessing Officer of the searched person must be satisfied that, inter alia, any document seized or requisitioned belongs to a person other than the searched person. That thereafter, after recording such satisfaction by the Assessing Officer of the searched person, he may transmit the records/documents/things/papers etc. to the Assessing Officer having jurisdiction over such other person. After receipt of the aforesaid satisfaction and upon examination of such other documents relating to such other person, the jurisdictional Assessing Officer may proceed to issue a notice for the purpose of completion of the assessment under Section 158BD of the Act and the other provisions of Chapter XIV-B shall apply6.1 It cannot be disputed that the aforesaid requirements are held to be mandatorily complied with. There can be two eventualities. It may so happen that the Assessing Officer of the searched person is different from the Assessing Officer of the other person and in the second eventuality, the Assessing Officer of the searched person and the other person is the same. Where the Assessing Officer of the searched person is different from the Assessing Officer of the other person, there shall be a satisfaction note by the Assessing Officer of the searched person and as observed hereinabove that thereafter the Assessing Officer of the searched person is required to transmit the documents so seized to the Assessing Officer of the other person. The Assessing Officer of the searched person simultaneously while transmitting the documents shall forward his satisfaction note to the Assessing Officer of the other person and is also required to make a note in the file of a searched person that he has done so. However, as rightly observed and held by the Delhi High Court in the case of Ganpati Fincap (supra), the same is for the administrative convenience and the failure by the Assessing Officer of the searched person, after preparing and dispatching the satisfaction note and the documents to the Assessing Officer of the other person, to make a note in the file of a searched person, will not vitiate the entire proceedings under Section 153C of the Act against the other person. At the same time, the satisfaction note by the Assessing Officer of the searched person that the documents etc. so seized during the search and seizure from the searched person belonged to the other person and transmitting such material to the Assessing Officer of the other person is mandatory. However, in the case where the Assessing Officer of the searched person and the other person is the same, it is sufficient by the Assessing Officer to note in the satisfaction note that the documents seized from the searched person belonged to the other person. Once the note says so, then the requirement of Section 153C of the Act is fulfilled. In case, where the Assessing Officer of the searched person and the other person is the same, there can be one satisfaction note prepared by the Assessing Officer, as he himself is the Assessing Officer of the searched person and also the Assessing Officer of the other person. However, as observed hereinabove, he must be conscious and satisfied that the documents seized/recovered from the searched person belonged to the other person. In such a situation, the satisfaction note would be qua the other person. The second requirement of transmitting the documents so seized from the searched person would not be there as he himself will be the Assessing Officer of the searched person and the other person and therefore there is no question of transmitting such seized documents to himselfFrom the aforesaid satisfaction note, it emerges that the Assessing Officer is satisfied that the documents containing the details of the cash receipts on sale of shop/offices at M/s Super Mall, Karnal belonged to the other person – assessee – M/s Super Mall. He is also satisfied that the documents/pen drive are seized from the searched person. He is also satisfied that the documents so seized from the residence of the searched person/Ved Prakash Bharti belonged to the assessee – the other person. Therefore, the Assessing Officer was satisfied and it is specifically mentioned that the documents so seized belonged to the assessee – the other person. Therefore, it cannot be said that the mandatory requirements of Section 153C of the Act, in the facts and circumstances of the case, have not been complied with. The satisfaction note by the Assessing Officer clearly states that the documents so seized belonged to the other person – the assessee and not the searched person. Thus, the High Court is justified in observing that the requirement of Section 153C has been fulfilled. On facts, we are in complete agreement with the view taken by the High Court on the requirement of Section 153C of the Act being fulfilled by the Assessing Officer before initiating the proceedings under Section 153C of the Act.
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